Reply Brief — Henneberry v. Sutton

cD MO En

¢ G

@

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

JOSEPH HENNEBERRY,

Petitioner,

Vv.

RicHARD LEE SuTTon, |

Respondent.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Maryland

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

EVELYN O. CANNON*

ANDREW H. BaIDA

Emory A. PLitTT, JR.

Assistant Attorneys General

200 St. Paul Place, 20th Fir.

Baltimore, Maryland 21202

(301) 576-6330

Attorneys for Petitioner

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

SEN MITE. c0sncnecctnneccncsncsasenscesnccesnccsacsosanses 1

THIS CASE PRESENTS A LIVE AND CONTINUING

ST MENIII . srecscsdessidedssacensssconsinnsnsdhdeseccnsésnteses

Ge NINY othincteccicsusdesscnsnsadesctnsnsduencssadesoscosssocsates 3

3

TABLE OF AUTHORITIES

Cases Page

Burli Northern Railroad Company v. Brother-

hood of Maintenance of Way Employees, 481

U.S. 429 (1987) ....ccccescerseesersesersssssnsersnesnasnnsees

Honig v. Doe, 484 U.S. BO5 (1988) ...--s-eeseeereeeeeeees

Jago v. Van Curen, 454 U.S. 14 (1981) ...---eeeee-e

Jones v. Cunningham, 371 U.S. 236 (1963) ........---

Mabry v. Johnson, 467 U.S. 504 (1984) ....----ceeeeeees

Murphy v. Hunt, 455 U.S. 478 (1982) ......cce-ceeeees

United States v. Munsingwear, 340 U.S. 36 -

(1950) ....caccscsccssscesncnsseseseesernenssnssonssncnccssnsenseesees 3

Weinstein v. Bradford, 423 U.S. 147 (1975) .....0020- 2

Statutes

Md. Ann. Code, Art. 31B, § 11(bX2) (1976 Repl.

Vol., 1982 Cum. Supp.) ..-----ssecssersrrseesreneseeresees 1-2

nnn wv Ww W&

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

~~

No. 90-385

JOSEPH HENNEBERRY,

Petitioner,

vs

RICHARD LEE SUTTON,

Respondent.

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Maryland

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

REPLY ARGUMENT

THIS CASE PRESENTS A LIVE

AND CONTINUING CONTROVERSY

Respondent suggests this case is or ‘will likely be

moot in the near future’, Respondent’s Brief at 5,

because the State has revoked his parole and com-

menced proceedings to remove him from Patuxent

Institution. There is no merit to this suggestion.

The State continues to challenge respondent’s pa-

role because that parole has not received the approval

of the governor as required by Md. Ann. Code, Art.

2

31B, § 11(bX2) (1976 Repl. Vol., 1982 Cum. Supp.).

Therefore, the Board’s decision of August 8, 1990, to

parole respondent does not moot this case, see Mabry

v. Johnson, 467 U.S. 504, 507 n.3 (1984); Jago v. Van

Curen, 454 U.S. 14, 21 n.8 (1981); Jones v. Cun-

ningham, 371 U.S. 236 (1963), and respondent does

not claim to the contrary. See Respondent’s Brief at

6 (‘the case would not have been moot had Sutton —

remained on parole’’).

Nor has this case been mooted by the Board’s re-

vocation of respondent’s parole because respondent is

challenging that revocation. See Respondent’s Brief

at 4. If that challenge is successful, respondent will

be paroled, in accordance with the decision below,

without the governor’s approval. Thus, ‘‘these same

parties are reasonably likely to find themselves again

in dispute over the issues raised in thfe] petition... .”

Burlington Northern Railroad Company v. Brother-

hood of Maintenance of Way Employees, 481 U.S. 429,

__n.4, 107 S.Ct. 1841, 1846 n.4 (1987). See also

Honig v. Doe, 484 U.S. 305, __ n.6, 108 S.Ct. 592,

601 n.6 (1988). This case thus involves facts quite

unlike those present in Murphy v. Hunt, 455 USS.

478, 482 (1982), where the party “no longer had a

legally cognizable interest in the result in this case.”

Similarly, the mere fact that respondent may be

transferred to another institution at some unspecified

time in the future does not moot this case. Compare

with Weinstein v. Bradford, 423 U.S. 147, 148 (1975)

(case moot where “respondent can have no interest

whatever in the procedures followed by petitioners in

granting parole’).

Finally, even if this case were moot, which it is

not, the proper disposition of this petition would be

ON i ec ee

to grant certiorari, vacate the judgment below, and

remand the case with directions that the case by dis-

missed as moot, see United States v. Munsingwear,

340 U.S. 36, 39 (1950), and not, as respondent urges,

to deny the petition.

CONCLUSION

For the reasons stated in the State’s petition, this

Court should issue a writ of certiorari to review the

judgment of the Court of Appeals of Maryland. Fol-

lowing review, that judgment should be reversed.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

EVELYN O. CANNON*

ANDREW H. BAIDA

Emory A. PLITT, JR.

Assistant Attorneys General

200 St. Paul Place, 20th Fir.

Blatimore, Maryland 21202

(801) 576-6330

Attorneys for Petitioner

*Counsel of Record