# Petition for Writ of Certiorari — Frazer v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1108

## Text

‘Wupreme Court, U.S,
Ge riLeD

991193 JAN 13200

OFFICE ©
No. OFFICE

In the Supreme Court
OF THE
United States
OCTOBER TERM, 1999
RAYMOND FRAZER,

Petitioner,

VS.

PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.

On Wnit of Certiorari to the
Supreme Court of the State of California

PETITION FOR WRIT OF CERTIORARI

MICHAEL B. DASHIIAN (Counsel of Record)
SYLVIAM. DASHJAN

Law Offices of Michael B. Dashjian
1110 California Blvd. Suite D
(Mailing Address:) P.O. Box 512
San Luis Obispo, CA 93406-0512
Telephone: (805) 460-0390
Facsimile: (865) 460-0349
Email: firm@dashlaw.com
Counsel for the Petitioner

QUESTIONS PRESENTED (Rule 14.1(a))

3 Did the California Legislature’s revival of the
time-barred criminal case against petitioner, by aretroactive law
enacted several years after expiration of the statute of
limitations, violate the Ex Post Facto Clause?

"a Did the California Legislature’s revival of the
time-barred criminal case against petitioner, by a retroactive law
enacted several years after expiration of the statute of
limitations, violate the Due Process Clause?

TABLE OF CONTENTS

CRS IRIS FREE ho cb wake ea dheebecgna ncaa i

PETITION FOR WRIT OF CERTIORARI .............. 1
I. Cie Re ioe ek ee ae ee 1
Il. JURISDICTIONAL STATEMENT .............. l
Il. CONSTITUTIONAL AND STATUTORY
fg tj 8. RRL Se EN Ea tie kawa® taal ae
IV. STATEMENT OF THE CASE ................. 2
A. Background; Procedural History .......... 2
B. Presentation Of The Federal Claims
Re NU Cg oso as ee cee eee ek 3
V. REASONS FOR GRANTING THE WRIT ........ 5
A. Issue One: Ex Post Facto ............... 5
B. Issue Two: Due Process ................ 13
ARDLAREE. .siécscseue ee 17
L Retroactive Abolition Of Petitioner’s
Complete Limitations Defense
Violated The Ex Post Facto Clause ..... ry

IL. Retroactive Abolition Of Petitioner’s
Complete Limitations Defense

Violated The Due Process Clause ........ 25
A. Fundamental Fairness ........... 25
B. “Substantive” And “Procedural”
Statutes Of Limitation ........... 26
CUPRA 6. ncs 40k eens eee ee 30
APT aren Cs BAD) ono ou hak ck wee baaus ¥icean post

ii

_ TABLE OF AUTHORITIES

CASES

Ackerman v. Ackerman, 42 Va. Cir. 103 (1997) .......... 27
Adams v. Woods, 2 Cranch (6 U.S.) 336 (1805) .......... 12
Baker v. Stonebraker, 36 Mo. 338 (1865) ............ 26, 27

Beach v. Ocwen Federal Bank, 523 U.S. 510 (1997) ... 27,28.
Beazell v. Ohio, 269 U.S. 167 (1925) ...... 6, 7, 11, 18-20, 24

Belair v. Riverside County Flood Control
Dist., 47 Cal.3d 550, 253 Cal.Rptr. 693,

ee re 4
Benes v. United States, 276 F.2d 99 (6th Cir. 1960) ....... 10
Board of Regents v. Roth, 408 U.S. 564 cre yw ad 29
Brent v. Chapman, 5 Cranch (9 U.S.) 358 rere ron 27
Brown v. Parker, 28 Wis. 21 (1871) ................... 27
Brown v. Walker, 161 U.S. 591 (1896) Cate ak SEN ewe ae | 11

Calder v. Bull, 3 Dall. (3 U.S.) 386 (1798) ... . 7, 12, 17, 21, 24

California Department of Corrections v. Morales,

ear ae 5, 7, 18, 19
Cameron v. United States, 231 U.S. 710 (1914) .......... 26
Campbell v. Holt, 115 U.S. 620 (1885) ........ 16, 17, 27, 28

Carmell v. Texas (U.S. No. 98-7640,
Cort, gra, Fame 14, 1999) .. cece eee 4,412,143

ili

Chase Securities Corp. v. Donaldson,

Pad Is OLED ives ov bbe ea wsee 15-17, 26-29
Chevron Chemical Co. v. Superior Court, 131 Ariz. 431,

Dee ee SUED ok hadch ta whelaakeaxs 29
Christmas v. State, 700 So.2d 262 (Miss. 1997) ........... 9
Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821) ....... 18 -
Cole v. Alodex Corp., 533 F.2d 372 (8th Cir. 1976),

aff’g In re Alodex Securities Litigation,

392 F.Supp. 672 (S.D. Iowa 1975) .............. 16
Cole v. National Life Ins. Co., 549 So.2d 1301

i ND oo kN Shee VED ENTER RPE 27
Collins v. Youngblood, 497 U.S. 37 (1990) .. 5-7, 9-11, 17-19,

22, 24
Colony Hill Condominium I Ass’n v. Colony Co.,

70 N.C. App. 390, 320 S.E.2d 273

(1984), rev. den., 312 N.C. 796,

ne Eee ee ere rere 16
Commonwealth v. Guimento, 341 Pa. Super. 95,

i he | EEE eee Pore 8
Commonwealth v. Rocheleau, 404 Mass. 129,

Fae PR REP CEPNO oko e aw ce eres WamRE Nees 8
Country Mutual Ins. Co. v. Knight, 40 111.2d 423,

. pt ee | eer rer rere 27
Cowan v. Superior Court, 14 Cal.4th 367,

58 Cal.Rptr.2d 458, 926 P.2d 438 (1997)......... 14

Cummings v. Missouri, 4 Wall. (71 U.S.) 277 (1866)... ... 10

iv

Davis v. Mills, 194 U.S. 451 (1904) ........... 15-17, 26-28

Davis v. Valley Distributing Co., 522 F.2d 827
(9th Cir. 1975), cert. denied, 429 U.S. 1090 (1977) . 29

Day v. City of Clinton 6 Ill.App. 476 (1880) ............ 10
Dugger v. Williams, 593 So.2d 180 (Fla. 1991) .......... 10
Estate of Fisher v. C.L.R., 905 F.2d 645 (2d Cir. 1990) .... 11
Ex Parte Scales, 853 S.W.2d 586

(Tex. Ct. Crim. App. 1993) ............ Sere 10
Falter v. United States, 23 F.2d 420 (2d Cir.),

cert. denied, 277 U.S. 590 (1928) ....... 8, 9, 13, 25
Fletcher v. Peck, 6 Cranch (10 U.S.) 87 (1810) .......... 21

Haase v. Sawicki, 20 Wis.2d 308, 121 N.W.2d 876 (1963) . 16

Hale v. Henkel, 201 U.S. 43 (1906) ................... 11
Hill v. State, 146 Tex. Crim. 333, 171 S.W.2d 880,

cert. dismissed, 320 U.S. 806 (1943) ............. 8
Hughes Aircraft Corp. v. United States ex rel. Schumer,

Se Ch Oe NOD ik bbs aves ies 6, 19, 24
In re Brown, 9 Cal.3d 612, 108 Cal.Rptr. 465,

Fae ee SEE EOE i nk ces ae 16
In re Demillo, 14 Cal.3d 598, 121 Cal.Rptr. 725,

TOOT DEER OO OD oie kk Chen e oa eiee esas 14
In re Doyle, 257 N.Y. 244, 177 N.E. 489 (1931) ...... 10, 11

In re Gustavo M., 214 Cal.App.3d 1485,
ene CS: FP AMO 5 ook oo i hk 10

Vv

In re Landsberg, 14 F. Cas. 1065 (No. 8,041)
eae es SUE bi 0s dudes ol ee eka 10

In re Rights to Waters of Long Valley Creek Stream System,
25 Cal.3d 339, 158 Cal.Rptr. 350,
ei Pe ee een eee 29

Independent School Dist. No. 197 v. W. R. Grace & Co.,
752 F.Supp. 286 (D. Minn. 1990) .............. 17

International Shoe Co. v. State of Washington,
pet ee. Seer rr rrr ee rr 14

International Union of Electrical, Radio and Machine
Workers v. Robbins & Myers, Inc.,

SEP Us GOP PTE 668 £KGNA CRS aa OR eda 28
James v. United States, 366 U.S. 213 (1961) ............ 20
Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996) ......... 16
Kring v. Missouri, 107 U.S. 221 (1883) ................ 20
Kurzawa v. Jordan, 146 F.3d 435 (7th Cir. 1998) ........ 16
Landgraf v. USI Film Products,

ER es err res 6, 14, 19, 20, 25
Lynce v. Mathis, 519 U.S. 433 (1997) .............. 19, 23
Mid-State Horticultural Co. v. Pennsylvania Ry. Co.,

Ree A | rer reer e rr 28
Miller v. Florida, 482 U.S. 423 (1987) ................ 21
Moore v. State, 43 N.J.L. 203 (1881) . Lea Reans Ree 8, 30

Nachtsheim v. Wartnick, 411 N.W.2d 882
Cm. CR: Aa SD is a es eka ee eee 17

EEO EEE EEE DLULUhUhlUl -

Nixon v. Administrator of General Services,

Od Nh OP REP TED iss a kaecd less: 7 ee pee 19
Ouimette v. Moran, 942 F.2d 1 (1st Cir. 1991)........... 14
People v. Angel, 70 Cal.App.4th 1141,

SS CME Bd 222 IGG) oon ic i ce Sencis 19
People v. Bunn, 53 Cal.App.4th 227, .

Se Ce FP ED 6. io wk kb Kone end ocean 2

People v. Frazer, 21 Cal.4th 737, 88 Cal.Rptr.2d 312, -
982 P.2d 180 (1999) . 3,8, 9, 11-16, 19, 21, 23, 25, 26,
29
People v. Hoffman, 132 Cal.App. 60, 22 P.2d 229 (1933) .. 10
People v. McGee, 1 Cal.2d 611, 36 P.2d 378 (1934) 14, 15,29

People v. Morris, 46 Cal.3d 1, 249 Cal.Rptr. 119,

Tee Dn ov os okt ence oan 14, 15, 29
People v. Stevenson, 416 Mich. 383,

ak CR Pee OE CHEE Sok obo Kab waa pa wieea dh 21
People v. Stogner, Contra Costa County No. 9816224

(Cal. Ist Appellate Dist. No. A084772) .......... 12
People v. Zamora, 18 Cal.3d 538, 134 Cal.Rptr. 784,

AE RE TOE ec Ui haneo hae Sanus 14, 18, 29
Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) ........... 11
Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Hine, ;

eR PED 8 boc ipa vewccesunnces 27
Pritchard v. Norton, 106 U.S. 124 (1882) ........... 26, 27

Roberts v. State of Maine, 48 F.3d 1287 (1st Cir. 1995) .... 14

Vil

Shadburne-Vinton v. Dalkon Shield Claimants Trust,
60 F.3d 1071 (4th Cir. 1995),
cert. denied, 516 U.S. 1184 (1996) .......... 17, 28

Shelby v. Guy, 11 Wheat. (24 U.S.) 361 (1826) .......... 27

Smith v. Westinghouse Electric Corp., 266 Md. 52,
pO ei Rn ee er ee 16

State of Minnesota ex rel. Hove v. Doese,
OR A or ee, | 26

State of South Dakota ex rel. Dotson v. Serr,
506 N.W.2d 421 (S.D. 1993), cert.
Genie, 320 US. ETT CGO esc veewercincics 27

State v. Carrier, 822 S.W.2d 623 (Tenn. Ct. Crim.
| nr ENE ns ne ee ee re Bare 10

State v. Cookman, 324 Ore. 19, 920 P.2d 1086 (1996)... 8,10

State v. Katte, GS NI. TOO IGG) oo non ciecececcccess 10
State v. Lafil, 231 La. 551, 92 So.2d 63 (1956) .......... 10
State v. Shedd, 102 P.2d 267 (Colo. 1985) .............. =
State v. Short, 131 N.J. 47, 618 A.2d 316 (1993) .......... 8
ee We SN, Zo WO: DO CID vc ccc cc ck secasvesece 8
Stewart v. Keyes, 295 U.S. 403 (1935) ........... 15, 27, 28
Toussie v. United States, 397 U.S. 112 (1970) ==....... 12

Twenty Per Cent Cases, 20 Wall. (87 U.S.) 179 (1873) .... 30

United States v. American Railway Express Co.,
pg eS ere eer eee ere ee 4

United States v. Bischel, 61 F.3d 1429 (9th Cir. 1995)
United States v. Brechtel, 997 F.2d 1108 (5th Cir. ao) ....9
United States v. Brown, 381 U.S. 437 (1965) ............ 21
United States v. Cain, No. 94 CR 483,

1995 U.S. Dist. LEXIS 6319

oe Fg. a ere 9
United States v. Fraidin, 63 F.Supp. 271 (D. Md. 1945) ... 11

United States v. Jackson, 528 A.2d 1211

Sei WI ere eon te ot. 10
United States v. Knipp, 963 F.2d 839 (6th Cir. 1992)... .. 8,9
United States v. Madia, 955 F.2d 538 (8th Cir. 1992) ...... 9
United States v. Marion, 404 U.S. 307 (1971) ........ 12, 26

United States v. Morgan, 845 F.Supp. 934 (D. Conn. 1994),
aff'd on other grds., 51 F.3d 1105 (2d Cir.),
cert. denied, 516 U.S. 861 (1995) ............... 9
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) ... 28

Vasquez v. State, 557 S.W.2d 779 (Tex. Ct. Crim.
Se WINN a yn ae kk orbs 8. go ww de canha o% 10, 11

Walsh v. Mayer, 111 U.S. 31 (1884) .................. 27
Warren v. United States Parole Commission,

659 F.2d 183 (D.C. Cir. 1981),

cert. denied, 455 U.S. 950 (1982) .:............ 21

Weaver v. Graham, 450 U.S. 24 (1981) ................ 14

ix

Wesley Theological Seminary v.United States Gypsum Co.,
876 F.2d 119 (D.C. Cir. 1989),

cert. denied, 494 U.S. 1003 (1990) ............. 17

William Danzer & Co. v. Gulf & S.I.R. Co.,
yp gtk a). | ee eee 15-17, 26-28
. Wilson v. Garcia, 471 U.S. 261 (1985) ................ 12

Zenith Radio Corp. v. United States, 437 U.S. 443 (1978) .. 18

STATUTES

pk Ee | er erry Terre rer re Terr rere ire 22
ek ee Ls errr erry POET Try eT ee err Ure Pee 1
eo ie aa rer rer rere rr re 22
Camioemin Panel Catia Fie nn nc ccc cwccesscnssscecs 2
Cees WN SS BD osc occ ccwaasvcesscsss 2, 29
Califomia Penal Code §803 ...:............08.. 2, 29, 30
California Penal Code § GOSS 2... 2. ccc cacsenccctenene
CONSTITUTIONS

United States Constitution, Amendment V............ 2, 11

United States Constitution, Amendment XIV .. 2, 16, 25, 27-29

United States Constitution, Article I, section 10 ........... 2

‘COURT RULES

UE EE Bs os hic os cba hole bikendica.
ee
Supreme Court Rule 14.1 ................0.000. | &
OTHER AUTHORITIES

Madison, James, The Federalist No. 44 ............. 20, 21

Xi

PETITION FOR WRIT OF CERTIORARI

Defendant Raymond Frazer respectfully prays that a Writ
of Certiorari issue to review the judgment and decision of the
Supreme Court of the State of California, entered by opinion issued
on August 30, 1999 and modified on October 20, 1999.

I. OPINION BELOW (Rule 14.1(d))

The opinion of the Supreme Court of California (attached
as Appendix, Exh. A) was filed on August 30, 1999. It is reported
officially at 21 Cal.4th 737, and unofficially at 88 Cal.Rptr.2d 312
and 982 P.2d 180. On October 20, 1999, the California Supreme
Court issued an order modifying its opinion, without change in
judgment. (Exh. B). It is reported at 21 Cal.4th 867A. Also on
October 20, 1999, in an unpublished order (Exh. C), the California
Supreme Court denied a timely petition for rehearing.

Il. JURISDICTIONAL STATEMENT (Rule 14.1(e))

The opinion of the Supreme Court of California of which
petitioner seeks review, reversing the order granting petitioner’s
demurrer to the information, was filed on August 30, 1999. Exh. A.
The opinion was modified without change in judgment on October
20, 1999. Exh. B. Also on October 20, 1999, the Supreme Court of
California denied a timely petition for rehearing. Exh. C. This
petition is filed under Supreme Court Rule 13.3.

This Court has jurisdiction under 28 U.S.C. § 1257(a).

III. CONSTITUTIONAL AND STATUTORY
PROVISIONS (Rule 14.1(f))

United States Constitution, Article I, section 10, clause 1:
“No State shall . . . pass any . . . ex post facto Law ....”
United States Constitution, Amendment XIV:

“No State shall . . . deprive any person of life,
liberty, or property, without due process of law .. .”

California Penal Code, sections 288(a), 800, 803(g). See
Append:x, Exhibit G.

IV. STATEMENT OF THE CASE (Rule 14.1(g))
A. Background; Procedural History

Between 1982 and 1996, the statute of limitations for the
charged offense of lewd act with a child under 14, Cal. Pen. Code
§ 288(a), was 6 years. Cal. Pen. Code § 803 [6-year statute for
crimes punishable by 8 years or more in prison]; see § 288(a) [lewd
act with child under 14 punishable by 3, 6 or 8 years].

Effective January 1, 1994, the California Legislature
enacted Penal Code section 803(g), which provided a limitations
period of one year from the date a person of any age reported to a
law enforcement agency that he or she was a victim of a lewd act
while under the age of 18 (inter alia). Stats. 1993, ch. 390 (A.B.
290), § 1. It was then unclear whether the Legislature intended the
new limitations period to apply retroactively. See People v. Bunn,
53 Cal.App.4th 227, 230-31, 61 Cal.Rptr.2d 734 (1997).

Effective January 1, 1997, the Legislature again amended
section 803(g), making clear that it intended the new limitations
period to apply retroactively. Stats. 1996, ch. 130 (A.B. 2014), § 1.

Rll etd

i bie Re baat

In this case, the Complaint filed on October 21, 1996
charged petitioner with one count of violating Penal Code section
288(a) between October 1, 1984 and December 31, 1984. Clerk’s
Transcript (CT) 3. On December 5, 1996, defendant filed a
demurrer based on the statute of limitations. CT 7. The Municipal
Court sustained the demurrer, CT 32 (Exh. E), and dismissed the
action. CT 37. The State moved for reconsideration in the Superior
Court. CT 38. The Superior Court denied the motion, CT 65 (Exh.
F), and denied the request to reinstate the Complaint. CT 68.

The State appealed to the First District Court of Appeal,
which aftirmed the dismissal on December 22, 1997 in an
unpublished opinion. Exh. D. The State’s petition for review to the
California Supreme Court was granted on March 11, 1998.

On August 20, 1999, in a 4-3 opinion, the California
Supreme Court reversed the judgment of the Court of Appeal. Exh.
A. Defendant’s timely petition for rehearing was denied on October
20, 1999, with a minor change in the opinion. Exhs. B, C.

The Petition for Wnt of Certiorari in this case is taken from
the decision of the California Supreme Court.

B. Presentation Of The Federal Claims In State Court

Both of the federal claims presented in this petition were
decided in an opinion on the merits which constituted a final
judgment rendered by the highest state court, the California
Supreme Court.: People v. Frazer, App. A, 21 Cal.4th 737.
Petitioner raised both of those federal claims in the State’s appeal
to the California Supreme Court, in his Respondent’s Brief on the
merits, specifying the federal nature of the claims and relying on
federal constitutional authority. Respondent’s Brief on the Merits,
at 2-16 [Ex Post Facto]; id. at 1, 9-10, 15-16 [Due Process].

The State’s opening brief in its appeal to the highest state
court had not raised a Due Process Clause issue. Under state law,
petitioner was permitted to raise that issue in response as grounds
for affirmance, and the California Supreme Court was permitted to

3

consider it. Belair v. Riverside County Flood Control Dist., 47
Cal.3d 550, 568, 253 Cal.Rptr. 693, 764 P.2d 1070 (1988)
[reviewing court reviews result, not reasoning, and can affirm on
any proper legal ground]; see United States v. American Railway
Express Co., 265 U.S. 425, 435 (1924) [similar]. The State agreed
the Due Process issue was properly before the Court, and addressed
it in its reply brief. Appellant’s Reply Brief on the Merits, at 14-31.

Petitioner further addressed the Due Process claim in the
California Supreme Court in a timely petition for rehearing, which
specified the federal nature of the claim and relied on federal
constitutional authority. Petition for Rehearing, at 16-19. The
petition for rehearing was denied without opinion. Exh. C.

Both federal claims in this petition were originally raised
by petitioner in his demurrer in the Municipal Court, specifying
violations of the federal Ex Post Facto and Due Process Clauses,
and relying on federal constitutional authority for both claims. CT
13-15. The State’s request for reconsideration in the Superior
Court raised only an Ex Post Facto issue; petitioner defended by
making the same Ex Post Facto and Due Process Clause claims he
made in the Municipal Court. CT 56-58. The State’s appeal to the
Court of Appeal, First Appellate District, again raised only an Ex
Post Facto issue; petitioner defended on that ground, specifying the
federal nature of the claim and relying on federal constitutional
authority. Respondent’s Brief, at 2-11. As noted above, petitioner
raised both the federal Ex Post Facto Clause claim and the federal

Due Process Clause claim in defending the State’s appeal to the
- California Supreme Court, specifying the federal nature of the
claims and relying on federal constitutional authority, and the
California Supreme Court decided both of those feceral claims on
their merits.

V. REASONS FOR GRANTING THE WRIT
(Rules 10, 14.1(h))

This case presents important federal issues on which there
are conflicts among state courts of last resort. These issues require
resolving ambiguous and possibly contradictory language from this
Court’s opinions, to determine which state court decisions were
decided in a way that conflicts with decisions of this Court.

A. Issue One: Ex Post Facto

In Collins v. Youngblood, 497 U.S. 37 (1990), this Court
held that a change in Texas appellate procedure, allowing an
appellate court to affirm the valid portion of a criminal judgment
instead of having to reverse the entire judgment when only part was
invalid, did not violate the Ex Post Facto Clause. The Fifth Circuit
had held the contrary, based on language from prior opinions of
this Court that retroactive deprivation of any “substantial
protection” was prohibited in a criminal case. This Court reversed,
holding that the “substantial protection” formulation was
amorphous and virtually meaningless, and not a proper statement
of the Ex Post Facto Clause. 457 U.S. at 44-46.

At some points, the Youngblood opinion stated that the Ex
Post Facto Clause covers only laws that affect either the “definition
of acrime,” or the amount of punishment for a crime. 497 U.S. at
43, 44, 49; see also California Department of Corrections v.
Morales, 514 U.S. 499, 504 (1995) [similar language]. The
California Supreme Court took these statements literally, in
holding a retroactive criminal statute only violates the Ex Post
Facto Clause if it disadvantages the accused by changing (i) the
definition of a crime, or (ii) its punishment. App. A, 21 Cal.4th at
756-57, 759-61, 763, 764 n.26. The Court thus held a Legislature
can aboiish a fully ripe, complete limitations defense years afier the
statute’s expiration, retroactively stripping the accused of a
statutory right to acquittal, because a statute of limitations is not
technically part of the “definition of the crime.” App. A, 21 Cal.4th
at 758-60 & n.22. That reasoning also applies to other complete
defenses which would result in acquittal but might not involve the

5

“definition of a crime,” or that ripen only after the alleged crime,
such as pardon, amnesty, immunity, and others.

This case thus raises the issue of whether this Court in
Youngblood intended such a literal use of the phrase “definition of
the crime,’’ to permit retroactive abolition of a complete and fully
ripe limitations defense which would have resulted in acquittal; or
by parity of reasoning, retroactive abolition of other defenses such
as pardon, amnesty or immunity which might not involve the
“definition of a crime,” but which would also result in acquittal.

That issue is of particular importance because other
passages in opinions of this Court—including Youngblood and
Beazell v. Ohio, 269 U.S. 167 (1925)}—point away from a
literalistic “definition of the crime” approach. Recently, this Court
cited Youngblood as standing for the proposition that “““A law that
abolishes an affirmative defense’ violates the Ex Post Facto
Clause.” Hughes Aircraft Corp. v. United States ex rel. Schumer,
520 U.S. 939, 948 (1997). In Youngblood as well as Beazell, this
Court referred to deprivation of “any defense previously available”
as an ex post facto violation. Youngblood, 497 U.S. at 42, 49-52;
Beazell, 269 U.S. at 170. Also in Youngblood, this Court—though
rejecting the phrase “substantial right” as largely meaningless—still
distinguished between “procedural” changes, which usually do not
violate the Ex Post Facto Clause, 497 U.S. at 46, and “changes in
the substantive law of crimes,” which do. Id. at 45; see also
Landgraf v. USI Film Products, 511 U.S. 244, 290 (1994) (Scalia,
J., concurring in the judgments) [in Ex Post Facto jurisprudence,
“we have adopted a substantive-procedural line”’]. And in Beazell,
this Court indicated that retroactive abolition of “matter[s] of
substance” is an ex post facto violation. 269 U.S. at 171. Using
these formulations instead of a literal “definition of the crime”
formulation, retroactive abolition of acomplete limitations defense
would more likely be seen as violating the Ex Post Facto Clause.

Certiorari should be granted to determine which of this
Court’s formulations correctly states the ex post facto prohibition.

This Court’s Youngblood opinion also suggested that the
four categories enumerated by Justice Chase in Calder v. Bull, 3
Dall. (3 U.S.) 386, 390-91 (1798) (opn. of Chase, J.) “define{d] an
exclusive list of legislative Acts falling within the constitutional
prohibition.” Youngblood, 497 U.S. at 42, 48-49. The California
Supreme Court went a step farther, holding that this Court (1)
eliminated one of the four categories and held that the other three
were an exclusive list, in Beazell v. Ohio, and (2) approved of this
new “Beazell formulation” in Youngblood, while “distill[ing] it
into a concise two-part test.” App. A, 21 Cal.4th at 754-56 & n.16.

Petitioner’ s case thus raises the issues of whether this Court
really intended to create a separate “Beazell formulation” or
“Youngblood two-part test,” and whether either those formulations
or the four Calder categories are to be construed literally and
exclusively. Again, that issue would also affect other defenses,
such as pardon, amnesty, and immunity, which might also be
difficult to fit into one of these typologies. (This Court is currently
considering issues relating to the fourth Calder category, in
Carmell v. Texas (U.S. No. 98-7640, cert. grd., June 14, 1999).)

The issue of exclusivity of the “Beazell formulation” or the
“Youngblood two-part test” is particularly important, because other
language in this Court’s opinions appears to contradict the
California Supreme Court’s view that this Court has restricted ex
post facto violations to fixed categories. In Calder, Justice Chase
stated that his categories were not exclusive. 3 Dall. at 389, 391,

393. In Beazell, this Court stated that it could not “embrace[]
within a formula or state[] in a general proposition” which matters
of procedure are within the ex post facto prohibition; “(t]he
distinction is one of degree.” 269 U.S. at 171. Most recently, well
after Youngblood, this Court stated: “We have previously declined
to articulate a single ‘formula’ for identifying those legislative
changes that have a sufficient effect on substantive crimes or
punishments to fall within the constitutional prohibition . . . .”
California Department of Corrections v. Morales, 514 U.S. at 509.

The grant of certiorari in Collins v. Youngblood allowed
this Court to resolve differing and sometimes contradictory

7

language it had used to describe the proscriptions of the Ex Post
Facto Clause, and to clarify the content of those proscriptions. See
497 U.S. at 45. Certiorari is warranted in this case for the same
reason, and to determine if the California Supreme Court’s opinion
properly characterizes this Court’s precedent in the area.

There is a split of authority among national jurisdictions on
retroactive revivai of time-barred criminal actions. States other than
California which have squarely faced the question have held that
legislative revival of a time-barred action violates the federal Ex
Post Facto Clause. Commonwealth v. Rocheleau, 404 Mass. 129,
533 N.E.2d 1333 (1989)'; State v. Shedd, 702 P.2d 267 (Colo.
1985); Moore v. State, 43 N.J.L. 203, 214-24 (1881) [cited with
approval in State v. Short, 131 N.J. 47, 55, 618 A.2d 316 (1993)]};
State v. Sneed, 25 Tex. 66, 67 (1860) [cited with approval in Hill
v. State, 146 Tex. Crim. 333, 336, 171 S.W.2d 880, cert. dismissed,
320 U.S. 806 (1943)]; see also State v. Cookman, 324 Ore. 19, 920
P.2d 1086 (1996) [state Constitution]; Commonwealth v.
Guimento, 341 Pa. Super. 95, 491 A.2d 166 (1995) [same].

Many other jurisdictions have agreed, often relying on a
frequently quoted opinion by Judge Leamed Hand, Falter v. United
States, 23 F.2d 420, 425-26 (2d Cir.), cert. denied, 277 U.S. 590
(1928). Despite the widespread reliance on Judge Hand’s |
formulation, the California Supreme Court majority correctly noted
that most of these opinions did not squarely face the issue, because
the underlying cases had never been time-barred. See People v.
Frazer, App. A, 21 Cal.4th at 762, 764 n.25 [citing 28 cases].”

Rocheleau does not specifically state whether its holding was based on
the state or federal Constitution. However, Massachusetts interprets its state Ex
Post Facto Clause identically to the federal counterpart. Santiago v.
Commonwealth, 427 Mass. 298, 301,693 N.Ed.2d 127 (1998). Accordingly, the
holding is presumably based on both.

. These cases usually involved the different issue of legislative extension
of a criminal statute of limitations before it expires. Most opinions hold this is
permissible. See, e.g., United States v. Knipp, 963 F.2d 839, 844 (6th Cir. 1992);

(continued...)

California appears to be the only jurisdiction which has
squarely held that Legislative revival of time-barred criminal
actions is permissible. See People v. Frazer, App. A, 21 Cal.4th at
777, 782 (Kennard, J., dissenting). However, California has some
12 percent of our Nation’s population.

In addition, statute of limitations cases in other jurisdictions
have construed Youngblood as the California Supreme Court did,
to require literal use of the phrase “definition of the crime” in ex
post facto determinations. The California Supreme Court relied on
one of those cases, which similarly concluded that retroactive
abolition of any criminal limitations defense would not violate the
Ex Post Facto Clause. United States v. Knipp, 963 F.2d 839, 843-
44 (6th Cir. 1992) (discussed with approval in People v. Frazer,
App. A, 21 Cal.4th at 764 n.26). Other cases which construe
Youngblood the same way, to conclude that no statute of
limitations defense is subject to the Ex Post Facto Clause, include
United States v. Brechtel, 997 F.2d 1108, 1113 & n. 13 (Sth Cir.
1993); United States v. Bischel, 61 F.3d 1429, 1435-36 (9th Cir.
1995); Christmas v. State, 700 So.2d 262, 267-68 (Miss. 1997);
United States v. Morgan, 845 F.Supp. 934, 943 (D. Conn. 1994),
aff'd on other grds., 51 F.3d 1105 (2d Cir.), cert. denied, 516 U.S.
861 (1995); and United States v. Cain, No. 94 CR 483, 1995 U.S.
Dist. LEXIS 6319 (N.D. Ill. May 10, 1995), at 3-4. (The facts of
these cases involved extension of a statute of limitations before it
expired, which is usually held to be permissible. See supra, fn.2.) ~

Given the split of authority on legislative revival of time-
barred criminal actions, and the differing methods of analyzing this
issue—with many jurisdictions using Judge Hand’s formulation,
while others construe this Court’s Youngblood opinion to require

2(...continued)
United States v. Madia, 955 F.2d 538, 539 (8th Cir. 1992). It is not at issue here.

The dissent in the California Supreme Court also quoted approvingly
from Judge Hand’s Falter opinion. App. A, 21 Cal.4th at 776 (Kennard, J.,
dissenting); see also id. at 782 (Brown, J., dissenting) [concurring in Justice
Kennard’s analysis].

a literal ““definition of the cnme”’ approach—certiorani is warranted
to resolve this important federal issue.

California’s literal “definition of the crime” interpretation
of Youngblood also creates another conflict among jurisdictions. A
literal “definition of the crime” approach means that Legislatures
can retroactively eliminate any defense to a criminal charge which
nipens only after the (charged) commission of the offense,
including defenses such as a pardon, amnesty, or immunity. These
defenses, even more than a statute of limitations defense, are
difficult to characterize as part of the “definition of the crime.”

Other jurisdictions have found an ex post facto violation on
this type of issue. Apart from the statute of limitations cases above,
cases include: State v. Keith,63 N.C. 140, 143-45 (1869) [pardon];
Day v. City of Clinton 6 Ill.App. 476, 479-80 (1880) [repeal of
statute creating crime, treated as a pardon]; /n re Landsberg, 14 F.
Cas. 1065, 1068 (No. 8,041) (E.D. Mich. 1870) [similar]; Ex Parte
Scales, 853 S.W.2d 586 (Tex. Ct. Crim. App. 1993) [judicially .
created immunity from multiple convictions, analyzed under law
governing ex post facto laws]; and United States v. Jackson, 528
A.2d 1211, 1223-24 (D.C. Ct. App. 1987) [judicial overruling of
“year and a day rule,” analyzed under law governing ex post facto
laws]. Cf Dugger v. Williams, 593 So.2d 180, 182 (Fla. 1991)
[retroactive revocation of eligibility forclemency recommendation
invalid as ex post facto]. This Court has- agreed in dictum,
Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 329 (1866), but it
has never squarely faced this type of issue.

3

Cases have referred to the expiration of a criminal limitations period as
a form of pardon, immunity or amnesty; for like a pardon, immunity or amnesty,
it eliminates all possible consequences of an (alleged) offense. E.g., State v.
Cookman, 324 Ore. 19; State v. Carrier, 822 $.W.2d 623, 624-25 (Tenn. Ct.
Crim. App. 1991); In re Gustavo M.,214Cal.App.3d 1485, 1494, 263 Cal.Rptr.
328 (1989); Vasquez v. State, 557 S.W.2d 779, 781 (Tex. Ct. Crim. App. 1977);
Benes v. United States, 276 F.2d 99, 108 (6th Cir. 1960); State v. Lafil, 231 La.
551, 562-63, 92 So.2d 63 (1956), People v. Hoffman, 132 Cal.App. 60, 63, 22
P.2d 229 (1933); In re Doyle, 257 N.Y. 244, 256, 177 N.E. 489 (1931).

10

Although historical practice is often important in
intenpring, wonsitidiond provisions, Uetermuring ‘fistoncal
practice on retroactive abolition of a criminal limitations defense
is problematic, as criminal statutes of limitation were apparently
unknown to the common law. People v. Frazer, App. A, 21 Cal.4th
at 770 n.30; Vasquez v. State, 557 S.W.2d779, 781 (Tex. Ct. Crim.
App. 1977); United States v. Fraidin, 63 F.Supp. 271, 278-79 (D.
Md. 1945). It can be difficult to discern what the Framers thought
on a matter that didn’t exist when the Constitution was ratified.
This difficulty only underscores the need for this Court to resolve
the conflicts among jurisdictions, and provide a definitive
interpretation of its own Youngblood and Beazell opinions.

The California Supreme Court’s opinion here may also
create ripple effects in other important areas of federal law. For
example, witnesses historically have been unable to invoke the
Fifth Amendment privilege after a statute of limitations expires or
after a pardon or grant of immunity, on the ground that such a
witness can never be prosecuted. See, e.g., Hale v. Henkel, 201
U.S. 43, 67 (1906); Brown v. Walker, 161 U.S. 591, 598-99, 627
(1896). But this established rule is open to question under the
California Supreme Court opinion, on the ground that prosecution
_ is always possible because the Legislature can retroactively abolish
a statute of limitations (or pardon or immunity) whenever it wants.
See generally, e.g., Pillsbury Co. v. Conboy, 459 U.S. 248, 257,
261 (1983) [Fifth Amendment requires certainty that witness
cannot be prosecuted, before he can be compelled to answer];
Brown v. Walker, 161 U.S. at 595 [similar]; In re Doyle, 257 N.Y.
at 250 [similar]; see also, e.g., Estate of Fisher v. C.1.R., 905 F.2d
645, 649 (2d Cir. 1990) [Fifth Amendment privilege does not turn
on court’s assessment of Government’s subjective intent to
prosecute, or subjective likelihood of prosecution]. That type of
issue is not presented here, but it may have to be faced if the
California Supreme Court opinion were to stand.

The issue in this case is far-reaching. The California
Supreme Court’s view is that under section 803(g), a Legislature
can retroactively revive an action that had been time-barred for 5,
10, or 20 years, or even more. Petitioner is aware of one recent case

ul

where the prosecution used section 803(g) to charge a defendant
with acts alleged to have occurred in the 1950's, over 40 years ago.*

Moreover, the California Supreme Court’s opinion is not
limited to any one area of law. As a matter of constitutional
analysis, a Legislature following this opinion can now lengthen any
criminal statute of limitations indefinitely, any time after expiration
of the original statute. Such a legislative power impairs the policies
served by criminal statutes of limitation as much for innocent
defendants as guilty ones. See, e.g., Toussie v. United States, 397
U.S. 112, 114-15 (1970); United States v. Marion, 404 U.S. 307,
322-23 (1971); Wilson v. Garcia, 471 U.S. 261, 271 (1985)
[quoting Adams v. Woods, 2 Cranch (6 U.S.) 336, 342 (1805)].

This is an issue which will continue to recur, as it is not
uncommon for Legislatures to extend criminal limitations periods.
In particular, the C-lifornia Supreme Court’s opinion noted that in
the late 1980s, Legislatures nationwide began increasing
substantially limitations periods for child molestation charges, and
applying the increases retroactively. People v. Frazer, App. A, 21
Cal.4th at 744 & n.3. The opinion in this case opens the door to all
of them as a matter of federal constitutional law, and to revivals of
time-barred criminal actions in every other area of law as well.

This Court is currently considering another ex post facto
issue, involving the fourth category of Calder v. Bull, in Carmell
v. Texas (U.S. No. 98-7540, cert. grd., June 14, 1999). An amicus
curiae brief filed in Carmell argued against petitioner’s position
here, relying on the California Supreme Court’s opinion in this
case. See Br. of the Amici Curiae States (No. 98-7540), at 12-14.
The issue of reviving time-barred actions is not actually before this
Court in Carmell. Nonetheless, the States’ amicus curiae brief in

: The case is People v. Stogner, Contra Costa County No. 9816224 (ist
Appellate Dist. No. A084772). (The defendant in Stogner is apparently 72 years
old.) The Court of Appeal in Stogner followed the California Supreme Court’s
Frazer opinion, and permitted revival of the time-barred action. The case is
currently on a petition for review to the California Supreme Court.

12

Carmell underscores the importance of the issue presented by
petitioner, and the conflict in authority on the issue.°

This issue provides an excellent opportunity to clarify the
scope of the Ex Post Facto Clause, in a manner which has not been
necessary in prior cases. This Court’s precedent makes clear that a
retroactive change in mere forms of procedure does not violate the
Ex Post Facto Clause, while a retroactive change in the “definition
of acrime” does. A complete limitations defense falls somewhere
in between. Determining where in between would likely result in
amore complete definition of the scope of the Clause, because this
Court has never been faced with this type of issue.

To resolve ambiguities and seeming contradictions in this
Court’s opinions; to resolve conflicts in authority, which cause
substantial numbers of (present or future) defendants who are
identically situated in the eyes of the Constitution to receive
dissimilar treatment; and to settle an important constitutional issue,
this Court should grant certiorari as to Issue One.

B. «Issue Two: Due Process

In an oft-quoted passage discussed earlier (supra, p. 8),
Judge Learned Hand wrote: “Certainly it is one thing to revive a
prosecution already dead, and another to give it a longer lease on
life. The question turns upon how much violence is done to our
instinctive feelings of justice and fair play. For the state to assure
a man that he has become safe from its pursuit, and thereafter to
withdraw his assurance, seems to most of us unfair and dishonest.
But, while the chase is on, it does not shock us to have it extended
.... Falter v. United States, 23 F.2d at 425-26. Many opinions
have quoted Judge Hand’s language with approval. See cases (28)
cited in People v. Frazer, App. A, 21 Cal.4th at 764 n.25.

’ If Carmell were to prevail, then depending on what this Court’s

opinion said, the opinion could have an impact on the proper analysis or result
here. That would be unlikely, however, if Carmell did not prevail.

13

Although Judge Hand was wniting about the Ex Post Facto
Clause, language such as “justice and fair play” is often associated
with Due Process jurisprudence. See, e.g., International Shoe Co.
v. State of Washington, 326 U.S. 310, 316 (1945); Roberts v. State
of Maine, 48 F.3d 1287, 1291 (1st Cir. 1995); Ouimette v. Moran,
942 F.2d 1, 13 (1st Cir. 1991). The dissenting Justices in this case
agreed with Judge Hand, and concluded that legislative revival of
time-barred criminal actions does not comport with fundamental
fairness. People v. Frazer, App. A, 21 Cal.4th at 776, 780
(Kennard, J., dissenting); id. at 782, 784 (Brown, J., dissenting).

This case thus presents the issue of whether Judge Hand
was right. The Due Process Clause issue appears to be different
from the Ex Post Facto Clause issue, because Due Process Clause
principles such as vested nights are not determinative in ex post
facto analysis. Weaver v. Graham, 450 U.S. 24, 29-30 & n. 13
(1981); but cf. Landgraf v. USI Film Products, 511 U.S. at 291
(Scalia, J., concurring in the judgments [““The upsetting of “vested
substantive rights’ [is] the proper touchstone . . . for interpretation
of the United States Constitution’s Ex Post Facto Clauses.’’])

The issue is particularly acute in California and other
jurisdictions like it, which view a criminal statute of limitations as
a substantive protection rather than a mere procedural device. The
law in California has long been that acriminal statute of limitations
is a substantive protection rather than merely procedural, People v.
Zamora, 18 Cal.3d 538, 547, 134 Cal.Rptr. 784,557 P.2d 75
(1976), and that “{iJn criminal cases, the state, through its
Legislature, has declared [in statutes of limitation] that it will not
prosecute crimes after the period has run... .” People v. McGee,
1 Cal.2d 611, 613, 36 P.2d 378 (1934); People v. Morris, 46
Cal.3d 1, 13,249 Cal.Rptr. 119, 756 P.2d 843 (1988). A California
criminal statute of limitations is so substantive that it can be raised
at any time, before or after judgment, including for the first time on
appeal or habeas corpus. Cowan v. Superior Court, 14 Cal.4th 367,
371-72, 58 Cal.Rptr.2d 458, 926 P.2d 438 (1997); In re Demillo,
14 Cal.3d 598, 601, 121 Cal.Rptr. 725, 535 P.2d 1181 (1975).

From a perspective of fundamental fairness, legislative
revival of a time-barred criminal action—particularly in a
jurisdiction such as California where a criminal statute of
limitations is substantive and not merely procedural—amounts to
the State promising that it would not prosecute a particular charge,
see People v. McGee, 1 Cal.2d at 613; People v. Morris, 46 Cal.3d
at 13, and then reneging on the promise many years later. The
dissenters in the California Supreme Court agreed. People v.
Frazer, App. A, 21 Cal.4th at 781, 782 (Kennard, J., dissenting);
id. at 782, 783 (Brown, J., dissenting). The question here is
whether that violates the federal Due Process Clause.

If these considerations are not dispositive, then petitioner
also asks this Court to reconcile two lines of its Due Process Clause
cases, which date back to the 19th century; have not been
reconciled by this Court; and have drawn differing views from
lower courts. The California Supreme Court relied on this Court’s
opinion in Chase Securities Corp. v. Donaldson, 325 U.S. 304
(1945), to reject petitioner’s Due Process claim. People v. Frazer,
App. A, 21 Cal.4th at 766-69. That raises the issue of whether the
California Supreme Court interpreted Chase Securities correctly.

The line of this Court’s authority which supports petitioner
includes Davis v. Mills, 194 U.S. 451, 456-57 (1904); Stewart v.
Keyes, 295 U.S. 403, 417 (1935); and William Danzer & Co. v.
Gulf & S.1.R. Co., 268 U.S. 633 (1925). These and similar cases
recognize a constitutionally protected interest upon the expiration
of a “substantive” (as opposed to procedural) limitations period,
one that extinguishes the right rather than merely barring a remedy.
The two most common examples are limitations periods regarding
title to real or personal property (Stewart v. Keyes), and limitations
periods which substantively qualify a statutory enactment (Davis
v. Mills, William Danzer). In both situations, the expiration of a
statute of limitations—sometimes also called a statute of
repose—is said to destroy the right rather than merely barring the
remedy, creating a vested right which cannot be divested by
retroactive legislation. Davis v. Mills, 194 U.S. at 456-57; William
Danzer, 268 U.S. at 636-37; Stewart v. Keyes, 295 U.S. at 417. In
California, a criminal statute of limitations is a substantive

15

limitation on the power to prosecute, supra, p. 14, which always
substantively qualifies a statutory enactment because all cnmes in
California are statutory. Cal. Pen. Code, § 6; Jn re Brown, 9 Cal.3d
612, 624, 108 Cal.Rptr. 465, 510 P.2d 1017 (1973); People v. ©
Frazer, App. A, 21 Cal.4th at 781-82 (Kennard, J., dissenting).

The cases where this substantive limitations (statute of
repose) analysis applies are in contrast with the usual federal rule,
that expiration of a typical procedural statute of limitations—as on
a Claim for a debt—creates no vested nghts. Chase Securities v.
Donaldson, 325 U.S. 304; Campbell v. Holt, 115 U.S. 620 (1885).

Chase Securities, the case on which the California
Supreme Court relied here, declined to apply cases such as Davis
v. Mills or William Danzer to its facts or legal claim. However,
Chase Securities did not overrule or limit Davis v. Mills or William
Danzer in their own context, and in fact it appears to have
approved of those cases in their own context. Chase Securities, 325
U.S. at 312.8; see Smith v. Westinghouse Electric Corp., 266 Md.
52, 56,291 A.2d 452 (1972); Kelly v. Marcantonio, 678 A.2d 873,
883 (R.I. 1996). Chase Securities is clearly applicable in its own
context as well. The question is whether that is the context of this
case, and how one goes about telling the difference.

Lower courts disagree on the vitality and meaning of the
“substantive nght” line of cases. Some courts, holding that this
Court recognized a Fourteenth Amendment interest in cases such
as Davis v. Mills and William Danzer, have held the federal Due
Process Clause prohibits retroactive abolition of a complete
defense based on a “substantive” statute of limitations. Colony Hill
Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 394, 320
S.E.2d 273, 276 (1984), rev. den., 312 N.C. 796, 325 S.E.2d 485
(1985); Cole v. Alodex Corp., 533 F.2d 372, 374 (8th Cir. 1976),
aff g In re Alodex Securities Litigation, 392 F.Supp. 672, 680-81
(S.D. lowa 1975); Smith v. Westinghouse Electric Corp., 266 Md.
at 55-57; Haase v. Sawicki, 20 Wis.2d 308, 317, 121 N.W.2d 876
(1963); see also Kurzawa v. Jordan, 146 F.3d 435, 437 (7th Cir.
1998) [in dictum: “Because criminal statutes of limitations . . . are
more analogous to civil statutes of repose, [defendant's] William

16

Danzer argument might be valid if we were dealing with the
retroactive extension of a lapsed statute of limitations.”]

Other courts have rejected the “substantive right” cases as
outmoded. Shadburne-Vinton v. Dalkon Shield Claimants Trust,
60 F.3d 1071, 1074-1076 (4th Cir. 1995), cert. denied, 516 U.S.
1184 (1996); Wesley Theological Seminary v. United States
Gypsum Co., 876 F.2d 119, 121-22 (D.C. Cir. 1989), cert. denied,
494 U.S. 1003 (1990); Nachtsheim v. Wartnick, 411 N.W.2d 882,
887-88 (Minn. Ct. App. 1987); Independent School Dist. No. 197
v. W. R. Grace & Co., 752 F.Supp. 286, 296-298 (D. Minn. 1990).
This Court has not squarely addressed the issue of whether or how
to reconcile the two lines of opinions (Chase Securities/Campbell
v. Holt, and Davis v. Mills/William Danzer).

For all of these reasons, certiorari should be granted on
Issue Two.

ARGUMENT

IL. Retroactive Abolition Of Petitioner’s Complete
Limitations Defense Violated The Ex Post Facto Clause

In focusing exclusively on “definition of the crime”
language in this Court’s Youngblood opinion, the California
Supreme Court eschewed several of this Court’s broader
formulations of the ex post facto prohibition, in cases beginning
with Calder and continuing after Youngblood. Petitioner quoted
several of those formulations supra, pp. 6, 7.

These broader formulations establish that this Court has not
required an ex post facto analysis anywhere near as narrow as the
California Supreme Court believed. Nor has this Court held that
only narrow portions of its language are an exclusive list of all
possible ex post facto violations. This Court held again
recently—as it has before—that it has never articulated a single
“formula” for determining what penal legislation is proscribed as

17

ex post facto. California Department of Corrections v. Morales,
514 U.S. at 509; accord Beazell v. Ohio, 269 U.S. at 171.

These conclusions also follow from viewing this Court’s
Youngblood and Beazell opinions through a lens of common sense.
In Youngblood and Beazell, the claimed ex post facto laws were
purely matters of procedure, i.e., mechanics of the adjudicative
process—in Youngblood, a change in appellate procedure dealing
with disposition after a partial reversal; and in Beazell, a change in
procedure permitting consolidation of trials for good cause. The
other criminal case opinions before Youngblood in which this
Court found there to be no ex post facto violation (including the
two opinions which Youngblood overruled) were to similar effect.

None of this Court’s opinions has done anything as
extraordinary as the California Supreme Court did in this case,
permitting the Legislature to eliminate a complete nght to an
acquittal by retroactive legislation. Certainly, neither Youngblood
nor Beazell did so, either expressly or by implication.

While the holdings of Youngblood and Beazell were 100
percent correct, the language of those opinions should be construed
with reference to the actual cases that were before this Court. “It is
a maxim, not to be disregarded, that general expressions, in every
opinion, are to be taken in connection with the case in which those
expressions are used.” Cohens v. Virginia, 6 Wheat. (19 U.S.) 264,
399 (1821) [quoted in, e.g., Zenith Radio Corp. v. United States,
437 U.S. 443, 462 (1978)]. Youngblood and Beazellinvolved mere
alterations in modes of procedure, not elimination of a complete
legal defense which would have resulted in acquittal.

Here by contrast, in the words of Beazell, 269 U.S. at 170,
“(t]he quantum and kind of proof required to establish guilt, and all
questions which may be considered by the court and jury in
determining guilt or innocence,” have not “remain{ed] the same.”
In California, the prosecution always has the burden of proving
compliance with the statute of limitations. If the prosecution fails
to meet that burden of proof, the trier of fact must retum a verdict
of not guilty. People v. Zamora, 18 Cal.3d 538, 565 n.27, 134

18

Cal.Rptr. 784, 557 P.2d 75 (1976); People v. Angel, 70
Cal.App.4th 1141, 1146-47, 83 Cal.Rptr.2d 222 (1999). Between
1990 and 1997, a jury would have had to find petitioner not guilty
on this ground alone; but in 1997, the Legislature retroactively
abolished that right to an acquittal. This is a far cry from the mere
procedural alterations in Youngblood and Beazell.

In taking the language “definition of a crime” literally, the
California Supreme Court and the other courts which have done the
same, see supra, p. 9, have used what might be called a
“definitional” approach, i.e., that what the California Supreme
Court called the “Beazell formulation” or “Youngblood two-part
test” specifically defines every law forbidden as ex post facto.
People v. Frazer, App. A, 21 Cal.4th at 756-57, 760, 763-64. This
Court, however, has never adopted such a restrictive approach. As
noted above, this Court has stated a functional rather than a
definitional approach in its Ex Post Facto Clause jurisprudence,
and has not limited ex post facto analysis to fixed, immutable
categories. See Beazell v. Ohio, 269 U.S. at 171; California
Department of Corrections v. Morales, 514 U.S. at 509; see
generally supra, pp. 6, 7. This Court has used a similarly functional
approach in two areas closely related to the Ex Post Facto Clause,
and has similarly eschewed arguments that these areas should be
analyzed through fixed, limited categories. See Nixon v.
Administrator of General Services, 433 U.S. 425, 475-76 (1977)
[Bill of Attainder Clause]; Hughes Aircraft Co. v. United States,
520 U.S. 939, 947 (1997) [civil statutory retroactivity]; Landgraf
v. USI Film Products, 511 U.S. 244, 268-69 & n.23 (1994) [same].

By its overly narrow interpretation of Youngblood and -
Beazell, the California Supreme Court adopted what it admitted
was a “technical view” of the ex post facto prohibition. People v.
Frazer, App. A, 21 Cal.4th at 763 n.24. This Court has not,
however, viewed the Ex Post Facto Clause as a mere “technical”
provision. Far from it: “The Ex Post Facto Clause flatly prohibits
retroactive application of penal legislation,’ as part of a
presumption against retroactive laws that “is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than
our republic.” Lynce v. Mathis, 519 U.S. 433, 439 & n.12 (1997).

19

James Madison called ex post facto and similar laws “contrary to
the first principles of the social compact, and to every principle of
sound legislation.” The Federalist No. 44 [quoted in Landgraf v.
USI Film Products, 511 U.S. at 267 n.20].

As discussed ante, p. 6, this Court has recognized that “a
law that abolishes an affirmative defense,” and a retroactive change
in a substantive penal law, violate the Ex Post Facto Clause.
Retroactive abolition of a fully mpe and complete limitations
defense, and of the consequent nght to an acquittal, is both.

In this case, to use the words of Beazell, a 6-year statute of
limitations defense was “available under the laws in force at the
time of the [alleged] commission” of the offense, late 1984.
Granted, at the time of the alleged offense it was only a contingent
defense as to petitioner, which wouldn’t become noncontingent
unless and until the applicable limitations period expired. But the
limitations period did expire, and the defense did become
noncontingent and unconditional. The 6-year statute of limitations
was, by law, a defense existing at the time of the charged offense,
which could not be abolished as to petitioner after it became
noncontingent and fully npe. Cf Kring v. Missouri, 107 U.S. 221,
247 (1883) (Matthews, J., dissenting) [legislative repeal of pardon
was impermissible ex post facto law; but if pardon had been
conditional, and had been repealed before all conditions had been
satisfied, repeal would not be ex post facto].

This Court has recognized the primary concern of the Ex
Post Facto Clause, that “retroactive punitive measures may reflect
‘a purpose not to prevent dangerous conduct generally, but to
impose by legislation a penalty against specific persons or classes _
of persons.’” Landgraf v. USI Film Products, 511 U.S. at 267 n.20
[quoting James v. United States, 366 U.S. 213, 247 n.3 (1961)
(Harlan, J., concurring in part and dissenting in part)]. “The Ex
Post Facto Clause not only ensures that individuals have ‘fair
warming’ about the effect of criminal statutes, but also ‘restricts
governmental power by restraining arbitrary and potentially
vindictive legislation.” Landgraf, 511 U.S. at 266-67. Many other
opinions of this Court also emphasize the Framers’ desire to

20

restrain government and curtail legislative abuses as a key reason
for this Clause. E.g., Miller v. Florida, 482 U.S. 423, 429-30
(1987); United States v. Brown, 381 U.S. 437, 444 n.18 (1965)
[quoting James Madison, The Federalist No. 44]; Fletcher v. Peck,
6 Cranch (10 U.S.) 87, 137-38 (1810); Calder v. Bull, 3 Dall. at
389 (opn. of Chase, J.), 396 (opn. of Paterson, J.), 399-400 (opn. of.
Iredell, J.). See also People v. Stevenson, 416 Mich. 383, 398, 331
N.W.2d 143 (1982) [“{A]ctual or even fictional reliance is not the
sole interest protected .. .. The ex post facto principle also protects
against erratic or arbitrary action improper in a lawgiver.”]; Warren
v. United States Parole Commission, 659 F.2d 183, 187 (D.C. Cir.
1981) [most significant reason for the ex post facto prohibition is
to curtail] legislative abuses], cert. denied, 455 U.S. 950 (1982).

These types of concerns apply to retroactive abolition of
any complete defense which otherwise would have resulted in
acquittal.° Elimination of a complete pardon, immunity or statute
of limitations defense is as much a potential means of legislative
abuse as abolition of an insanity defense. (If anything, the Framers
would have been more concerned about the former. Those
legislative practices would have been far more susceptible of
retributive abuses than a change in law affecting only politically
powerless people in insane asylums.)

The California Supreme Court focused on only one
concern of the Ex Post Facto Clause, reliance/fair warning. It stated
that the intent of the Ex Post Facto Clause was to “ensure[] the
citizenry has ‘fair warning’ of the conduct proscribed by law and
of the penalties imposed for violating those proscriptions. . . . In
this way, individuals are free to act in reliance on the law without
fear that their conduct will be made punishable in a ‘vindictive’ or
‘arbitrary’ fashion after it has occurred.” People v. Frazer, App. A,
21 Cal.4th at 754. The Court later elaborated: “Statutes governing

6

They also seem particularly 4 propos in a case such as this, where the
retroactive legislation singled out one group of persons who had never been
convicted of or even charged with a particular crime, based on the nature of the
alleged crimes with which they might later be charged.

21

the time at which a future criminal action may be filed are not
enactments on which defendants may reasonably rely in deciding
whether to commit an act otherwise defined as criminal... .” 21
Cal.4th at 771. These overly narrow recitals of the Clause’s
purposes yielded an overly narrow view of its scope.

Moreover, the California Supreme Court’s reliance theory
proves too much, because so many matters of proof that Clearly
implicate the ex post facto prohibition are not based in reliance. For
example, defenses such as entrapment, insanity or mistake are not
“reliance” defenses; indeed, they often preclude any showing of
reliance. Yet these non-reliance defenses fall under the Ex Post
Facto Clause. Youngblood, 497 U.S. at 49. There are even some
“definitions of crimes” that lack a reliance component, such as
involuntary manslaughter, which is generally committed without
intent and thus without reliance. Cal. Pen. Code, § 192(b). Yet they
too come under the ex post facto prohibition. And in most cases,
convicted criminals do not actually rely on the elements of any
given crime or punishment, because few criminals stop to read
statutes and caselaw before committing their crimes. In short,
reliance on the definition of a crime or punishment is far from the
only interest served by the Ex Post Facto Clause, and is not a
principled basis to limit that Clause’s scope.

Beyond that, criminal statutes of limitations also serve
reliance interests. As one very common example, taxpayers often
limit retention of tax and financial records to 6 years, the maximum
federal criminal statute of limitations. 26 U.S.C. § 6531. (Do
taxpayers now need to keep records forever, on the ground that a
State or federal Legislature can always extend or abolish the statute
of limitations?) As the dissenting Justices in this case put it:

Statutes of limitations tell people when they no
longer need to fear prosecution for crimes which
they may or may not have committed. After a
Statute of limitations for a crime has run, all
persons, guilty or innocent, having any reason to
anticipate that they might have been subject to
prosecution for that crime may throw away

22

documents or other items that might have been
useful to support a defense, secure in the belief that
prosecution is no longer a possibility. Because the
self-incrimination privilege does not survive an
expired statute of limitations, a person may be
forced to testify about a crime in civil proceedings
held long after the statute of limitations for the
crime has expired. (Fn: Such testimony is
particularly likely when the alleged molester is a
parent or stepparent. False allegations of child
molestation are a not-uncommon phenomenon in
bitterly contested child custody proceedings.)

People v. Frazer, App. A, 21 Cal.4th at 780-81 & n.2 (Kennard, J.,
dissenting). Thus, even if reliance were the only interest underlying
the Ex Post Facto Clause, which it clearly isn’t, that interest
encompasses complete limitations defenses as well as other
affirmative defenses or “definitions of crimes.”

The California Supreme Court thought it significant that a
limitations defense accrues only after the alleged commission of an
offense, rather than at the time of alleged commission. People v.
Frazer, App. A, 21 Cal.4th at 763. It is not, for the reasons above.

Moreover, this Court recently rejected such a distinction in
ex post facto analysis. In Lynce v. Mathis, 519 U.S. 433 (1997),
Florida made a similar claim, that it could cancel overcrowding
credits because Lynce could not reasonably have expected to
receive them when he pled nolo contendere (i.e., he could not have
relied on them). This Court rejected the claim, on the ground that
Florida had actually issued the credits, so the retroactive law
substantively disadvantaged Lynce by leading to his rearrest and
further incarceration. 519 U.S. at 446-47. In Lynce, the substantive
right existing at the time of the offense—one which affected the
State’s power of punishment—may have been only contingent at

23

that time; but once it later became complete and fully ripe, it could
not be abolished retroactively. This case should be no different.’

In any event, petitioner would submit that—especially in
California, and other jurisdictions where a criminal statute of
limitations is substantive—retroactive abolition of a complete
limitations defense is within at least two of the Calder v. Bull
categories, the third and fourth. (The third category is included in
_the California Supreme Court’s “Beazell formulation” and
“Youngblood two-part test.””) Retroactive abolition of petitioner’s
complete limitations defense inflicted a greater punishment than
the law annexed to the crime when allegedly committed, because
under that law, a fully ripe 6-year limitations defense meant the
crime could not result in any punishment at all. And retroactive
abolition of the complete limitations defense altered the rules of
evidence to permit conviction on less or different testimony than
the law required at the time of the alleged offense, because
evidence of compliance with a 6-year limitations period was
required at that time (and continuously after, until the defense
became complete), but was not required under the retroactive law.
None of this should matter, however, because the ex post facto
violation is manifest without any reference to fixed categories.

In the end, petitioner seeks a construction of the Ex Post
Facto Clause that is practical and well grounded in authority,
instead of the overly selective and ill-founded construction
proffered by the California Supreme Court. Petitioner asks this
Court to grant certiorari on Issue One, and reverse the judgment.

. Recently, this Court faced a similar claim in a civil context. The

plainuff claimed the presumption against statutory retroactivity didn’t apply to
abolition of a defense to qui tam actions, because it didn’t (i) create a new cause
of action or change an existing one, or (ii) increase the defendant’s exposure to
damages. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. at 946.
This Court rejected the claim, on the ground that the statutory amendment
eliminated a defense—which, notably, was another defense that didn’t go to the
“definition of the [tort] offense” and didn’t exist at the time of the alleged
wrongful acts. Id. at 947-50. The plaintiff's constitutional retroactivity claim in
this case should meet with the same fate, for similar reasons.

24

I. Retroactive Abolition Of Petitioner’s Complete
Limitations Defense Violated The Due Process Clause

A. Fundamental Fairness

Petitioner certainly concurs with Judge Hand’s conclusion.
Falter v. United States, 23 F.2d at 425-26. He also concurs with
the three California Supreme Court Justices who dissented here:
“The State of California has an obligation to deal fairly with its
citizens. Once it has made an absolute and irrefutable assurance
that it will not initiate a prosecution, it may not renege on that
promise years afterwards, when memories may have faded and
evidence may have been destroyed.” People v. Frazer, App. A, 21
Cal.4th at 781,782 (Kennard, J., dissenting); id. at 784 (Brown, J.,
dissenting). Though the dissenters’ conclusions of fundamental
unfairness rested on the state Due Process Clause, fundamental
unfairness equally describes a Fourteenth Amendment violation.

If anything, this should apply with particular force in a
jurisdiction such as California, where a criminal statute of
limitations is considered substantive; or more importantly, was
considered substantive at the time petitioner’s statute expired. Our
laws since the beginning of the Republic have strongly militated
against retroactive legislative deprivation of substantive rights. See,
e.g., Landgraf v. USI Film Products, 511 U.S. at 265-67.

Until the opinion in this case, the California criminal
statutes of limitation put California’s citizens on notice that they
were potentially subject to prosecution for a certain period of time,
and no more. Now, California has deemed that the prior notice
doesn’t matter for charges of child molestation, and further, that no
statute of limitations means what it says because the Legislature
can always change it after the fact. What are California’s citizens
supposed to do? Must they forever keep their tax, financial, and
professional records and other contemporaneous documents, now
“knowing” that any statute of limitations can be changed at will?

25

No state is required to adopt criminal statutes of limitation.
But if a state does, the law should mean what it says. “To hold
otherwise would allow for a dangerous precedent where any
limitations period can be rewritten retroactively, thus making the
purpose of statutes of limitations meaningless.” State of Minnesota
ex rel. Hove v. Doese, 501 N.W.2d 366, 370 (S.D. 1993). A
Criminal statute of limitations is supposed to provide predictability,
and an irrebuttable presumption of finality beyond a set limit.
United States v. Marion, 404 U.S. at 322-23. The California
Supreme Court opinion permits Legislatures to destroy both at will.

This Court has called retroactive repeal of an immunity
“subversive of principles of right and justice.” Cameron v. United
States, 231 U.S. 710, 719 (1914). Retroactive repeal of a
substantive statute of limitations, effectively an immunity by
operation of law, should be no different in the eyes of the law.

B. “Substantive” And “Procedural” Statutes Of Limitation

With respect to the caselaw, and the issue of “substantive”
vs. “procedural” statutes of limitations: Despite criticism in cases
such as those cited supra, p. 17, this Court has never overruled its
cases finding a constitutional violation in post-time bar repeal of a
substantive limitations defense, such as Davis v. Mills or William
Danzer. Nor has it placed the restrictions on those cases that some
suggest. They remain good authority in their own context, which
deals solely with statutes of limitation that are “‘substantive,” i.e.,
that extinguish a nght rather than merely barring a remedy.

The existence of substantive statutes of limitation that
qualify nights (in some states, even contract or tort rights), by
extinguishing the nght at the time bar, was well known to the
Anglo-American system when the Constitution was ratified. See,
e.g., Pritchard v. Norton, 106 U.S. 124, 131-32 (1882); Baker v.
Stonebraker, 36 Mo. 338, 349-50 (1865). That was and is how
many states characterize their statutes of limitation. See State of
Minnesota ex rel. Hove v. Doese, 501 N.W.2d at 369-70; People
v. Frazer, App. A, 21 Cal.4th at 779 (Kennard, J., dissenting), and
cases cited. That is their prerogative, as this Court held in Chase

26

Securities, 325 U.S. at 312-13 & n.9. This Court recently
recognized a substantive statute of limitations enacted by Congress
in Beach v. Ocwen Federal Bank, 523 U.S. 510, 516-17 (1997).

These types of statutes were common with respect to real
or personal property. This Court recognized one in the early cases
of Shelby v. Guy, 11 Wheat. (24 U.S.) 361 (1826) and Brent v.
Chapman, 5 Cranch (9 U.S.) 358 (1809). But these statutes were
not confined to real or personal property. Under these statutes, a
defendant acquired a vested right at the time bar; not due to any
theory of reliance, but simply because the jurisdiction that created
the night considered the claimzant’s nght extinguished at the time
bar. That vested a right in the defendant to be free from a claim
(effectively a type of immunity), rather than merely depriving the
claimant of a remedy. See, e.g., Baker v. Stonebraker, 36 Mo. at
349-50 [construing a 1715 statute on enforcement of judgments];
Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Hine, 25 Ohio St.
629, 633-34 (1874) [wrongful death action]; Brown v. Parker, 28
Wis. 21, 27-33 (1871) [contract action]; Pritchard v. Norton, 106
U.S. at 130-32; see also Walsh v. Mayer, 111 U.S. 31, 37 (1884).

This Court made clear in Campbell v. Holt and Chase
Securities that the Fourteenth Amendment does not per se prohibit
retroactive revival of time-barred actions; a (procedural) statute of
limitations that goes only to remedy can always be changed. But in
jurisdictions where a statute of limitations is considered to
extinguish a right rather than merely barring a remedy, expiration
of that type of limitations period creates a substantive right for the
defendant. Deprivation of that right is thus recognized as violating
state and federal Due Process guarantees. State of South Dakota ex
rel. Dotson v. Serr, 506 N.W.2d 421, 423 (1993); Cole v. National
Life Ins. Co., 549 So.2d 1301, 1307 (Miss. 1989); Country Mutual
Ins. Co. v. Knight, 40 1l.2d 423, 427, 240 N.E.2d 612 (1968);
Ackerman v. Ackerman, 42 Va. Cir. 103, 107 (1997).

That is the principle for which this Court’s opinions such
as Davis v. Mills, William Danzer, and Stewart v. Keyes stand.
Retroactive abolition of a complete limitations defense is not per
se a violation of the Fourteenth Amendment, as Campbell v. Holt

27

and Chase Securities make clear. But the latter two cases involved
statutes of limitations which were deemed procedural, and only to
bar the remedy, by the jurisdiction which created the underlying
right. “[C]ertainly it cannot be said that lifting the bar of a statute
of limitations so as to restore a remedy lost through mere lapse of
time is per se an offense against the Fourteenth Amendment. Chase
Securities, 325 U.S. at 314 [emphasis added].

By contrast, when the jurisdiction which creates the right
also construes the accompanying statute of limitations as
“substantive” and as qualifying the nght, so that expiration of the
time bar extinguishes the right, that is when cases such as Davis v.
Mills, William Danzer and Stewart v. Keyes apply. In those
jurisdictions, retroactive abolition of a “substantive” statute of
limitations is a violation of the federal Due Process Clause.

This Court has held that whether a statute of limitations is
substantive as opposed to procedural, and thus destroys the
underlying nght rather than merely withdrawing a remedy, depends
on the intent of the legislature. Mid-State Horticultural Co. v.
Pennsylvania Ry. Co., 320 U.S. 356, 360-61 (1943); Beach v.
Ocwen Federal Bank, 523 U.S. at 416-17; see Chase Securities,
325 US. at 312 n.8 [basing its holding on how “the state court . .
. construed the relationship between its limitation acts and the state
law creating the asserted liability”). That is the factor which this
Court used in Chase Securities to distinguish a typical procedural
statute of limitations (Campbell v. Holt/Chase Securities), from
substantive statutes of limitation (Davis v. Mills/William Danzer).®

' It also distinguishes some of this Court's recent cases, such as

International Union of Electrical, Radio and Machine Workers v. Robbins &
Myers, Inc.,429 U.S. 229, 243-44 (1976), and Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 18 (1976). In Robbins & Myers, retroactive repeal of a time bar
was held to be permissible, when there was no indication Congress intended the
bar to be substantive. Turner Elkhom held that presumptions in economic
legislation must be rational, which is clearly true but doesn’t affect the issue here,
since not even a rational violation of the Due Process Clause is permissible.
These cases do not support the broad theory in cases such as Shadburne- Vinton,

(continued...)

28

Chase Securities, 325 U.S. at 312 n.8, 314; see Davis v. Valley
Distributing Co., 522 F.2d 827, 830 & n.7 (9th Cir. 1975), cert.
denied, 429 U.S. 1090 (1977); Chevron Chemical Co. v. Superior
Court, 131 Ariz. 431, 439-40, 641 P.2d 1275 (1982). That makes
sense, since protected Fourteenth Amendment liberty and property
interests find their source in the law of the jurisdiction that creates
them. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

Determining whether a statute of limitations is
“substantive” or “procedural” is not always easy. Here, however,
it is not a problem. It is well established that a California criminal
statute of limitations is substantive, and was when petitioner’s 6-
year time bar—and thus the State’s right to prosecute—expired in
1990. People v. McGee, | Cal.2d at 613-14; People v. Morris, 46
Cal.3d at 13; People v. Zamora, 18 Cal.3d at 547.

This issue requires looking to the Legislature’s intent in
enacting the original limitations period. The issue is whether a
substantive right inhered in the original legislation (section 800),
not in the repealing legislation (section 803(g)); for if a right
created in the original legislation vested at the time bar, no later
repealing legislation could “undivest” it.” In this case, the issue
must be examined as of 1990, when the 6-year statute expired, and
thus when any right to repose vested. See People v. Frazer, App.

*(...continued)

see supra, p. 17, that there are no Due Process consequences to repeal of any
complete time bar, whether substantive or procedural.

9

Also, prior to 1990, the Legislature understood that retroactive revival
of time-barred criminal actions would violate ex post facto prohibitions. See Law
Revision Commission Comment to Cal. Pen. Code § 805.5 (1984 enactment).
The Legislature rewrote California's criminal statute of limitations laws in 1984,
and in so doing, it would not have intended those statutes to have a meaning it
believed to be unconstitutional. In re Rights to Waters of Long Valley Creek
Stream System, 25 Cal.3d 339, 349, 158 Cal.Rptr. 350, 599 P.2d 656 (1979). In
1999, the California Supreme Court declared there was no constitutional
prohibition against retroactive revival of time-barred criminal actions. But the
issue is what the California Legislature intended by enacting statutes of limitation
up to 1990, not what it was permitted to do in 1997 or 1999.

29

A, 21 Cal.4th at 783 (Brown, J., dissenting). The 1990 expiration
of the substantive statute of limitations implicates the substantive
nght line of authonty. The Legislature's effort to undo that
substantive nght seven years later violated the Due Process Clause.

It doesn’t matter that a government is not required to make
a parucular statute of limitations substantive rather than procedural.
Once it does, a nght to repose vests when the statute expires. The
government cannot then take it away. See Moore v. State, 43 NJ.L.
at 227-29 (opn. of Chancellor Runyon). No more can a government
give a conditional gift of $50, allow the condition to be perfected
thus making the gift unconditional, then retroactively revoke the
gift. The donee need not show he relied on the gift, or collected it
as Soon as it became unconditional, or even that he has any use for
the money. He has a nght to it when the last condition ts fulfilled.
Twenty Per Cent Cases, 20 Wall. (87 U.S.) 179, 187 (1873). Asa
matter of consutuuonal analysis, this case 1s no different.

For all of the reasons in this section and in section (A)
above, this Court should grant certioran and hold that retroactive
application of secuon 803(g) violated the Due Process Clause.

CONCLUSION

For all of the foregoing reasons, this Peution for Wnt of
Certoran should be granted.

Dated this 3rd day of January, 2000.

Respectfully submitted,

Michaei B. Dashyjian (Counsel of Record)
Sylvia M. Dashjian

1110 Calhiforma Blvd. Suite D

(Mailing Address:) P.O. Box 512

San Luis Obispo CA 93406-0512

(805) 460-0300

Counsel for the Petitioner

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0877%3A01. Public record. Not legal advice.