# Reply Brief — Frazer v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0877%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1108

## Text

Supreme Court, U.S.
ro FILED
€) nee

APR 10 2060
No. 99-1193
In the Supreme Caurt CLERK we!
OF THE
United States
RAYMOND FRAZER,
Petitioner,
VS.

PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.

On Petition for Wnt of Certiorari to the
Supreme Court of the State of California

REPLY BRIEF

MICHAEL B. DASHIJIAN (Counsel of Record)
SYLVIA M. DASHIJIAN

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) 460-0300

Facsimile: (805) 460-0349

Email: firm@dashlaw.com

Counsel for the Petitioner

J (
ail

Sg Eee Eee ee rn eee Tete err ree l
I. ee ne er ee 2
Il. EMME FVOCOCECIMUEE 2.5. ks cies ES ha ae 8
A. eo he 8
B. Substantive Statutes Of Limitation ........ 10
TABLE OF AUTHORITIES
CASES
Bear v. Omio, 267 U5. G9 (19Z5) ow. wc ceeecee es 2-4,6
Calder v. Bull, 3 US. CPU SUL ETOEED Sve cree vaceawe 2
California Department of Corrections v. Morales,
ee Ek er ere 2, 6,9
Collins v. Youngblood, 497 U.S. 37 (1990) .............. 2-7
Cowan v. Superior Court, 14 Cal.4th 367,
58 Cal.Rptr.2d 458, 926 P.2d 438 (1997) ........ 4
Doyle v. Ohio, 426 U.S. 284 (1976) ................ Peer

Dugger v. Williams, 593 So.2d 180 (Fla. 1991) (per curiam) .. 4
Lr v. Ferme, BF US. GIO CIS) occ ccs ecbuvss 5

Ex Parte Scales, 853 S.W.2d 586
ge Bee FO 8 ene ore Tae 4

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ............ 9

Garner v. Jones, 2000 U.S. LEXIS 2346

(US. Mat: DR. Fe 68 cpa ee ee |
Helton v. Fauwver, 930 F.2d 1040 (3d Cir. 1991) 2.0... eee. 6
Hughes Aircraft Corp. v. United States
ex rel. Schumer, 520 U.S. 939 (1997) ............ 2-4 |
International Shoe Co. v. State of Washington, |
320 US. S10 (9D) 6 nin ee ee 10
Jacor \. State, 154 Neb. 416, 48 N.W.2d 390 (1951)... 7
Landgraf v. USI Film Products, 511 U.S. 244 (1994) ..... ia
Lindsey v. Washington, 301 U.S. 397 (1937) .............-. 6 |
Loper v. Beto, GB US. 495 CR Tas kee te sae 10 |
Lynce v. Mathis, S19 U.S. 433-(0G9T) ccc ces ce dansnes 3, 5-7
Means vy. Northern Cheyenne Tribal Court, |
154 F.3d S43 GOO Ce, TOU cs aes 5 }
Miller v. Florida, 482 U.S. 423 (1987) ................ 4,6
Miranda v. Arizona 384 U.S. 436 (1966) ................ 9
Ostrosky v. State, 704 P.2d 786 (Alas. Ct. App. 1985) ....... 3
People v. Frazer, 21 Cal.4th at 737 (1999) ............... 2
People v. Lovercamp, 43 Cal.App.3d 823,
L1G Cah aeee. LR CIR PG wena ec KA RAR EROS 3
Raley v. Ohio, 360 U.S. 423 (1959) ...... 2. 0.0000. Sage 9 |
Ross v. State, 411 So.2d 247 (Fla. 1982) .............. be 7
Schmuck vy. United States, 489 U.S. 705 (1989) ............ l
il

Pe ae ee

Sparf v. United States, 156 U.S. 51 (1895) ........-.--.-. l

State v. Losolla, 84 N.M. 151, 500 P.2d 436 (1972) ........ 7
State v. McLaughlin, 80 N.Y .2d 466, 606 N.E.2d 1357,

oo & ee) Fe |. rr rear 8
State v. Wagner, 596 N.W.2d 83 (lowa 1999) ............. 7

State v. Wardenburg, 261 Iowa 1395,
me oR we 87s, | er ee

United States v. Baker, 10 F.3d 1374 (9th Cir. 1993),
cert. denied, 513 U.S. 934 (1994) ................ 6

United States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987) .. 6

United States v. Lovasco, 431 U.S. 783 (1977) ...........- l
United States v. Marion, 404 U.S. 307 (1971) ............ - 4
United States v. Oregon Lumber Co., 260 U.S. 29 (1922) .... 7
United States v. Timmereck, 441 U.S. 780 (1979) .......... l
Wainwright v. Greenfield, 474 U.S. 284 (1986) .........--. 9
Waldrup v. Dugger, 562 So.2d 687 (Fla. 1990) .........--. 5
Weaver v. emia. PL aR Ge To. |S er aeer §

ill

STATUTES

[5 Ree SO SE ae oc ceo eek we eee ee ee 7
18 Pennsylvania Consolidated Statutes § 103 ............. 7
Se Wie TEN CA Ko eel eee a eee Eee 3
(apormen Femmes © our 6 206 Sc. oo ee ce news 6
California Penal Code § 803 ...-..............2006- 4,6,9
CONSTITUTIONS
United States Constitution, Amendment V ............... 8
OTHER AUTHORITIES
~ Black’s Law Dictionary (6th ed. 1991) .-................ 7
James Madison, The Federalist No. 37 ...............0.. 10
James Madison, The Federalist No. 44 ..............0.... l
pees Fees Ce SEAL occ che ick cow ccs netnsas 7
Rees ween 6 © LES occ a wo kenee uerwareenews 7
Paine, Thomas, “Dissertation on First Principles of
Government,” in Common Sense and Other
Political Writings 174 (Adkins, 1953) ............. l

1V

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Overview

Criminal statutes of limitation, in jurisdictions which have
them (nearly all), are intended to “provide predictable, legislatively
enacted limits on prosecutorial delay.”’ United States v. Lovasco, 431
U.S. 783, 789 (1977); see United States v. Marion, 404 U.S. 307,
322-23 (1971) [cited in Petn. at 26]. More generally, a high value is
placed on legal certainty, stability, and finality in our system of
justice. See, e.g., United States v. Timmereck, 441 U.S. 780, 784
(1979); Sparf v. United States, 156 U.S. 51, 83 (1895); Schmuck v.
United States, 489 U.S. 705, 721 (1989).

Here, the State invokes the U.S. Constitution to seek a result
that undoes order and stability in legal relations and destroys finality,
by allowing a government to fake out its citizens with a promise of
liberty on which the government can later renege at its pleasure,
years or decades after the promise becomes unconditional. Petitioner
disagrees that the Framers of our Constitution would have thought
this an acceptable model of legislative power. See also infra, p. 10.

The State has not disagreed with petitioner’s point that if a
government can retroactively breach an unconditional promise of
finality for people charged with sex offenses, it can do so for people
charged with any type of offense. See Petn. at 12. That ill serves the
key purpose of the prohibitions against retroactive legislation,
curbing legislative “tempt[ation] to use retroactive legislation as a
means of retribution against unpopular groups or individuals.”
Landgraf v. USI Film Products, 511 U.S. 244, 266-67 & n. 20
(1994) [quoting Madison, Federalist No. 44]; accord, e.g., Garner
v. Jones, 2000 U.S. LEXIS 2346, at 18 (U.S. Mar. 28, 2000). People
charged with sex offenses may be today’s unpopular group
subjected to retroactive abrogation of finality in one or more states.
Tomorrow’s may be people alleged to have overestimated profits of
a publicly traded corporation, underpaid taxes, negligently
commanded a wrecked vessel, protested too vigorously for a cause
of great importance to them, or the like. A constitutional protection
denied one is denied all. See, e.g., Thomas Paine, “Dissertation on
First Principles of Government,” in Common Sense and Other
Political Writings 174 (Adkins, 1953).

aT EET NEE

I. Ex Post Facto Clause

The State severely truncates petitioner’s authority for his
showing that this Court has utilized differing and possibly
conflicting formulations in describing the ex post facto prohibition.
See Petn. at 5-8, 17-18. The State claims petitioner’s authority was
no more than ‘a pre- Youngblood case, Calder v. Bull, 3 U.S. (3
Dall.) 386 (1798), which was examined in detail in [Collins v.
Youngblood, 497 U.S. 37 (1990)], and [a] one-line parenthetical
summary in another case, Hughes Aircraft Corp. v. United States ex |
rel. Schumer, 520 U.S. 939, 948 (1997)... .” Br. Opp. at 5.
Apparently, the State is trying to suggest that this Court has never :
used differing formulations of the ex post facto prohibition except in
Calder, and it took care of Calder in Youngblood.

The State's effort is patently in error. In the same para-
graph in which he cited Calder and Hughes Aircraft, petitioner also
cited two passages in Youngblood, and two passages in Beazell v.
Ohio, 267 U.S. 169 (1925), which supported his argument and
worked against the State’s narrow, technical view. Petn. at 6. Later,
petitioner twice quoted Justice Thomas’s opinion for this Court in
California Department of Corrections v. Morales, 514 U.S. 499
(1995), and again quoted Beazell, for more formulations supporting
his view that ex post facto analysis is not limited to immutable
categories, and against the State’s view that it 1s. Petn. at 7, 17-18.

Rattbene Pea Oe Dita Ste

Furthermore, while the State tries to dismiss Hughes Aircraft
by a throwaway reference to a “one-line parenthetical,” Br. Opp. at
5, the “one-line parenthetical” is this Court’s description of its own
Beazell and Youngblood opinions—after Youngblood. This Court in
Hughes Aircraft quoted Youngblood for the point that ***A law that
abolishes an affirmative defense’ violates the Ex Post Facto Clause,”
and quoted Beazell for its point that “‘any statute . .. which deprives
one charged with crime of any defense available according to law at
the time when the act was committed, is prohibited as ex post facto.”
520 U.S. at 948 [quoting Youngblood, 497 U.S. at 49, and Beazell,
269 U.S. at 169-70]. Especially given the purpose of those citations
in Hughes Aircraft, see infra p. 6, these are far more inclusive
formulations of an ex post facto law than the “rigid,” Br. Opp. at 6,
and “technical,”’ People v. Frazer, 21 Cal.4th at 763 n.24, theory of
the State and the California Supreme Court.

Widen

2

ee

The State tries to minimize the conflicts among
jurisdictions, see Petn. at 8-10, by asserting that most of the ex post
facto cases petitioner cited-in the statute of limitations area, and
related areas such as pardon and immunity—were decided before
Youngblood. Br. Opp. at 10-14. However, in Youngblood and after,
this Court has held that “‘{t]he Beazell formulation is faithful to our
best knowledge of the original understanding of the Ex Post Facto
Clause.” Youngblood, 497 U.S. at 43; accord Lynce v. Mathis, 519
U.S. 433, 440 (1997). Thus as the State acknowledges, Chief Justice
Rehnquist’s opinion in Youngblood reaffirmed Beazell. Br. Opp. at
6. The State therefore errs in claiming Youngblood so radically
changed ex post facto analysis that no case before Youngblood is
worthy of consideration. See Br. Opp. at 10-12.

Beazell described an ex post facto \aw as: “|A]ny statute
which punishes as a crime an act previously committed, which was
innocent when done; which makes more burdensome the
punishment for a crime, after its commission; or which deprives one
charged with crime of any defense available according to law at the
time when the act was committed.” 269 U.S. at 169. (Youngblood
had a similar formulation. 497 U.S. at 52.) A complete defense of
limitations, pardon, immunity, etc. is a “defense available according
to law” just like a defense such as entrapment, insanity, mistake of
law (Ostrosky v. State, 704 P.2d 786, 791-92 (Alas. Ct. App. 1985)),
or prison escape by necessity (People v. Lovercamp, 43 Cal.App.3d
823, 118 Cal.Rptr. 110 (1974)).

This Court has agreed, post- Youngblood. In Hughes Aircraft
Corp. v. Schumer, 520 U.S. 939 (cited in Br. Opp. at 5], Justice
Thomas’s opinion for the Court relied on both Youngblood and
Beazell, including the “any defense available according to law”
passage from Beazell quoted above, in applying the presumption
against civil statutory retroactivity to a defense that the allegedly
withheld information was in possession of the Government. 520
U.S. at 848. The presumption against civil statutory retroactivity 1s
utilized similarly to the ex post facto prohibition. See Landgraf v.
USI Film Products, 511 U.S. at 266-67 & n. 20.

In Hughes Aircraft, the issue of who had the information
was not within the State’s rigid, technical theory of “definition of the
{tort]’’(see 31 U.S.C. § 3729). Like the limitations defense here, the

3

ostensibly abrogated defense in Hughes Aircraft was jurisdictional,
affecting only the issue of standing to sue. Yet this Court cited
Youngblood and Beazell, including Beazell’s “any defense available
according to law” passage, to reject Schumer’s claims.

The limitations defense here is no less a “defense available
according to law,” than the defense of Government possession of
information was a “defense available according to law” in Hughes
Aircraft. Perhaps neither fits exactly into the State’s rigid, technical
paradigm. But that paradigm is not and should not be the law.

The State’s rigid, technical theory of an ex post facto law is
also contrary to this Court’s formulation in Miller v. Florida, 482
U.S. 423 (1987). There, Justice O’Connor’s opinion for the Court
stated that a retroactive amendment is not an ex post facto law if it
“does not increase the punishment nor change the ingredients of the
offense or the ultimate facts necessary to establish guilt.” 482 U.S.
at 432-33. California Penal Code § 803(g) clearly “changes the
ultimate facts necessary to establish guilt” by eliminating a require-
ment for a guilty verdict, proof of compliance with the statute of
limitations. As discussed infra, p. 6, it also increases the punishment
for the charged crime, even under the State’s narrow view.

The State also errs in claiming no post- Youngblood cases
have found a federal ex post facto violation for retroactive abolition
of acomplete defense of statute of limitations, pardon, immunity, or
the like. Br. Opp. at 12, 14.

First, the State misstates the holding of Ex Parte Scales, 853
S.W.2d 586 (Tex. Ct. Crim. App. 1993) [cited in Petn. at 10].
Scales, relying on Youngblood, found the abolition of the “carving
doctrine” to be a judicial equivalent of an ex post facto law, using ex
post facto standards, even though the Texas “carving doctrine”
didn’t fit within the technical “definition of the crime” paradigm the
State uses here. Scales, 853 S.W.2d at 587-88. The State thus errs in
claiming Scales found no ex post facto violation. Br. Opp. at 14.’

The State also misconstrues another case to which petitioner referred.
Contrary to the State’s claim, Br. Opp. at 14, Dugger v. Williams, 593 So.2d 180
(Fla. 1991) (per curiam) [cited in Petn. at 10] dealt with the federal as well as the
(continued...)

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Second, other post- Youngblood opinions have also held that
retroactive abolition of a complete defense violates the Ex Post
Face Clause, shousih their defenses nae jwinsditionaland thus. ny
within the State’s rigid, technical “definition of the crime”’ theory.

In Means v. Northern Cheyenne Tribal Court, 154 F.3d 941,
947-48 (9th Cir. 1998), Judge Reed's opinion for the Court-relying
on Collins v. Youngblood-held that the amendment which purported
to create jurisdiction in the Tribal Court (and which sought to
override Duro v. Reina, 495 U.S. 676 (1990)) would be ex post facto
if applied retroactively. Means so held for three reasons: (1) Tribal
Court jurisdiction would increase Means’ exposure to punishment
beyond that existing at the time of the charged offense; (2)
retroactive application of the amendment would punish something
which was not acrime at the time of the alleged offense, since “what
constitutes ‘a crime’ is essentially what the sovereign defines as ‘a
crime,’ [and] if the sovereign has no power over an individual then
it essentially lacks the ability to define any of the individual's
conduct as a crime”; and (3) retroactive application would deprive
Means of a “defense available at the time of the alleged crime”
(citing Youngblood, 497 U.S. at 52), namely, lack of jurisdiction.

Each of these three reasons in Means also applies to
petitioner here: (1) Petitioner's exposure to punishment was
increased beyond that existing at the time of the charged offense, for
the reasons stated infra, p. 6 [discussing Lynce v. Mathis and similar
cases]. (2) The sovereign (California) had no power of prosecution
over petitioner beginning in 1990, and thus lacked the ability to
define any of his conduct as a crime. (3) A fully ripe statute of
limitations defense was a complete defense at the time of petitioner’ s
alleged crime (1984). In fact, just as the issue in Means was a
jurisdictional defense, the issue here—a California criminal statute of
limitations-—is also jurisdictional. See Cowan v. Superior Court, 14
Cal.4th 367, 374, 58 Cal.Rptr.2d 458, 926 P.2d 438 (1997).

'(...continued)
state Constitution. as it relied on another case which expressly referred to the
federal Ex Post Facto Clause and opinions of this Court construing it. /d. at 181
(citing Waldrup v. Dugger, 562 So.2d 687, 691-92 (Fla. 1990)}.

5

Similarly in Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir.
1991), the Third Circuit held that retroactive application of a statute
permitting jurisdiction in Superior Court rather than juvenile court
met the Beazell/Youngblood ex post facto standard, as it increased
the punishment to which Helton was potentially subjected, and it
also deprived Helton of a complete defense that the Superior Court
lacked jurisdiction. (The dissent agreed with the majority on this
point. Helton, 930 F.2d at 1049 (Hutchinson, J., dissenting).)

The Fourth Circuit reached a similar conclusion in United
States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987). While
Juvenile Male relied on Beazell, it preceded Youngblood. However,
Judge Boochever’s opinion in United States v. Baker, 10 F.3d 1374,
1394-95 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994), citing
Youngblood and Beazell, reached the same conclusion based on the
Fourth Circuit's analysis in Juvenile Male.

As the State points out, other courts have construed
Youngblood differently, and have concluded that Youngblood
abrogated Beazell’s inclusion of “any defense available according
to law” in the ex post facto prohibition. Br. Opp. at 12-14; accord
Petn. at 9. That is all the more reason why certiorari is warranted.

In any event, this case is well within the State’s “rigid,”
“technical” paradigm, as shown by Justice Stevens’ opinion for this
_ Court in Lynce v. Mathis, 519 U.S. 433 (1997). California Penal
Code section 803(g) does “increase[] the penalty by which a crime
is punishable,” Lynce, 519 U.S. at 443 [quoting Morales, 514 US.
at 506 n.3]: It raises that penalty from zero, to 3-8 years. See Petn. at
24: Cal. Pen. Code § 288. It thus creates a “sufficient risk of increas-
ing the measure of punishment attached to the covered crimes,”
Morales, 514 U.S. at 509; if petitioner were convicted (the only
relevant scenario), the risk would be 100%. Just as cancellation of
gain time in Lynce made prisoners ineligible for early release when
they were previously eligible, so too even more here, cancellation of
a statute of limitations made persons ineligible for immunity from
punishment when they were previously immune. See Petn. at 24.
Such a retroactive law, increasing potential punishment, is ex post
facto. Lindsey v. Washington, 301 U.S. 397, 401-02 (1937); Miller
v. Florida, 482 U.S. at 432-33; see Morales, 514 US. at 506 n.3.

Lynce postdated Youngblood, and is wholly consistent with
it. Thus again, Youngblood cannot mean what the State, or the cases
on which it relies, would have it mean.”

Youngblood makes clear that a mere change in “procedure
by which a criminal case 1s adjudicated”—a change solely affecting
method of adjudication, see, e.g., Blacks Law Dictionary 1203-04
(6th ed. 1991)-is usually not ex post facto. Youngblood, 497 US. at
45. But an expired statute of limitations (or immunity, pardon, etc.)
is a full defense; and in California and other jurisdictions, the State
must prove compliance with the statute for a conviction. See ante, p.
5. That is far from a mere procedure (method) of adjudication,
especially in a state such as California, which considers a criminal
limitations period substantive rather than procedural. E. g., Cowan v.
Superior Court, 14 Cal.4th at 371-72; see Frazer, 21 Cal.4th at 783
(Brown, J., dissenting). Indeed, a judgment can be based solely on
a statute of limitations, and such a judgment is as binding as one
based on failure of proof of an element. United States v. Oregon
Lumber Co.,260 U.S. 290, 300-01 (1922). By contrast, no judgment
can be based solely on a mode of procedure.

In addition, the State’s technical theory assumes a statute of
limitations is not an element of acrime. See, e.g., Br. Opp. at 5, 10,
12-14 & n.5; People v. Frazer, 21 Cal.4th at 757, 760, 764. But in
some states, it is. See, e.g., 11 Del. Code § 232; Jacox v. State, 154
Neb. 416, 419, 48 N.W.2d 390 (1951); 18 Pa. Cons. Stat. § 103(4),
see also Mod. Pen. Code § 1.12(d). Similarly, many states consider
other matters outside the State’s “definition of crime” theory to be
elements of crimes. See, e.g., State v. Losolla, 84 N.M. 151, 152,
500 P.2d 436 (1972) [jurisdiction]; Ross v. State, 411 So.2d 247,
249 (Fla. 1982) [same]; State v. Wagner, 596 N.W.2d 83, 85 (lowa
1999) [territorial jurisdiction]; see also Mod. Pen. Code § 1.13. The
State’s theory would be hopelessly muddled in these states.

Beyond that, it does not seem logical to postulate that changes in
discretionary gain-time awards are within ex post facto analysis, see Lynce v.
Mathis, 519 U.S. at 448-49, as are some parole eligibility modifications, see id.
at 445, but abolition of a nondiscretionary, complete right to an acquittal is not.

Other jurisdictions might not necessarily use the formal term
“element” (often, perhaps, because they never thought about it), but
sull require proof of jurisdictional and similar matters beyond a
reasonable doubt as if they were elements. See, e.g., State v.
McLaughlin, 80 N.Y.2d 466, 472 & n.*, 606 N.E.2d 1357, 591
N.Y.S.2d 966 (1992); State v. Wardenbureg, 261 lowa 1395, 158
N.W.2d 147, 151 (1968). It is unclear how the State's technical
paradigm would apply in these jurisdictions, and why (if it all) it
would be different from jurisdictions which use an “elements” label.
However, if the State tried to defend its position in such a jurisdic-
tion based on the label “element” (perhaps the only principled
position the State could take), that effort would fail because “‘it is the
effect, not the form, of [a] law that determines whether it is ex post
facto.” Weaver v. Graham, 450 U.S. 24, 31 & n.15 (1981).

Finally, the State has not disputed petitioner's showing that
the Ex Post Facto Clause, the closely related Bill of Attainder
Clause, and the closely related presumption against statutory retroac-
tivity, are construed in this Court’s opinions based on function or
effect rather than rigid, technical forms. Petn. at 19-20. The State
also has not tried to defend the California Supreme Court's trunca-
tion of the purposes of the Ex Post Facto Clause; which further
shows the State's legal theory is not and should not be the law, since
the State’s theory cannot survive consideration of the purpose which
the California Supreme Court omitted. See Petn. at 20-22. In addi-
tion, the State has not addressed petitioner’s discussion of the major
changes or uncertainties which would result in Fifth Amendment
law, if an expired limitations period didn’t provide certain immunity
from prosecution. Petn. at 11. And the State doesn’t contest the
point that for purposes here, a complete limitations defense is akin
to defenses such as pardon or immunity. Petn. at 10 & n.3, 21.

Il. Due Process Clause
A. Fundamental Fairness

The State claims there is nothing fundamentally unfair about
a government promising a conditional immunity from prosecution
(here, the promise that all prosecutions shall be brought within 6
years after the alleged offense), then reneging on the promise
years—or decades—after the condition was perfected and the

——— lr tt—“—sSS

$|

immunity became unconditional. Three of the seven Justices of the
California Supreme Court thought otherwise, concluding that a
government reneging on such a (fully ripe) promise not to prosecute
was a violation of the California Constitution because it was so
fundamentally unfair. People v. Frazer, 21 Cal.4th at 780 (Kennard,
J., dissenting); id. at 782-84 (Brown, J., dissenting).

The United States Constitution, no less than the California
Constitution as construed by the three dissenting Justices, prohibits
as fundamentally unfair such a governmental breach of promise to
an individual, materially affecting the individual's liberty or
property. Petitioner already adverted to this in Petn. at 30. See also,
e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135-39 (1810).

In addition, this Court has so held for breaches of promises
by prosecuting authorities which materially disadvantage the
recipient of the promise with respect to criminal prosecution. For
example, when a government implicitly promises a suspect it won't
use silence against him by giving Miranda warnings, it is
fundamentally unfair and a denial of Due Process for the
government to breachthat promise, and the post-Miranda silence is
inadmissible for all purposes. Doyle v. Ohio, 426 U.S. 284, 290-95
(1976); Wainwright v. Greenfield, 474 U.S. 284, 290-95 (1986).
Similarly, if a government promises a person immunity for any
statements, it is fundamentally unfair and a denial of Due Process for
the State to breach that promise, and the statements cannot be used
in a later prosecution. Raley v. Ohio, 360 U.S. 423, 437-40 (1959).

Such cases further show that when government makes a
(material) promise which becomes unconditional and affects a
liberty or property interest, it may not later renege. So too here.

The State appears to claim, twice, that the California
Supreme Court’s holding is justified because California Penal Code
§ 803(g) involves charged victims of sex offenses. Br. Opp. at 23,
24. There is no support for a theory that the Due Process Clause bars
retroactive revocation of immunity for some prosecutions, but
permits it for others. What provision of the Constitution would
enable one to determine which prosecutions permit retroactive
revocation, and which not? Cf. Morales, 514 U.S. at 510 n.7.

The Due Process Clause is intended to serve the purpose of
“{insuring] the fair and orderly administration of the laws.”
International Shoe Co. v. State of Washington, 326 U.S. 310, 319
(1945): see also, e.g., Loper v. Beto, 405 U.S. 473, 494 (1972)
(Burger, C.J., dissenting) [referring to the “very notion{[] of ... order-
liness embodied in the Due Process Clause’’]. The State seeks, and
the California Supreme Court held, the opposite. See supra, p. 1.

Petitioner doubts the Framers of our Constitution had such
a disorderly view of the role of government. To the contrary:
“Stability in Government, 1s essential to national character, and to
the advantages annexed to it, as well as to that repose and
confidence in the minds of the people, which are among the chief
blessings of civil society.” James Madison, The Federalist No. 37.

B. Substantive Statutes Of Limitation

The State offers virtually nothing in response to the
argument in Part II(B) of the petition. However, the State doesn’t
dispute the existence of the “substantive right” line of cases, which
rely on federal and state Due Process guarantees to hold that
substantive statutes of limitation cannot be retroactively abolished
once they have expired. See Petn. at 16. As petitioner has shown,
Petr. at 16-17, there is a split of authority on this subject. The State
offers only a sentence of ipse dixit to the contrary. Br. Opp. at 27.

The distinction between procedural and substantive statutes
of limitation clearly is significant. The petition set forth a logical and
supported analysis of how that significance relates to the Due
Process Clause and the issue here, firmly rooted in traditional state
and federal jurisprudence. The State has made no effort to respond.

Dated this 10th day of April, 2000.
Respectfully submitted,

Michael B. Dashjian (Counsel of Record)
Sylvia M. Dashjian

P.O. Box 512

San Luis Obispo CA 93406-0512

(805) 460-0300

Counsel for the Petitioner

10

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2 ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0877%3A11. Public record. Not legal advice.