Petition for Writ of Certiorari — McKune v. Steltzlen

(f) i) ) lll

BS $6'6 AUC 3 | 1998

No. 98-__ OEIC a. Dig cusax

In The

Supreme Court of the United States

October Term, 1997

+

DAVID R. McKUNE, Warden,

CHARLES SIMMONS, Secretary of Corrections,

Petitioners,

Vv.

MARK L. STELTZLEN,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Kansas Court Of Appeals

+

PETITION FOR WRIT OF CERTIORARI

»

TimotHy G. MADDEN Carta J. STOVALL

Chief Legal Counsel Attorney General

Kansas Dept. of STEPHEN R. MCALLISTER

Corrections Special Asst.

900 Jackson Street, Attorney General

Suite 400 (Counsel of Record)

Topeka, Kansas 66612 301 S.W. 10th Avenue

(785) 296-4508 Topeka, Kansas 66612-1597

(785) 296-2215

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Is a state department of corrections regulation

that implements a statutory directive that all good time

credits “shall be awarded on an earned basis” a “law” for

ex post facto purposes?

2. Does a state department of corrections regulation

that changes the awarding of good time credits from “a

projected basis” to “an earned basis”, as required by the

controlling statute and solely for purposes of determining

an inmate’s conditional release date, without any nega-

tive impact on credits accumulated prior to the regula-

tion’s effective date nor the total amount of credits

available, violate constitutional ex post facto principles?

ii

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

SIONS: INVOLVED «. «05. 08.5 sie oc ees oeae See ies 1

22 2) | SARS aay iG Romane ING Parsi Sine hh rep ar 3

REASONS FOR GRANTING THE WRIT ........... 10

I. The Kansas Court Of Appeals’ Decision Is Con-

trary To Decisions Of Federal Courts Of Appeal

And State Courts Of Last Resort............... 11

A. The Lower State And Federal Courts Have

Divided Over What Regulations Affecting

Inmates Are “Laws” For Ex Post Facto Pur-

poses And What Changes Affecting Good

Time Credits Violate Constitutional Ex Post

| Pree Pee ee 11

B. The Court Of Appeals’ Decision Addresses

Important, Unresolved Ex Post Facto Ques-

tions On Which Prison Authorities And The

Lower Federal And State Courts Require

MTR PEEVES ET oe cree eee 11

II. The Kansas Court Of Appeals’ Decision Is Con-

trary To This Court’s Ex Post Facto Decisions .. 11

COMIC AIIIANS ox cicnsancienabemee bun eens seeneseen 14

APP EID 2 don ans evttedade seri aeeseeeheiees la

iii

TABLE OF AUTHORITIES

Page

Cases

Bailey v. Noot, 503 U.S. 952 (1992).................... 8

Beck v. Kansas Adult Authority, 241 Kan. 13, 735

SNE EP CEH CO EWU AON Nile S GaN Cees osgee Sec. 4

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996) ....... 8

California Dept. of Corrections v. Morales, 514 US.

GE cee ee eChAWinn nae esis sarc cser 12, 13

Collins v. Youngblood, 497 U.S. 37 (1990)............. 12

Hudson v. United States, 522 U.S. __, 118 S. Ct. 488

UMUC DWE REG bya Wa cd6k oye chasuescnce cesses 13

Kansas v. Hendricks, 521 U.S. __, 117 S. Ct. 2072

LEM e Sosa EnV abgacoenssveueessessscs 13

Lynce v. Mathis, 519 U.S. __, 117 S. Ct. 891 (1997) ..9, 13

Miller v. Florida, 482 U.S. 423 (1987).................. 8

Weaver v. Graham, 450 U.S. 24 (1981).......... 7, 4a 13

CONSTITUTIONAL PROVISIONS

ST OO ic ic ccc wk acccnvcccccsesnce 1

Statutes & RuLes

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TABLE OF AUTHORITIES —- Continued

Page

OTHER AUTHORITIES

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OPINIONS BELOW

The September 5, 1997, decision of the Kansas Court

of Appeals, holding that an administrative regulation

changing good-time credits from presumptively earned to

actually earned for purposes of calculating conditional

release dates violates constitutional ex post facto principles

is unpublished, see 944 P.2d 197 (1997) (table of cases),

but is included as Appendix A. The unreported July 9,

1998 order of the Kansas Supreme Court denying the

petitioners’ request for review of the Court of Appeals

decision is included as Appendix B.

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JURISDICTION

This Court’s jurisdiction to review the final judgment

of the Kansas Court of Appeals is invoked pursuant to 28

U.S.C. § 1257(a). The Kansas Court of Appeals issued its

decision in this case on September 5, 1997, the Kansas

Supreme Court denied review of that decision on July 9,

1998, and this petition has been filed within ninety days

of the latter date as required by Supreme Court Rule 13.1.

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Ex Post Facto Clause applicable to the States

provides that

“No State shall . . . pass any . . . ex post

facto Law. . . . U.S. Const. Art. I, § 10.

Kansas Statute Annotated (K.S.A.) § 22-3718 provides in

part that an inmate’s conditional release date is

the inmate’s maximum term or terms, less such

work and good behavior credits as have been

earned. ...

K.S.A. § 22-3725(d) provides that

Good time credits shall be awarded on an

earned basis pursuant to rules and regulations

adopted by the secretary of corrections.

The Kansas Administiative Regulation (“K.A.R.”)

invalidated in this case, K.A.R. 44-6-142, provides as fol-

lows:

When computing the conditional release

date, it shall be presumed that prior to March 1,

1995, 100% of the available good time credits

were earned. On and after March 1, 1995, good

time credits shall be awarded on an earned basis

pursuant to K.A.R. 44-6-124 for the purpose of

determining the conditional release date. K.A.R.

44-6-142 (1995) (emphasis added).

The prior version of the regulation, effective when

respondent was convicted and sentenced, provided that

When computing the conditional release

date, it shall be presumed that 100% of the avail-

able good time credits has been earned, and the

good time credits shall be applied on a projected

basis. K.A.R. 44-6-142 (1991) (emphasis added).

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STATEMENT

Procedural History

Respondent, Mark L. Steltzlen, incarcerated in 1990

under a 15- to 20-year sentence for aggravated robbery,

filed this state post-conviction action in Kansas district

court, alleging that an amendment to the Kansas Depart-

ment of Corrections regulation regarding the awarding of

good time credits for purposes of determining an

inmate’s conditional release date violates constitutional

ex post facto-principles. The trial court agreed with

respondent’s contention and ruled in his favor. On Sep-

tember 5, 1997, the Kansas Court of Appeals affirmed.

Appendix A.

On July 9, 1998, the Kansas Supreme Court denied

review of the Kansas Court of Appeals’ decision in this

case, Appendix B, after contemporaneously deciding two

other inmate cases raising similar or identical ex post facto

challenges in favor of the inmates and denying peti-

tioners’ requests for rehearing of those decisions. See

Bankes v. Simmons, et al., No. 98-__, and Stansbury v.

Hannigan, et al., No. 98-___ (petition for writs of certiorari

filed simultaneously with this petition for a writ of cer-

tiorari). The Kansas Supreme Court denied petitioners’

request for recall of the mandates in this case and the

decisions mentioned above pending proceedings in this

Court. Appendix C. Petitioners are filing simultaneously

with this petition an application for a stay of the Kansas

courts’ decisions in these cases with Justice Breyer, Cir-

cuit Justice for the Tenth Circuit.

Statement Of Facts

1. The Kansas Statutes And Administrative Regulations

Concerning Good Time Credits And Conditional

Release Dates

In Kansas, the awarding of good time credits is

authorized by statute. See K.S.A. § 22-3725. Some details

of how such credits are earned, awarded, forfeited, with-

held and accumulated are included in the statute, but the

statute also provides that “[glood time credits shall be

awarded on an earned basis pursuant to rules and regula-

tions adopted by the secretary of corrections.” Id. at § (d).

The earning, awarding, forfeiting, withholding and

accumulation of good time credits affect two important

dates for inmates: (1) an inmate’s parole eligibility date;

and (2) an inmate’s conditional release date. The parole

eligibility date is, as its name suggests, the date on which

an inmate first becomes eligible to be considered for

parole. In Kansas, that date is the “entire minimum sen-

tence imposed by the court, less good time credits.”

K.S.A. § 22-3717(a). The conditional release date, on the

other hand, is the date on which an inmate is entitled to

be released from incarceration. Conditional release is “the

inmate’s maximum term or terms, less such work and

good behavior credits as have been earned.” K.S.A.

§ 22-3718; see generally Beck v. Kansas Adult Authority, 241

Kan. 13, 29-30, 735 P.2d 222, 234-35 (1987).

These important dates, when the inmate is serving an

indeterminate sentence less than life imprisonment, are

calculated by deducting good time credits from the mini-

mum and maximum terms of imprisonment respectively.

Thus, the parole eligibility date for an inmate like Stel-

tzlen serving a 15- to 20-year sentence is calculated by

deducting good time credits from 15 years, while the

conditional release date is calculated by deducting good

time credits from 20 years.

With respect to conditional release dates, the Depart-

ment of Corrections regulation in effect at the time the

respondent in this case committed his crime, was con-

victed and sentenced provided that “it shall be presumed

that 100% of the available good time credits has been

earned, and the good time credits shall be applied on a

projected basis.” K.A.R. 44-6-142 (1989); see also K.A.R.

44-6-108(c) (1989). This meant that, solely for purposes of

calculating the conditional release date, the instant an

inmate entered prison the inmate was presumed to have

earned 100% of the available good time credits. So, in the

preceding example, if the available good time credit on a

20-year sentence was 10 years, the inmate’s conditional

release date would be 10 years from the date of incarcera-

tion, and that date would be established the day the

inmate entered the prison. In 1995, however, the Depart-

ment of Corrections amended the regulation to provide

that

When computing the conditional release

date, it shall be presumed that prior to March 1,

1995, 100% of the available good time credits

were earned. On and after March 1, 1995, good

time credits shall be awarded on an earned basis

pursuant to K.A.R. 44-6-124 for the purpose of

determining the conditional release date. K.A.R.

44-6-142 (1995) (emphasis added).

ay

What is undisputed and unchanged about good time

credits in Kansas is that the relevant statutes have not

changed and the total amount of good time credits avail-

able to shorten conditional release dates is unchanged.

Only if the respondent engages in misconduct after the

effective dates of the regulatory changes discussed above,

as he has, will his conditional release date be any differ-

ent than it would have been under the regulatory scheme

in effect when he committed his crimes, was convicted

and sentenced. Unlike the petition for writs of certiorari in

Bankes v. Simmons, et al., No. 98-___, and Stansbury v.

Hannigan, et al., No. 98-__ (filed simultaneously with this

petition), which also involve issues regarding parole eli-

gibility dates, this case involves an ex post facto challenge

only to the regulation governing the calculation of condi-

tional release dates.

2. Mark L. Steltzlen and These Proceedings

Mark Steltzlen was convicted of aggravated robbery

and sentenced to a term of 15 to 20 years imprisonment in

1990. App. 2a. As noted previously, administrative regu-

lations in place in the Kansas prisons in 1990 presumed

that, for purposes of determining conditional release

dates, all available good time credits were earned on a

projected basis. Thus, Steltzlen’s conditional release date

was May 17, 2000, 10 years from the day his sentence

began.

After the 1995 amendment to the regulation, which

required that all good time credits toward conditional

release be earned after March 1, 1995, prison officials

credited Steltzlen only for all possible good time up to

OP RN Se eee

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March 1, 1995, altering his conditional release date to

August 3, 2005. If Steltzlen earned all available good time

credits after March 1, 1995, ultimately his conditional

release date still would be May 17, 2000. He has not done

so, however, and thus his conditional release date

remains later than May 17, 2000, although not as late as

August 3, 2005. At the time the Court of Appeals decided

this case, Steltzlen’s conditional release date was October

17, 2004.

3. The Kansas Court of Appeals’ Decision

The Kansas Court of Appeals began its ex post facto

analysis by citing and quoting this Court’s decision in

Weaver v. Graham, 450 U.S. 24 (1981), for the proposition

that “ ‘two critical elements must be present for a crimi-

nal or penal law to be ex post facto: it must be retrospec-

tive, that is, it must apply to events occurring before its

enactment, and it must disadvantage the offender

affected by it.’” App. 14a (quoting Weaver, 450 U.S. at 29).

The court first considered whether the constitutional ex

post facto prohibition applies to prison regulations, as

opposed to legislative enactments, but concluded that, at

least in Kansas, it does. The court reached this conclusion

by relying upon the proposition that “[p]olitical subdivi-

sions of a state, or quasi-legislative instrumentalities,

exercising delegated legislative power are within the

ambit of the ex post facto clause.” App. 15a (quoting 16A

C.J.S., Constitutional Law § 409, p. 355). The court deemed

this proposition “an appropriate approach in Kansas”

where properly promulgated regulations are deemed to

have the force and effect of law. App. 15a.}

The court then turned to the issue whether the

change in calculating conditional release dates is retro-

spective. Citing Weaver, which involved an ex post facto

challenge to a statutory reduction in the number of good

time credits awarded automatically to Florida inmates,

the court of appeals opined that “[i]t is the effect of the

law that determines whether it is ex post facto. App. 15a.

The court observed that Weaver declares that an ex post

facto finding does not depend on the existence of vested

rights (which good time credits are not) and that the

retrospectivity issue is decided by asking whether the

statute in question applies to prisoners convicted for acts

committed before the statute’s effective date. App. iéa. If

it does, as the regulation does with respect to Steltzlen,

then the change is retrospective.

The court then addressed the second requirement of

Weaver — whether the change in the law disadvantaged

Steltzlen. The court pointed out that this Court in Weaver

rejected the argument that the reduction in the amount of

automatic good time credits Florida inmates received for

good conduct was offset — for ex post facto purposes — by

1 There is an acknowledged split of authority in the Courts

of Appeal and state courts on the question whether prison

regulations are “laws” for ex post facto purposes. See Bailey v.

Noot, 503 U.S. 952 (1992) (White, J., dissenting from the denial of

certiorari); Dominique v.°Weld, 73 F.3d 1156, 1162 & n. 10 (1st Cir.

1996) (noting the continuing split of authority); see also Miller v.

Florida, 482 U.S. 423, 434 (1987) (observing that numerous lower

federal courts have refused to apply the Ex Post Facto Clause to

revisions in the federal parole guidelines).

new opportunities to earn equal or even greater good

time at prison officials’ discretion. App 16a-17a. Instead,

this Court reasoned that Florida inmates were disadvan-

taged by the change because, even if they obeyed all

prison regulations and completed all work acsignments,

the automatic credits they received would be reduced and

they could only make up the difference by satisfying

extra conditions that previously had not existed. 450 U.S.

at 35.

The Kansas Court of Appeals decided that the same

was essentially true in this case. Under the original regu-

lation, Steltzlen was presumed to have earned all good

time credits available against his 20-year maximum sen-

tence (on the day he entered prison) and could lose them

only by forfeiture as a punishment for disciplinary infrac-

tions. Under the new regulation, Steltzlen is required to

actually earn all good time credits after March 1, 1995. In

the court’s view,

[t]his is similar to the situation in Weaver

where the statutory changes enacted there

required the inmates to do something extra and

to subject themselves to the discretion of the

prison in order to gain the same level of early

release advantage accorded under the old stat-

ute. App. 18a.

The court of appeals also opined that the new regulations

“reach back and take away what was already given to

Steltzlen . . . and, accordingly, have a disadvantageous

retrospective effect on him.” App. 18a (citing Lynce v.

Mathis, 519 U.S. __, 117 S. Ct. 891 (1997) (invalidating on

ex post facto grounds the retroactive cancellation of good

10

time credits awarded to alleviate prison overcrowding

that already had been used to obtain release).

Lastly, the court rejected the argument that the new

regulations simply effectuate the statutory directives that

good time credits toward conditional release shail be

“earned.” See K.S.A. §§ 22-3718, 22-3725. The court

instead read this Court’s decision in Lynce v. Mathis to

direct that courts ignore purpose or intent in ex post facto

cases and focus solely on the effect of the disputed

changes. App. 19a. Thus, although the court admitted

that the new regulation is entirely faithful to the statutory

directives regarding conditional release, it concluded that

the new regulation violates ex post facto principles

- because “it will put inmates like Steltzlen at a disadvan-

tage.” App. 19a.

REASONS FOR GRANTING THE WRIT

The two questions presented in this case are identical

to Questions 1 and 2 in the petition filed simultaneously

with this case in Hannigan, et al. v. Stansbury, No. 98-__,

and Simmons, et al. v. Bankes, No. 98-__. For that reason,

petitioner respectfully refers the Court to the full discus-

sion of the reasons for granting certiorari review in that

petition and incorporates that discussion by reference in

this petition.

11

I. The Kansas Court Of Appeals’ Decision Is Contrary

To Decisions Of Federal Courts Of Appeal And State

Courts Of Last Resort

A. The Lower State And Federal Courts Have

Divided Over What Regulations Affecting

Inmates Are “Laws” For Ex Post Facto Purposes

And What Changes Affecting Good Time

Credits Violate Constitutional Ex Post Facto

Principles

Petitioners respectfully incorporate by reference the

discussion under this same heading in the petition in

Hannigan, et al. v. Stansbury, No. 98-___, and Simmons, et

al. v. Bankes, No. 98-__.

B. The Court Of Appeals’ Decision Addresses

Important, Unresolved Ex Post Facto Questions

On Which Prison Authorities And The Lower

Federal And State Courts Require Guidance

Petitioners respectfully incorporate by reference the

discussion under this same heading in the petition in

Hannigan, et al. v. Stansbury, No. 98-___, and Simmons, et

al. v. Bankes, No. 98-__.

II. The Kansas Court Of Appeals’ Decision Is Contrary

To This Court’s Ex Post Facto Decisions

Petitioners respectfully incorporate by reference the

discussion under this same heading in the petition in

Hannigan, et al. v. Stansbury, No. 98-___, and Simmons, et

al. v. Bankes, No. 98-__. In addition, this petition will

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12

discuss the Kansas Court of Appeals’ misreading of this

Court’s ex post facto cases.

1. First, and most importantly, the Kansas Court of

Appeals erred in concluding that prison regulations are

subject to ex post facto restrictions, at least in this case.

Although the Kansas Department of Corrections promul-

gated the regulations pursuant to statutory authority, the

controlling Kansas statute is clear that good time credits

shall be “earned.” The Department of Corrections lacked

the power to provide otherwise, which simply proves the

point that the Ex Post Facto Clause should be limited, as

this Court’s cases repeatedly have recognized, to the

application of penal statutes. The conditional release stat-

ute in Kansas has not changed since respondent commit-

ted his crime, nor has his sentence changed, and he

makes noe such complaints. Moreover, not even the total

amount of good time credits available to respondent has

changed. Rather, respondent is complaining about an

amendment to an administrative regulation designed to

implement a statutory directive. The original regulation

adopted an approach contrary to the plain statutory lan-

guage and to the unwarranted benefit of inmates such as

respondent. But there has been no change in the Kansas

penal statutes that “alters the definition of criminal con-

duct or increases the penalty by which a crime is punish-

able.” California Dept. of Corrections v. Morales, 514 U.S.

499, 506 n. 3 (1995).

2. Second, the Kansas Court of Appeals’ opinion

relies almost exclusively on this Court’s decision in

Weaver v. Graham, 450 U.S. 24 (1981), without even citing

later decisions such as Collins v. Youngblood, 497 U.S. 37

(1990), and California Dept. of Corrections v. Morales, 514

13

U.S. 499 (1995). Thus, even assuming that prison regula-

tions implicate the Ex Post Facto Clause, the Kansas Court

of Appeals’ decision hinges upon the sole proposition

that “[iJt is the effect of the law that determines whether it

is ex post facto.” App. 15a (citing Weaver) (emphasis

added). As explained more fully in the related petition in

Hannigan, et al. v. Stansbury, No. 98-___, and Simmons, et

al. v. Bankes, No. 98-__, that proposition is not consistent

with most of the Court’s recent ex post facto and “punish-

ment” cases. See, e.g., Hudson v. United States, 522 U.S. __,

118 S. Ct. 488, 493-95 (1997) (first question is whether

enactment is non-punitive on its face or has non-punitive

purpose); Kansas v. Hendricks, 521 U.S. __, 117 S. Ct. 2072

(1997) (same); cf. Lynce v. Mathis, 519 U.S. __, 117 S. Ct.

891, 897 (1997) (discussing to what extent legislative pur-

pose may be relevant to the ex post facto analysis). Nor

does the Court of Appeals’ approach provide any limit to

the reach of the Ex Post Facto Clause in the prison context,

since many changes in prison regulations arguably have a

disadvantageous “effect” on inmates.

In this case, the purpose behind the regulatory

change is not punitive. The conditional release date regu-

lation was amended to conform to the controlling statu-

tory directive that good time credits be earned. The

purpose of the amendment was not to impose additional

criminal punishment on inmates.

= ¢

14

CONCLUSION

For the foregoing reasons, petitioners respectfully

request that this Court grant this petition for a writ of

certiorari in order to resolve the splits of authority in the

lower federal and state courts, and set this case for plen-

ary review.

Respectfully submitted,

TimotHy G. MADDEN Carta J. STOVALL

Chief Legal Counsel Attorney General

Kansas we pt. of STEPHEN R. MCALLISTER

Corrections

Special Asst.

Attorney General

(Counsel of Record)

301 S.W. 10th Avenue

Topeka, Kansas 66612-1597

(785) 296-2215

900 Jackson St., Suite 400

Topeka, Kansas 66612

(785) 296-4508

August, 1° 98

APPENDIX A

Kansas Court of Appeals Decision .................. la

APPENDIX B

The Kansas Supreme Court Order Denying

one oe EE eee fee Pe tot we eee 20a

APPENDIX C

Kansas Supreme Court Order Denying Recall of

4 aie nina Me EADY Chdndeavaskd vd wAAanadens 21a

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APPENDIX A

NOT DESIGNATED FOR PUBLICATION

No. 77,897

IN THE COURT OF APPEALS OF

THE STATE OF KANSAS

MARK L. STELTZLEN,

Appellant/Cross-Appellee,

V.

DAVID R. MCKUNE, Warden, and

CHARLES SIMMONS, Secretary of Corrections,

Appellees/Cross-Appellants.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; MARTIN

ASHER, judge. Opinion filed September 5, 1997.

Affirmed.

Charles J]. Cavenee, of Legal Service for Prisoners, Inc.,

of Lansing, for appellant/cross-appellee.

Ed Britton, Jr., and Jeff Cowger, special assistants attor-

ney general, and Carla J. Stovall, attorney general, for

appellees /cross-appellants.

Before GREEN, PJ., PIERRON, J., and PHILIP C.

VIEUX, District Judge, assigned.

Per Curiam: Mark L. Steltzlen appeals from a part of

the trial court’s judgment denying relief under his habeas

corpus action. Steltzlen challenged the interpretation of

certain amended regulations about how good time credits

would be assigned to his conditional release date by the,

Department of Corrections (DOC). Although the trial

2a

court found nothing wrong with DOC’s interpretatior. of

the amended regulations, the trial court determined that

the amended regulations would violate the prohibition

against ex post facto laws if the regulations were applied

in determining Steltzlen’s conditional release date. Stel-

tzlen appealed and DOC cross-appealed.

Under K.S.A. 1996 Supp. 22-3725, Steltzlen was

allowed to earn good time credits for up to half of his

1990 sentence of 15 to 20 years for aggravated robbery.

Steltzlen’s good time credits were subtracted from his

minimum sentence to set a parole eligibility date and

subtracted from his maximum sentence to establish a

conditional release date. As a result, it was determined

that Steltzlen’s earliest possible parole eligibility date was

November 17, 1997, and May 17, 2000, was his earliest

conditional release date.

Before his parole eligibility date, Steltzlen forfeited

90 days of good time because of a disciplinary violation.

In addition to the forfeiture, Steltzlen’s unit team, which

is charged with the duty of determining how many good

time credits to award for each review period, concluded

that Steltzlen should be awarded only 60 out of 120

possible good time credits. This resulted in a net loss of

30 days of good time credit. The forfeitures and withhold-

ings were applied to both Steltzlen’s parole eligibility

date and to his conditional release date. Consequently,

this action lengthened Steltzlen’s confinement period

before he would become eligible for parole and before he

would reach his conditional release date.

3a

In objecting to the adjustment of his conditional

release date, Steltzlen claimed that K.A.R. 44-6-120 pro-

hibited any adjustment of his conditional release date by

forfeitures or withholdings until he reached his parole

eligibility date. Although the warden agreed that good

time credits could not be forfeited from Steltzlen’s condi-

tional release date before his parole eligibility date, the

warden disagreed with Steltzlen on the issue of whether

withheld good time credits could vary his conditional

release. When the Secretary of Corrections (Secretary)

affirmed the decision of the warden, Steltzlen petitioned

for a writ of habeas corpus.

In his petition, Steltzlen argued that the forfeiture

and the withholding of good time credits by the warden

and the Secretary (1) were prohibited by other regula-

tions of DOC and (2) violated the prohibition against ex

post facto laws.

The first issue is whether the current regulations

applicable to the award of good time credits and the

setting of a conditional release date permit an inmate’s

conditional release date to be adjusted before the inmate

reaches parole eligibility. The parole eligibility date repre-

sents the date on which an inmate becomes eligible to be

considered for parole. Whether he or she is released at

that time or at some later time prior to reaching the

inmate’s conditional release date is within the discretion

of the Kansas Parole Board pursuant to statute and regu-

lations. K.S.A. 22-3717; Beck v. Kansas Adult Authority, 241

Kan. 13, 29, 735 P.2d 222 (1987). In contrast, upon reach-

ing his or her conditional release date, an inmate is

entitled to be released. K.S.A. 22-3718; Beck, 241 Kan. at

29.

4a

Steltzlen asserts that neither withholdings; nor forfei-

tures of good time credits are permitted to affect an

inmate’s concitional release date prior to the inmate

reaching parole eligibility and, further, that only forfei-

tures may occur after parole eligibility. While DOC agrees

that forfeitures of good time credits may not affect an

inmate’s conditional release date until after the inmate

has reached his or her parole eligibility date, it asserts

that good time withholdings are appropriately applied to

the inmate’s conditional release date both before and

after reaching parole eligibility.

Resolution of this issue requires the interpretation of

several regulations. Reviewing courts grant considerable

deference to an agency’s interpretation of its own regula-

tions, and, unless clearly erroneous or inconsistent with

the terms of the regulations, the agency’s interpretation

will not be disturbed. Murphy v. Nelson, 260 Kan. 589, Syl.

G 1, 921 P.2d 1225 (1996). In order to understand the

parties’ respective positions on both the interpretation

issue and on the ex post facto issue, it is necessary to

review the changes which have taken place in the appli-

cable regulations since the time of Steltzlen’s initial incar-

ceration.

Regulations in Effect When Steltzlen Committed His Crime

Under the regulations in effect in 1990, when Stel-

tzlen committed his crime and was incarcerated, parole

eligibility was determined differently from conditional

release. K.A.R. 44-6-108 (1989) stated in pertinent part:

“(b) To establish eligibility for parole in

certain cases amenable to reduction by good

time credits, good time credits, as earned, shall

eeeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEEEE——eEEEE

5a

be awarded to reduce the time required to be

served on the minimum term of those sentences

as described in these regulations and applicable

law.

“(c) To establish the conditional release

date, good time credits, not forfeited, shall be

presumed earned and shall be applied to the

maximum sentence term when first computed.”

K.A.R. 44-6-113 (1989) provided:

“In determining parole eligibility for cases

... onand after January 1, 1979, including those

after July 1, 1982, good time credits shall not be

awarded in advance of earning or on a projected

basis. Good time credits shall be awarded only

after the inmate has been deemed, by the unit

team, to have earned them. However, an auxil-

iary accounting record, separate from the official

inmate record and for informational purposes

only, may be used to show the maximum total

authorized credits that the inmate may earn.

This record may show the parole eligibility date

which would occur if all good time were

earned.”

In contrast to 44-6-113 quoted above, K.A.R. 44-6-142(a)

(1989) provided in pertinent part: “It shall be presumed,

when computing the conditional release, that 100% of the

available good time credit is earned and the good time

credit shall be applied on a projected basis.”

K.A.R. 44-6-120 (1989) included the following provi-

sion:

“(c) Application only to minimum until

parole eligibility. All good time credit awards

6a

and forfeitures shall be applied only to the mini-

mum sentence until the parole eligibility has

been reached. However, meritorious good time

shall be applied simultaneously to both the min-

imum and maximum sentence. After parole eli-

gibility has been reached, no further good time

credit of any kind shall be awarded on the mini-

mum. After parole eligibility, all forfeitures of

statutory good time credits or legislative good

time credits, and all awards or forfeitures of

‘meritorious’ good time credits, shall be applied

to the maximum term of the sentence to form

the conditional release date. The inmate shall be

considered as proceeding toward the condi-

tional release date following parole eligibility or

hearing.”

Meritorious good time credits were awarded under spe-

cial circumstances for heroic actions or for outstanding

services and were in addition to the “ ‘statutory autho-

rized’ good time credits.” K.A.R. 44-6-126 (1989); see

K.S.A. 1996 Supp. 22-3717(s).

K.A.R. 44-6-124(a) (1989) set forth standards for

awarding good time “[flor parole eligibility” but men-

tioned no standards to be applied in awarding good time

for conditional release. K.A.R. 44-6-124(a) (1989) further

provided that an inmate was presumed to have earned

good time credits for the time served in jail between his

or her official “sentence begins date” and the date of

admission to the prison facility. See K.S.A. 21-4614.

K.A.R. 44-6-125 (1989) described the good time

credits applicable to parole eligibility in terms of being

“earned” but described the good time credits applicable

to conditional release as simply those credits “used to

7a

create the conditional release date.” The relevant subsec-

tion stated:

“(b) Forfeit only on minimum until parole

eligibility. Prior to parole eligibility, forfeited

good time credits shall be subtracted from the

amount of good time credits earned toward the

parole eligibility only, and not from those

credits used to create the conditional release

date. After parole eligibility is established, for-

feited credits shall be subtracted from the

credits used to form the conditional release

date.”

When all of the above regulations are read together, it

becomes clear that credits for parole eligibility had to be

actually earned. The only good time credits an inmate was

presumed to have earned for his or her parole eligibility

date were for the period between the sentence begins

date and the date of admission to the prison facility.

These were automatically awarded and subtracted from

the minimum sentence to make up the first tentative

parole eligibility date. Thereafter, good time credits were

awarded by the unit team after each review period only

to the extent deemed earned and were applied to the

inmate’s minimum sentence to establish a progressively

nearer parole eligibility date. K.A.R. 44-6-108(b) (1989);

K.A.R. 44-6-113 (1989).

In contrast, an inmate’s conditional release date was

initially set based on a presumption that all credits autho-

rized by the legislature had been earned. Standards for

awarding good time to conditional release were not sup-

plied because they were not needed - all available good

time credits were awarded at the outset for purposes of

8a

conditional release and could only be lost if forfeited.

Awards and forfeitures were to affect the parole eligi-

bility date only before reaching that date, and only forfei-

tures were to affect the conditional release after the

parole eligibility date had been reached.

Amended Regulations

On January 3, 1995, DOC significantly changed the

language of K.A.R. 44-6-142 applicable to setting condi-

tional release dates. Instead of providing that 100 percent

of the available good time credits applicable to the condi-

tional release date should be presumed earned and

applied on a projected basis, the regulation read in perti-

nent part:

“When computing the conditional release

date, it shall be presumed that prior to March 1,

1995, 100% of the available good time credits

were earned. On and after March 1, 1995, good

time credits shall be awarded on an earned basis

pursuant to K.A.R. 44-6-124 for the purpose of

determining the conditional release date.”

K.A.R. 44-6-142 (1996 Supp.).

In accord with this newly amended version of K.A.R.

44-6-142, Steltzlen’s tentative conditional release date was

changed, as was the method of awarding him good time

credits toward his conditional release date. Instead of

having the benefit of having already “earned” all of his

conditional release good time credits, Steltzlen now had

to actually earn them, except for those available for all the

review periods preceding March 1, 1995.

9a

While DOC hints in its brief that there is no evidence

in the record of how DOC formerly interpreted its regula-

tions, the former interpretation and the change in method

brought on by K.A.R. 44-6-142 (1996 Supp.) are illustrated

by the paperwork documenting Steltzlen’s good time

awards record. Before March 1, 1995, the unit team work-

sheets clearly show that Steltzlen’s conditional release

date remained constant at May 17, 2000, while on the

same paperwork, awards and forfeitures of good time

were used to adjust his parole eligibility date from a

starting point of May 17, 2005 (the latest date possible for

Steltzlen’s parole eligibility). The worksheets on which

these good time awards and forfeitures were recorded

specifically direct the unit team not to use awards and

forfeitures to adjust the conditional release date before

the first hearing for parole consideration.

As of March 1, 1995, Steltzlen’s sentence was con-

verted over to the new system of applying credits to

conditional release. This conversion is documented on a

paper entitled “DEPARTMENT OF CORRECTIONS CON-

DITIONAL RELEASE GOOD TIME AWARDS AND FOR-

FEITURES CONVERSION LOG.” In this conversion,

Steltzlen was credited with all the credits that could have

been earned between his sentence begins date (May 17,

1990) and the effective date of the changes (March 1,

1995) without regard for his disciplinary record: 4 years, 9

months, and 14 days. Thus, for every day Steltzlen had

already served, he was considered as having earned a

good time credit toward his conditional release date.

These credits were then applied to Steltzlen’s maximum

sentence “expiration date” (i.e., the date he would be

released if no good time credits were applied). When the

ENED LSAT DS ee

a

10a

conversion was completed, Steltzlen’s tentative condi-

tional release date was August 3, 2005, instead of May 17,

2000. At later review periods, using forms that had been

newly revised by DOC to accommodate the change in

calculations, Steltzlen’s conditional release date was

adjusted downward with each new award of earned

credits.

Before his disciplinary convictions, Steltzlen’s condi-

tional release date had reached December 17, 2004. When

the 90 days of credits were forfeited and the 60 days of

credits were withheld, Steltzlen’s conditional release date

was changed to January 17, 2005. When the warden

ordered the forfeitures replaced, the forfeitures were

voided from Steltzlen’s log, and the conditional release

date was changed to October 17, 2004.

Conflict in Regulations

Steltzlen argues that K.A.R. 44-6-108 (1994) and

K.A.R. 44-6-120(d)(1) (1994), which are currently in effect,

prohibit the action purportedly authorized by K.A.R.

44-6-142 (1996 Supp.), that is, the adjustment of an

inmate’s conditional release date before the inmate

reaches parole eligibility and the withholding of good

time credits from conditional release under any circum-

stances. Although the above regulations are slightly dif-

ferent from those quoted earlier, their substance remains

the same. K.A.R. 44-6-108 (1994) reads in pertinent part:

“(b) In cases where the time required to be

served is amenable to reduction by good time

credits, good time credits shall be awarded as

earned to reduce the minimum term of those

lla

sentences, as described in these regulations and

applicable law.

“(c) To establish the conditional release

date, good time credits shall be presumed

earned and shall be applied to the maximum

sentence term first computed.”

The relevant portion of K.A.R. 44-6-120 (1994) reads:

“(d) Application only to minimum until parole

eligibility.

(1) Good time credit awards and forfei-

tures shall be applied only to the minimum sen-

tence until the parole eligibility has been

reached.

(2) However, meritorious good time shall

be applied simultaneously to both the minimum

and maximum sentence.

(3) After parole eligibility has been

reached, no further good time credit of any kind

shall be awarded on the minimum.

(4) After parole eligibility, all subsequent

forfeitures of good time credits shall be utilized

to adjust the conditional release date.”

K.A.R. 44-6-108 (1994) provides for the earning of

good time credits for parole eligibility and for the pre-

sumption of credits being earned for conditional release.

K.A.R. 44-6-120 (1994) also provides that awards and

forfeitures are only to be applied to the parole eligibility

date prior to reaching that date, and that forfeitures shall

be applied to the conditional release date after passing

parole eligibility. These regulations, in particular K.A.R.

44-6-120 (1994) with its express prohibition against

12a

adjustment of the conditional release date prior to reach-

ing parole eligibility, directly conflict with K.A.R.

44-6-124 (1996 Supp.) and K.A.R. 44-6-142 (1996 Supp.) as

applied by DOC.

In attacking Steltzlen’s arguments, DOC contends

that Steltzlen has raised on appeal, for the first time, the

issue of the regulations being in conflict and that this

court may not, therefore, consider this issue. We disagree.

Steltzlen has asserted from the very beginning that the

actions DOC attempted to take under K.A.R. 44-6142

(1996 Supp.) are prohibited by the terms of K.A.R.

44-6-120 (1994) and other regulations. Therefore, the issue

has been properly raised by Steltzlen.

Second, DOC argues that the regulations should be

interpreted in light of the overall statutory and regulatory

scheme. DOC notes that the definitions section of the

applicable regulations, K.A.R. 44-6-101(m) (1994), defines

conditional release date as “the maximum sentence end-

ing date minus total authorized good time credits not

forfeited.” DOC argues that “authorized” simply refers to

the credits earned. However, in light of the background

and language of the current regulations, the word “autho-

rized” refers to the total amount of good time credits

authorized by the legislature. See K.A.R. 44-6-101 (1989)

(describing good time credits as being prescribed and

established by the Kansas Adult Authority as “authorized

by K.S.A. 22-3717”) and K.A.R. 44-6-113 (1989) (differen-

tiating between earned good time credits and the “maxi-

mum total authorized credits that an inmate may earn”).

In Steltzlen’s case, the total authorized credits would be

credits in the amount of half his sentence.

13a

DOC notes the definition of conditional release in

K.S.A. 22-3718 as being “the inmate’s maximum term or

terms, less such work and good behavior credits as have

been earned” and the description in K.A.R. 44-6-124 (1996

Supp.) of credits being “earned” to adjust the conditional

release date. DOC argues that it is clear that the overall

statutory and regulatory scheme contemplates that

inmates be given the opportunity to actually earn good

time credits which will be applied to the conditional

release date in an ongoing process starting from the date

the inmate enters the custody of the Secretary. While this

may be true of the applicable statutes and of the newly

amended regulations, the fact remains that under the old

system, DOC chose to interpret its statutory directive by

presuming the earning of good time credits with regard

to the conditional release date.

Because the regulations conflict, there is no way for

DOC to abide by both sets of regulations. The rules of

statutory construction are also generally applicable to the

interpretation of regulations. See 2 Am. Jur. 2d, Adminis-

trative Law § 239, p. 258. The general rule is that the

several provisions of an act (or, in this case, a set of

regulations) should be read together and construed with

the aim of bringing them into harmony and giving full

effect to every provision if reasonably possible to do so.

Easom v. Farmers Insurance Co., 221 Kan. 415, Syl. { 3, 560

P.2d 117 (1977). However, when this is not possible and

related statutes conflict, it is often said that the most

recent enactment prevails as being the latest expression of

the legislative intent. 73 Am. Jur. 2d, Statutes § 255, p.

426. This general rule has been noted in several Kansas

cases. See, e.g., Jones v. Continental Can Co., 260 Kan. 547,

14a

556, 920 P.2d 939 (1996); State v. Sodders, 255 Kan. 79, Syl.

{ 2, 872 P.2d 736 (1994); State v. Keeley, 236 Kan. 555, 560,

694 P.2d 422 (1985).

In light of the above rule and DOC’s clear intent to

use the amended regulations to create a system where

good time credits will be actually earned for both the

parole eligibility date and the conditional release date,

the implications and directives of K.A.R. 44-6-108(c)

(1994) and 44-6-120(d) (1994) must give way to the frame-

work established in the amended versions of K.A.R.

44-6-124 and 44-6-142. DOC’s interpretation of its regula-

tions should therefore stand as applied to those who

committed their crimes on or after March 1, 1995.

The next issue is whether the application of the new

regulatory scheme for awarding good time credits and

setting conditional release dates violates the prohibition

against ex post facto laws when applied to Steltzlen.

United States Const. article I § 9, cl. 3 and § 10, cl. 1

provide that no state shall pass any ex post facto law.

These clauses prohibit the enactment of any law “ ‘which

imposes a punishment for an act which was not punish-

able at the time it was committed; or imposes additional

punishment to that then prescribed.’ [Citations omitted.]”

Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S.

Ct. 960 (1981). “[T]wo critical elements must be present

for a criminal or penal law to be ex post facto: it must be

retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the

offender affected by it. [Citations omitted.]” Weaver, 450

U.S. at 29.

15a

The first question is whether the ex post facto prohi-

bition applies to regulations. Although unable to find any

Kansas case explicitly ruling on this issue, “[p]olitical

subdivisions of a state, or quasi-legislative instru-

mentalities, exercising delegated legislative power are

within the ambit of the ex post facto clause.” 16A CJS&.,

Constitutional Law § 409, p. 355. This view that the ex

post facto clause applies to regulations would seem to be

an appropriate approach in Kansas, where it is well rec-

ognized that “[t]he Kansas Administrative Regulations

when adopted have the force and effect of a statute

(K.S.A. 77-425) and as in the case of statutes will be

construed to operate prospectively unless a contrary

intent is clearly indicated.” Harder v. Kansas Comm'n on

Civil Rights, 225 Kan. 556, 559, 592 P.2d 456 (1979); see

Jones v. The Grain Club, 227 Kan. 148, Syl. J 1, 605 P.2d 142

(1980).

DOC argues that the new regulations are not retro-

spective because they presume that all good time credits

available prior to March 1, 1995, were earned, and that it

is only after March 1, 1995, that new credits must actually

be earned. Therefore, under DOC’s view, any withhold-

ings would occur as a result of future conduct. DOC also

argues that the change does not impose additional pun-

ishment to that prescribed because Steltzlen still has the

Opportunity to earn the same number of good time

credits as before.

It is the effect of the law that determines whether it is

ex post facto. Weaver, 450 U.S. at 31. In rendering its

decision on the ex post facto issue, the district court

relied greatly on Weaver. In Weaver, the Court addressed

the question of whether a change in Florida’s provisions

16a

for prison gain time credits was an ex post facto law.

Under Florida law, a certain number of gain time credits

were awarded to inmates automatically on a monthly

basis simply for avoiding disciplinary infractions and for

performing assigned tasks. In 1978, Florida law lessened

the number of gain time credits available. At the same

time, however, the law was also changed to increase the

number of “special gain-time” credits which could be

earned for performing conscientious or outstanding work

in a variety of ways. Weaver, 450 U.S. at 34-35, n.18.

Weaver argued that the new law was an ex post facto law

when applied to him.

The Court in Weaver made it clear that an ex post

facto law does not depend on whether the right interfered

with is a vested right. Weaver, 450 U.S. at 29. Such an

analysis is relevant under due process considerations but

not under the ex post facto clause. The Court further

noted that a statute may be retrospective even if it alters

conditions outside the sentence. 450 U.S. at 32.

Addressing the retrospectivity requirement, the

Court stated:

“The critical question is whether the law

changes the legal consequences of acts com-

pleted before its effective date. In the context of

this case, this question can be recast as asking

whether [the Florida statute in question] applies

to prisoners convicted for acts committed before

the provision’s effective date. Clearly, the

answer is in the affirmative.” Weaver, 450 U.S. at

31.

The Court went on to address the question of

whether the law disadvantaged Weaver. Florida argued

poe ees th a er ae Se!

17a

that because of the added opportunities for special gain

time credits, the net effect of the changed law was an

increased availability of gain time deductions and that

the change, therefore, did not disadvantage those like

Weaver who committed their crimes prior to the effective

date of the change. The Court acknowledged the

expanded opportunities for special gain time deductions,

as well as the legislative intent under the changes to

promote rehabilitation and to increase incentives for pro-

ductive conduct. Weaver, 450 U.S. at 34-35. However, the

Court went on to say:

“But none of these provisions for extra gain time

compensates for the reduction of gain time

available solely for good conduct. The fact

remains that an inmate who performs satisfac-

tory work and avoids disciplinary violations

could obtain more gain time per month under

the repealed provision . . . than he could for the

same conduct under the new provision. . . . To make

up the difference, the inmate has to satisfy the

extra conditions specified by the discretionary

gain-time provisions.” (Emphasis added.) 450

U.S. at 35.

“Thus, the new provision constricts the

inmate’s opportunity to earn early release, and

thereby makes more onerous the punishment for

crimes committed before its enactment. This

result runs afoul of the prohibition against ex

post facto laws.” Weaver, 450 U.S. at 35-36.

At the time Steltzlen committed his crime, the regula-

tions in effect granted Steltzlen an automatic award of all

statutorily available good time available for his condi-

tional release date and set his conditional release date on

that basis. All Steltzlen had to do under those regulations

18a

was keep from forfeiting the good time he was presumed

to have earned. When the new regulations were applied

to Steltzlen, the conditional release good time credits that

had been presumptively awarded to Steltzlen were taken

away and only a portion were restored. In order to regain

the rest, Steltzlen is required to meet extra conditions not

required under the old regulations. The new regulations

adversely change the legal consequences of Steitzlen’s

crime by creating a situation where Steltzlen must now

earn good time credits that he was considered to have

already earned under the old regulations. This is similar

to the situation in Weaver where the statutory changes

enacted there required the inmates to do something extra

and to subject themselves to the discretion of the prison

in order to gain the same level of early release advantage

accorded under the old statute.

The regulations do more than affect the consequences

of Steltzlen’s future conduct. The regulations reach back

and take away what was already given to Steltzlen under

the old regulations in effect at the time of his crime and,

accordingly, have a disadvantageous retrospective effect

on him. Cf. Lynce v. Mathis, 519 U.S. __, 137 L. Ed. 2d, 63,

75, 117 S. Ct. 891 (1997) (holding that a new statute

interpreted as calling for the retroactive cancellation of

formally awarded provisional credits to certain classes of

inmates was an ex post facto law).

A similar situation was also encountered in Spradling

v. Maynard, 527 F. Supp. 398 (W.D. Okla. 1981). In Spradl-

ing, the Oklahoma statutes in effect prior to September 8,

1976, provided a system where work and good time

credits were automatically applied to an inmate’s sen-

tence and were mandatory, subject only to being forfeited

19a

at a later date for disciplinary reasons. The statutes were

then amended to require the inmate to earn the credits by

satisfying certain conditions. The court in Spradling deter-

mined that the new law made more onerous the punish-

ment for crimes committed before its enactment and

violated the ex post facto prohibition when applied to

inmates who committed their crimes prior to the effective

date of the act. 527 F. Supp. at 404. Applying the

approach of Spradling, the current regulations would be

an ex post facto law as applied to Steltzlen.

DOT also argues that the regulations in question

merely effectuate the enabling statute’s directive that

good time credits shall be awarded on an earned basis.

See K.S.A. 1996 Supp. 22-3725(d). However, in the recent

case of Lynce, 137 L. Ed. 2d 63, the Supreme Court chas-

tised the parties for placing undue emphasis on the law-

makers’ subjective intent and focused on the importance

of the effect brought by the disputed changes. While the

current regulations arguably do a better job of fulfilling

the legislative intent, this does not change the fact that

DOC’s chosen method. of complying with the legislative

directive was different in 1990 than it is now, and that

difference will put inmates like Steltzlen at a disadvan-

tage if they are subject to the recent regulatory changes.

Nor does it matter that the legislative proviso for good

time credits, and the admittedly generous terms of the

1990 regulations regarding conditional release, were

established as a matter of grace. An ex post facto viola-

tion can arise even from a change to penal provisions

accorded as a matter of grace. Weaver, 450 U.S. at 30-31.

Affirmed.

20a

APPENDIX B |

SUPREME COURT ORDER |

DISTRICT CASE NO. 9607HC74

IN THE SUPREME COURT

OF THE STATE OF KANSAS

MARK L. STELTZLEN, APPELLANT, CROSS-APPELLEE,

V NO. 96-77897-AS

DAVID R. MCKUNE, APPELLEES,

ET AL., CROSS-APPELLANTS.

YOU ARE HEREBY NOTIFIED OF THE FOLLOW-

ING ACTION TAKEN BY THE COURT:

PETITION FOR REVIEW BY DAVID R.

MCKUNE, ET AL.

CONSIDERED BY THE COURT AND DENIED.

DATE: 07/09/98.

CAROL G. GREEN

CLERK

2la

APPENDIX C

COURT OF APPEALS ORDER

DISTRICT CASE NO. 9607HC74

IN THE COURT OF APPEALS

OF THE STATE OF KANSAS

MARK L. STELTZLEN, APPELLANT, CROSS-APPELLEE,

V NO. 96-77897-A

DAVID R. MCKUNE, APPELLEES,

ET AL., CROSS-APPELLANTS.

YOU ARE HEREBY NOTIFIED OF THE FOLLOW-

ING ACTION TAKEN BY THE COURT:

MOTION FOR STAY PENDING CERTIORARI

TH [sic] THE UNITED STATES SUPREME

COURT BY APPELLEE, DAVID MCKUNE, ET

AL.

DENIED.

RESPONSE NOTED.

DATE: 08/05/98.

CAROL G. GREEN

CLERK