Reply Brief — McKune v. Steltzlen

©

FILED

No. 98-366 NOV 2.0 1998

“OFFICE UF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the United States

October Terin, 1998

DAVID R. McKUNE, WARDEN,

CHARLES SIMMONS, SECRETARY OF CORRECTIONS,

Petitioners,

MARK L. STELTZLEDW

Respondent.

.

-

On Petition For A Writ Of Certiorari

To

The Kansas Court Of ‘igh.

ae 2

¢—— 2

PETITIONERS’ REPLY

a

TimotHy G. MADDEN CARLA J. STOVALL

Chief Legal Counsel Attorney General

Kansas Dept. of STEPHEN R. MCALLISTER

Corrections Special Asst. Attorney

900 Jackson Street, General

Suite 400 (Counsel of Record)

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

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

(785) 296-2215

~ BEST AVAILABLE COPY

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TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE WRIT ........... 1

I. Whether Ministerial State Prison Regulations Are

“Laws” For Ex Post Facto Purposes Is An Unsettled

And Important Issue Of Federal Law ...........

A. This Court’s Cases Repeatedly Suggest That

Article I’s Ex Post Facto Prohibitions Limit

Only Legislative Abuses, i.e., Penal Statutes

Retroactively Applied.....................

B. The Lower Courts Are Divided On The

Importance And Application Of The Distinc-

tion Between Regulations Based On Dele-

gated Legislative Authority And Ministerial,

Interpretive Regulations ...................

C. Whether A State Prison Regulation Is A

“Law” For Constitutional Ex Post Facto Pur-

poses Necessarily Is A Federal Question ..

II. Like The Court Below, Respondent Fails To

Acknowledge Or Address This Court’s Ex Post

Facto Decisions Limiting And Disagreeing With

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

Ill. This Case And The Related Cases In No. 98-367

Provide Appropriate Vehicles For This Court To

Address These Important, Unresolved Ex Post

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TABLE OF AUTHORITIES

Cases

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........... 4:2

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

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Collins v. Youngblood, 497 U.S. 37 (1990) .............. 7

Dobbert v. Florida, 432 U.S. 282 (1977) ............++5- 7

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996) ....... 4

Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993) .......... 4

Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072

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Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891 (1997) ...6, 7

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

Portiey v. Grossman, 444 U.S. 1311 (1980) (Rehn-

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Prater v. United States Parole Commission, 802 F.2d

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Weaver v. Graham, 450 U.S. 24 (1981) ............... 6, 7

OTHER AUTHORITY

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REASONS FOR GRANTING THE WRIT

I. Whether Ministerial State Prison Regulations Are

“Laws” For Ex Post Facto Purposes Is An Unsettled

And Important Issue Of Federal Law

The federal question whether ministerial, interpretive

prison regulations should be considered “Laws” for con-

stitutional ex post facto purposes is important but remains

unsettled. Since Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798),

this Court has repeatedly emphasized that the constitu-

tional ex post facto prohibitions apply to penal statutes. The

Court has never addressed an ex post facto challenge to

prison regulations.

Moreover, the two ex post facto provisions in our

Constitution appear in Article I as limitations on legisla-

tive power. The court below, however, essentially held

that all administrative regulations in Kansas necessarily

are subject to ex post facto requirements, whether or not

based on a delegation of legislative authority. With all

due respect, petitioners urge this Court to grant review in

this case or, alternatively, in the companion cases in No.

98-367, in order to address and resolve this important

federal question.

A. This Court’s Cases Repeatedly Suggest That

Article I’s Ex Post Facto Prohibitions Limit

Only Legislative Abuses, i.e., Penal Statutes

Retroactively Applied

The proposition that the state Ex Post Facto Clause

“has been interpreted to pertain exclusively to penal stat-

utes,” Kansas v. Hendricks, 521 U.S. 346, __, 117 S. Ct.

2072, 2086 (1997) (emphasis added), goes all the way back

to Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). In that early

decision, the Justices emphasized that the constitutional

prohibitions were designed to preclude abusive exercises

of legislative power such as had occurred in England,

Europe and, to a lesser extent, in some of the American

states.! Thus, Justice Chase declared that “the plain and

obvious meaning and intention of the prohibition is this:

that the legislatures of the several states, shall not pass

laws, after a fact done by a subject or citizen, which shall

have relation to such fact, and shall punish him for hav-

ing done it.” Id. at 390; see also Miller v. Florida, 482 U.S.

423, 429 (1987) (observing that Calder “emphasized that

the Clauses were aimed at preventing legislative

abuses”).

This history suggests a primary concern with legisla-

tive abuses of power. But “it is not a reason for treating

parole guidelines as laws to which the rule against ex

post facto laws applies.” Prater v. United States Parole

1 Justice Chase, for example, observed that the prohibitions

against ex post facto laws “very probably arose from the

knowledge, that the parliament of Great Britain claimed and

exercised a power to pass such laws, under the denomination of

bills of attainder, or bills of pains and penalties. . . . ” 3 Dall. at

389. Justice Iredell dramatically declared that the “history of

every country in Europe will furnish flagrant instances of

tyranny exercised under the pretext of penal dispensations.

*** The temptation to such abuses of power is unfortunately too

alluring for human virtue; and therefore, the framers of the

American constitutions have wisely denied to the respective

legislatures, federal as well as state, the possession of the power

itself: they shall not pass any ex post facto law... .” Id. at 399-400.

Commission, 802 F.2d 948, 953 (7th Cir. 1986) (en banc)

(Posner, J.).

Certainly, state legislatures may delegate legislative

authority to prison officials. And the regulations prison

officials adopt pursuant to such legislative delegations

may well fall within the historical reach of the ex post facto

prohibitions. But it does not follow that every prison

regulation that adversely affects some inmates in some

way is subject to ex post facto scrutiny.

B. The Lower Courts Are Divided On The Impor-

tance And Application Of The Distinction

Between Regulations Based On Delegated Leg-

islative Authority And Ministerial, Interpretive

Regulations

Contrary to respondent’s suggestion, petitioners are

not asserting that prison regulations promulgated pur-

suant to delegated legislative authority can never be

“Laws” for ex post facto purposes. Indeed, as respondent

suggests, such a position would permit the state to evade

ex post facto limitations in the prison context by the simple

expedient of making a broad delegation of legislative

authority to the department of corrections. Or, in the

federal system, Congress could simply delegate legisla-

tive authority to establish criminal punishments to a

body such as the United States Sentencing Commission.

Recognizing that proposition, however, does not

resolve this case, nor does it eliminate the well-estab-

lished split of authority in the lower courts. Rather,

respondent concedes “that the determination of when an

administrative regulation constitutes a ‘law’ for Ex Post

Facto purposes may not always be crystal clear,” Opp. 7

n. 2, and “we have no dispute that the question of when

such a regulation is a law is less settled.” Id. at 10. Indeed,

this issue is potentially determinative in this case and it is

the very issue that has divided the courts.

For example, after pointing out that-“[t]here is some

disagreement among the circuits on this matter,” Domini-

que v. Weld, 73 F.3d 1156, 1162 (1st Cir. 1996), the First

Circuit observed that “[t]he dispute appears to turn on

whether a rule is legislative (based on a delegation of

statutory authority) or merely interpretive, and whether a

legislative rule is binding or merely guides the exercise of

discretionary power.” Id. at 1162 n. 10 (citing and discuss-

ing cases). Chief Judge Posner has observed that “[t]he

rule against ex post facto laws applies to statutory

changes and also (we may assume) to changes in admin-

istrative regulations that represent an exercise of

delegated legislative authority, as opposed to an inter-

pretation of legislation by an agency authorized to exe-

cute, not make, laws.” Prater v. United States Parole

Commission, 802 F.2d 948, 953-54 (7th Cir. 1986) (en banc)

(Posner, J.). See also Ewell v. Murray, 11 F.3d 482, 487 n. 2

(4th Cir. 1993) (discussing split of authority).

Although this Court has never directly addressed the

question of which prison regulations may constitute

“Laws” for ex post facto purposes, it has acknowledged

the distinction between legislative and interpretive rules

in this context. In Miller v. Florida, 482. U.S. 423, 434

(1987), the Court observed that several Courts of Appeal

had upheld federal parole regulations against ex post facto

challenge, relying on the following three rationales: (1)

federal parole guidelines are not “laws” for ex post facto

purposes; (2) the parole guidelines merely “rationalize

the exercise of statutory discretion”; and (3) retrospective

application of the parole guidelines does not result in a

more onerous punishment. Id. at 434-35. The Court then

discussed these rationales in Miller (involving a change in

Florida’s sentencing guidelines) but concluded that

“[njone of the reasons given in the federal parole cases

even arguably applies here.” Id. at 435.

With all due respect, as discussed in the petition for

writ of certiorari in No. 98-367, at pages 24-25, all three of

the foregoing rationales apply to the Kansas regulations.

C. Whether A State Prison Regulation Is A “Law”

For Constitutional Ex Post Facto Purposes Nec-

essarily Is A Federal Question

Respondent's brief does not make clear whether he

views the question in this case as one of federal or state

law. See Opp. 10-11. But he suggests that it be answered

as a matter of state law, asserting that “prudential consid-

erations argue for deference to the State’s own character-

ization of its administrative rules.” Opp. 10. This cannot

be correct.?

2 Even were the Court to adopt this approach, it is not clear

the issue is so clear cut as respondent suggests. Although the

state court of appeals concluded that administrative regulations

have the force of law, it does not follow that ull such regulations

are necessarily legislative in character, as opposed to

interpretive or ministerial. Indeed, the prison regulations

themselves require only that, for parole eligibility and

conditional release purposes, prison officials apply the

“statutes” in effect at the time of an inmate’s crime. K.A.R.

Taken literally, respondent’s suggested approach -—

defer to the State’s characterization of its administrative

regulations — could permit a state court, legislature or

perhaps even department of corrections to declare that all

of the state’s prison regulations are purely ministerial or

interpretive. Apparently, under respondent’s approach,

the courts would defer to this declaration, as suggested

by respondent’s discussion (and apparent approval) of a

Kansas statutory provision that purportedly exempts

“hundreds of pages” of prison manuals from ex post facto

scrutiny. Opp. 11. With all due respect, it seems doubtful

that respondent really desires a rule that would permit

the Kansas legislature in its next session to eliminate the

potential for virtually all future ex post facto litigation

involving Kansas prison regulations.

II. Like The Court Below, Respondent Fails To

Acknowledge Or Address This Court’s Ex Post

Facto Decisions Limiting And Disagreeing With

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

Although respondent concedes that the lower court

“relies heavily upon Weaver,” Opp. 12, respondent neither

mentions nor addresses important ex post facto decisions

that limit Weaver. Respondent observes that neither

Weaver nor Lynce v. Mathis, 519 U.S. 433 (1997), “provoked

even a single Justice to dissent,” Opp. 13, but fails to

44-6-107(a). They make no mention of applying regulations in

effect at the time of an inmate’s crime. Arguably, this regulation

suggests that prison officials view these regulations as

interpretive or ministerial rather than the result of a delegation

of legislative authority.

acknowledge that at least two Justices reluctantly

accepted the outcome in each of those cases and dis-

agreed with the Court’s reasoning, as discussed in the

petition for a writ of certiorari in No. 98-367, at pages

25-28. Moreover, respondent ignores that this Court in

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

Dept. of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995),

expressly rejected the Weaver court’s discussion of the

concept of “disadvantage.” Cf. Portley v. Grossman, 444

U.S. 1311, 1312 (1980) (Rehnquist, J., in chambezs) (“the

prohibition of ex post facto laws does not extend to every

change of law that ‘may work to the disadvantage of a

defendant.’ ”) (quoting Dobbert v. Florida, 432 U.S. 282,

293 (1977)).3 Ex post facto issues are of great importance to

the States, with the States’ ever-increasing prison popula-

tions. See Brief Amici Curiae of Ohio, et al. in Nos. 98-366,

98-367 (36 states supporting request for review of these

important ex post facto issues).

3 A Westlaw Insta-Cite check of both Weaver and Lynce

confirms that the lower state and federal courts have struggled

in applying these decisions. For example, a check of Weaver

reveals 18 decisions — from this Court, the Courts of Appeal, and

the state courts — that have declined to extend Weaver or

distinguished it, recognizing that this Court’s subsequent

decisions have, at least in part, abrogated, disagreed with,

called into doubt, or modified Weaver. A similar check of Lynce

reveals that, even though the case was decided less than two

years ago, one federal Court of Appeals already has declined to

extend it, and six other decisions have distinguished it. For the

Court’s convenience, this information is included as an

appendix to this reply brief.

III. This Case And The Related Cases In No. 98-367

Provide Appropriate Vehicles For This Court To

Address These Important, Unresolved Ex Post

Facto Issues

With all due respect, respondent’s suggestion that

this case is not an appropriate vehicle by which to

address the ex post facto issues is without merit. The

issues are cleanly raised in this case, and the lower court

thoroughly addressed them. Respondent is represented

by capable counsel with substantial experience in litiga-

tion involving prison inmates and prison issues. And, in

addition to Kansas, 36 states have expressed their sup-

port for review of these cases to resolve the important ex

post facto issues they raise.

Nor does respondent’s suggestion that the compan-

ion cases in No. 98-367 are not appropriate vehicles have

merit. In those cases, like this case, the issues are cleanly

raised and expressly decided. Although the cases in No.

98-367 also deal with changes in the withholding of good

time credits for failure to participate in the Sexual Abuse

Treatment Program, that fact may simply counsel in favor

of granting those cases (to address all of the issues raised)

and holding this petition for disposition pending the

outcome.

¢

CONCLUSION

For the foregoing reasons, the reasons stated in the

petition and the reasons set forth in the amicus brief filed

by Ohio on behalf of 36 states supporting review of these

issues, petitioners respectfully request that this Court

grant the petition for a writ of certiorari in order to

resolve the splits of authority in the lower federal and

state courts. In the alternative, petitioners request that the

Court grant the petition in No. 98-367, which raises the

identical issues, and hold this case for disposition pend-

ing the outcome of No. 98-367.

Respectfully submitted,

TimotHy G. MADDEN Cara J. STOVALL

Chief Legal Counsel Attorney General

Kansas Dept. of Corrections

900 Jackson St., Suite 400 27=PHEN R. McAtuster

Topeka, KS 66612

(785) 296-4508

Special Asst. Attorney

General

(Counsel of Record)

301 S.W. 10th Avenue

Topeka, KS 66612-1597

(785) 296-2215

November, 1998

la

APPENDIX

(Results Of Insta-Cite Checks)

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

Cases Not Following Weaver Dicta

California Dept. of Corrections v. Morales, 514 U.S. 499

(1995)

Cases Recognizing Abrogation Of Weaver

United States v. Brechtel, 997 F.2d 1108 (5th Cir. 1993)

State ex rel. Glover v. State, 660 So.2d 1189 (La. 1995)

United States v. Pedrazoli, 45 M.J. 567 (A.F. Ct. Crim. App.

1997)

Amin v. State, 939 P.2d 413 (Alaska App. 1997)

Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997)

Allen v. State, 945 P.2d 1233 (Alaska App. 1997)

Cases Recognizing Disagreement With Weaver

Snyder v. State, 965 S.W.2d 121 (Ark. 1998)

Stewart v. Pennsylvania Bd. of Probation and Parole, 714

A.2d 502 (Penn. 1998)

Cases Suggesting Weaver Has Been Called Into

Doubt

Jones v. Georgia State Bd. of Pardons and Paroles, 59 F.3d

1145 (11th Cir. 1995)

People v. Superior Court, 57 Cal. Rptr.2d 296 (Cal. App.

1996)

Cases Declining To Extend Weaver

Hock v. Singletary, 41 F.3d 1470 (11th Cir. 1995)

Hallmark v. Johnson, 118 F.3d 1073 (5th Cir. 1997)

2a

Cases Distinguishing Weaver

Ellis v. Norris, 968 S.W.2d 609 (Ark. 1998)

Cases Recognizing Weaver Has Been Modified

United States v. Brady, 88 F.3d 225 (3d Cir. 1996)

Puckett v. Abels, 684 So.2d 671 (Miss. 1996)

People v. Fioretti, 63 Cal. Rptr.2d 367 (Cal. App. 1997)

Fletcher v. Williams, 688 N.E.2d 635 (Ill. 1997)

Stansbury v. Hannigan, 960 P.2d 227 (Kan. 1998)

Lynce v. Mathis, 519 U.S. 433 (1997):

Cases Declining To Extend Lynce

Hallmark v. Johnson, 118 F.3d 1073 (5th Cir. 1997)

Cases Distinguishing Lynce

Alan A. v. Verniero, 970 F. Supp. 1153 (D.N.J. 1997)

Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997)

State v. Woodman, 1997 WL 710652 (Ohio App. 1997)

Wilson v. State, 1998 WL 13817 (Tenn. App. 1998)

' Wottlin v. Fleming, 136 F.3d 1032 (5th Cir. 1998)

Beasley v. Commissioner of Correction, 50 Conn. App. 421

(1998) |