# Reply Brief — McKune v. Steltzlen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1515%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1060 ## Text © 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 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 \ 4 TABLE OF CONTENTS Page SABE GAP CII 0 sin 5 is Pie cw sans fae hee on cee i FABLS OF AUTIOORIIEES oo 50. ie ec ive cee ii 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 he een 5d Gas ga ey 8 eas Monet sa 00's PUI FSA 5 50 Vn UN SUN EN cba tes dbaden esas SNE io o-Oh Wide Av exe tucasVeens ches sits hans ii TABLE OF AUTHORITIES Cases Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........... 4:2 California Dept. of Corrections v. Morales, 514 US. ee | Se prec e TS art OS Pn eee 7 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 CRORE Se BES Ee ae Rh ea a SES Welk bn bee's 1 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- CNR, Te, TR GAMO 8 Teh bs Rca ea cube a oy ba Ries 7 Prater v. United States Parole Commission, 802 F.2d * O6B G7 iin. Cle, SO Cire ai ci cc ccc ve cies 2, 4 Weaver v. Graham, 450 U.S. 24 (1981) ............... 6, 7 OTHER AUTHORITY A, GOB 6 kiko bs wicdvekcrspchkvhens dabei § See en yy ee 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) | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1515%3A4. Public record. Not legal advice.