Reply Brief — Hannigan v. Stansbury

No. 98-367

In The

Supreme Court of the Unitec

October Term, 1998

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ROBERT D. HANNIGAN, WARDEN, et al.,

Petitioners,

V.

RAYMOND F. STANSBURY,

Respondent.

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CHARLES SIMMONS, SECRETARY

OF CORRECTIONS, et al., ~

Petitioners,

MICHAEL A. BANKES,

Respondent.

On Petition For Writs Of Certiorari

To The Supreme Court Of The State Of Kansas

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PETITIONERS’ REPLY

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TimotHy G. MADDEN Cara 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

TABLE OF CONTENTS

Page

SOME GE RE oi a i

SABER. OF AUTEIUIee hrc che cece ee eee ebies.: ii

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

I. Whether Ministerial State Prison Regulations Are

“Laws” For Ex Post Facto Purposes Is An Unset-

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

A. Kansas Prison Regulations Adopt The View

That Changes In Parole Eligibility And Con-

ditional Release Regulations Are Not

“Laws” For Ex Post Facto Purposes........

B. Respondent, Like The Kansas Supreme

Court, Ignores The Remedial Purposes Of

ee ee et ie eh ee

II. Respondent’s Equal Protection, Fifth Amend-

ment Self-Incrimination, And Due Process

Claims Are Not Before The Court .............

EEE Sha Gh os Gav bas SG na dne sa 0 coy neces 0h 048

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tat i Oe tag OTe NR kc ea oe Re oe Pee Cae faye ad ne? ye ERIN RSE ee) ee ee jai ? AS

ii

TABLE OF AUTHORITIES

Page

CASES

In re Ramirez, 705 P.2d 897 (Cal. 1985) ............... 3

Kirkpatrick v. Simmons, et al., No. 96-3140-MLB (D.

Kast. FURY Diy Ree 6 bi io oe bao ke ae eee es 4

Lile v. McKune, et al., 1998 WL 689824 (D. Kan.

SOG. REG RIOD 655.5 shied cpcnu amok eee Maa e nd ale as 4

Montana v. Imlay, 813 P.2d 979 (Mont. 1991), cert.

granted, 503 U.S. 905 (1992), cert. dismissed, 506

LO NSF e's Oe eer enn ey are rad Sir a) Ser 4

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

948 (7th Cir. 1966) fem Danas. 64 Sie eles che Sen's 3

Sandin v. Conner, 515 U.S. 472 (1995)............... A

Turner -v.. Safley, 482 US... 7B GESG7) oie hc ok a cnsns sess 3

Washington v. Harper, 494 U.S. 210 (1990)............. 3

Orner AuTHoritTy

Biss TE oo cv ce cla dcb abet beseukbauteceien 1, 2

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

With respect to the issue of when prison regulations

may constitute “Laws” for constitutional ex post facto

purposes, petitioners incorporate by reference and rely

principally upon the discussion of that issue in the reply

brief in McKune, et al. v. Steltzlen, No. 98-366, a related

case. As resyondent’s opposition brief (hereinafter

“Opp.”) in this case makes doubly clear, the relevant

statutes governing parole and conditional release have not

changed since he committed his crime. Opp. 1-2. Instead,

he complains that the regulations have been changed,

Opp. 2-9, as petitioners have always acknowledged. That,

however, is the initial issue in this case - whether the

regulatory changes that affect respondent constitute

“Laws” for federal ex post facto purposes.

A. Kansas Prison Regulations Adopt The View

That Changes In Parole Eligibility And Condi-

tional Release Regulations Are Not “Laws” For

Ex Post Facto Purposes

Importantly, respondent’s reliance on K.A.R.

§ 44-6-107, see Opp. 2-3, confirms petitioners’ position

that not all prison regulations are “Laws” for ex post facto

purposes. Instead, as the portions of the regulation

respondent quotes at length make clear, the prison regu-

lations themselves clearly state that the “statutes constitu-

ting the substantive law in effect at the time the crime is

committed shall apply to compute the sentence term and

the release dates.” Opp. 3 (quoting K.A.R. § 44-6-107(a),

which respondent acknowledges has been in effect con-

tinuously since 1984) (emphasis added). To the extent that

fair notice is a purpose of the ex post facto prohibition,

respondent had clear notice that he haa no right to rely

upon nor expect no change in the regulations affecting

matters of parole and conditional release, only the stat-

utes.

Respondent's repeated assertion that this regulation

compels prison officials to use the parole and conditional

release regulations in effect at the time an inmate commit-

ted his crimes, see, e.g., Opp. 3, 17, 19, is simply incorrect.

The regulation could not be more clear that prison offi-

cials are only obliged to follow “statutes” in effect at the

time of the inmate’s crime. All of K.A.R. § 44-6-107(a)

speaks in terms of adherence to the relevant “statutes”,

with not a mention of similar adherence to “regulations”

in effect at the time of the crime.

Under this regulation, Kansas prison officials have -

since at least 1984 — taken the position that department of

corrections regulations affecting parole and conditional

release dates are interpretive regulations, not legislative

regulations. In petitioners’ view, if that position is correct,

then the regulations are not subject to ex post facto con-

straints. The question for this Court, and on which the

lower federal and state courts are divided, is whether

that position is correct as a matter of federal constitu-

tional law.

Although respondent works zealously to explain

away all cases the petitioners cited in their petition, Opp.

21-28, the often minute factual distinctions he attempts to

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draw, as well as his own concessions, further support

petitioners’ assertion that a real and important split

exists. See, e.g., Opp. 24 (offering “respondent's sincere

belief that [In re] Ramirez [705 P.2d 897 (Cal. 1985)] was

wrongfully decided — in fact, the case features an out-

standing dissenting opinion to that effect”).

B. Respondent, Like The Kansas Supreme Court,

Ignores The Remedial Purposes Of The Regula-

tions

Respondent, like the Kansas Supreme Court, focuses

solely on the “effects” aspect of ex post facto analysis and

ignores all other considerations. Thus, respondent

ignores remedial purposes of the regulatory changes

regarding the Sexual Abuse Treatment Program. For the

reasons explained in the petition for a writ of certiorar? at

pages 28-29, an exclusive focus on disadvantageous

effects is incorrect. Moreover, as the Ohio amicus brief

points out, the Kansas Supreme Court’s focus on “effects”

alone runs counter to this Court’s strongly declared def-

erence to the judgments of prison administrators. See, e.g.,

Washington v. Harper, 494 U.S. 210, 223-24 (1990); Turner v.

Safley, 482 U.S. 78 (1987); see also Sandin v. Conner, 515

U.S. 472, 482 (1995) (discussing need to avoid discourag-

ing the “desirable development” of prison regulations

and procedures); Prater v. United States Parole Commission,

802 F.2d 948, 954 (7th Cir. 1986) (en banc) (warning that

applying the ex post facto prohibition to interpretive regu-

lations will “discourage the formulation and publication

of administrative policies”). These issues are of great

importance to the States, with their ever-increasing

prison populations. See Brief Amici Curiae of Ohio, et al. in

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Nos. 98-366, 98-367 (36 states supporting request for

review of tkese important ex post facto issues).

II. Respondent’s Equal Protection, Fifth Amendment

Self-Inaimination, And Due Process Claims Are

Not Be‘ore The Court

Respondent devotes the final twelve pages of his

opposition :o several constitutional arguments that he

either has not properly preserved or presented in this

Court. See Opp. 28-39. His equal protection claim was not

discussed o: decided by the Kansas Supreme Court. See

Pet. App. la-26a. Nor did the Kansas Supreme Court

address a Hifth Amendment self-incrimination claim in

respondent's case, although it did address and reject such

a claim in the companion case, Bankes v. Simmons, et al.

See Pet. App. 27a-45a.!

1 This Court several years ago granted a writ of certiorari to

decide the sef-incrimination issue in this context in Montana v.

Imlay, 813 P2d 979 (Mont. 1991), cert. granted, 503 U.S. 905

(1992), cert. dsmissed, 506 U.S. 5 (1992). Apparently because of a

mootness problem in that case, however, the Court did not reach

the merits of the claim, leaving it open. In Kansas, the Sexual

— Trea:ment Program, with its requirement of an

- of responsibility for the crime as a condition of

papticipation has been both upheld against Fifth Amendment

challenge, Krkpatrick v. Simmons, et al., No. 96-3140-MLB (D.

Kan. July 24, 1998), and declared unconstitutional. Lile v

McKune, et il., 1998 WL 689824 (D. Kan. Sept. 16, 1998).

Petitioners would be willing to brief and argue the Fifth

Amendment issue on the merits in this Court upon an order

from the Court to do so. But none of the respondents have raised

the issue in either a timely petition for a writ of certiorari or a

conditional coss-petition.

———————

Finally, the Kansas Supreme Court addressed and

rejected a procedural due process claim in respondent's

appeal, although not the one respondent appears to be

raising in this Court. See Pet. App. 21a-26a (discussing

application of the Internal Management Procedures and

Policies (“IMPP”) program to respondent following his

refusal to participate in the Sexual Abuse Treatment Pro-

gram; respondent never mentions the IMPP in his opposi-

tion brief in this Court). Moreover, any procedural due

process claim here is foreclosed on the merits by this

Court’s decision in Sandin v. Conner, 515 U.S. 472 (1995),

as the Kansas Supreme Court concluded. Pet. App.

25a-26a. Respondent, however, neither cites nor mentions

Sandin and, instead, relies upon the very line of liberty

interest cases the Court disavowed in Sandin. See Opp.

28-29.

In any event, respondent has not filed a conditional

cross-petition, as he would have to do in order to prop-

erly present these independent claims to the Cc urt at this

time. Sup. Ct. R. 13.1, 13.4.

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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

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resolve the splits of authority in the lower federal and

state courts.

Respectfully submitted,

TimotHy G. MADDEN Cara J. STOVALL

Chief Legal Counsel Attorney General

Kartees Dept. of STEPHEN R. MCALLISTER

Corrections

Special Asst. Attorney

General

(Counsel of Record)

301 S.W. 10th Avenue

Topeka, KS 66612-1597

(785) 296-2215

900 Jackson St., Suite 400

Topeka, KS 66612

(785) 296-4508

November, 1998