# Reply Brief — Hannigan v. Stansbury > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1516%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1060 ## Text No. 98-367 In The Supreme Court of the Unitec October Term, 1998 e ROBERT D. HANNIGAN, WARDEN, et al., Petitioners, V. RAYMOND F. STANSBURY, Respondent. ¢ 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 ¢ PETITIONERS’ REPLY = 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 3 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 NTS ee Ba ite aa fh 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 > 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. ¢ 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 Fe ESD eka, Se Le et Re om me, a ge ae Rien a Oe Oa ah eo rae Re a NL ee ce Wyte - Fe Sie RY OLR Fee pe sa cob.” ~ 5 : OER : vs ee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1516%3A4. Public record. Not legal advice.