Petition for Writ of Certiorari — Davis v. Armstrong

(\) Supreme Court, U.S.

FILED

No. 01-150! APR -5 2002

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

GRAY DAVIS, et al., Petitioners,

v.

JOHN ARMSTRONG, et al., Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAUL D. GIFFORD

Senior Assistant Attorney General

SUSAN DUNCAN LEE

Sr. Supervising Deputy Attorney General

*FRANCES T. GRUNDER

Supervising Deputy Attorney General

*Counsel of Record

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

Telephone: (415) 703-5723

Fax: (415) 703-5843

Counsel for Petitioners

QUESTION PRESENTED

In Greenholtz v. Inmates of Neb. Penal & Corr. Complex,

442 U.S. 1 (1979), the Court decided whether a state parole

statute created a due-process right by looking to whether the

statute’s language was mandatory or discretionary. But later, in

Sandin v. Conner, 515 U.S. 472 (1995), the Court disapproved

that mechanical approach. It held that the proper focus was

whether the state had created a right of "real

substance"—something that an inmate would have a legitimate

claim of entitlement to. Because Sandin did not explicitly

overrule Greenholtz, circuits are split on the proper test for

parole cases. Thus, the question presented is:

Does this Court's test in Sandin apply to parole-

suitability hearings for state inmates?

il

LIST OF PARTIES

Petitioners are Gray Davis, Governor of the State of

California; Robert Presley, Secretary of the Youth and Adult

Correctional Agency, the agency that oversees the California

Board of Prison Terms; Carol Daly, Chair of the California

Board of Prison Terms; and the California Board of Prison

Terms.

Respondents are a class of current and future California

state prisoners and parolees with mobility impairments, hearing

disabilities, visual disabilities, learning disabilities, or mental

retardation.

TABLE OF CONTENTS

Page

OPINION BELOW l

STATEMENT OF JURISDICTION l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT > 4

I. HOW STATE-CREATED LIBERTY

INTERESTS ARE DETERMINED IN

PAROLE PROCEEDINGS AFFECTS

CRIMINAL JUSTICE SYSTEMS

NATIONALLY BUT HAS NOT BEEN

DIRECTLY ADDRESSED BY THIS

COURT SINCE IT REPUDIATED THE

METHOD USED IN GREENHOLTZ. 5

A. The Court Has Directed Lower Federal

Courts to Focus on the Nature of the

Liberty Interest Rather Than the

Language of the States’ Statutes. 5

B. The Issue Is Unresolved and Has

Continuing National Impact on an

Integral State Function. 7

iV

TABLE OF CONTENTS (continued)

Page

II. THE COURT SHOULD RESOLVE THE

CLEAR SPLIT IN THE CIRCUITS

OVER WHETHER THE SANDIN OR

GREENHOLTZ TEST APPLIES TO

DETERMINE THE EXISTENCE OF

STATE-CREATED LIBERTY

INTERESTS IN STATE PAROLE

PROCEEDINGS. 10

CONCLUSION 13.

TABLE OF AUTHORITIES

Page

Cases

Armstrong v. Davis

275 F.3d 849 (9" Cir. 2001) 3, 4,12

Asquinth y. Dep't of Corrections

186 F.3d 407 (3 Cir. 1999) 4,11

Board of Pardons v. Allen /

482 U.S. 369 (1987) 6, 7,11, 12

California Dep't of Corrections v. ‘Morales

514 U.S. 499 (1995) ae

Callendar v. Sioux City Residential Treatment Facility

88 F.3d 666 (8" Cir. 1996) 4,11

Creel v. Keene

928 F.2d 707 (5" Cir. 1991) 12

Dominique v. Weld

73 F.3d 1156 (1* Cir. 1996) 10

Ellis v. District of Columbia

84 F.3d 1413 (D.C. Cir. 1996) 4,11

Garner v. Jones

529 U.S. 244 (2000) 9

vi

TABLE OF AUTHORITIES (continued)

Greenholtz v. Inmates of Neb.

Penal & Corr. Complex

442 US. 1 (1979)

Hamm v. Latessa

72 F.3d 947 (1* Cir. 1995)

Harris v. Alabama

513 U.S. 504 (1995)

Heidelberg v. Ill. Prisoner Rev. Bd.

163 F.3d 1025 (7" Cir. 1998)

Hewitt v. Helms

459 U.S. 460 (1983)

In re Rosenkrantz

116 Cal. Rptr. 2d 69 (2002)

pet. review filed Feb. 27, 2002

Kentucky Dep't of Corr. v. Thompson

490 U.S. 454 (1989)

Ohio Adult Parole Authority v. Woodard

523 U.S. 272 (1998)

Orellana v. Kyle

65 F.3d 29 (5" Cir. 1995)

Sandin v. Conner

515 U.S. 472 (1995)

Page

4, passim

4,12

vil

TABLE OF AUTHORITIES (continued)

Page

Thompson v. Cockrell

263 F.3d 423 (5" Cir. 2001) 12

Wolff v. McDonnell

418 U.S. 539 (1974) 5

Young v. Harper

520 U.S. 143 (1997) 7, 8, 11

Constitutional Provisions

United States Constitution

Amendment XIV [1868] 2

Statutes

28 United States Code

§ 1254(1) l

California Penal Code

§ 3041 2

IN THE SUPREME COURT OF THE UNITED STATES

No.

GRAY DAVIS, et al., Petitioners,

v.

JOHN ARMSTRONG, et al., Respondents.

OPINION BELOW

The court of appeals’ opinion is reported at 275 F.3d 849

(9" Cir. 2001). App. la. The district court's findings of fact and

conclusions of law, judgment, and permanent injunction are

unreported. App. 60a, 15la, and 152a. The district court's

revised injunction, entered after remand, is also unreported.

App. 166a. -

STATEMENT OF JURISDICTION

The Court of Appeals for the Ninth Circuit entered its

judgment on November 28, 2001. App. la. A timely petition

for rehearing was filed on December 12, 2001, and denied on

January 9, 2002. App. 178a. The jurisdiction of the Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment XIV [1868]

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

California Penal Code section 3041

The text of this provision is provided in Appendix 180a.

STATEMENT OF THE CASE

Respondents are a class of disabled prisoners and parolees

who contend that prison and parole policies violate due process,

Title II of the Americans with Disabilities Act, and § 504 of the

Rehabilitation Act. Specifically, they allege that the policies

prevented them from understanding various parole proceedings,

or denied them the opportunity to attend required hearings, or

wrongfully denied them parole. The Board of Prison Terms

conducts parole hearings and revocations.

The respondents alleged wide-ranging statutory and due-

process violations regarding almost every aspect of the Board's

parole operations. This petition, however, relates only to

respondents’ due-process rights at parole-consideration hearings

for life prisoners. In that regard, the district court found that the

Board's policies and procedures violated due process because

class members received deficient notice of parole proceedings,

unknowingly waived important rights, and had been subject to

unfair procedures. App. 144a-145a.

Petitioners appealed various aspects of the injunction to the

Ninth Circuit, which affirmed in part, reversed in part, and

remanded in part. In its published opinion, the court of appeals

held, as a matter of first impression, that California prisoners

have a federally protected liberty interest in parole hearings,

because California's statute is sufficiently determinate to require

the hearings as a matter of right. Armstrong v. Davis, 275 F.3d

849, 864-65 (9" Cir. 2001); App. 25a.

REASONS FOR GRANTING THE WRIT

Whether state prisoners and parolees have federal due-

process rights in parole-consideration proceedings is an issue of

continuing national importance with significant impact on every

state's parole operations. Courts are split on the appropriate test

for determining whether such rights exist.

The Seventh, Ninth, and District of Columbia Circuits

continue to employ the analytical method that the Court in

Sandin strongly criticized, and expressly disavowed in the

prison context. Armstrong v. Davis, 275 F.3d 849 (9" Cir.

2001); Heidelberg v. Ill. Prisoner Review Bd., 163 F.3d 1025

(7" Cir. 1998); Ellis v. District of Columbia, 84 F.3d 1413 (D.C.

Cir. 1996). The Ninth and District of Columbia Circuits have

also stated that, until the Court speaks directly to the issue in a

parole context, the Greenholtz test will apply.

But the First, Third, and Eighth Circuits apply the Sandin

test to parole and conditional-release cases. Asquinth v. Dep't

of Corrections, 186 F.3d 407, 412 (3 Cir. 1999); Callendar v.

Sioux City Residential Treatment Facility, 88 F.3d 666 (8" Cir.

1996); Hamm y. Latessa, 72 F.3d 947 (1* Cir. 1995). As

evidence of the confusion in the circuits, the Fifth Circuit uses

a test employing elements of both Sandin and Greenholliz.

Orellana v. Kyle, 65 F.3d 29 (5" Cir. 1995).

Unless the Court enunciates a rule, the circuits will

continue to fracture and there will be no uniformity. This case

presents a timely opportunity for the Court to provide much-

needed direction to the circuits on a highly significant

constitutional issue, and one which affects the extent of federal

judicial intervention into state criminal-justice systems.

+ RE Me Tee, ee eT

HOW STATE-CREATED LIBERTY

INTERESTS ARE DETERMINED IN

PAROLE PROCEEDINGS AFFECTS

CRIMINAL JUSTICE SYSTEMS

NATIONALLY BUT HAS NOT BEEN

DIRECTLY ADDRESSED BY THIS

COURT SINCE IT REPUDIATED THE

METHOD USED IN GREENHOLTZ.

A. The Court Has Directed Lower Federal Courts to

Focus on the Nature of the Liberty Interest Rather

Than the Language of the States' Statutes.

As a general rule, inmates have "no constitutional or

inherent right . . . to be conditionally released before the

expiration of a valid sentence." Greenholtz, 442 U.S. 1, 7

(1979). Greenholtz, whose underlying rationale has been

overturned, found that states may, however, create a liberty a

interest in parole. Greenholtz, 442 U.S. at 11-12. In deciding

whether Nebraska created a liberty interest in parole, the

Greenholtz Court looked to the language of the Nebraska statute

to determine whether it created an "expectancy of release" that

entitled the inmates to constitutional protection. /d. at 12.

This approach evolved from the Court's earlier decision in

Wolffv. McDonnell, 418 U.S. 539 (1974). There, the Court held

that a prisoner's interest in earning good-time credits was one of

“real substance” because the credits affected the length of the

inmate's term and, under the statute, the mandatory credits could

be forfeited only for serious misbehavior. /d. at 477-78. Wolff

focused not only on the statutes, but on the nature of the interest

involved.

Four years after Greenholtz, the test further evolved when

the Court held that states could create a liberty interest by "the

repeated use of explicitly mandatory language in connection

with requiring specific substantive predicates." Hewitt v.

Helms, 459 U.S. 460, 472 (1983), overruled in part by Sandin,

515 U.S. 472. That is, the court focused not on the actual

substance of the right, but on whether directory statutory

language governed official decision-making and mandated the

outcome to be reached upon a finding that the relevant criteria

had been met. Kentucky Dep't of Corr. v. Thompson, 490 U.S.

454, 462 (1989).

The last time the Court addressed liberty interests in the

parole context was Board of Pardons v. Allen, 482 U.S. 369

(1987). In Allen, the Court held that a Montana parole statute,

which required the parole board to release a prisoner subject to

certain restrictions, created a liberty interest because the statute's

language created a presumption of parole. /d. at 377-78.

The analysis used in Greenholtz, Hewitt, and Allen

remained the law until Sandin was decided. The Court in

Sandin criticized the path that the liberty-interest analysis had

taken, finding that it had strayed from its constitutional

moorings. Sandin, 515 U.S. at 477-84. That departure was

undesirable for two reasons. First, it created a disincentive for

states to codify regulations and procedures to provide uniform

treatment. Jd. at 482. And second, it led to the involvement of

federal courts in the day-to-day management of state prisons, an

approach that the Court has disapproved on numerous

occasions. /d. at 482-83.

The Sandin Court refocused the analysis on the nature of

the interest deprived, and held that such constitutionally

protected interests "will be generally limited to freedom from

restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of its own force . . . nonetheless imposes

atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life." Jd. at 484.

B. The Issue Is Unresolved and Has Continuing National

Impact on an Integral State Function.

Although Sandin plainly abandoned the language-based

analysis employed in Greenholtz and Allen, the Court did not

overrule its holdings in those parole cases. Since Sandin, the

Court has not directly addressed Sandin's applicability in parole

cases. Some circuit courts have interpreted the Court's actions

as a complete abandonment of language-based rights analysis.

Others have interpreted its actions as retaining language-based

rights analysis in the special context of parole. Two of this

+ Court's post-Sandin cases have touched on the issue but have

| not directly addressed the source of the circuits' confusion.

In the first case, Young v. Harper, 520 U.S. 143 (1997), the

sole issue was whether Oklahoma's pre-parole program was

more like parole or minimum-security incarceration, and, thus,

whether continued participation was protected by the Fourteenth

Amendment. The Court held that, because Oklahoma's pre-

parole program was equivalent to parole, it was entitled to due-

process protection. Jd. at 152-53. In so holding, the Court

focused on the nature of the deprivation and the pre-releasee's

continuing interest in liberty as it had done earlier in Morrissey

v. Brewer, 408 U.S. 471 (1972).

In the second post-Sandin case, Ohio Adult Parole

Authority v. Woodard, 523 U.S. 272 (1998), the Court

concluded that clemency proceedings did not implicate a liberty

interest. In a plurality opinion, the Court found that there was

no substantive expectation of clemency under Ohio's statutes

and that, under Sandin, the availability of clemency and the

State's procedures for it did not "impose ‘atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life."" Woodard, 523 U.S. at 282-83 (quoting Sandin,

515 U.S. at 484). Thus, whether Sandin applies in parole cases

remains unsettled because neither Young nor Woodard has

provided explicit guidance to the circuits on the direction they

should take.

Yet the circuits need direction, not only because they are

split, but because how due-process rights are determined affects

the functioning of every state's parole system. The reasons for

abandoning the pre-Sandin methodology in prison cases have

equal weight in the parole setting.

First, parole can serve many beneficial purposes and states

should not feel constrained in their ability to enact parole-

related laws and regulations that are sufficiently directory to

ensure uniform application, but are not intended to convey an

expectation of liberty. The Sandin methodology accords the

states due deference to run core state functions, such as their

criminal justice systems, without fear that state laws will trigger

federal due-process protections where none are owed or

intended.

Second, would-be parolees are still prisoners and have not

been granted even conditional liberty. That is, they are serving

term-to-life sentences and receive periodic parole-consideration

hearings. There is no reason that the due-process test for

prisoners at parole-consideration hearings should be any

different than the test applied to prisoners at disciplinary

hearings, or a host of other prison-related proceedings. Under

the approach used by the Seventh, Ninth, and District of

Columbia Circuits, the same prisoner facing a disciplinary

proceeding one day and a parole-consideration hearing the next,

would have two different due-process analyses applied to his

proceedings. By focusing on the interest at stake, rather than the

>, af, reelhlC<i—C HH elC re relC MK llC HO FlCO MK )sllCUrir FF lCO CO

state statutes or the type of proceeding, the Sandin approach

leads to a uniform application of federal due-process principles.

And finally, this Court has repeatedly disapproved federal

courts’ muicro-management of states’ criminal-justice systems,

most recently in Garner v. Jones, where the Court observed that

"[t]he States must have due flexibility in formulating parole

procedures and addressing problems associated with

confinement and release." Garner v. Jones, 529 U.S. 244, 252

(2000); see also California Dep't of Corrections v. Morales, 514

U.S. 499, 508 (1995) (disapproving approach that urged federal

micro-management of state adjustments to parole and

sentencing procedures); Harris v. Alabama, 513 U.S. 504, 512

(1995) (micro-management tasks properly rest within state's

discretion to administer its criminal-justice system). By turning

the focus away from language-based analysis and resetting the

courts’ sights on the liberty interest at stake, the Sandin

approach respects federalism and allows states to manage their

prison and parole systems without excessive and unnecessary

federal oversight while still protecting federal due process.

The circuits’ splintering decisions show that Sandin's

rational approach to liberty issues has not had the same

beneficial effects in the area of parole as it has in the area of

prison administration. Few things are more integral to the

orderly functioning of a state's government than the

administration of its criminal justice system. Whether

Greenholtz or Sandin applies to parole issues is a significant

issue deserving the Court's attention because it affects a core

state function, it involves issues of federalism, and it will

provide for uniform application of due process. This petition

Should be granted to resolve this important, but unsettled,

constitutional issue.

10

Il.

THE COURT SHOULD RESOLVE

THE CLEAR SPLIT IN THE

CIRCUITS OVER WHETHER THE

SANDIN OR GREENHOLTZ TEST

APPLIES TO DETERMINE THE

EXISTENCE OF STATE-CREATED

LIBERTY INTERESTS IN STATE

PAROLE PROCEEDINGS.

The circuits have fractured in their approach to state-

created liberty interests. Of the seven circuits that have

addressed the issue post-Sandin, three have followed Sandin,

three have clung to Greenholtz, and one has straddled the divide

by applying a combination of the two tests. The need for

uniformity in this important area is great, and, given the depth

of the fissure, not likely to be resolved by the circuits.

The First Circuit confronted the issue in a parole case

decided shortly after Sandin. Hamm v. Latessa, 72 F.3d 947 (1*

Cir. 1995). In reversing the district court's reliance upon

Greenholtz, Hewitt, and Allen, the court of appeals stated that,

"the tectonic plates have shifted,” that is, that Sandin worked a

fundamental change in the analytical framework for liberty

interests. Jd. at 954. The court therefore applied Sandin to the

case before it. Jd. In doing so, the Hamm court recognized that

"parsing the state law to determine its substance is not within

the primary domain of a federal habeas court." Jd. The First

Circuit also later applied Sandin to a conditional-release case.

Dominique v. Weld, 73 F.3d 1156 (1* Cir. 1996). The

Dominique Court held that returning an inmate to confinement

from a work-release program was not a significant or atypical

deprivation and thus did not implicate due-process rights. /d. at

1160.

11

The two other circuits following the Sandin methodology,

the Third and the Eighth Circuits, have done so in conditional-

release cases. The Eighth Circuit held that returning an inmate

to prison from Iowa's work-release program did not violate his

due-process rights because it was not an atypical deprivation.

Callendar v. Sioux City Residential Treatment Facility, 88 F.3d

666, 669 (8" Cir. 1996), (citing Dominique, 73 F.3d 1156 (1*

Cir. 1996)). Likewise, the Third Circuit found that removing an

inmate from New Jersey's community-release program and

returning him to prison did not violate his rights because having

to serve time in prison, as opposed to a half-way house, was

what an inmate should expect from his prison sentence.

Asquinth v. Dep't of Corrections, 186 F.3d 407, 412 (3" Cir.

1999). Asquinth distinguished the Court's holding in Young v.

Harper because, unlike the Oklahoma program in Young, New

Jersey's inmates never left "institutional confinement."

Asquinth, 186 F.3d at 411.

At the other end of the spectrum, the three circuits that

have adhered to the mandatory-language analysis from

Greenholtz, Allen, and Hewitt all seem to rest their reliance on

a footnote in Sandin that stated that the new liberty test did not

"technically require us to overrule any holdings of this Court."

Sandin, 515 U.S. at 484 n.5. The only circuit of the three to

devote any analysis to the matter was the District of Columbia

Circuit, in Ellis v. District of Columbia, 84 F.3d 1413, 1418

(D.C. Cir. 1996). There, a group of prisoners sued over parole-

eligibility and parole-revocation procedures. The court found

that the Sandin test relates only to claims involving the day-to-

day management of prisons and is ill-fitted to parole-eligibility

determinations. /d. The court recognized that, while Sandin

abandoned the reasoning of Greenholtz and Allen, it did not

technically overrule them, and the Ellis court felt compelled to

follow the old method: "Until the Court instructs us otherwise,

we must follow Greenholtz and Allen because, unlike Sandin,

they are directly on point." Jd.

12

The Seventh Circuit felt equally bound by Greenhoitz in a

post-Sandin case brought by prisoners who were denied parole.

Heidelberg v. Ill. Prisoner Rev. Bd., 163 F.3d 1025 (7™ Cir.

1998). The Heidelberg court found that although Sandin

“criticize[d] the mandatory-discretionary dichotomy used in

Greenholtz and Allen, it explicitly declined to overrule any

previous case." /d. at 1026 n.1. Likewise, in this case, the

Ninth Circuit relied on Ellis and declined to follow Sandin until

the Court speaks more directly to the issue. Armstrong v. Davis,

275 F.3d 849, 864 (9 Cir. 2001).

That brings us to the Fifth Circuit, which has fashioned an

amalgam of the two tests. Shortly after Sandin, the Fifth Circuit

decided Orellana v. Kyle, 65 F.3d 29 (5" Cir. 1995), which

challenged Texas's allegedly unconstitutional parole-review and

reconsideration procedures. The court first discussed Sandin

but then went on to explain that there was no due-process

violation bec2use the Texas statutes had previously been held to

confer no liberty interest under the Greenholtz-Allen analysis.

Id. at 32 (citing Creel v. Keene, 928 F.2d 707, 712 (5® Cir.

1991) (using Greenholtz-Allen analysis)). Similarly, in

Thompson v. Cockrell, the court held that the Due Process

Clause conferred no liberty interest in “calendar time” credits

after an erroneous release on parole, but that Texas statutes did.

Thompson v. Cockrell, 263 F.3d 423, 426-27 (5* Cir. 2001).

Illustrative of state courts’ confusion is Jn re Rosenkraniz,

in which a California appellate court found a protected liberty

interest in parole proceedings by using the Greenholtz-Allen

mandatory-language analysis, yet also cited Sandin as

supporting its holding. Jn re Rosenkrantz, 116 Cal. Rptr. 2d 69,

80 (2002), pet. review filed Feb. 27, 2002.

The circuits are in disarray on their approaches to

examining state-created liberty interests. Two of the circuits,

including the one from which we petition, have explicitly said

13

they cannot follow Sandin without guidance from the Court.

Guidance from the Court also would assist lawmakers of the

states in understanding the appropriate principles that inform the

laws and regulations of the criminal-justice systems. This is an

issue of great significance on which the states need guidance.

CONCLUSION

Because this petition presents an issue of national

importance, core to the functioning of the states’ penal systems,

on which the circuits are rent and to which this Court has not

directly spoken, the petition for writ of certiorari should be

granted.

Dated: April 3, 2002

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAUL D. GIFFORD

Senior Assistant Attorney General

SUSAN DUNCAN LEE

Sr. Supervising Deputy Attorney General

*FRANCES T. GRUNDER

Supervising Deputy Attorney General

*Counsel of Record

Counsel for Petitioners