Opposition Brief — Kassulke v. Foster

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992 |. \

NO. 92-914

Supreme Court, U.S.

rinDawe

DEC 28 1992

OFFICE OF THE €LERK

BETTY KASSULKE, et al.

Petitioners

LAFONDA FAY FOSTER,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REE KEEKEEREEREREREREEKERR

GAIL ROBINSON*

KEVIN MCNALLY

McNALLY & ROBINSON

513 Capitol Avenue

P.O. Box 1243

Frankfort, Kentucky 40602

502-227-2142

Counsel for Respondent

*Counsel of Record

BARBARA WILLETT JONES*

SUZANNE D. CORDERY

Justice Cabinet

Dept. of Corrections

Office of General Counsel

State Office Building

Room 200

Frankfort, Kentucky 40601

502-564-2024

Counsel for Petitioners

$02 -2a7- 4

/

ESTION PRESENTED

WHETHER THIS COURT SHOULD SPEND

PRECIOUS TIME MICRO-MANAGING THE

LOWER FEDERAL COURTS WHO IN THIS

CASE CAREFULLY CRAFTED RELIEF FOR

UNNECESSARY INTERFERENCE WITH

APPOINTED COUNSEL FOR A DEATH ROW

INMATE WHEN THE RELIEF ITSELF IS NOW

CONTINGENT ON FUTURE EVENTS?

TABLE OF CONTENTS

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Reasons for Denying Certiorari Review. .............. 205 c cece eee eee 3

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TABLE OF AUTHORITIES

CASE: | PAGE:

Benjamin v. Potter, 635 F.Supp. 243 (D.Virgin Islands 1986) ...................0.. 8

Blake v. Berman 625 F.Supp. 1523 (D.Mass. 1986) ............ 0.0... eee eee ees 8

I Oi, GI, SR Ur ITED anc tcc ence ccccsesssnwsecscscseuss 4

Brown v. Smith, 580 F.Supp. 1576 (M.D. Pa. 1984) ......... 0... cece ee ee eee 8

Cerro Metal Products v. Marshall,

cs shake seks nb abeehasccsatianen ben 10

F.W. Kerr Chemical Company v. Crandall Associates,

me Ys eer ee 10

Foster v. Commonwealth, Ky., 827 S.W.2d 670 (1991),

Sn sha 553.45 45's Lassen bass ben seaes 3

Hohman v. Hogan, 458 F.Supp. 669 (D.Vt. 1978) ....... cee eee eee 8

Hudson v. Israel, 594 F.Supp. 664, 669 (E.D. Wisc. 1984) ............ 0... eee eee 8

Merrell-Nat’l Labs, Inc. v. Zenith Labs., Inc.

Se 10

Meesere v. Fair, 752 F.Supp. 46 (D.Mass. 1900) ... wc ccc ccc cece ec eccece 8

Murray v. Giarratano, 492 U.S. 1, 14 (1989) .... 0... eee ee eee eee 5

Rich v. Zitnay 644 F.2d 41 (ist Cir. 1981) 0.0... cece ccc eee e ees 8

Winterland Concessions Co. v. Trela,

1735 F.2d 257, 260 (7th Cir. 1984)... 0... cece cece eee ence ues 10

Van ¥. GRGEormee, 496 U.S. SES, STS (1G74) ... ccc cece ssacescsensscesesess 7

COUNTERSTATEMENT OF THE CASE

Respondent, Foster rejects the editorial comment in the petitioners’ statement of the

case. For example, when Ms. Foster was returned to Kentucky in 1989, she did not place

any "extraordinary administrative burdens on Corrections..." [Petition for Writ of Certiorari,

hereinafter Petition, 4]. No federal judge has agreed with this claim - unsupported by fact -

yet petitioners continue to make it. Upon her return to Kentucky, this female death row

inmate was simply "locked-down" with other female administrative segregation inmates in

one wing of a male institution. There was nothing extraordinary or different about this in-

state incarceration.

Corrections further claims that the initial preliminary injunction was issued "because

of inadequate phone access to appointed counsel in Kentucky" [Petition for Writ of

Certiorari, hereinafter Petition, 3-4]. The holding was not nearly so narrow.

[I]t cannot be seriously argued that an 800-mile separation

between plaintiff and her counsel is not an impediment to

effective representation... Whether or not the transfer to

Oklahoma was retaliatory, the result is that plaintiff is deprived

of her right to consult with her attorney... [I]t is apparent that in

plaintiff's case, her transfer to Oklahoma so interferes with her

ability to communicate with her appellate counsel that under

these circumstances it rises to the level of constitutional

deprivation. Plaintiff has shown significantly more than mere

inconvenience; her almost complete inability to communicate

with her attorneys amounts to a denial of the right to counsel

[Appendix to Petition, hereinafter Appendix, 20a].

The "access" problems identified by the court below could have been easily repaired -

confidential telephone calls, a videotape machine and/or Kentucky law books, etc.

Inexplicably, Corrections refused to lift a finger to influence any of Foster's conditions in

Oklahoma. It is the irrationality of Corrections’ position, not any undue administrative

burden on the state, that gives rise to this continued litigation.

By way of background, this Court must understand that Fay Foster was targeted for

out-of-state transfer because of her sex even before she was sentenced to death and

transferred from the local jail to the state prison in May, 1987. The lower court declined to

reach this issue because it held the circumstances surrounding the transfer had denied

respondent access to her counsel [Appendix 21a]. Foster’s April 1991 motion for a

permanent injunction again urged that her transfer to Oklahoma would interfere with her

right to counsel, would be based on her sex and would constitute retaliation for her ongoing

protests that her conditions of confinement were not comparable to those of death

sentenced men’ [Docket Entry 59]. In ordering Ms. Foster’s return to Kentucky within

forty-eight (48) hours of any denial of certiorari, the court specifically rejected respondent’s

retaliation claim, did not reach the claim that her transfer was based on her sex and

accepted her argument that being lodged in Oklahoma would interfere with her access to

the Kentucky courts once she is appointed new counsel and must file a post-conviction

action [Appendix 12a-13a, 14a, 16a]. It was only from the last order that Corrections

appealed. The district court’s order required that she be transferred back to Kentucky only

if her convictions were affirmed by the Supreme Court of Kentucky and certiorari was denied

by the United States Supreme Court and only if...

...the Corrections Cabinet [refused] by contractual agreement

with [Oklahoma] officials, [to] provide adequate... access to the

courts of Kentucky.

‘This is the real genesis of this litigation.

[Appendix 12a].

in the interim, Foster won anew sentencing hearing in the Kentucky Supreme Court.

Foster v. Commonwealth, Ky., 827 S.W.2d 670 (1991), cert. denied, S.Ct.

(1992). Therefore, any further "imposition" on the state is speculative.

REASONS FOR DENYING CERTIORARI REVIEW

I. UNLESS RESPONDENT AGAIN RECEIVES

A SENTENCE OF DEATH AFTER HER

RESENTENCING, THIS WASTEFUL

LITIGATION IS MUCH ADO ABOUT NOTHING.

While it is true that this action is not "moot" [Petition for Writ of Certiorari, hereinafter

Petition at 3 n.2], and the Sixth Circuit agreed [Appendix to Petition, 2an1, “This action does

not moot the questions presented here."], any further impact of the lower court order is

contingent on future events. As such, this case is a particularly inappropriate vehicle for

addressing the routine, really mundane, access to courts issue present.

li. THIS COURT HAS BETTER THINGS TO DO

THAN REHEAR THE FACTUAL DISPUTES

FOUR FEDERAL JUDGES HAVE RESOLVED

IN RESPONDENT'S FAVOR.

Inmates, including death row inmates, must be assured access to the courts that is

“adequate, effective and meaningful..." Bounds v. Smith, 430 U.S. 817, 822 (1977).

Obviously, appointment of counsel would satisfy the constitutional right to access to the

courts...” but not if the prison wouldn't let the lawyer in. Despite the one-sided rendition of

the facts by petitioners, key factual disputes relevant to the access issue were resolved in

respondent’s favor. The United States Supreme Court is not the proper forum to attempt

relitigation of disputed facts.

“The right at issue implicates more than one constitutional concern. Wolf v. McDonnell,

418 U.S. 539 (1974) [due process]; Procunier v. Martinez, 416 U.S. 396, 419 (1974) [due

process]; Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) [equal protection]; Murray v.

Giarratano, 492 U.S. 1, 7, 11.6 (1989) [equal protection]; Turner v. Safley, 482 U.S. 78, 84

(1987) [first amendment]; Hudson v. Palmer, 468 U.S. 517, 523 (1984) [first amendment).

3

Surely the "requirement of meaningful access can be satisfied in various ways" and

“prison administration must be given ‘wide discretion’ to select appropriate solutions."

Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J., concurring), quoting Bounds, 430

U.S. at 833. The problem here for petitioners is that they selected none of the available

alternatives. It would have been a simple matter to provide Ms. Foster with confidential

attorney calls, Kentucky law books*, access to a videotape machine to review the record

of her trial, etc. Corrections was not willing to do anything despite the grave penalty the

condemned faced, the important and well established constitutional rights implicated and

Corrections’ own regulations. Corrections’ intransigent position in this litigation has been

inexplicable.

This case does not present any important or significant issue worthy of attention by

this Court. The Kentucky-Oklahoma transfer resulted/would result in a denial of access to

the courts because Ms. Foster’s inability to communicate with (new) counsel, denial of

confidential phone conversations, inability to review the record of her trial, the great distance

between counsel and client and the absence of Kentucky law books in the Oklahoma

institution all served to convince the lower courts to order Foster’s return to Kentucky for

limited periods of time to consult with her lawyers... unless other steps were taken to permit

access.

SHowever, "[w]here female prisoners lack their male counterparts’ history of ’self help’

in the law... equal protection considerations may require the library facilities be supplemental

by assistance of a lawyer. Canterino v. Wilson, 546 F.Supp. 174, 216 (W.D. Ky. 1982), aff'd

No. 86-6067, 1989 WL 40131, 1989 U.S. App. Lexis 4789 (6th Cir. April 10, 1989 [ 875 F.2d

862 (table)] unpublished), cert. denied, 493 U.S. 991... (1989)." Knop v. Johnson, 977 F.2d

996, 1003 n.4 (6th Cir. 1992).

The absurdity of petitioners’ fallback position can be best seen in their (rejected)

position that respondent can only be permitted to avail herself of Oklahoma courts (or the

courts of any other jurisdiction to which she is sent) and not Kentucky courts to complain

that she is denied access to her Kentucky counsel. Yet, if Foster cannot obtain adequate

legal assistance of lawyers she already has, how then is she supposed to access the

Oklahoma courts on this issue?*

Respondent agrees there is "no set formula" for providing adequate access to the

courts, or in this case, counsel (Petition, 10]. Nor was one imposed below. In fact, the relief

Crafted by the district court permits Corrections to fashion any reasonable means to permit

this death row inmate access to her lawyers when she is in the hands of a foreign

jurisdiction.

The defendants have not carried their burden to

prove that the resources available to Foster [in

Oklahoma]... are adequate to ensure access to

the Kentucky courts.... /T/he Corrections Cabinet

[may]... by contractual agreement with —

[Oklahoma] Officials... provide adequately for

Foster's access to the courts of Kentucky.

“Warden Ray of Oklahoma was unable to name any attorneys in Oklahoma to whom Fay

Foster could turn if she had problems relating to communication with her Kentucky counsel

or with conditions at the Oklahoma prison [Docket Entry 93]. Additionally, Warden Ray

acknowledged he had no books on Kentucky law and no plans to get any. [Docket Entry

93].

While the sentence a person receives is not dispositive of adequate access claims, it is

not irrelevant, as Corrections claims, that respondant was under a sentence of death. See

generally Murray v. Giarrantano, 492 U.S. 1 (1989). Death penalty cases are different, not

because respondent says so, but because every member of the Supreme Court since

Furman has so declared. As a form of punishment, death is qualitatively different from any

other, calling for more meticulous procedures regarding critical legal issues.

[Appendix, 12a].

Corrections’ claim that the lower court order requires Kentucky “oversight of the

Oklahoma prison system..." is frivolous. It would be a simple matter to arrange for a

videotape machine, confidential phone calls, Kentucky law books, etc., as part of the

agreement with Oklahoma. Importantly, Kentucky law requires this. In criminal cases, the

Sixth Amendment protects the attorney-client relationship from unwarranted intrusion. Wolff

v. McDonnell, 418 U.S. 539, 576 (1974).

The Interstate Corrections Compact, codified in Kentucky as Ky. Rev. Stat. [KRS]

196.610, Article IV(e) provides as follows:

The fact of confinement in a receiving state shall not deprive

any inmate so confined of any legal rights which said inmate

would have had if confined in an appropriate institution of the

sending state.

Under the Interstate Compact, the sending state continues to have jurisdiction over

its inmates. KRS 196. 610, Article IV(c). Article IV(e) provides that confinement in a

receiving state shall not deprive an inmate of any legal right he would have had if confined

in the sending state; and, Article lV(h) provides that a transferred inmate "shall have any and

all rights to participate in and derive any benefits... on account of any action or proceeding

in which he could have participated if confined in any appropriate institution of the sending

state located within such state." Certainly a federal court, which has jurisdiction over the

Kentucky Corrections Cabinet, which has jurisdiction over the inmate facing transfer, had

every right to order Corrections not to effectuate a transfer that would violate an inmate's

constitutional or statutory rights. By virtue of KRS 196.610, there is no competing state

correctional interest here. See generally Rich v. Zitnay 644 F.2d 41 (1st Cir. 1981) [sending

state retained responsibility for legal assistance; prisoners without counsel or a library

containing sending state’s law stated cause of action; burden on sending state to show

adequate alternatives]; Messere v. Fair, 752 F.Supp. 48 (D.Mass. 1990) [same]; Hohman

v. Hogan, 458 F.Supp. 669 (D.Vt. 1978) [assuming same, prisoner in Illinois must be

provided access to Vermont courts]; Hudson v. Israel, 594 F.Supp. 664, 669 (E.D. Wisc.

1984) [same but dismissing action “against a party who had no personal involvement..."];

Blake v. Berman 625 F.Supp. 1523 (D.Mass. 1986) [sending state’s corrections officials

retained responsibility for assuring access to Massachusettes courts while prisoner in

Kansas]; Benjamin v. Potter, 635 F.Supp. 243 (D.Virgin Islands 1986), aff'd, 838 F.2d 1205

(3rd Cir. 1988) [Virgin Islands had responsibility to prisoners transferred to mainiand prisons

to facilitate access to Virgin Islands courts]; Brown v. Smith, 580 F.Supp. 1576 (M.D. Pa.

1984) ["persuasive" that sending state shoulders the burden to provide state law books or

counsel].

"(While neither controlling nor fully measuring the Court's discretion," Supreme

Court Rule 10.1, “indicates the character of reasons" the Court wiil consider in granting

certiorari review. None of these reasons apply here. There is neither a conflict in the

circuits’, Rule 10.1(a), or with a state’s highest court, Rule 10.1(6), nor an “important

®The decisions relied upon by petitioners are all factually distinguishable. Some appear

to have little to do with the issue at hand. See Logue v. United States, 412 U.S. 521 (1973)

[U.S. Marshall not liable under Federal Tort Claims Act for federal prisoner's suicide in

county jail]; Black v. Wilson, 838 F.2d 470 (6th Cir. 1988) [App. 36a-41a] [unpublished; not

involving interference with counsel]; Spurling v. Wigginton, 907 F.2d 151 (6thCir. 1990)

7

question of federal law..." Rather, we have here a fact bound, unique and contingent order

without a single dissent below.

ili. BY FAILING TO APPEAL OR OTHERWISE

OBJECT TO THE PRELIMINARY INJUNCTION

ENTERED ON JUNE 7, 1989, THE

PETITIONERS HAVE FORFEITED THE RIGHT

TO CHALLENGE THE UNDERLYING MERITS;

AND, IN ANY EVENT, CERTAINLY SHOULD

NOT BE PERMITTED TO DO SO IN THE

UNITED STATES SUPREME COURT.

The imposition placed on respondent by the courts below was slight, yet this fact was

ignored in the Petition. As Corrections has acknowledged, there was no appeal from the

entry of the preliminary injunctions in June, 1989. That injunction required that Foster be

returned to KCIW “until the completion of her appellate brief [sic] and oral arguments are

heard in her appeal" [Appendix 23a]. In March, 1991, prior to oral arguments, Corrections

made a motion to lift the injunction [Docket Entry 55]. No new facts were alleged. The

lower court refused. The Sixth Circuit affirmed.’

There is a “requirement that a successive motion state new facts warranting

[App. 42a-47a] [unpublished; not involving interference with counsel]; Stewart v. McManus,

924 F.2d 138, 1141 (8th Cir. 1991) [Kansas disciplinary rules needn't be applied in lowa.

interstate Corrections Compact provides that “disciplinary authority shall be exercised by

the receiving state..."]; Johnson v. Barry, 815 F.2d 1119 (7th Cir. 1987) [applying Illinois

disciplinary rules to federal inmate had rational relationship to legitimate state purpose];

Cannon v. United States, 645 F.2d 1128 (D.C. Cir. 1981) [jurisdiction of Federal Tort Claims

Act]; Owens v. Haas, 601 F.2d 1242 (2nd Cir. 1979), cert. denied, 440 U.S. 980 (1980)

[federal prisoner can sue when housed in county jail under contract]; Henderson v.

Thrower, 497 F.2d 125 (5th Cir. 1974) [federal prisoner can sue when housed in county jail

under contract].

"Interestingly, this claim formed the basis of petitioners’ lead issue in the Sixth Circuit.

Now, however, Corrections abandons this approach and focuses on the district court’s

subsequent order.

reconsideration of the prior decision." F.W. Kerr Chemical Company v.

Inc., 815 F.2d 426, 428 (6th Cir. 1987). Corrections did not meet that requirement; they did

not advance "new facts." Of course, Corrections did not appeal the portion of the lower

court’s order requiring that Ms. Foster remain in Kentucky until oral arguments were

concluded, which they had a right to do. 28 U.S.C. Section 1292(a)(1). Certainly, that

failure “would logically preclude a subsequent interlocutory appeal under Section 1292(a)(1)

from an unwarranted successive motion." id. at 429. The present case represents “an

unwarranted successive motion." The Sixth Circuit agreed.

Because the Kentucky officials did not appeal from the grant of

the preliminary injunction, the general rule is that they cannot

now challenge the merits of the underlying injunction. Cerro

Metal Products v. Marshall, 620 F.2d 964, 972 (3rd Cir. 1980);

See, Merrell-Nat’l Inc. v. Zenith .. Inc., 579 F.2d 786,

791 (3rd Cir. 1978). Rather, review should be confined to the

propriety of refusing to vacate or modify it; the inquiry should be

whether the Kentucky officials have demonstrated that changed

circumstances make the continuation of the injunction

inequitable. Winterland Concessions Co. v. Trela, 735 F.2d

257, 260 (7th Cir. 1984).

[Appendix, 2a-3a].

This case is in an extremely poor posture for review by this great Court.

NCLUSION

It hardly impinges upon state decision-makers to require a modicum of rationality to

support actions which directly infringe upon important constitutional rights. In this case,

respondent's legal position made so much sense in 1989 that petitioners didn’t even protest

(motion to reconsider, appeal) when the initial relief was ordered. Requiring a receiving

state to allow a death-sentenced inmate unmonitored attorney phone calls and/or

9

necessary law books is not a great or even significant imposition on a sending state. In any

event, there is no issue presented in the certiorari petition worthy of the time of this Court,

or any federal judge for that matter.

THEREFORE, the petition for a writ of certiorari should be denied.

Respectfully submitted,

Kevin McNally Y

Attorney At Law

0

f 6.2. Oa

Gail Robinso

Attorney at Law

Counsel for Respondent

McNally & Robinson

513 Capitol Avenue

P.O. Box 1243

Frankfort, Kentucky 40602

(502) 227-2142

10

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

NO. 92-914

BETTY KASSULKE, et al.

Petitioners

LAFONDA FAY FOSTER,

Respondent

CERTIFICATE OF SERVICE

|, Gail Robinson, counsel for plaintiff, certify that the attached brief in opposition to

the petition for certiorari, and motion to proceed in forma pauperis and notice of appearance

were mailed to the Office of the Clerk of the United State Supreme Court and to counsel for

respondent, Barbara Jones, Department of Corrections, State Office Building, Room 200,

Frankfort, Kentucky 40601 on this Os > ay of December, 1992 by personally depositing

same in a United States mail box, first class postage prepaid. The affidavit in support of the

motion to proceed in forma pauperis will be forwarded upon receipt from my client.

5 ) Letra sty)

Gail Robinson, Esq.

Subscribed and sworn to before me, a notary public, on this/AUiay ot icon by

1992.

My commission expires /D/ 20/95 :