Opposition Brief — Straley v. Utah Board of Pardons

Supreme Court

FILED’ U.S.

JAN 29 2010

OFFICE OF THE CLERK

No. 09-765

Iu The

Supreme Court of the Anited States

ROBERT D. STRALEY,

Petitioner,

V.

UTAH STATE BOARD OF PARDONS, et al.,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

e

BRIEF IN OPPOSITION

— —-»

MARK L. SHURTLEFF

Utah Attorney General

BRENT A. BURNETT*

Assistant Attorney General

*Counsel of Record

160 East 300 South, Fifth Floor

P.O. Box 140858

Salt Lake City, Utah 84114-0858

Telephone. (801) 366-0533

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2531

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

Does the Separation of Powers Provision of the

United States Constitution apply to the states?

Does Utah’s statutory parole scheme, which gives

the Utah parole board broad discretion to

determine parole within an indefinite sentencing

system, create a _federally-protected liberty

interest?

Respondents Utah Board of Pardons and Warden

Clint Friel submit this brief in opposition to the

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Tenth

Circuit in Straley v. Board of Pardons, 582 F.3d 1208

(10th Cir. 2009).

REASONS FOR DENYING THE PETITION

I. There Is No Compelling Reason To Grant

This Petition For A Writ Of Certiorari

While claiming that the United States Court of

Appeals for the Tenth Circuit erred in its decision,

petitioner has not put forth any compelling reason

why this Court should grant his petition. Sup. Ct. R.

10. He has neither claimed nor shown that there is a

conflict between the challenged decision of the Tenth

Circuit and that of any other United States court of

appeals. Petitioner has not claimed that an important

federal question was decided in a manner that

conflicts with the decision of any other United States

court of appeals or a state court of last resort. Nor has

petitioner shown that the lower court’s decision “so

far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a departure

by a lower court, as to call for an exercise of this

Court’s supervisory power.” Sup. Ct. R. 10(a).

Instead, petitioner simply claims that the Tenth

Circuit’s decision was wrong in two particulars. This

petition for a writ of certiorari should be denied

2

because it fails to raise any question worthy of review

by this Court.

II. The Separation Of Powers Provision Of

The United States Constitution Does Not

Apply To The States

Petitioner admits that the United States Court of

Appeals for the Tenth Circuit rejected his separation

of powers argument “because the United States

Constitution’s separation of powers were inapplicable

to a state’s organization of its own government.”

Petition for a Writ of Certiorari at 3. But, in seeking

review before this Court, the petitioner fails to

address the actual ruling of the lower court. Instead,

he repeats his argument that Utah’s Board of

Pardons is performing a judicial function in setting

parole dates. He does not address the actual issue

decided, i.e., that the federal separation of powers

doctrine does not apply to Utah.

In Sweezy v. State of New Hampshire, 354 U.S.

234, 255 (1957), this Court explained that “the

concept of separation of powers embodied in the

United States Constitution is not mandatory in state

governments.” In reaching that conclusion, this Court

relied, in part, on its prior decision in Dreyer v. People

of State of Illinois, 187 U.S. 71 (1902).

Whether the legislative, executive, and ju-

dicial powers of a state shall be kept alto-

gether distinct and separate, or whether

persons or collections of persons belonging to

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one department may, in respect to some mat-

ters, exert powers which, strictly speaking,

pertain to another department of government,

is for the determination of the state.

Id. at 84.

The United States Constitution guarantees each

state a republican form of government. U.S. Const.

art. IV, § 4. It does not require of the states that their

governments comply with the federal concept of

separation of powers. The Utah Supreme Court has

held that the powers of the Utah Board of Pardons do

not violate the separation of powers provision of

Utah’s Constitwtion. Padilla v. Utah Bd. of Pardons

and Parole, 947 P.2d 664, 668-69 (Utah 1997). This is

a question of state law and does not raise an

important federal question that should be addressed

by this Court.

III. No Federal Liberty Interest Is Created In

Parole Under Utah Law

Petitioner claims that he had a liberty interest in

being granted parole. Petition for a Writ of Certiorari

at 7. In making this claim he does not cite to any

federal precedent establishing such a right, but infers

it from the limited right to procedural due process

that is found under Utah law. Padilla, 947 P.2d at

666.' But petitioner has failed to explain how the

a

1 oo 4

(Tjwo due process requirements must be met in parole

grant hearings First, an inmate must receive adequate notice to

(Continued on following page)

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lower court erred in finding that no federal liberty

interest had been created.

Utah’s parole board is given very broad discretion

in making parole decisions. But a federal liberty

interest is only created when state law sufficiently

limits the discretion of a parole board. Bd. of Pardons

v. Allen, 482 U.S. 369, 381 (1987). Where such a

board has broad discretion in making its decisions, no

federal liberty interest is created. Jago v. Van Curen,

454 U.S. 14, 20-21 (1981).

Nor does & state-created right to procedural due

process create a federal liberty interest. In Olim v.

Wakinekona, 461 U.S. 238, 250-51 (1983), this Court

held that a_ state’s requirement that certain

procedures be followed in making a discretionary

decision did not create a liberty interest where no

substantial restrictions are placed on the discretion to

be exercised. No federal liberty interest has been

created by Utah’s parole system.

Petitioner also errs in claiming that Utah courts

will not enforce the state constitutional right to

limited procedural due process in parole hearings. In

Preece v. House, 886 P.2d 508, 512 (Utah 1994), the

Utah Supreme Court expressly ordered that a new

prepare for a parole hearing Second, an inmate must receive

copies or a summary of the information in the Board’s file upon

which the Board will rely in deciding whether to grant parole ”

Peterson v Utah Bd of Pardons, 931 P2d 147, 150 (Utah App

1997) (citations omitted)

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parole hearing be granted because an inmate’s state

procedural right had been violated. Further, the Utah

Supreme Court reviews other claims of error on the

part of the parole board under an arbitrary and

capricious standard, where a showing of sufficiently

unusual circumstances would constitute grounds for

overturning the board’s decisions. Padilla, 947 P.2d at

671.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

MARK L. SHURTLEFF

Utah Attorney General

BRENT A. BURNETT*

Assistant Attorney General

*Counsel of Record

160 East 300 South, Fifth Floor

P.O. Box 140858

Salt Lake City, Utah 84114-0858

Telephone: (801) 366-0533