Petition for Writ of Certiorari — Lewis v. Hanlon

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Supreme Gourt, U.s.

“Y PIL SD

96 911 DEC 5 19%

No. __QFRMBG OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

SAMUEL A. LEWIS,

Former Director, Arizona Department of Corrections,

Petitioner,

Vv.

LESLIE ANDREW HANLON,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Grant Woops

Attorney General

C. Tm DELANEY

Solicitor General

THomas J. DENNIS

Counsel of Record

Gorpon S. BUELER

Assistant Attorneys General

1275 West Washington

Phoenix, Arizona 85007

(602) 542-7683

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Is the former Director of the Arizona Department of

Corrections entitled to qualified immunity from a suit for

money damages filed by an ex-inmate alleging a violation

of the Ex Post Facto Clause based on the application of a

formal “good-time” release policy promulgated after the

inmate’s conviction, which prevented his early release

from prison due to a high risk classification, when (i)

Arizona law existing when the inmate’s crime was com-

mitted made “good-time” release completely discretion-

ary with ADOC’s Director, (ii) the Arizona Court of

Appeals previously declared that the application of the

formal policy did not violate Ex Post Facto principles,

and (iii) the promulgation of the formal policy did not

violate the Ex Post Facto Clause because it did not add to

the inmate’s sentence?

PARTIES TO THE PROCEEDING BELOW

Petitioner is Samuel A. Lewis, who was the Director

of the Arizona Department of Corrections at all relevant

times to this proceeding but who has since retired.

The Respondent is Leslie Andrew Hanlon, a former

Arizona state prison inmate.

ili

: TABLE OF CONTENTS

Page

SprewemOe SMMBMINIMD, ..........,.5.20.0.00.005 i

PARTIES TO THE PROCEEDING BELOW.......... ii

TABLE OF CITED AUTHORITIES.................. iv

Sees B.'s ae a ae 1

STATEMENT OF JURISDICTION................... 1

CONSTITUTIONAL AND STATUTORY PROVI-

NN MON ii bse ébnévenev ys sc... 1

STATEMENT OF THE CASE....................... 2

REASONS TO GRANT THE PETITION ............ 5

1. A Conflict Exists in the Circuit Courts Regard-

ing Whether Prior State Court Decisions

“Clearly Establish Law” For Qualified Immu-

Pe IN 6 o5ttOW > vERGK cap Oud cae Gos, bo 5

2. The Decision Below Denying Defendant Quali-

fied Immunity Conflicts with This Court's Pre-

cedent That Qualified Immunity Protects

Governmental Officials Except Those Plainly

Incompetent or Acting in Knowing Violation of

ERIC ees, fea 7

ESS SECRTIEN AA SENE | atG seca mae 10

TABLE OF CITED AUTHORITIES

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) .......... 7, 8

Allen v. Coughlin, 64 F.3d 77 (2d Cir. 1995)......... 5, 6

California Dep’t of Corrections v. Morales, 115 S. Ct.

SF AISI) RV Pi re RISERS 0 hap eens eet 9

Collins v. Youngblood, 497 U.S. 37 (1990).............. g

Harlow v. Fitzgerald, 457 U.S. 800 (1982).............. 7

Hunter v. Bryant, 502 U.S. 224 (1991).............24.. 8

Malley v. Briggs, 475 U.S. 335 (1986)............0.00e- 7

Miller v. Florida, 482 U.S. 423 (1987).................. 8

Montgomery v. Coughlin, 605 N.Y.S.2d 569, 194

A.D2d 264 (N.V.App.Div. 1993) ..csscc ces scccosess 6

Ryder v. United States, 115 S. Ct. 2031 (1995) ......... 7

Sanchez v. Ryan, 870 P.2d 1184 (Ariz. App. 1993)... 3, 4, 5

CONSTITUTIONAL PROVISIONS

Sie Ce, ORG EO Ge Oise nie ee is 1

STATUTES

United States Code

Be Se Oe ED 44s ced maka ens Cebesuseeckeneecnern 1

UAC £2 2, 4

TABLE OF CITED AUTHORITIES - Continued

Page

Arizona Revised Statutes

Se DH SOAR is oe SE p

PRS Oe PTI oo ob cb ee Kd Pao hs Chk ee 2

ARE. § 00-G e S 2,3

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of cer-

tiorari to review the judgment entered by the United

States Court of Appeals for the Ninth Circuit in this

proceeding.

OPINIONS BELOW

The court of appeals opinion is not reported. Appen-

dix (“App.”) A. The judgments of the United States Dis-

trict Court for the District of Arizona also are not

reported. Apps. B and C.

STATEMENT OF JURISDICTION

On July 25, 1996, the court of appeals entered the

judgment from which review is sought. App. A. On Sep-

tember 6, 1996, the court denied rehearing. App. D. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent text of the Ex Post Facto Clause of the

United States Constitution, art. I, § 9, cl. 3, provides as

follows:

No Bill of Attainder or Ex Post Facto Law shall

be passed.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

The pertinent text of Arizona Revised Statutes Anno-

tated (“A.R.S.”) § 41-1604.07 is reproduced in Appendix

STATEMENT OF THE CASE

In 1986, the Arizona Legislature enacted A.R.S.

§ 41-1604.07(D), which gave the Director of the Arizona

Department of Corrections (“ADOC”) discretion to allow

the early release of inmates in some circumstances:

[ADOC’s] director, according to rules promul-

gated by the department, may authorize the

release of any prisoner who has earned release

credits which, when added to the time served by

the prisoner, equal the sentence imposed by the

court which shall be the prisoner’s earned

release credit date.

(Emphasis added.) By necessary implication, the statute

also granted the Director the discretion to deny early

release of an inmate. Additionally, A.R.S. § 41-1604.07(B)

changed prior law by providing that release credits

earned by a prisoner “shall not reduce the term of

imprisonment imposed by the court.”

On January 28, 1988, Respondent committed the

crime of extortion of a federal agency, for which he was

later sentenced to 5.25 years incarceration. While incar-

cerated with ADOC, Respondent earned release credits

(or “good-time”) pursuant to A.R.S. § 41-1604.07(A).

On May 1, 1991, pursuant to the authority given by

A.R.S. § 41-1604.07(D), ADOC promulgated Director’s

Management Order (“DMO”) 91-03, entitled “Earned

Release Date.” The DMO set formal guidelines for earned

credit release, based in part on an inmate’s risk scores.

-ADOC used a classification system based upon public

risk scores (“P” scores) and institutional risk scores (“I”

scores). These scores are graded from 1 to 5, with 5 being

the highest risk score possible. Section 5.2.2 of the DMO

made inmates with high classification scores ineligible for

earned credit release:

The following categories of inmates shall be

ineligible for Earned Release Credit Date

Release . . . . Inmates with Public Risk Scores of

4 or above or an Institutional Risk Score of 5 as a

result of the institutional classification and Cen-

tral Office Classification Review.

DMO § 5.2.2.; App. F at 38.

ADOC applied the new DMO 91-03 to many inmates.

One challenged the DMO as violative of the Ex Post Facto

Clause, but the Arizona Court of Appeals in Sanchez v.

Ryan, 870 P.2d 1184 (Ariz. App. 1993), ruled that the

application of the DMO to inmates sentenced prior to its

promulgation did not violate the Ex Post Facto Clauses

found in the United States Constitution or in Arizona’s

Constitution. The Arizona Supreme Court declined to

review the Sanchez decision. Id.

On August 19, 1991, ADOC denied the Respondent

earned credit release because his classification scores

were too high for release under DMO 91-03. App. C at 20.

While still incarcerated, Respondent filed a habeas corpus

complaint in the federal district court, which was stayed

because Respondent had failed to pursue state court

remedies. ADOC released Respondent when his full sen-

tence expired on April 29, 1993. Id. After his release,

Respondent filed an Amended Complaint, dismissing his

claim for habeas relief and alleging a 42 U.S.C. § 1983

action for violation of the United States Constitution’s Ex

Post Facto Clause.

Petitioner moved for summary judgment on the basis

of qualified immunity, pointing out that in Sanchez, the

Arizona Court of Appeals had already upheld the consti-

tutionality <f Petitioner’s application of the DMO to

inmates sent2nced prior to the creation of the DMO.

However, tne district court disagreed with the Arizona

Court of Appeals decision in Sanchez and, on March 24,

1995, rejected qualified immunity. App. B.

Petitioner appealed. In a memorandum decision, the

Ninth Circuit Court of Appeals upheld the district court's

denial of qualified immunity for ADOC’s former Director.

The Ninth Circuit summarily dismissed the Arizona

Court of Appeals prior determination that the DMO did

not violate Ex Post Facto principles, stating: “[T]hat a

court joined Lewis in his obvious error, does not convert

the disregard of existing law into a reasonable mistake.

Lewis is not entitled to qualified immunity simply by

relying on a state ruling that failed to consider controlling

precedent.” App. A at 8. In short, the Ninth Circuit Court

of Appeals held that in order to avoid paying compensa-

tory and punitive damages, Petitioner needed to know

the complex area of Ex Post Facto law better than the

Arizona appellate judges who had considered the issue

and determined that there was no violation.

REASONS TO GRANT THE PETITION

1. A Conflict Exists in the Circuit Courts Regarding

Whether Prior State Court Decisions “Clearly Estab-

lish Law” for Qualified Immunity Purposes.

The court of appeals’ denied qualified immunity

even though it had been clearly established by the Ari-

zona Court of Appeals in Sanchez v. Ryan, 870 P.2d 1184

(Ariz. App. 1993) that there was no constitutional viola-

tion. The Ninth Circuit’s decision is directly contradicted

by the decision of the Second Circuit Court of Appeals’ in

Allen v. Coughlin, 64 F.3d 77 (2d Cir. 1995). Allen involved

a New York Department of Corrections policy forbidding

inmates from receiving newspapers and other publica-

tions from anyone other than the publisher. The plaintiff,

a New York inmate, received newspaper clippings from

his family that violated the “publishers-only” policy, and

he sued for money damages when the clippings were

confiscated.

Prior to the suit in Allen, another inmate had chal-

lenged New York’s “publishers-only” policy in state court

as violative of the First Amendment, but the New York

Appellate Division upheld the policy in Montgomery v.

Coughlin, 605 N.Y.S.2d 569, 194 A.D.2d 264 (N.Y.App.Div.

1993). In Allen, the Second Circuit rejected the opinion of

the New York state court and found that the “publishers-

only” directive violated the First Amendment. Allen, 64

F.3d at 81. However, the Second Circuit ruled that prison

officials were entitled to qualified immunity on the

inmate’s claim for money damages because “the (state)

appellate division upheld the publishers-only rule with

regard to clippings in Montgomery, and we cannot say

that appellees should have been more prescient in antici-

pating our reaction.” Id.

Thus, under Allen, if a public official acts consistently

with a state court’s previous decision on an issue the state

official is entitled to qualified immunity notwithstanding

the fact that the federal court disagreed with and over-

ruled the state court’s decision. However, Allen directly

conflicts with the decision rendered below. In both cases,

a prior state court decision had upheld the constitu-

tionality of a state correctional policy. In both cases, fed-

eral courts had disagreed with the decisions rendered by

the state courts, finding that the policies were unconstitu-

tional. However, in Allen the Second Circuit ruled that the

prior state court decision entitled public officials to quali-

fied immunity. Here, the Ninth Circuit found the prior

state court decision of no effect for qualified immunity

purposes.

The decision in the present case is directly contrary

to the Second Circuit decision. As such, the matter of how

much weight to accord prior state court rulings in cases

involving qualified immunity should be finally resolved

by this Court.

2. The Decision Below Denying Defendant Qualified

Immunity Conflicts with This Court’s Precedent

That Qualified Immunity Protects Governmental

Officials Except Those Plainly Incompetent or Act-

ing in Knowing Violation of the Law.

Qualified immunity shields governmental officials

from liability for civil damages when their “conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This Court's

precedent specifically mandates qualified immunity for

public officials making “judgment calls” in situations

exactly like those presented in this case. Id. at 806. “Qual-

ified immunity specially protects public officials from the

specter of damages liability for judgment calls made in a

legally uncertain environment.” Ryder v. United States, 115

S. Ct. 2031, 2037 (1995). Making the scope of immunity

absolutely clear, this Court has ruled that qualified

immunity attaches to “all but the plainly incompetent

and those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986).

“Clearly established law” is the focal point of inquiry,

and the contours of the claimed constitutional entitlement

must be “sufficiently clear [so] that a reasonable official

would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The

unlawfulness of the course of conduct “must be appar-

ent” to the public official before qualified immunity will

be denied. Id. In determining what is “reasonable,” “[t]he

court should ask whether the [public official] acted rea-

sonably under the settled law in the circumstances, not

whether another reasonable, or more reasonable, inter-

pretation of the events can be constructed five years after

the fact.” Hunter v. Bryant, 502 U.S. 224, 228 (1991).

Here, the decisions by the district court and the

Ninth Circuit Court of Appeals cannot be reconciled with

this Court’s requirement that “unlawfulness must be

apparent” for qualified immunity to be defeated. Ander-

son, 483 U.S. at 640. Arizona’s statute made earned credit

release fully discretionary with ADOC’s Director, and no

statutes in effect when Respondent committed his crime

in 1988 required Respondent’s good time credit release.

Like the federal parole guidelines that this Court upheld

in Miller v. Florida, 482 U.S. 423 (1987), ADOC’s pro-

mulgation of a formal policy “merely rationalize[d] the

exercise of statutory discretion, and that retrospective

application of the guidelines thus does not violate the Ex

Post Facto Clause.” Id. at 434.

Further, prior to the district court’s decision to deny

qualified immunity, the identical Ex Post Facto challenge

presented in this case was rejected by the Arizona Court

of Appeals in Sanchez. In reaching the decision, the Ari-

zona court considered the Ex Post Facto Clauses of both

the United States and Arizona Constitutions. At the very

least, it cannot be said, in light of the Arizona Court of

Appeals decision, that any “unlawfulness” was “appar-

ent.” Anderson, 483 U.S. at 640. Indeed, how apparent can

alleged unlawfulness be to ADOC’s former Director

when the Arizona Court of Appeals cannot find it? The

Ninth Circuit’s decision directly contradicts this Court’s

qualified immunity law and cannot be allowed to stand.

Furthermore, under applicable Ex Post Facto princi-

ples, it was not at all clear that a constitutional violation

occurred here. Indeed, under the proper analysis, no Ex

Post Facto violation has occurred.

The Constitution’s Ex Post Facto Clause is aimed at

laws that “retroactively alter the definition of crimes or

increase the punishment for criminal acts.” Collins v.

Youngblood, 497 U.S. 37, 43 (1990). “After Collins, the focus

of the Ex Post Facto inquiry is not on whether a legisla-

tive change produces some ambiguous sort of ‘disadvan-

tage,’ nor . . . on whether an amendment affects a

prisoner’s ‘opportunity to take advantage of provisions

for early release’ . . . but on whether any such change

alters the definition of criminal conduct or increases the

penalty by which a crime is punishable.” California Dep't

Of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995).

Yet this notion of reducing “opportunit[ies] to take

advantage of provisions for early release,” rejected by

this Court in Morales, is exactly what the lower federal

courts relied upon in finding that DMO 91-03 violated the

Constitution’s Ex Post Facto Clause. For example, the

district court stated “[t]hat [Petitioner] was not required to

release [Respondent] on his earned credit release date is

immaterial: it is sufficient that [Respondent’s] oppor-

tunity to shorten his time in prison was reduced by the

statute in question.” (App. C at 26; emphasis in original.)

DMO 91-03 neither altered the definition of the crimi-

nal conduct for which Respondent was in prison, nor

increased the penalties attached to his crime or the sen-

tence he was serving. Therefore, under this Court's deci-

sions, Respondent stated no Ex Post Facto violation as a

result of ADOC’s implementation of DMO 91-03. This

Court should grant this petition and direct the lower

courts to follow its Ex Post Facto precedent, and grant

Petitioner qualified immunity.

CONCLUSION

This Court should grant the Petition for Writ of Cer-

tiorari.

Respectfully submitted,