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1 IN THE SUPREME COURT OF THE UNITED STATES

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3 MARK SELING, SUPERINTENDENT, :

4 SPECIAL COMMITMENT CENTER, :

5 Petitioners :

6 v. : No. 99-1185

7 ANDRE BRIGHAM YOUNG :

8 - - - - - - - - - - - - - - - -X

9 Washington, D.C.

10 Tuesday, October 31, 2000

11 The above-entitled matter came on for oral

12 argument before the Supreme Court of the United States at

13 11:05 a.m.

14 APPEARANCES:

15 MAUREEN A. HART, ESQ., Senior Assistant Attorney General,

16 Olympia, Washington; on behalf of the Petitioner.

17 ROBERT C. BORUCHOWITZ, ESQ., Seattle, Washington; on

18 behalf of the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 MAUREEN A. HART, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 ROBERT C. BORUCHOWITZ, ESQ.

7 On behalf of the Respondent 24

8 REBUTTAL ARGUMENT OF

9 MAUREEN A. HART, ESQ.

10 On behalf of the Petitioner 50

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1 P R O C E E D I N G S

2 (11:05 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 next in Number 99-1185, Mark Seling v. Andre Brigham

5 Young.

6 Ms. Hart.

7 ORAL ARGUMENT OF MAUREEN A. HART

8 ON BEHALF OF THE PETITIONER

9 MS. HART: Mr. Chief Justice and may it please

10 the Court:

11 This case presents a narrow but important issue,

12 and it concerns how this Court determines the threshold

13 question of whether a statute is civil or criminal. This

14 threshold inquiry is important because it establishes what

15 constitutional rules apply to a statute and that the

16 statute must satisfy, and also what constitutional

17 protections are available to people who are subject to the

18 statute.

19 It also is important because this same threshold

20 inquiry applies to many kinds of statutes, not just

21 statutes such as Washington's, providing for the

22 commitment of sexually violent predators. It applies to

23 numerous statutes, including others that deal with

24 confinement such as more generalized civil commitment

25 laws, commitments for drug or alcohol treatment, statutes

3

1 such as quarantine statutes, and statutes relating to

2 pretrial detention.

3 In this case, the Ninth Circuit rejected the

4 principle that whether a law is civil or criminal is a

5 threshold question based on legislative intent and the

6 face of the statute. Instead, the Ninth Circuit held that

7 Washington's admittedly civil law may be divested of its

8 civil nature and converted into a criminal law if

9 conditions of confinement at Washington's Special

10 Commitment Center are punitive.

11 In other words, the Ninth Circuit held that the

12 fundamental nature of a law as either civil or criminal

13 may vary and that the same statute may be both civil and

14 criminal at different times and in different places.

15 The Ninth Circuit's decision is fundamentally

16 wrong. It conflicts with the holding of this Court in

17 Hudson v. United States. It doesn't serve --

18 QUESTION: Ms. Hart, I suppose you could have a

19 situation where on habeas some prisoner, some person being

20 held under a statutory scheme of this type could come in

21 and say, on Federal habeas, I'm being held under

22 circumstances that violate the Constitution, and make an

23 individual challenge, isn't that so?

24 MS. HART: I think that in habeas an individual

25 who's subject to confinement could come in and the purpose

4

1 of habeas would be for that person to indicate that for

2 some constitutional reason the very fact or duration of

3 his or her confinement violates the Constitution.

4 QUESTION: Right. Is that what this person is

5 doing, or is there something different?

6 MS. HART: No, Your Honor. In fact, I think

7 that what Mr. Young has here essentially is a civil rights

8 claim that the conditions of confinement at the Special

9 Commitment Center are not what they ought to be.

10 QUESTION: Now, there is an ongoing 1983 class

11 action, is there, covering this very facility?

12 MS. HART: Yes, there is, Your Honor.

13 QUESTION: And under that action, presumably

14 this respondent would be affected by the outcome of that?

15 MS. HART: I believe that's correct. The

16 Special Commitment Center is under the supervision of the

17 Federal District Court in Washington at the moment. That

18 particular case basically deals with issues of whether

19 there's adequate treatment at the Special Commitment

20 Center.

21 QUESTION: Why is that a constitutional claim?

22 I mean, what constitutional claim does he have other than

23 the double jeopardy claim?

24 MS. HART: In this case, Your Honor?

25 QUESTION: Ex post facto.

5

1 QUESTION: Or ex post facto.

2 QUESTION: Both. Both.

3 MS. HART: He would have each of those claims,

4 and in this case, provided he -- that our statute is

5 punitive --

6 QUESTION: No, no, but I mean, assuming the

7 statute is not punitive, does he have any other

8 constitutional relief for the fact that he is not getting

9 the treatment which the statute provides he's supposed to

10 be given? Is that a constitutional claim, or just a State

11 law claim?

12 MS. HART: He would have, certainly under

13 Washington statute, a State law claim in the sense --

14 QUESTION: Correct.

15 MS. HART: -- that the statute requires adequate

16 treatment and --

17 QUESTION: Right, but what other Federal

18 constitutional claim would he have?

19 MS. HART: The only Federal constitutional claim

20 that I believe might otherwise be involved here would be a

21 claim that goes to conditions of confinement on some sort

22 of --

23 QUESTION: Cruel and unusual punishment? He's

24 not --

25 MS. HART: No, not with respect to any issues

6

1 that would flow from the criminal law, Your Honor. There

2 are -- certain decisions of this Court will not precisely

3 reach an issue that I read to suggest that individuals who

4 are deprived of their liberty are entitled to certain

5 minimal adequate conditions of confinement as perhaps a

6 matter of substantive due process.

7 QUESTION: And is that the basis for the -- is

8 it the Turay suit? There is a pending 1983 case, so we

9 don't have to speculate, at least, about the basis of that

10 lawsuit. What is the constitutional right that's invoked

11 in that litigation?

12 MS. HART: In the litigation that's ongoing

13 currently --

14 QUESTION: Yes.

15 MS. HART: -- Justice Ginsburg, the right that

16 is being invoked is essentially a right that one might

17 find derivative from your decision in Youngberg, and that

18 is a right to a certain level of mental health treatment.

19 QUESTION: Well, in effect the claim is that if

20 you commit me for treatment, you've got to treat me. I've

21 got a substantive due process right to that effect --

22 MS. HART: That's correct, Your Honor.

23 QUESTION: -- if I am treatable. But that's the

24 kernel of it, isn't it?

25 MS. HART: That's the essence of the claim, Your

7

1 Honor.

2 QUESTION: Well, Youngberg certainly didn't go

3 that far.

4 MS. HART: It didn't, Your Honor, but I believe

5 that that's where the genesis of the claim in this case,

6 and as I say, there's certain language in Youngberg that

7 would perhaps lead one in that particular direction.

8 QUESTION: But turning to this case, when at the

9 outset a determination is made for an order for a civil

10 commitment, is there no basis for the court to determine

11 and to look at how the disease is defined, how the

12 treatment is defined, what treatment facilities are

13 available in order to determine whether or not it's

14 punitive?

15 MS. HART: Your Honor --

16 QUESTION: Isn't there some initial assessment

17 that must be made?

18 MS. HART: No, Your Honor. This Court has, for

19 purposes of civil commitment has required two predicates.

20 One is a mental condition, and the other is an existing

21 dangerousness.

22 Once that civil commitment is affected, however,

23 Your Honor, there are certain claims that can be made and

24 are being made in the State of Washington that the

25 individual subject to that commitment is entitled to

8

1 adequate care and an adequate level of treatment, but that

2 doesn't go to -- the conditions of confinement, Your

3 Honor, wouldn't go to the face of the statute, or whether

4 the statute itself is punitive. This Court --

5 QUESTION: Why is that? I mean, suppose you

6 have a compulsive ax murderer, and you know, he's served

7 his time, but he's still a compulsive ax murderer. You

8 could not commit him simply because he's dangerous and

9 then not provide treatment?

10 Or what about quarantine of someone who has a

11 communicable disease? In order to quarantine, do you have

12 to provide treatment?

13 MS. HART: Your Honor, I don't find an answer to

14 those questions precisely in this Court's jurisprudence.

15 It does seem to me that one of the things this Court has

16 said, however, on a due process level, is that a

17 statute -- if the State is going to claim that it's

18 committing an individual for treatment, that's what its

19 statutory purpose is, then the statute ought to relate to

20 that in terms of the nature of the confinement and the

21 duration of the confinement.

22 QUESTION: Does this statute make that

23 representation, that it's confining him for treatment, or

24 does it simply talk about the abnormality, mental

25 abnormality?

9

1 MS. HART: Your Honor, this statute confines for

2 treatment and in order to protect the community from these

3 individuals, so it's -- statutorily it serves both

4 purposes.

5 QUESTION: Suppose that he makes out his claim.

6 Suppose he proves what he's trying to prove. Suppose he

7 proves that there's virtually no treatment for people who

8 could benefit by it, that it's virtually impossible to be

9 released to half-way houses even though certain medical

10 people would say he was safe enough for that.

11 He proves that it's being run by prison

12 officials for the most part, and not by mental health

13 officials, and that really there isn't much segregation

14 from the general prison population, and they don't seem to

15 have the status of ordinary mentally ill people confined

16 for civil purposes. Assume he proves that, would that

17 then violate the statute?

18 MS. HART: That would be inconsistent with

19 Washington's statute.

20 QUESTION: So it would violate the statute. So

21 you've read his claims, and you're saying that if he

22 proves what he says he's going to prove, then the

23 conditions violate Washington's statute.

24 MS. HART: Washington's statute specifically

25 requires that individuals --

10

1 QUESTION: Yes, but I'd like a yes or no answer

2 to my question.

3 MS. HART: I believe my answer to the question,

4 as I understand it, Justice Breyer, is yes.

5 QUESTION: Thank you.

6 QUESTION: That wouldn't afford a basis for any

7 Federal relief, I take it, if it's simply a claim that the

8 confinement violates the Washington statute.

9 MS. HART: No, Your Honor, that would not. One

10 of the things about this statute is that Mr. Young and

11 others like him have a remedy under State law, and that

12 remedy, because of the way our statute is read, is to

13 ensure and press litigation, as is being done in

14 Washington, that the appropriate level of care and

15 treatment is being provided, but he -- but it --

16 QUESTION: Well, if you can find for us a civil

17 purpose that clearly cannot be fulfilled, is that one

18 index at least, or one indicator of an intent to punish?

19 MS. HART: Well, Your Honor, this Court has

20 pointed to a number of indicators, all of them determined

21 facially under the Court's jurisprudence in Hudson, such

22 as whether there is a confinement in the first place, what

23 is the purpose, and whether the statute is rationally

24 related and fulfills that --

25 QUESTION: So you read our precedents as saying

11

1 our inquiry must be simply confined to a facial inquiry,

2 and not to the reality of what the treatment is or is

3 going to be?

4 MS. HART: Whether a statute is criminal or

5 civil -- civil, excuse me -- this Court has held is a

6 facial matter. That's precisely what the Court held in

7 Hudson, and in doing so disavowed an approach that it had

8 taken in Helper that looked at the actual effects, but

9 -- or conditions of confinement would be the equivalent

10 here.

11 But Your Honor, that doesn't mean that people

12 like Mr. Young are without a remedy, or that they are left

13 unable to secure the --

14 QUESTION: May I put the question just a little

15 differently? Assume our first case holds that a statute

16 is civil, a facial attack on the statute as being criminal

17 authorization for double jeopardy and ex post facto

18 violation, and we reject that by saying the statute on its

19 face is a civil statute.

20 Does that mean that every application of that

21 statute that might subsequently be challenged would have

22 to come up with the same answer? In other words, is it

23 conceivable that a statute which is valid in response to a

24 facial attack could nevertheless be invalid as applied in

25 particular cases?

12

1 MS. HART: I don't believe so, Your Honor, and I

2 believe that's essentially what this Court held in Hudson

3 when it overruled Helper.

4 QUESTION: Wasn't there language -- perhaps it

5 was in Hendrix -- that the first question is, does the

6 legislature mean to enact a civil or criminal provision,

7 and then the second question is, is the scheme so punitive

8 in purpose or effect, and I emphasize or effect, as to

9 transform the civil remedy into criminal penalty? What

10 does that mean, yes, the legislature wants a civil

11 statute, not a criminal statute, but it is so punitive in

12 effect as to be transformed from civil to criminal?

13 MS. HART: Well, Your Honor, I believe two

14 things about that. First, that Hudson stands for the

15 proposition and reaffirms the notion that the effects test

16 for whether a statute is civil or criminal is a facial

17 test, and having given you that answer, I believe that

18 what the effects test, or what that language means, is

19 what are the necessary consequences of the very statutory

20 provisions that whether it's Congress or State legislature

21 has provided. That would be the effects.

22 QUESTION: Yes, but if the statute has been

23 administered for some period of time before the

24 adjudication, I take it that the experience under that

25 administration may be considered in what we are calling a

13

1 facial inquiry.

2 MS. HART: I'm afraid I disagree with that, Your

3 Honor.

4 QUESTION: Well, do you have to disagree

5 entirely? I suppose you could take into account the

6 administration in determining what the meaning of

7 ambiguous provisions of the statute are. That wouldn't be

8 harmful, I suppose. But you wouldn't say you could take

9 into account the implementation to such a degree that you

10 would allow the implementation to contradict the very

11 terms of the statute, which is what you're talking about

12 here.

13 MS. HART: That's correct, Your Honor, and

14 that's essentially the essence of the claim before the

15 Court.

16 QUESTION: If that's --

17 QUESTION: You win if -- no, please.

18 QUESTION: Well, all right. If that's so, I

19 take it -- and this is just an elaboration of what I asked

20 you before.

21 I don't know if you're familiar enough with

22 Hendrix to refer to it by page number, but at the end, on

23 page 368, the Court sums up the factors in the statute

24 that make it civil, and they include things, to bring it

25 to your mind, the State's disavowed any punitive intent,

14

1 it's limited its confinement to a small segment, and

2 particularly -- there are procedural safeguards, they're

3 segregated, they have the same status as the other civilly

4 committed, recommended treatment is possible, et cetera.

5 Does that call to mind the paragraph that you're

6 probably familiar with?

7 MS. HART: Yes, it does.

8 QUESTION: Okay. Am I right in saying from your

9 prior answer that you think your statute meets all those?

10 MS. HART: Yes.

11 QUESTION: And that insofar as the facts in a

12 particular case don't meet them, they violate the statute.

13 MS. HART: That's -- that would be true, Your

14 Honor, and I would point out that the language that you're

15 dealing, or you're quoting from, from Hendrix, is language

16 that for each of those propositions one can go back to the

17 Hendrix opinion and find that the source of those things,

18 such as the procedural protections, the segregation from

19 the prison population, within the statute, just as one can

20 in the State of Washington.

21 And as you noted in writing the dissent in

22 Hendrix --

23 QUESTION: Yes.

24 MS. HART: -- the Kansas law, our State law,

25 Washington State law was a model for the Kansas law.

15

1 They're essentially identical, except for some places

2 where Washington's --

3 QUESTION: Yes, but it's important they be

4 interpreted the same way. They -- the majority

5 interpreted that statute in Kansas to require certain

6 things, like adequate treatment, and I take it -- at least

7 that's how I read it. That's -- the words are there, and

8 the -- so -- it's important to me that you're saying that

9 if those are not being given in fact, then the remedy for

10 the prisoner is to sue under the State law and say, this

11 is what the State law means, and I'm not getting it.

12 MS. HART: I believe that a resident at the

13 center would have that opportunity under State law to --

14 QUESTION: Insofar as this case is concerned, I

15 take it, you leave open the possibility -- you certainly

16 don't concede it, but you leave open the possibility that

17 there could be a Federal substantive due process claim on

18 the theory that we threw out a moment ago, you and I were

19 talking about a moment ago, which I guess has been

20 asserted, and that is, if the State's purpose in

21 commitment is treatment, and I have a treatable condition

22 and they don't treat me, that is a violation of due

23 process. I'm not asking you to concede that that theory

24 should prevail, but that is at least a possible assertion

25 that could be made in a Federal court.

16

1 MS. HART: I believe that's true, Your Honor,

2 and I would like to note that since the question really

3 before this Court is that narrow question of how the Court

4 determines whether a statute is civil or criminal, that

5 that kind of issue and concern is one that really is

6 reflected in, I think in part, or you can find in part in

7 the factors that this Court looks at facially.

8 QUESTION: Right, and I take it that the -- that

9 for you to win this case the proposition that your case

10 really turns on is not even a broad proposition, or a

11 broad set of rules about how we determine whether it's

12 criminal or civil, but rather, your case depends on the

13 proposition that it doesn't vary from individual to

14 individual. It is either civil, or it is criminal, and

15 that the details of individual treatment do not affect

16 that determination.

17 MS. HART: That's correct, Your Honor.

18 QUESTION: And perhaps it's even narrower than

19 has been suggested judging from your question presented.

20 What we're actually talking about is, does the -- was the

21 Ninth Circuit wrong in saying that this statute as

22 presented to it could violate either the Ex Post Facto

23 Clause or the Double Jeopardy Clause?

24 MS. HART: That's correct. Those are the only

25 two claims involved in this case and before this Court.

17

1 QUESTION: How does one respond to the, what I

2 understood to be the complaint in this case, which is, I

3 am civilly committed, and yet I'm housed in a prison and

4 I'm treated worse than I was treated when I was serving a

5 sentence of conviction?

6 That's essentially, as I take it, his complaint.

7 There's no change in my circumstances from the time I was

8 incarcerated as punishment. If anything, I'm being

9 treated worse now than I was. How does one answer that

10 claim?

11 MS. HART: I think the way one answers it in the

12 State of Washington first of all has been referenced by

13 other members of the Court, is that Washington's law

14 requires the provision of adequate care and individualized

15 treatment to these individuals.

16 The other thing that I think answers, or helps

17 answer that, Your Honor, is that Washington's law, just

18 like Kansas' law, is a civil commitment statute, and once

19 having enacted a civil commitment statute, there are

20 certain consequences that fall from that for a State, and

21 among them is to provide care more considerate than one

22 would receive or is constitutionally entitled to receive

23 in a penal institution.

24 QUESTION: My understanding is that he did have

25 a proceeding in the State court before he came to Federal

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1 court, is that correct?

2 MS. HART: Yes. There is a direct appeal by

3 Mr. Young from his commitment.

4 QUESTION: It was only that, so at that stage he

5 wasn't complaining about the treatment he was in fact

6 getting. He was complaining about the right to continue

7 confinement, is that so?

8 MS. HART: I'm sorry, I missed the last part of

9 your --

10 QUESTION: I asked if in his States court

11 litigation he was challenging, as he is now, that he is

12 being kept in confinement, that he's being treated no

13 better and, in fact, worse than he was treated when he was

14 in prison.

15 MS. HART: Your Honor, that really wasn't an

16 issue on the direct appeal. When the Washington supreme

17 court affirmed Mr. Young's commitment it remanded the case

18 to the court of appeals for two purposes, to determine

19 whether a less restrictive alternative -- or actually for

20 one purpose, to determine whether a less restrictive

21 alternative to total confinement would be appropriate to

22 Mr. Young, and in the context of that proceeding, at the

23 outset of that proceeding, Mr. Young challenged the

24 conditions of confinement at the Special Commitment

25 Center.

19

1 There was a hearing of some week's duration on

2 that issue, and the court declined to conclude that the

3 conditions of confinement were punitive.

4 QUESTION: So there is a final adjudication

5 after the remand from the Washington supreme court.

6 MS. HART: Your Honor, my understanding, and it

7 is correct, it's not simply my understanding, is that

8 there has been an appeal from that, and that appeal is --

9 that appeal to the court of appeals is pending now.

10 In other words, the supreme court of Washington

11 sent this back to the trial court on a less restrictive

12 issue, less restrictive alternative. In the context of

13 that proceeding, Mr. Young raised the issue of conditions

14 of confinement, was not successful there, and is now

15 appealing that to the Court of Appeals of the State of

16 Washington, and that matter is pending.

17 QUESTION: You described the first instance

18 decision in rather careful words. You say that they

19 declined to find that. Did they reject such a claim? Did

20 they say, even if he would establish that he's being

21 treated no better and perhaps worse, he still has no

22 claim. What was the reason he was --

23 MS. HART: The court -- this -- the order from

24 this proceeding the Court will find at page JA 49, the

25 joint appendix at 49, and the court after trial simply

20

1 concluded -- let me see -- simply concluded that he had

2 not demonstrated that the conditions were punitive.

3 QUESTION: And the point was that if they were

4 punitive they would have violated the Washington statute.

5 Was that the point of the proceeding?

6 MS. HART: I believe the proceeding itself was a

7 generalized challenge to conditions of confinement at the

8 Special Commitment Center.

9 QUESTION: As violating what?

10 MS. HART: I believe that the focus there was a

11 constitutional type substantive due process claim, Justice

12 Scalia.

13 QUESTION: What was the mental disorder, or the

14 personality disorder, or the mental abnormality that was

15 established here?

16 MS. HART: Mr. Young was found to suffer from a

17 severe paraphilia characterized either by sexual sadism or

18 rape, as well as a severe antisocial personality disorder.

19 QUESTION: What is paraphilia, if that's the

20 word?

21 MS. HART: It's essentially a mental condition

22 that is characterized by recurrent and intense urges and

23 fantasies, sexual fantasies with respect to things that

24 are either nonhuman objects, nonconsenting adults,

25 children -- it's a pathological, pathologically driven

21

1 mental condition.

2 QUESTION: Does a person have that disorder if

3 he has or she has volitional control?

4 MS. HART: I think that --

5 QUESTION: They've talked about this in the

6 brief, and I'm never quite sure of the full significance

7 of this part of the inquiry.

8 MS. HART: In Washington's statute, mental -- a

9 mental abnormality, which is a predicate to commitment

10 under Washington law, requires a condition that does

11 affect volitional control.

12 My understanding, Your Honor, of this sort of

13 mental disorder, this sort of paraphilia, is that it is a

14 difficulty with volitional control, that you'll have

15 situations where individuals will have these repeated

16 urges and fantasies and then act on them, perhaps be

17 remorseful, but they will repeat, and the ability to

18 control them is something that the individual cannot do

19 consistently.

20 QUESTION: We talk about this. Do the

21 psychiatrists talk about this in a way that has meaning to

22 them? Do they say, this person has or has not volitional

23 control? Is that a standard psychiatric frame of

24 evaluation?

25 MS. HART: Not that I'm specifically aware of,

22

1 Your Honor, but I believe it's somewhat inherent in the

2 nature of this particular mental condition.

3 QUESTION: Do you interpret the findings here

4 that he lacked volitional control?

5 MS. HART: Under Washington statute, he would

6 have to have -- suffer from a mental abnormality, or was

7 bound to suffer from a mental abnormality, Your Honor,

8 that entails a lack of volitional control, or at least an

9 impairment of his ability to control what he does.

10 QUESTION: I take it what -- he was originally

11 convicted of rape?

12 MS. HART: He was -- he has a lengthy criminal

13 history, Your Honor, of six violent rapes.

14 QUESTION: And I presume under Washington law

15 some sort of mens rea is required for the offense of rape.

16 MS. HART: I believe -- I believe that's -- I'm

17 not sure, Your Honor. I don't believe there's necessarily

18 a mental element. There may be a mental element.

19 QUESTION: Well I mean, would Washington law at

20 least recognize a defense that he was unable to control

21 his actions? Or would it be the McNaughton test?

22 MS. HART: I think in Washington it would be the

23 ability to discern right from wrong.

24 Just before -- I'd like to save a couple of

25 minutes for rebuttal, but the other thing I would like to

23

1 do before I do this is essentially to sort of bring this

2 case back to the question before the Court and to make the

3 Court understand that a number -- and I'm sure you do

4 appreciate that, that a number of the questions that

5 you're posing here are ones that have already been

6 resolved against Mr. Young both in the Washington supreme

7 court and in the Ninth Circuit and that the very narrow

8 and limited issue, but important one, before this Court is

9 rather, how the Court determines whether a statute is

10 civil or criminal.

11 If I could, I'd like to reserve --

12 QUESTION: Very well, Ms. Hart.

13 Mr. Boruchowitz. Am I pronouncing your name

14 correctly?

15 MR. BORUCHOWITZ: Yes, sir.

16 ORAL ARGUMENT OF ROBERT C. BORUCHOWITZ

17 ON BEHALF OF THE RESPONDENT

18 MR. BORUCHOWITZ: Mr. Chief Justice, and may it

19 please the Court:

20 I'd like to begin by answering quickly some of

21 the questions that the Court just asked. Justice

22 Kennedy's question with regard to the evidence about

23 Mr. Young's mental abnormality, the testimony was that

24 from the single State psychologist was that he has a

25 paraphilia not otherwise specified. He also has a

24

1 personality disorder not otherwise specified, neither of

2 which, standing alone, would support the prediction that

3 the psychologist was required to make, but by combining

4 the two, by 51 percent he would say that Mr. Young would

5 be dangerous.

6 There's no evidence of volitional control or the

7 lack of volitional control. There's no jury instruction.

8 There's no requirement about that whatsoever and, as the

9 DSM makes clear, simply having a disorder in the DSM does

10 not make any indication about lack of volitional control.

11 With regard to the question about the evidence

12 below --

13 QUESTION: And is it conceded by all sides that

14 that showing is, under Washington law, sufficient to

15 commit him civilly?

16 MR. BORUCHOWITZ: Under the Washington statute,

17 yes. The test -- well, yes. We have argued that in the

18 State court and lost, that that volitional control element

19 is required, and as the amicus brief suggests, that

20 remains potentially unclarified by the Hendrix opinion,

21 but in Washington that testimony was sufficient.

22 I think it's important to point out with regard

23 to the testimony, to the decision in the superior court

24 below in Mr. Young's case at the joint appendix, page 61,

25 the trial court applied to Mr. Young a burden of proof

25

1 beyond a reasonable doubt in order to show that the effect

2 of the statute was unconstitutional.

3 The judge did find that we proved by a

4 preponderance of the evidence that certain conditions were

5 less than treatment and greater than prison and so forth

6 but, since she applied to us beyond reasonable doubt, we

7 lost.

8 In the Campbell case, which is pending cert in

9 this Court, a judge found that in fact the conditions were

10 unconstitutional, so that needs to be clarified, I

11 suggest.

12 QUESTION: And then what happened --

13 QUESTION: The Campbell case was in State court?

14 MR. BORUCHOWITZ: Yes. Yes, Your Honor.

15 Campbell lost in the supreme court and is now pending cert

16 here.

17 QUESTION: And what was the reason for

18 overturning the trial judge's disposition in Campbell?

19 MR. BORUCHOWITZ: Basically the State supreme

20 court took the position that the Attorney General is here,

21 that a statute should be looked at only on its face, and

22 that the effect of the statute, the conditions of the

23 statute, the punitive conditions of the statute as

24 implemented didn't make any difference.

25 QUESTION: Obviously, the word isn't applied.

26

1 That's the wrong concept, I would have thought, that the

2 conditions in an individual case show what the statute may

3 or may not permit.

4 MR. BORUCHOWITZ: That's correct, Your Honor.

5 QUESTION: And if they permit no treatment,

6 then, of course, everybody I think concedes -- I don't

7 know if everybody does, but I'd say then it's

8 unconstitutional.

9 But the difficulty here right now, I think, is

10 the majority's opinion in Hendrix is the law. The

11 majority listed certain features of this case --

12 Hendrix -- which made it civil and not criminal.

13 MR. BORUCHOWITZ: That's correct.

14 QUESTION: Now, you've heard the Attorney

15 General say, and I guess what's important is that your

16 client have some remedy, that he does have a remedy.

17 That's what's important, and the remedy is that those

18 conditions that made the Hendrix statute civil do not

19 pertain to your client, then the law of Washington is

20 violated, and therefore your client has an excellent

21 remedy.

22 Either the Hendrix majority conditions apply, or

23 they do not. If they do apply, you can't complain -- on

24 my -- I was in dissent.

25 But if they don't apply -- if they don't apply,

27

1 well then, you have a perfect remedy, so what's the

2 problem with that, from the point of view of the law?

3 MR. BORUCHOWITZ: Well, Your Honor, I think

4 there are many problems with it. This Court, of course,

5 has not interpreted the Washington statute. You only

6 interpreted the Kansas statute, and all three opinions in

7 Hendrix focused on the conditions of confinement. The

8 majority said, no one here is claiming that there's

9 punitive conditions. No one here is claiming that Mr.

10 Hendrix is not treated as a civilly committed person, and

11 so we look at that and we decide it's not punitive.

12 Justice Kennedy suggested that if, in fact, it

13 turns out that treatment is a sham, then the decision

14 would go the other way, and the dissent focused heavily on

15 conditions and showed that treatment was not, in fact,

16 there, so my suggestion is that this Court over and over

17 and over again in a series of cases has looked at how a

18 statute is implemented. In the Allen v. Illinois case

19 this Court said this would be a different case if somebody

20 had claimed that there was punitive conditions.

21 Most recently in Gardner v. Jones this Court, in

22 evaluating an ex post facto claim, said, we're going to

23 remand this case because there wasn't enough discovery

24 done below about what's actually going on, and what the

25 Court said is that the respondent must show that, as

28

1 applied to his own case, his own sentence, the law created

2 a risk of ex post facto, and also said in Gardner, when

3 the rule does not by its own terms show a significant

4 risk, the respondent must demonstrate by evidence drawn

5 from the rules practical implementation in his case.

6 As long ago as Yerkwo v. Hopkins, that's the

7 position that the Court took, that a statute that was on

8 its face neutral, but that was as-applied with, as the

9 Court put it, an unequal eye, or an evil eye, an unequal

10 hand, that --

11 QUESTION: Was Yerkwo either an ex post facto or

12 a double jeopardy case?

13 MR. BORUCHOWITZ: No, it was not, Your Honor,

14 but what I'm suggesting is that the reasoning that the

15 Court has applied in many different areas of the law is to

16 look at the implementation of the statute and that the

17 actions of an administrative agency, whether it's the

18 parole board in Gardner, or the city laundry regulators in

19 Yerkwo, represent the State itself, and that the State --

20 QUESTION: I may in substance agree with you,

21 but is that why we have this case? I mean, I don't -- I

22 didn't think we had this case to determine whether the

23 statute was criminal or civil. I thought we had this case

24 to determine whether, given a classification as civil, it

25 may then later be treated as having a criminal character

29

1 with respect to its application to particular individuals,

2 and isn't that latter issue the one that's before us?

3 MR. BORUCHOWITZ: I think precisely, Your Honor,

4 the issue before you is whether the Ninth Circuit was

5 correct in ordering an evidentiary hearing on the question

6 of whether the initial confinement render the statute

7 unconstitutional.

8 QUESTION: But the assumption, as I understand

9 it, and I may be wrong on this, but I thought the

10 assumption of the Ninth Circuit's position was that we

11 start with the proposition that it is a civil statute.

12 MR. BORUCHOWITZ: That's correct.

13 QUESTION: But that it's application may be

14 rendered criminal in particular cases.

15 MR. BORUCHOWITZ: That's correct.

16 QUESTION: All right. And so the issue before

17 us is whether the Ninth Circuit, whether that option is,

18 in fact, available, and one of the things that we want to

19 know, and this goes back to Justice Breyer's question is,

20 let's assume it's not available.

21 Let's assume that criminality of the statute's

22 character is not a shifting and springing quality.

23 Does -- on the assumption that it's a civil statute, does

24 your client have a remedy under State law, and I would add

25 to it, does he have a remedy, even on the assumption of

30

1 civil character, under Federal law?

2 MR. BORUCHOWITZ: He would have a remedy, Your

3 Honor, to sue under 1983 in State or Federal court.

4 QUESTION: And his claim would be --

5 MR. BORUCHOWITZ: His claim would be a due

6 process claim that he --

7 QUESTION: Substantive due process?

8 MR. BORUCHOWITZ: Yes.

9 QUESTION: Okay. The claim that I was talking

10 about with counsel for the State.

11 MR. BORUCHOWITZ: That's correct.

12 QUESTION: Okay. So he's got that, and he has a

13 State law claim that he's entitled to treatment which he's

14 not getting.

15 MR. BORUCHOWITZ: I think it's important to look

16 at the reality, both of the effect of the statute and of

17 the litigation that's been going on. It's been 6 years

18 since a Federal court has enjoined the State in this

19 matter. The Federal court held the State in contempt,

20 noting its foot-dragging and deliberate avoidance of his

21 injunction on the treatment need at the facility. The

22 former Director called the facility dysfunctional, so --

23 QUESTION: Well, it may be all of those things,

24 but wasn't the -- I'm not sure they're before us.

25 MR. BORUCHOWITZ: Well, the reason I mention it,

31

1 Your Honor, is you ask, does he have a viable alternative,

2 and I think there may be a civil remedy, but the civil

3 remedy does not get at the fundamental question in this

4 case, which is that my client has been punished for 10

5 years under a so-called civil commitment statute.

6 QUESTION: But if you're right, then I take it

7 every member of that class that's now involved in a 1983

8 case would have an equally valid habeas claim.

9 MR. BORUCHOWITZ: Well, Your Honor, some of them

10 certainly would, depending on what the district court

11 eventually finds at the hearing. I would point out, by

12 the way, that I don't believe it's an actual certified

13 class, but there are multiple named plaintiffs, but --

14 QUESTION: Well, all of the named plaintiffs.

15 MR. BORUCHOWITZ: But certainly everyone would

16 be able to bring their own challenge as applied to them,

17 in fact, the statue was unconstitutional.

18 Mr. Young should be able to have his day in the

19 trial court, in the Federal district court, as the Ninth

20 Circuit has ordered, to be able to show that the purpose

21 and effect of this statute are, in fact, unconstitutional.

22 QUESTION: That's why I'm confused on the

23 procedure. I would think the answer to Justice Souter's

24 question, I mean, at least as I would see it, would be you

25 have a civil statute, but this person is suffering

32

1 criminal treatment.

2 MR. BORUCHOWITZ: That's correct.

3 QUESTION: All right. I'd say if that's so, of

4 course he must have a remedy.

5 MR. BORUCHOWITZ: Right.

6 QUESTION: They're saying he does have. He has

7 two remedies. You don't need to create a new category.

8 The first remedy would be, under State law -- it

9 violates the statute, and then if you lose on that one,

10 there would be another, which would say that the Federal

11 Constitution doesn't permit a person who is civilly

12 committed to be there without any treatment, where he can

13 sustain the treatment, et cetera, et cetera, and that

14 would be the Federal constitutional claim.

15 You might win, you might lose, but it seems to

16 me you have those already in the lower courts, and we

17 don't need a remand on this case to give you those.

18 That's where I'm confused. I mean, they're already

19 pending, those two claims. One's in the Washington

20 system, the other's in the Federal system, and so what's

21 this thing now going to help on?

22 MR. BORUCHOWITZ: Well, Your Honor, the posture

23 of this case is somewhat unusual in that the Court has

24 taken cert of this case before the evidentiary hearing in

25 district court, and the Ninth Circuit said, send this back

33

1 because Mr. Young didn't have his evidentiary hearing

2 which he should have had.

3 I think it's important to point out, in response

4 to what Justice Ginsburg asked earlier, Mr. Young has

5 claimed that this statute was being punitively applied,

6 and that in fact it was punitive in purpose from the very

7 beginning. He brought a personal restraint petition

8 before he even has his trial in State court, so he has

9 made this claim from the very beginning, both that the

10 effect of this statute illuminates the punitive purpose,

11 and that the effect itself is punitive.

12 After Hendrix, and after the Ninth Circuit

13 remanded the case the first time, then the focus of the

14 court was on the punitive effect.

15 QUESTION: But may I just ask this question. If

16 he's correct that as applied to him it's punitive, then

17 does that not mean that he's been subjected to double

18 jeopardy and is entitled to his release?

19 MR. BORUCHOWITZ: Absolutely.

20 QUESTION: That's your position?

21 MR. BORUCHOWITZ: Yes, Justice Stevens, because

22 in fact the whole purpose of a writ of habeas corpus is to

23 challenge unconstitutional incarceration, and the relief

24 is release, and that's what Mr. Young has been asking for

25 from the day he filed his habeas --

34

1 QUESTION: And you add that you can make this

2 showing at the very outset of the order committing him to

3 the civil treatment?

4 MR. BORUCHOWITZ: Yes, Your Honor. I think it's

5 even more the case now, after 10 years, but yes, at the

6 very outset this was a facility that was set up with not

7 even a licensed psychologist on staff. This was not what

8 the Court described in Hendrix, of a psychiatric facility

9 with 31 hours a week of treatment. This was a facility

10 that did not even have a licensed psychologist, that had

11 no certified sex offender treatment providers until long,

12 long, long after the injunction was in place.

13 QUESTION: But Mr. Boruchowitz, doesn't --

14 again, doesn't your argument go to a different issue from

15 the one that's before us? You're arguing, I think, that

16 your client should have, or should have had an opportunity

17 to show that this is not like the Hendrix statute, and

18 that this one is, in fact, a punitive statute, and

19 therefore all the punitive protections apply? But that's

20 not the issue that we've got before us, is it?

21 MR. BORUCHOWITZ: Well, Your Honor, I think it

22 is the issue.

23 QUESTION: I thought the issue -- and we can

24 make it either-or. I thought the issue we had before us

25 was a determination by the State court that the statute

35

1 here was like the Hendrix statute and therefore we had a

2 civil statute, and the question was, may the application

3 of that statute nonetheless be treated as criminal in

4 particular cases, even though the statute is classified as

5 a general matter as civil? I thought we had the latter

6 issue, not the issue whether he should be able to prove,

7 or could prove that it was in constitutional terms unlike

8 Hendrix in a criminal statute.

9 MR. BORUCHOWITZ: Well, Your Honor, I'm not sure

10 I understand the question, but let me try this --

11 QUESTION: The question -- let me do it again.

12 The question is, is the issue before us whether this is a

13 criminal statute, or is the issue before us whether a

14 civil statute may nonetheless give rise to claims of

15 violating criminal constitutional protections if the civil

16 statute is not followed by its own terms? Which question?

17 MR. BORUCHOWITZ: I think between the two I

18 think it's the second question.

19 QUESTION: Okay. That's what I thought.

20 MR. BORUCHOWITZ: Yes, but I believe that on

21 remand the court of appeals opinion suggests that the

22 district court should examine the effect of the statute

23 and along the way mentions some evidentiary aspects that

24 to the Ninth Circuit looked as if the statute, in fact,

25 were -- had a punitive purpose, a deterrent purpose.

36

1 QUESTION: How would that evidentiary hearing

2 differ from the one that's already been had in the Federal

3 court in the Turay case?

4 MR. BORUCHOWITZ: Well, Your Honor, I think one

5 of the first questions for the district judge to decide

6 would be what nature proceeding he would undertake, and

7 whether he would simply use a record that had been

8 established in the other proceeding, whether collateral

9 estoppel would apply on certain issues and, if not,

10 whether he would take evidence on recent developments.

11 That's something we haven't reached yet, but I

12 would think that would be the first question for the judge

13 to decide. What nature of evidence do I take? Do I

14 simply look at the record Judge Dwyer has prepared over 10

15 years, or do I look at some additional evidence?

16 QUESTION: I thought your position was that you

17 can challenge this statute at the very outset of the order

18 committing him based on the fact that, as demonstrated by

19 the way in which the treatment facility is operated, it

20 is -- it is not for a civil purpose, and that the

21 classification of the disease is too imprecise --

22 MR. BORUCHOWITZ: That's correct.

23 QUESTION: -- to admit of psychiatric treatment.

24 MR. BORUCHOWITZ: Yes. It --

25 QUESTION: And you simply want to use evidence

37

1 of existing conditions to challenge the operation of the

2 statute at the time that he's subjected to it.

3 MR. BORUCHOWITZ: That's right, Your Honor.

4 QUESTION: And that seems somewhat different

5 than the answer you gave to Justice Souter.

6 MR. BORUCHOWITZ: Well, both -- I have to answer

7 yes to both questions, because that's been our position

8 from the very beginning, that the statute in its purpose

9 was punitive, as evidenced by not only the legislative

10 history, which this Court in Kennedy v. Mendoza-Martinez

11 described as the objective manifestation of the law, the

12 legislative history, and also by the purpose and effect.

13 By the effect, the implementation, which this Court also

14 looks at over and over again.

15 QUESTION: But that sounds a lot like my

16 dissent, which the lower courts, as much as I'd like them

17 to follow my dissents rather than the majority, I'm

18 afraid, quite correctly, they follow the majority

19 opinions, not the dissents and that's correct.

20 MR. BORUCHOWITZ: Justice Breyer --

21 QUESTION: So how do we reconcile that with -- I

22 mean, it's the majority --

23 MR. BORUCHOWITZ: Well, there are several ways

24 to do that, Your Honor. First of all, as Justice Kennedy

25 pointed out, Hendrix was decided affecting Hendrix alone

38

1 and, as you suggested in dissent, if the concern that

2 Justice Kennedy had in his concurrence about the, either

3 potential of the sham treatment or the imprecision of

4 mental abnormality, were to come true, that in fact due

5 process implications would be raised as well, as you put

6 it in your dissent.

7 So I think all three opinions in Hendrix looked

8 at the condition of confinement and, of course, did not

9 look at the Washington statute. You have not looked at

10 the Washington statute, and that's not your function

11 today, because what you're being asked to do is whether

12 the court of appeals remand was correct or not.

13 Now, along the way, you have to examine the

14 question of how do we go about making that decision, and

15 initially you look at the face of the statute, but that's

16 not enough. The civil label is not enough, you've said

17 over and over again, and what you do then is, you look

18 beyond that to the purpose and effect. Has it been

19 implemented in such a way that the effect is punitive? If

20 it's punitive, then double jeopardy and ex post facto --

21 QUESTION: Well, it doesn't necessarily mean

22 effect that way. I mean, that's the crucial language,

23 purpose and effect. Does it mean, the effect as evident

24 from the face of the statute, which is what your opponent

25 says, or does it mean the effect as it is played out, even

39

1 if that contradicts the face of the statute? That's the

2 crucial issue.

3 MR. BORUCHOWITZ: I agree.

4 QUESTION: What that language, effect, means.

5 MR. BORUCHOWITZ: Yes, Justice Scalia, I think

6 that's right, and my suggestion is that Hudson doesn't

7 even mention Hendrix. Hendrix talks in all three opinions

8 about the condition of confinement, and cites other cases

9 that talk about implementation. Hudson was a question

10 involving fines and debarment imposed by the Controller of

11 the Currency. Hudson was decided 6 months after Hendrix,

12 doesn't even mention it, let alone purport to overrule it.

13 This Court has over 100 years of history, in

14 many, many different areas of the law, of looking at how a

15 statute is implemented to determine its constitutionality.

16 QUESTION: But Hudson was an opinion dealing

17 precisely with the constitutional claim that you're

18 raising.

19 MR. BORUCHOWITZ: That's correct.

20 QUESTION: With the Double Jeopardy Clause.

21 MR. BORUCHOWITZ: That's correct, Your Honor. I

22 think there are key differences from Hudson, and they boil

23 down to liberty versus money, because in Hudson you're

24 talking about fines and debarment, and --

25 QUESTION: Well, does the Double Jeopardy Clause

40

1 make any such distinction?

2 MR. BORUCHOWITZ: I don't think it does, no,

3 Your Honor, but I think the Court's opinions have

4 indicated a greater concern about implementation of the

5 law and the facts as applied when liberty is involved, and

6 I think --

7 QUESTION: Sorry. Go ahead.

8 MR. BORUCHOWITZ: I was just going to say that

9 in the Ex Post Facto context, certainly that's what the

10 Gardner decision did, because the Court said the facts are

11 not before us as to how this statute is implemented, and

12 the policies and practices of the parole board certainly

13 should be considered, and so we're going to remand for

14 that.

15 QUESTION: In Gardner the claim was made that

16 the rule in general had an ex post facto effect on gain

17 time, and I think our Court said you -- it's not enough to

18 show it might have affected some people. You've got to

19 show it affected you.

20 MR. BORUCHOWITZ: That's correct.

21 QUESTION: Which is quite different, I think,

22 from what you're saying.

23 MR. BORUCHOWITZ: I understand the Court's

24 point, but I -- my suggestion is this, that just as it was

25 important -- I mean, the ultimate question in Gardner v.

41

1 Jones is, is there an ex post facto violation for

2 Mr. Jones, and the question here, ultimately, not

3 necessarily at this moment in this Court, but ultimately,

4 is there a double jeopardy and ex post facto violation in

5 Mr. Young's case, and so how do we do that? In Gardner,

6 we look at the implementation as applied to him. He has

7 to put on evidence of as-applied to him.

8 And in Young, all we're asking for is what the

9 Ninth Circuit ordered, which is our opportunity to do

10 that.

11 QUESTION: Is it going to the same judge who's

12 handling the other Federal case?

13 MR. BORUCHOWITZ: No, Your Honor. I suppose

14 they could merge it.

15 QUESTION: It just seems to me this is going to

16 be exactly the same issue. If we just let it alone, it

17 would have gone back to the judge.

18 The judge would have either said, you're right,

19 the conditions are terrible, you're not getting any

20 treatment, in which case you would have had three separate

21 grounds for getting the relief, but you would have gotten

22 it, or you're wrong, in which case you'd be out, and I

23 don't really -- now, see, what we're deciding, we're

24 deciding whether this judge should do it or that judge

25 should do it, and the standards seem to me to be roughly

42

1 the same. I just don't -- and then the consequence is the

2 same.

3 MR. BORUCHOWITZ: Well, it seems to me, Your

4 Honor, the Court could --

5 QUESTION: It's not your fault --

6 MR. BORUCHOWITZ: No.

7 QUESTION: -- that you're before this Court.

8 (Laughter.)

9 MR. BORUCHOWITZ: Thank you, Mr. Chief Justice.

10 QUESTION: Quite right.

11 MR. BORUCHOWITZ: It seems to me that now that

12 we're here the Court could do many different things. The

13 Court could simply say, we meant in Hendrix that the

14 conditions were important. We were all concerned about

15 that, and the Ninth Circuit is right to consider the

16 purpose and effect as shown by the conditions. You could

17 just do that.

18 You could also say, by the way, mental

19 abnormality, we really did mean what we said about lack of

20 control, and that there should be some showing about, the

21 person has no volitional control, and that would clear up

22 a lot of things in the lower courts. As we pointed out in

23 our supplemental two-page brief, the State of Kansas just

24 decided that yes, in fact, Hendrix just require the lack

25 of volitional control.

43

1 The Court could also, I suppose, go beyond the

2 question presented, which it has the authority to do, and

3 say, this statute certainly looks like it's very different

4 than what we though Hendrix was, and at least in

5 Washington as it's being applied there's a problem, but I

6 don't think the Court needs to do that.

7 The Court simply can say, we're going to remand

8 this case and let the court of appeals order stand,

9 because what the court of appeals has simply done is to

10 apply Hendrix. There's nothing different from Hendrix in

11 what the Ninth Circuit did. We're simply going to send it

12 down for the district court to evaluate it, and if the

13 district court, Judge Cunero decided that let Judge Dwyer

14 handle it because he's done the 1983 litigation, that

15 could easily -- that's something the district court could

16 do if it decided to do that.

17 But obviously the 1983 litigation has not been a

18 habeas situation involving the question of release because

19 of unconstitutional punishment, and what this case is

20 ultimately about is that a man has been punished for 10

21 years in a prison, longer than he served under his

22 criminal sentence, without having committed another crime

23 and without having a traditional mental disorder.

24 And so there are many issues presented, and I

25 think one of the things that's difficult about examining

44

1 this case is that it's something fundamentally radically

2 different from a true civil commitment. There's nothing

3 wrong with a true civil commitment, but this is not civil

4 commitment. This is punishment.

5 And I think that if you look at the various

6 cases that we've cited here, one other thing about Hudson

7 that I think is important is that the Court said that the

8 penalties in Hudson did not approach the infamous

9 punishment of imprisonment. They involved administrative

10 disability, and they were imposed in administrative

11 proceedings.

12 In Ward, the Court found that the penalty for

13 oil discharge and water pollution was more analogous to

14 traditional civil damages.

15 In Shaw v. Martin, before the Court found that

16 pretrial detention did not violate due process, the Court

17 examined the actual conditions of confinement and cited

18 testimony in the opinion about actual practices.

19 QUESTION: Of course, if the -- what

20 constitutional question was involved in Shaw?

21 MR. BORUCHOWITZ: Due process, Your Honor.

22 QUESTION: Yes, and I think that doesn't help

23 you very much when you're trying to transpose that holding

24 over into double jeopardy or ex post facto, which are much

25 more precise.

45

1 MR. BORUCHOWITZ: I appreciate that, Your Honor.

2 The Court has often considered punishment in a parallel

3 way, whether it's due process, double jeopardy, or ex post

4 facto, but I certainly acknowledge that Shaw was a due

5 process case.

6 This is a situation where, as Judge Dwyer

7 indicated in the Turay 1983 litigation, for all intents

8 and purposes this is a prison. It looks like, feels like,

9 and is a prison run by the Department -- or the external

10 facility run by the Department of Corrections, which is at

11 page 6 of our brief, joint appendix 147.

12 This is a situation where the State of

13 Washington, over the time that the injunction has been in

14 place, has made it harder to get less restrictive

15 alternatives. One of the things that this Court was

16 concerned about in Hendrix, and specifically mentioned,

17 was the less restrictive alternative idea, and what

18 Washington has done in the last 5 years is to eliminate

19 less restrictive alternative from the initial court

20 determination and to make it harder for someone to get it.

21 I would suggest that this Court over and over,

22 in a number of cases involving both double jeopardy and

23 due process and ex post facto has been to look at the

24 statute as applied.

25 In Foosha, Justice Thomas dissented saying that

46

1 this would be a different case if the procedures as

2 applied would show, as he put it, window dressing in that

3 case. In fact, what we have here is the actual

4 implementation of the treatment has turned out to be a

5 sham.

6 The Court has said over and over that if you can

7 show by the clearest proof that a statute is punitive in

8 effect, then you can win. The clearest proof by its terms

9 suggests that evidence will be taken, because otherwise

10 where is the proof? In answer to Justice Scalia's

11 question, does it just mean what naturally flows from the

12 language, or does it mean the actual implementation? I

13 would suggest that clearest proof means proof of evidence,

14 not simply proof of --

15 QUESTION: May I ask on that point, are you

16 contending -- is it your view that you have to prove that

17 everyone subject to this statute is being punished, or

18 just that your client is being punished?

19 MR. BORUCHOWITZ: Just that my client is being

20 punished, Justice Stevens.

21 QUESTION: Well, what if there are 100 people in

22 prison, 99 of them are civil, and your client is punished?

23 That would -- he would get relief, then?

24 MR. BORUCHOWITZ: I think so, Your Honor,

25 because ultimately the logical extension of the State's

47

1 position is that you could torture someone and beat them

2 and deprive them of food, and as long as the State calls

3 it civil --

4 QUESTION: Yes, but there are remedies for those

5 things. I mean, those are independent constitutional

6 violations.

7 MR. BORUCHOWITZ: That's correct.

8 QUESTION: Yes.

9 MR. BORUCHOWITZ: But ultimately, if the way the

10 statute is being applied to an individual is punitive --

11 QUESTION: Yes, but it would seem to me your

12 case would be very strong if you could say everybody who's

13 subject to this statute is being punished, but you don't

14 go that far.

15 MR. BORUCHOWITZ: Well, Your Honor, we don't

16 have a record that would allow me to say that

17 categorically, that everyone -- I think certainly in

18 response to Justice, I believe --

19 QUESTION: Part of your allegation could seem to

20 establish that, if this particular facility is -- has no

21 psychiatrist and is in a correction facility, everybody

22 incarcerated there must be punished, I would think.

23 MR. BORUCHOWITZ: Our answer is yes to that,

24 Your Honor, but I don't think the Court has to answer that

25 question to rule in Mr. Young's behalf, but I think you're

48

1 right that, as we've been arguing from the very beginning,

2 the statute had a punitive purpose, it was designed to

3 close the gaps, we couldn't accept the double jeopardy and

4 ex post facto --

5 QUESTION: Would it be open on remand, under

6 your understanding of the mandate, for you to try to prove

7 what I've just suggested?

8 MR. BORUCHOWITZ: Well, Your Honor, I think the

9 Court could say that the application to all other

10 prisoners would certainly enlighten the question of what's

11 applying to Mr. Young, but the Court doesn't need to reach

12 that question.

13 But I think the answer to the question would be

14 yes, because it has had a punitive purpose and effect from

15 the beginning, but I don't think there's anything that's

16 in conflict with Hendrix for us to go forward. What

17 Hendrix said was, nobody here's saying it's punitive, it

18 applies to Hendrix alone, it would be different if, and

19 that's what the Court has said in many different

20 circumstances, including Allen v. Illinois. The case

21 would be a different case if someone had shown that there

22 was a punitive effect.

23 So over and over again I think the Court has

24 looked at the actual implementation of the statute, but

25 you're right, I think from the very beginning he's been

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1 committed without authority of law.

2 Let me just take a minute to mention Ex Parte

3 Virginia, because I think it's important when the State

4 argues that an administrative agency does not bind the

5 State in some way. This Court said that whoever by virtue

6 of a public position under State government deprives

7 another of constitutional rights violates the

8 Constitution, and he acts in the name and for the State

9 and his act is that of the State. There can be no defense

10 here that it's simply the administrative agency running

11 amok. This is certainly an act of the State that binds

12 the State.

13 The State -- thank you, Your Honor.

14 QUESTION: Thank you, Mr. Boruchowitz.

15 Ms. Hart, you have 3 minutes remaining.

16 REBUTTAL ARGUMENT OF MAUREEN A. HART

17 ON BEHALF OF THE PETITIONER

18 MS. HART: Thank you.

19 I would like to point out to the Court again

20 that this case is before the Court on a very narrow issue,

21 and it is a threshold issue, and that is, how the Court

22 determines whether a statute is civil or criminal. Hudson

23 establishes that that is done facially.

24 Washington -- the issue about whether

25 Washington's statute is civil or criminal is not before

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1 this Court. Both the Washington supreme court and the

2 Ninth Circuit Court of Appeals have held that Washington

3 statute is civil on its face, meaning the legislature's

4 intent was to have a civil statute and that in purpose and

5 in effect the Washington statute is civil.

6 The predicates for commitment are not at issue

7 before this Court. There is no question that Mr. Young

8 suffers from a mental abnormality and a personality

9 disorder that makes him likely to engage in sexually

10 violent acts if he is not detained. That is not before

11 this Court. The Washington supreme court and the Ninth

12 Circuit have both ruled against Mr. Young on those issues,

13 and there was no cross-petition here.

14 The only issue before this Court, and what

15 Mr. Young is contending, is that because he alleges that

16 he is not receiving treatment consistent with a civil

17 statute, that he ought to be released, and the only way

18 Mr. Young can contend that is by saying, if I do not

19 receive the treatment that I'm entitled to under a civil

20 statute, somehow that converts this statute to a criminal

21 statute, that one day your statute can be civil, the next

22 day it can be criminal.

23 In Mr. Young's view, if Washington had two

24 commitment centers instead of one, the law would be civil

25 at the center where the commitment -- where the treatment

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1 was adequate and --

2 QUESTION: Could you answer the question I --

3 supposing he proves that everybody who's been committed

4 pursuant to this statute has been punished?

5 MS. HART: Then everyone committed pursuant to

6 the statute would be entitled to go into either State

7 court or Federal court and get those remedies, get those

8 conditions remedied, but they do not go to the validity of

9 whether -- they do not go back to the character of

10 Washington's statute.

11 Washington's statute is a civil law, and that is

12 meaningful. It means that people confined pursuant to

13 that law are entitled to the treatment that civil

14 committees are given under the statute and under the

15 Constitution, and the proportionate, measured, wholly

16 adequate remedy is to go to court and require the State of

17 Washington to provide the treatment and the care that it

18 has promised.

19 QUESTION: But on your view the reason he could

20 not, on Justice Stevens' hypothetical, argue that the

21 court had made a mistake in finding the statute across the

22 board to be a civil statute is that the character of the

23 statute on your view must be determined on the text of the

24 statute, on the basis of the statutory text alone, is that

25 it? You could find that the text --

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1 MS. HART: Under the Hudson test.

2 CHIEF JUSTICE REHNQUIST: Thank you, Ms. Hart.

3 the case is submitted.

4 (Whereupon, at 12:05 p.m., the case in the

5 above-entitled matter was submitted.)

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