Spanier v. Libby, 3:19-cv-00523

Background

In February 2001 Graham B. Spanier, then Penn State president, participated in the University's response to allegations of sexual abuse by Jerry Sandusky. Spanier was charged in 2012 and at trial (March 2017) was convicted of one misdemeanor count of endangering the welfare of a child (18 Pa.C.S. § 4304(a)(1)) based on February 2001 conduct; he was acquitted of related counts and of a course-of-conduct theory.
The Commonwealth prosecuted and the trial court instructed the jury using language that appears in the 2007 amendment to § 4304 (which added liability for “a person that employs or supervises such a person”), not the 1995 version in effect in 2001.
On direct appeal the Pennsylvania Superior Court affirmed, relying on Commonwealth v. Lynn and construing the pre-2007 statute to encompass supervisory liability through subordinates; a dissent expressed due process concerns about notice of statute-of-limitations tolling. Spanier’s allowance of appeal to the Pennsylvania Supreme Court was denied.
Spanier filed a federal habeas petition under 28 U.S.C. § 2254 claiming violations of the Ex Post Facto and Due Process Clauses from retroactive application of the 2007 amendment, improper jury instructions based on the 2007 language, and lack of notice that the Commonwealth would invoke a limitations tolling exception.
The magistrate judge found Spanier’s claims exhausted, concluded the state courts’ post-hoc expansion (via Lynn and subsequent application) of the 1995 statute to reach employer/supervisor-of-supervisor conduct was unforeseeable and violative of Bouie/Due Process, that the 2007-based jury instruction was not harmless, but denied Spanier relief on the statute-of-limitations/notice claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Retroactive application of 2007 § 4304 to 2001 conduct (Ex Post Facto / Due Process)	Spanier: 2007 amendment criminalized conduct that was not crime in 2001; retroactive application violates Ex Post Facto and fair‑warning Due Process principles.	Respondents: Pennsylvania courts long interpreted 1995 § 4304 to cover supervisory liability (Lynn); 2007 merely clarified, so no unconstitutional retroactivity.	Court: State courts’ post‑hoc expansion to subsume 2007 language was unforeseeable and violated Due Process (Bouie); retroactive application unconstitutional.
Jury instruction using 2007 statutory language	Spanier: Jury was instructed on an element not in force in 2001 (employer/supervisor-of-supervisor), creating reasonable likelihood jury convicted on conduct that was not criminal then.	Respondents: Instruction correct under state law (Lynn); habeas review cannot overturn state-law instruction unless constitutional error and prejudice shown.	Court: Instruction created reasonable likelihood jury convicted based on non‑criminal conduct; error not harmless — Due Process violation.
Notice of reliance on statute‑of‑limitations tolling (§ 5552(c)(3))	Spanier: Commonwealth failed to give notice it would invoke a different tolling exception after trial, prejudicing his defense and violating Due Process.	Respondents: State courts held facts and pleadings gave constructive notice; state‑law rulings binding.	Court: Denied relief — state courts’ reliance on tolling exception was not an unreasonable application of federal law and did not rise to constitutional unfairness.
Exhaustion / Procedural default of federal claims	Spanier: He fairly presented federal Due Process and Ex Post Facto claims to state courts.	Respondents: Some claims framed as state‑law only; thus procedurally defaulted.	Court: Found claims fairly presented and exhausted.

Key Cases Cited

Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015) (state court construing pre‑2007 § 4304 to cover supervisory liability through subordinates)
Bouie v. City of Columbia, 378 U.S. 347 (1964) (unforeseeable judicial enlargement of criminal statute, applied retroactively, violates Due Process)
Marks v. United States, 430 U.S. 188 (1977) (Due Process bars retrospective application of new standards that impose criminal liability not present at time of conduct)
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (retroactive statutes impermissible when they attach new legal consequences to completed events)
Peugh v. United States, 569 U.S. 530 (2013) (Ex Post Facto Clause safeguards fair warning about criminal liability and punishment)
Weaver v. Graham, 450 U.S. 24 (1981) (Ex Post Facto prohibits laws that make previously innocent acts criminal or increase punishment)
United States v. Marcus, 560 U.S. 258 (2010) (jury instruction errors that risk conviction for noncriminalized conduct must be addressed; prejudice requires individual showing)
Waddington v. Sarausad, 555 U.S. 179 (2009) (habeas claimant bears heavy burden to show state‑law jury instruction created constitutional error)
In re Winship, 397 U.S. 358 (1970) (Due Process requires proof beyond reasonable doubt of every element of offense)
Helton v. Fauver, 930 F.2d 1040 (3d Cir. 1991) (federal habeas courts bound by state courts’ statutory construction but must independently assess constitutional implications)