State ex rel. Bailey v. Parole Bd. (Slip Opinions)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Bailey v. Parole Bd., Slip Opinion No. 2017-Ohio-9202.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2017-OHIO-9202

THE STATE EX REL. BAILEY ET AL., APPELLANTS, v. OHIO PAROLE BOARD,

APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Bailey v. Parole Bd., Slip Opinion No.

2017-Ohio-9202.]

Mandamus—Inmates alleging that parole board has unwritten policy of denying

parole to “old law” offenders fail to state a claim upon which relief can be

granted—Judgment of court of appeals granting parole board’s motion to

dismiss affirmed.

(No. 2017-0090—Submitted September 26, 2017—Decided December 27, 2017.)

APPEAL from the Court of Appeals for Franklin County, No. 15AP-887,

2016-Ohio-8264.

________________

Per Curiam.

{¶ 1} Appellants, Michael Bailey, Steven Schmitz, William Morehouse,

Benjamin Hudach, and Jeffrey Holland (“the inmates”), appeal the judgment of the

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Tenth District Court of Appeals dismissing their complaint against the Ohio Parole

Board (“the board”) seeking a writ of mandamus. We affirm the court of appeals’

judgment.

Background

{¶ 2} On September 23, 2015, the inmates filed in the court of appeals an

original action against the board, seeking a writ of mandamus. At the time, all five

were incarcerated in state detention facilities and were “old law” offenders. An

old-law offender is an inmate sentenced to an indeterminate prison term for a crime

committed prior the enactment of the July 1, 1996, sentencing reforms. They

alleged that the board has an unwritten policy of denying parole to old-law

offenders. They based their allegation on statements such as the following:

 On April 16, 2012, board spokeswoman JoEllen Smith was quoted in the

Lancaster Gazette as saying, “[A]fter 16 years all the inmates likely to be

paroled have been released already, leaving behind 3,200 of the State’s

worst inmates to cycle through the process again and again.”

 On April 30, 2013, the Columbus Dispatch quoted then-board chairwoman

Cynthia Mausser as saying, “Because we’re 16 years from Senate Bill 2

most of the people suitable for parole have already been released.”

They also allege that Parole Board Member Andre Imbrogno and Victims

Representative Kathleen Kovach have made remarks indicative of the same

mindset as recently as October 2014.

{¶ 3} What this adds up to, according to relators, is that in the eyes of the

parole board, hardly any of the remaining old-law offenders will ever be eligible

for parole because of the seriousness of their offenses, and so the board does not

meaningfully consider their parole applications. In their prayer for relief, the

inmates requested a writ of mandamus compelling the board to conduct new parole

hearings “on every offender currently incarcerated who has had a meaningless

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parole hearing, which is identified as any parole hearing held after January 1,

2010.”

{¶ 4} The complaint also alleged that the board wastes more than $119

million a year by failing to give inmates meaningful parole consideration. The

inmates requested (1) a declaration that the five members of the board are in

violation of R.C. 124.34(A), which provides, in relevant part, that the tenure of

every employee in the classified service of the state “shall be during good behavior

and efficient service,” (2) an order compelling the director of the Ohio Department

of Rehabilitation and Correction (“ODRC”), Gary Mohr, to take administrative

action against the board members, and (3) a finding that the board is guilty of public

corruption, with appropriate relief ordered.

{¶ 5} The board filed a motion to dismiss. On February 26, 2016, a

magistrate recommended dismissing the complaint for failure to state a claim:

Even if relator’s [sic] could prove that the three employees

or former employees of ODRC made the statements as alleged in the

complaint, that would not prove that parole hearings have become

meaningless specifically as to each relator or that the parole board

does not intend to give meaningful consideration of parole.

Moreover, prior denials of parole do not equate to a failure to give

meaningful consideration of parole.

10th Dist. Franklin No. 15AP-887, 2016-Ohio-8264, ¶ 67.

{¶ 6} The inmates filed timely objections to the magistrate’s decision. The

Tenth District Court of Appeals overruled the objections and, adopting the

magistrate’s recommendation, dismissed the complaint. Id. at ¶ 11.

{¶ 7} The inmates timely appealed.

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Analysis

{¶ 8} To be entitled to a writ of mandamus, a party must establish, by clear

and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear

legal duty on the part of the respondent to provide it, and (3) the lack of an adequate

remedy in the ordinary course of the law. State ex rel. Cleveland Right to Life v.

State Controlling Bd., 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2. The

court of appeals correctly dismissed the complaint, because the inmates failed to

allege a clear legal right or duty on the part of the board.

{¶ 9} An inmate has no constitutional right to parole release before the

expiration of his sentence. Greenholtz v. Inmates of the Nebraska Penal & Corr.

Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Nor does Ohio law

give an inmate any right or entitlement to parole prior to the expiration of a valid

sentence. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d

1128 (1994). The Ohio Adult Parole Authority has “wide-ranging discretion in

parole matters.” Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-

6719, 780 N.E.2d 548, ¶ 28.

{¶ 10} That said, the parole authority’s discretion is not unlimited. The

Revised Code creates an inherent expectation “that a criminal offender will receive

meaningful consideration for parole.” (Emphasis added.) Id. at ¶ 27. This principle

of “meaningful consideration” is violated, for example, when officials evaluate an

inmate’s parole eligibility based on an “offense category score” that does not

correspond to the actual offense(s) of which the inmate has been convicted. Id.

Likewise, an inmate is not afforded meaningful parole consideration if the parole

authority bases its decision on information in an inmate’s file that is substantively

incorrect. State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-

Ohio-4270, 24 N.E.3d 1132, ¶ 23.

{¶ 11} In the present case, the complaint alleges that old-law offenders do

not receive meaningful parole consideration, because with respect to every

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remaining old-law inmate, officials have already predetermined that the seriousness

of their offenses outweighs all other factors. The five inmates challenge the factual

accuracy of that alleged assumption in their specific cases, asserting that they are

not the worst, least rehabilitated offenders, compared to inmates who have been

released on parole.

{¶ 12} The court of appeals correctly determined that these allegations do

not state a claim under Layne and Keith. The inmates here committed serious

crimes: aggravated murder in the course of a robbery (Bailey), first-degree murder

(Morehouse), complicity to commit aggravated murder (Hudach), attempted

aggravated murder (Holland), and two counts involving a minor in nudity material

(Schmitz). In denying parole for these offenders, officials have not held them to

account for offenses more serious than the ones they actually committed (as in

Layne), nor have they based their decision on factually inaccurate information (as

in Keith). Rather, what they have done, according to the complaint, is overvalue

the seriousness of the crimes, as compared to whatever evidence of rehabilitation

the inmates have presented. But that weighing process is precisely the point at

which the parole board exercises its discretion. So long as each assessment rests

on correct facts and falls within permissible guidelines, an inmate has no basis to

challenge the decision.

{¶ 13} The remaining allegations in the complaint also fail to state a claim.

The request for a declaration that the parole board and its members are guilty of

public corruption fails because a court of appeals does not have original jurisdiction

to grant declaratory judgments. State ex rel. Dynamic Industries, Inc. v. Cincinnati,

147 Ohio St.3d 422, 2016-Ohio-7663, 66 N.E.3d 734, ¶ 9.

{¶ 14} Nor can the inmates state a cause of action for sanctions against the

board members for their alleged “public corruption.” The complaint accuses the

board members of committing perjury and falsification, in violation of R.C.

2921.11(A) and 2921.13(A). But there is no private right of action to enforce these

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criminal statutes. See George v. State, 10th Dist. Franklin Nos. 10AP-4 and 10AP-

97, 2010-Ohio-5262, ¶ 32 (“In the absence of a specific provision to the contrary,

criminal statutes generally do not create a private cause of action, but give rise only

to a right of prosecution by the state”).

{¶ 15} Alternatively, the complaint accuses the board members of

“misspending and inefficiency.” The closest cognizable claim these allegations

resemble is “dereliction of duty.” Ohio has codified dereliction of duty in a criminal

statute, R.C. 2921.44, but does not recognize a private cause of action for

dereliction. See Boddie v. Landers, 10th Dist. Franklin No. 15AP-962, 2016-Ohio-

1410, ¶ 17; White v. Stafford, 8th Dist. Cuyahoga No. 61838, 1993 WL 7926, *2.

{¶ 16} Finally, the inmates seek a writ of mandamus to compel ODRC

Director Mohr to take administrative action against the board members. Even if

Director Mohr were a party to this action, the inmates would have failed to state a

claim, because under the department’s regulations, Director Mohr is not the

appointing authority responsible for employees of the adult parole authority; rather,

that responsibility is vested in the deputy director of the division of parole and

community services. Ohio Adm.Code 5120-7-01(A)(1) and (4). Thus, Director

Mohr has no clear legal duty to take administrative action.

{¶ 17} Moreover, even if the inmates had named the proper respondent, the

claim would still fail. R.C. 124.34(A), which permits the termination of classified

state employees for cause, does not create a duty on the part of state officials,

enforceable in mandamus, to remove employees accused of misfeasance. See State

ex rel. Talwar v. State Med. Bd., 104 Ohio St.3d 290, 2004-Ohio-6410, 819 N.E.2d

654, ¶ 12 (physician could not compel state medical board to take disciplinary

action against a second physician).

{¶ 18} Because the court of appeals correctly determined that the inmates

have not stated a valid claim for a writ of mandamus, we affirm its judgment

dismissing their complaint.

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Judgment affirmed.

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,

and DEWINE, JJ., concur.

_________________

Michael K. Bailey, pro se.

Steven M. Schmitz, pro se.

William E. Morehouse, pro se.

Benjamin D. Hudach, pro se.

Jeffrey S. Holland, pro se.

Michael DeWine, Attorney General, and Zachary R. Huffman, Assistant

Attorney General, for appellee.

_________________

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