holding that parole board members performing a quasi-judicial function are immune from damages liability under 42 U.S.C. § 1983 .
How later courts described this case
- holding that parole board members performing a quasi-judicial function are immune from damages liability under 42 U.S.C. § 1983 .
- deciding pre-Butz that members of parole board were entitled to quasi-judicial immunity even though prisoners did not have rights to call or cross-examine witnesses at parole hearings
- defining the minimum due process requirements that parole proceedings must satisfy
- finding inmates have a limited liberty interest in parole entitling them to a statement of reasons for denial of parole
Written by the judges who cited it.
The opinion
FIELD, Senior Circuit Judge,
concurring and dissenting:
In drawing heavily upon Wolff and Mor-rissey to reach the conclusion that the minimum requirements of procedural due process apply to parole release proceedings, Judge Butzner’s opinion unquestionably accords with the majority of the courts which have had occasion to consider this question. 1 Whether the prescience of these decisions will ultimately prove to be valid is problematical for, as Judge Friendly has noted, “[t]he past observations of the Court have pointed in both directions.” 2 However, despite the fact that the Court has not yet spoken definitively on the question, I am not disposed to quarrel with Judge Butz-ner’s well articulated conclusion on this point, especially in view of the array of decisions which support it.
My point of departure with my brothers is that they have gone much too far in their determination of the “procedural safeguards” to be accorded a prisoner and which they find to be constitutionally mandated. If due process applies to parole release proceedings, assuredly the requirements are less than those incident to parole revocation. This seems reasonably clear *799 from the reference in Morrissey 3 to Judge Kaufman’s observation that:
“It is not sophistic to attach greater importance to a person’s justifiable reliance in maintaining his conditional freedom so long as he abides by the conditions of his release, than to his mere anticipation or hope of freedom.”
United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079, 1086 (2 Cir. 1971).
The vast difference between a parole release determination and a parole revocation proceeding was well stated in Wiley v. United States Board of Parole, 380 F.Supp. 1194, 1200 (M.D.Pa.1974):
“Unlike a parole release decision, a necessary precondition to a parolee’s reincar-ceration is a finding that he has violated a condition of his parole. The parolee’s loss of his conditional freedom turns in large part on a retrospective determination of a specific factual question. In contrast, the parole release decision, as emphasized above, is a prognostic determination with respect to one’s suitability for parole and is based on a complex of tangible and intangible factors and involves the discretionary application of knowledge derived from such fields as psychology, criminology, sociology and penology. While the parole revocation proceeding basically is concerned with making a factual determination with respect to parole violation, parole decision-making centers on making a diagnostic and predictive determination with respect to whether the rehabilitation of the prisoner and the welfare of society generally would be best served by granting the inmate conditional freedom rather than by his physical confinement.”
In view of the limited “liberty interest” of a parole aspirant and the complex elements involved in a parole release determination, it occurs to me that constitutional due process is satisfied when the prisoner is furnished a statement of the reasons for denial of parole, and I would require nothing further. Such a statement will ordinarily disclose whether the parole authorities acted upon erroneous information and whether their action was arbitrary or capricious. To require the publication of specific and detailed guidelines would, in my opinion, destroy the flexibility of discretion necessarily inherent in a parole release determination, and with the exception of Childs v. United States Board of Parole, 167 U.S. App.D.C. 268, 511 F.2d 1270 (1974), none of the cases cited in the majority opinion found such guidelines to be constitutionally required. 4
Even more objectionable and unwarranted is the conclusion of the majority that a prisoner is entitled, as a matter of course, to have access to his file. The burden cast upon the State by such a requirement clearly outweighs any interest of the prisoner, and I have been unable to find any appellate ease holding that the constitution mandates such a disclosure. In Billiteri v. United States Bd. of Parole, 541 F.2d 938 , 945 (2 Cir. 1976), the court bluntly stated:
“The petitioner, therefore, has no such constitutional right to the information in the Parole Board’s file, including but not limited to the presentence report and the examiner panel’s report.”
This language was quoted and emphasized by Judge Friendly in Williams v. Ward, 556 F.2d 1143, 1160 (2 Cir. 1977), where the court concluded that the prisoner was not entitled to such access.
The burden placed upon the state by the majority is not ameliorated to any degree *800 by the suggestion that the files may be stripped of certain confidential or diagnostic material. As the majority notes, the state would be required to review some 4,000 files annually to determine what information should properly be excluded, and I perceive no constitutional reason to place such a burden upon the personnel and resources of the state Parole Board. On this point, I again refer to Williams v. Ward, supra, 556 F.2d at 1160 :
“We do not wish to prejudge the issues left for examination in the Holup remand, and observe only that the 5850 parole applications processed each year in New York State, * * *, suggests the burden of redacting files for all parole applicants can be a considerable one. Generally, a Haymes statement of reasons and facts will suffice to tell whether the parole board has relied on an impermissible reason or a reason for which there is no support in the record; what an inmate might find most often upon inspection of institutional files is that there is ‘some evidence’ to support the board’s reasons for denial, but evidence which he believes is outweighed by other facts. One hesitates, to echo Mr. Justice White, to place the federal courts fully astride the discretionary decisions of state parole boards * * *(Emphasis in original). (Citations omitted).
Finally, I see no valid reason to require that the Board hear witnesses to testify on behalf of a prisoner. Again, no other court of appeals has discerned such a constitutional requirement, and like the access to files, it places an undue burden upon the state and tends to cast the proceeding in an adversary posture. If the Board desires to call a witness on some point germane to its deliberations it is, of course, free to do so; but the election should be the prerogative of the Board and not the prisoner.
We are not concerned here with whether the “procedural safeguards” advocated by the majority are desirable, but whether they are mandated by the Fourteenth Amendment. I think they are not. “The temptation to hold that all seemingly good ideas are constitutionally compelled is one which must be avoided, especially in an area such as parole, where the Board is entrusted with extremely broad discretion and a grave responsibility.” La Bonte v. Gates, 406 F.Supp. 1227, 1232 (D.Conn.1976). I would confine the “safeguards” to a statement of reasons for denial of release.
PER CURIAM:
Upon the vote of a majority of the active judges, these cases have been reconsidered en banc upon the records and briefs originally filed. While we are in accord with the conclusion of the panel that the minimum requirements of procedural due process apply to parole release proceedings, we disagree with the determination of our esteemed brothers of the panel majority with respect to the procedural safeguards which they find to be constitutionally mandated.
In our opinion the Constitution imposes upon the parole authorities the requirement that within the bounds of reasonableness they should deal openly and fairly with each prisoner who is being considered for parole, but with full discretion to maintain an appropriate balance between the rights of the prisoner and the legitimate concerns of the state. In this nascent area the parole authorities should be allowed a wide range for experimentation and the exercise of discretion, and the courts should tread cautiously in subjecting them to specific and inflexible constitutional standards.
The record discloses that the Virginia parole authorities have discharged their constitutional obligation. In adopting written guidelines for the granting of parole the Board has exhibited commendable concern for the rights of the prisoners and we find it unnecessary to presently consider whether its efforts along this line are constitutionally required. Similarly, we discern no constitutional requirement that each prisoner receive a personal hearing, have access to his files, or be entitled to call witnesses in his behalf to appear before the Board. These are all matters which are better left to the discretion of the parole authorities.
*801 We agree with the panel dissent that at the present time the only explicit constitutional requisite is that the Board furnish to the prisoner a statement of its reasons for denial of parole. In Franklin, the district court refused to grant an injunction to require the Board to furnish the prisoner a statement of its reasons for denial of parole because it found the Board already was doing just that, and that the procedures used were without fault. We are of opinion this ruling of the district court was correct, and its judgment in this respect is affirmed. Accordingly, the judgment of the district court in Franklin is affirmed in part and reversed in part, and the judgment of the district court in Williams is reversed, and the cases are remanded for further proceedings consistent herewith. Since the prisoners have not substantially prevailed in this litigation, we see no basis for the award of attorneys fees and costs under 42 U.S.C.A. § 1988 .
AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.
Judge WINTER and Judge BUTZNER dissent and adhere to the views expressed by Judge BUTZNER in the majority opinion for the panel.
. This is demonstrated by the collation of decisions in footnote 21 of the majority opinion.
. Williams v. Ward, 556 F.2d 1143, 1157 (2 Cir. 1977). The opinion refers to the observation of Mr. Justice White in Meachum v. Fano, 427 U.S. 215 , 229 fn. 8, 95 S.Ct. 2532 , 49 L.Ed.2d 451 (1976): “The granting of parole has itself not yet been deemed a function to which due process requirements are applicable.” Id., at 1158.
. ' 408 U.S. 471, 482, fn. 8 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 .
, In Childs , the government did not appeal from the district court’s decision that such guidelines were required, and much that was stated in Childs must now be viewed in the light of the enactment of the Parole Commission and Reorganization Act, Pub.L. No. 94-233, which was signed into law on March 15, 1976, 18 U.S.C. §§ 4201-4218 .