George D. Van Curen v. A. R. Jago and William J. Brown

PHILLIPS, Senior Circuit Judge

(dissenting).

I respectfully dissent. I agree that the better practice would have been for the Ohio Adult Parole Authority to have conducted a hearing before rescinding Van Curen’s contemplated parole. See Morrissey v. Brewer, 408 U.S. 471, 484 , 92 S.Ct. 2593, 2601 , 33 L.Ed.2d 484 (1972). However, I do not agree that the Fourteenth Amendment required such a hearing under the facts of this case.

In Bishop v. Wood, 426 U.S. 341, 344 , 96 S.Ct. 2074, 2077 , 48 L.Ed.2d 684 (1976), the Supreme Court said: “[T]he sufficiency of a claim of entitlement must be decided by reference to state law.” Cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12 , 99 S.Ct. 2100, 2106 , 60 L.Ed.2d 668 (1979).

Under Ohio law, Van Curen had “no claim of entitlement.” The State Adult Parole Authority had the right, at any time *418 before Van Curen was released, to rescind its previous action granting parole.

In State ex rel. Newman v. Lowery, 157 Ohio St. 463 , 464, 105 N.E.2d 643 (1952), cert. denied, 344 U.S. 881 , 73 S.Ct. 176 , 97 L.Ed. 682 (1952), the Supreme Court of Ohio said: “The question of parole of prisoners being in the discretion of the Pardon and Parole Commission, that commission had authority to rescind its order of March 9, 1950, granting a parole effective on or after a future date.”

In Morrissey v. Brewer, supra, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484 (1972), which involved the revocation of parole after the release of the prisoner, and not, as in the present case, the rescission of an action by parole authorities before release, the Supreme Court said: “The question is ... whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” The Court examined the nature of parole revocation and found that:

The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked. (Footnotes omitted.) 408 U.S. at 482 , 92 S.Ct. at 2600 .

The emphasis of the foregoing quotation is upon the rights of the prisoner to a due process hearing before revocation of his parole after his release. Because of the difference between the nature of parole revocation and parole recission, I do not agree with the majority opinion that Van Curen had a liberty interest within the meaning of the fourteenth amendment.

In Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 12 , 99 S.Ct. at 2106 , the Supreme Court said:

[W]e emphasis that this [Nebraska] statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.

The Ohio statute, quoted in footnote 1 of the majority opinion, is not the same as the Nebraska statute applied in Greenholtz . As interpreted by the Supreme Court of Ohio, Van Curen did not, in my opinion, have “a legitimate claim of entitlement” to parole. See Board of Regents v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972).

Therefore, I would affirm the judgment of the district court.