Anderson v. Alexander

*448 ROSSMAN, J.,

specially concurring.

The act under scrutiny contains no express requirement that the Board of Parole and Probation (§ 26-2301, O. C. L. A.) must precede an order of revocation with notice and a hearing. The petitioner argues that the act contains an implied requirement for notice and a hearing, but I think it is clear that the act contains no implication of such a nature. To the contrary, it provides that paroles may be revoked summarily; that is, without notice and a hearing.

The crucial part of the act is § 26-2308, which says:

“* * * Whenever the board finds that a prisoner has violated the conditions of his conditional pardon, parole or probation, or whenever the board has been advised in writing by the governor that the said prisoner has violated the terms of unconditional pardon, the written order of the board shall be sufficient warrant for any law enforcement officer to take into custody such person, * * *. Prom and after the cancellation or revocation of the parole, probation or conditional pardon of any convicted person, and until his return to custody, he shall be considered a fugitive from justice.”

Thus, the act plainly contemplates that the revocation may be summary.

It is not difficult to discover the reasons which prompted the legislature to provide for summary revocation of paroles. If the board, upon noticing that one of its parolees was about to become a recidivist, had to send him notice, followed later by a hearing, it might find that the horse would be stolen before the stable door could be locked. The situation calls for prompt action, and the act therefore provides for summary revocation. No statute confers upon the *449 board authority to issue a summons, a warrant of arrest or any other process whereby a parolee could be taken into custody pending the outcome of a hearing. The act enables the board to issue only one form of writ and that is the warrant which is issued after the revocation of a parole. It terms the erstwhile parolee “a fugitive from justice.”

Since the act provides for summary revocation of paroles, it is not surprising to find that the act does not invest the Board of Parole and Probation with power to conduct hearings. Thus, the board has no power to issue subpoenas either upon its own volition or upon the request of any person. Nor does the act enable any member of the board to swear witnesses. There is nothing in the act which expressly requires the board to enter findings of fact of the kind made by judicial bodies. Nor is there any provision which authorizes an appeal from an order entered by the board. The absence of provisions of the kind just mentioned shows that the legislature did not intend that the board should conduct hearings. Its procedure is informal. It obtains the information upon which it acts through inspection of its files and informal conferences — not through adversary proceedings. It is an administrative, not a judicial, body.

The character of the work performed by the board shows that its procedure must be patterned upon that of administrative, and not judicial, bodies. The board employs a director of parole and probation (§ 26-2302, O.C.L.A.) and has a staff of probation officers and assistants (§ 26-2312, O.C.L.A.). Prom time to time applicants for parole appear before the board and are interviewed. Prom those informal conferences the members of the board receive impressions of those *450 who later become parolees. After an inmate of the penitentiary has been paroled he renders to the board regularly reports about himself. The information about him which thus accumulates in the board’s files is augmented by accounts concerning him which are submitted by the member of the board’s probation staff assigned to the parolee. In determining whether a parole should be revoked, the board undoubtedly takes into consideration impressions of the suspected parolee that it gained in the manner just indicated. It analyzes symptoms and character rather than weighs evidence. It is required to determine a non-legal problem; that is, whether the parolee is about to become a recusant. A prudent performance of a board member’s duty may call for intuition rather than for a knowledge of the rules of procedure, and for training in the social sciences rather than a course of study in a law school. The Board of Parole and Probation is by no means the only one in the state which has the power to grant paroles and revoke them. For example, § 127-217, O.C.L.A., makes provision whereby the superintendent of the State Hospital for the insane may grant a parole to an inmate of that institution. It also authorizes the revocation of paroles. Section 127-606, O.C.L.A., empowers the State Board of Control to grant paroles to youths committed to the State Training School and to revoke them. The same board is authorized by § 127-503, O.C.L.A., to grant paroles to inmates of the Industrial School for Girls, and § 127-505 requires that board “to make and publish rules and regulations governing the paroling” of inmates of that school. No one has ever suggested that the superintendent of the State Hospital and the Board of Control must conduct hearings before terminating a parole. *451 It has been commonly assumed that those agencies act informally and that their revocations are summary. Obviously, if the revocation of a parole had to be postponed until a parolee, whose conduct threatens a repetition of his former crimes, could be served with a notice and afforded a hearing, the public interest would suffer and parole would achieve a degree of disrepute which would lead to the repeal of the statutes which have just been mentioned.

The following is quoted from People ex rel. Lodes v. Department of Health, 189 N. Y. 187 , 82 N. E. 187 :

“* * * The statute, as we have seen, has given the board of health no power to hear, try or determine cases. Its duties are therefore not judicial, but executive or administrative, and at times must be exercised summarily, as was said in Metropolitan Board of Health v. Heister, 37 N. Y. 661 : ‘ The power to be exercised by this board upon the subjects in question is not judicial in its character. It falls more properly under the head of an administrative duty.’ * * *

“The powers of the members of the board of health being administrative merely, they can issue or revoke permits to sell milk in the exercise of their best judgment, upon or without notice, based upon such information as they may obtain through their own agencies, and their action is not subject to review either by appeal or by certiorari.”

No inmate of a penal institution has a constitutional right to the enactment of a statute whereby he may secure a parole. Neal v. Himes, 180 Ky. 714 ; 203 S.W. 518 . Nor does anyone have a constitutional right to the enactment of a parole statute whereby paroles can be terminated only in a manner which meets with his approval.

*452 Joseph P. Meier, of Salem, for the petition.

George Neuner, Attorney General, and Cecil H. Quesseth, Assistant Attorney General, contra.

When a prisoner is granted a parole under the statute before us, the privileges which he thereby secures are subject to summary termination; that is, they run for no fixed term whatever. They do not even extend to a day for a hearing, for the act under which the parole privileges were granted requires no hearing prior to revocation. In short, a parolee has no vested rights in the privileges afforded by his parole. The very statute under which the parole was granted authorizes its summary destruction.

No official is ever permitted to act arbitrarily or in violation of the law which governs his office. The extraordinary remedies, such as mandamus and habeas corpus, always afford protection against the unlawful administration of the law. Accordingly, if the board should promulgate rules and regulations governing the conduct of parolees which are not authorized by §§ 26-2305 and 26-2308, O.C.L.A., or if it should revoke a parole for some reason not countenanced by § 26-2308, its action would be unlawful and could be challenged in the courts.

I concur in the result of the majority opinion, but submit the above as a statement of my reasons.