# King v. Commonwealth, Pennsylvania Board of Probation & Parole > Commonwealth Court of Pennsylvania · December 2, 1987 · 111 Pa. Commw. 392 URL: https://www.frixlaw.com/law-library/cases/9648897 ## Case - **Full name:** MacK King, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole and Thomas Fulcomer, Respondents - **Court:** Commonwealth Court of Pennsylvania - **Decided:** December 2, 1987 - **Citations:** 111 Pa. Commw. 392; 534 A.2d 150; 1987 Pa. Commw. LEXIS 2666 - **Precedential status:** Published - **Opinion:** Concurring in part by Powell - **Judges:** Powell, MacPiiail, Barry, Narick - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648897 ## How later opinions describe it (automated extraction) - noting clear distinction between parole statutes which provide that the parole board “shall” release prisoners on parole when they meet the eligibility requirements, e.g., Nebraska’s and Montana’s parole statutes, and Pennsylvania’s parole statute which merely authorizes, but … ## Opinion text Mr. Justice Powell, concurring in part and dissenting in part, said: I agree with the Court that the respondents have a right under the Fourteenth Amendment to due process in the consideration of their release on parole. I do not believe, however, that the applicability of the Due Process Clause to parole-release determinations depends upon the particular wording of the statute governing the deliberations of the parole board, or that the limit *396 ed notice of the final hearing currently given by the State is consistent with the requirements of due process. 442 U.S. at 18. Mr. Justice Marshall dissented in part in an opinion in which Mr. Justice Brennan and Mr. Justice Stevens joined. His opinion in part states: My disagreement with the Courts opinion extends to both its analysis of respondents’ liberty interest and its delineation of the procedures constitutionally required in parole release proceedings. Although it ultimately holds that the Nebraska statutes create a constitutionally protected ‘expectation of parole,’ the Court nonetheless rejects the argument that criminal offenders have such an interest whenever a State establishes the possibility of parole. This gratuitous commentary reflects a misapplication of our prior decisions and an unduly narrow view of the liberty protected by the Fourteenth Amendment. Since the Court chooses to address the issue, I must register my opinion that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the particular statutory language that implements the parole system. The Court further determines that the Nebraska Board of Parole already provides all the process that is constitutionally due. In my view, the Court departs from the analysis adopted in Morrissey v. Brewer, 408 U.S. 471 (1972), and Mathews v. Eldridge, 424 U.S. 319, 335 (1976), and disregards considerations that militate for greater procedural protection. To supplement existing procedures, I would require that the Pa *397 role Board give each inmate reasonable notice of hearing dates and the factors to be considered, as well as a written statement of reasons and the essential lacts underlying adverse decisions. 442 U.S. at 22. Recently, the Supreme Court again addressed the problems arising out of parole proceedings. In the case of Board of Pardons and Henry Burgess v. George Allen and Vale Jacobson, 55 U.S.L.W. 4799 (U.S. June 9, 1987), the Court held, in a five to four opinion, that the Montana statute at issue, which provided that a prisoner eligible for parole “shall” be released when there is a reasonable probability that no detriment will result to him or the community and specifies that parole shall be ordered for the best interest of society and when the state board of pardons believes that the prisoner is able and willing to assume the obligations or a law abiding citizen, creates under the Greenholtz standards a liberty interest in parole release. Justice Brennan pointed out that three members of the court in Greenholtz believed that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process regardless of the particular statutory language that implements the parole system. The Court affirmed the Court of Appeals which had held that the Montana statute was virtually indistinguishable in structure and language from the statute considered in Greenholtz. In a dissenting opinion by Justice O’Conner with whom the Chief Justice and Justice Scalia joined, the Court denied that under the Nevada statute there was any reasonable claim of entitlement to parole. Justice O’Conner characterized Greenholtz “as an aberration which should be reexamined and limited strictly to its facts.” 550 U.S. L.W. at 4803. *398 The relevant statute in this case, the Act of June 6, 1941, P.L. 861, §21, as amended, 61 P.S. 331.21 provides as follows: The Board is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment, whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interest of the Commonwealth will be injured thereby. A reading of the statute convinces us that it significantly differs from the Nebraska and Montana statutes addressed by the United States Supreme Court and warrants the conclusion that the appeal must be quashed. In accordance with the above, the petition for review in thife case is hereby quashed. Order Now, December 2, 1987, the petition for review filed by Mack King, from an order of the Pennsylvania Board of Probation and Parole, at Parole No. 5731-M, dated November 13, 1985, is hereby quashed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648897. Public record. Not legal advice.