granting the Board’s motion to quash, “hold[ing] that the Board’s refusal to grant a parole [was] not reviewable by this Court,” as it was “wholly a matter of the Board’s discretion,” and, therefore “simply not subject to judicial review”
How later courts described this case
- granting the Board’s motion to quash, “hold[ing] that the Board’s refusal to grant a parole [was] not reviewable by this Court,” as it was “wholly a matter of the Board’s discretion,” and, therefore “simply not subject to judicial review”
- holding that the action of denying parole is not an adjudication subject to judicial review
- carrying Reider to its logical extreme means that the Board could refuse to grant parole based on race, sex or other improper classification
- “The Board’s recommitment order revoking his parole and mandating that he serve back-time stripped him of his status as a parolee whereby he lost his constitutionally-protected liberty interest. The tentative reparóle date set by the Board is the administrative equivalent of a recomputed minimum term and only sets a new parole eligibility date, it does not vest any right to a grant of parole upon reaching that date.”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Barry:
Today a majority of this Court holds that a decision of the Board of Probation and Parole, determining that petitioner should not be granted parole, is not reviewable by the courts of this Commonwealth. Carrying this holding to its logical extreme, the Board could refuse to grant parole solely on the basis of a prisoners race, sex or other classification which would violate that prisoners constitutional rights and yet leave that individual without any recourse from the courts. I, therefore, must vigorously dissent.
In LaCamera v. Pennsylvania Board of Probation and Parole, 13 Pa. Commonwealth Ct. 85 , 317 A.2d 925 (1974), this Court, with Judge (now President Judge) Crumlish dissenting, held that a decision by the Board refusing to grant parole to a prisoner was beyond the pale of judicial review. In cases which both precede and postdate the LaCamera decision, we have held that a prisoner having been denied parole could challenge that decision in the courts on the limited basis that the Board (1) failed to exercise any discretion or (2) abused its discretion or (3) violated the prisoners constitutional rights. Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 512 , 492 A.2d 1182 (1985); Counts v. Pennsylvania Board of Probation and Parole; 87 Pa. Commonwealth Ct. 277, 487 A.2d 450 (1985); Kastner v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 157, 467 A.2d 89 (1983); Banks v. Pennsylvania Board of Probation and Parole, 4 Pa. Commonwealth Ct. 197 (1971). Despite *345 these numerous cases we have decided in the twelve years since our decision in LaCamera , the majority chooses to overrule those cases which are inconsistent with LaCamera . For the following reasons, I do not believe that the reasoning employed can withstand critical analysis.
The opinion in LaCamera makes no mention of the issues attempted to be raised by the prisoner in his petition for review to this Court. It may very well be that allegations of error in that case were outside the limited scope of review first enunciated in Banks . Were this the case, it would explain the LaCamera courts failure to mention this limited scope of judicial review.
The majority also relies on the definition of “adjudication” in the Administrative Agency Law which states that “[t]he term does not include any order . . . which involves . . . parole. . . .” 2 Pa. C. S. §101. In Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549 , 421 A.2d 1021 (1980), cert. denied, 450 U.S. 1050 (1981), the Supreme Court did not permit this definition of adjudication to deny appellate review in the parole revocation context. The Court states as follows:
Section 9 of Article 5 of our Constitution states:
§9. Right of appeal
There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.
Since the Board of Probation and Parole is an administrative agency of the Commonwealth, the Constitution mandates that a person dissatisfied *346 with its decisions must have the right to appeal that decision ‘to a court of record or to an appellate court.’
Id. at 556, 421 A.2d 1024 . I am aware that authority exists for the proposition that Article 5, §9 is not self-executing, Manheim Township School District v. State Board of Education, 1 Pa. Commonwealth Ct. 627 , 276 A.2d 561 (1971). Bronson seems to hold otherwise. Certainly the spirit of the Constitution would indicate that the right of appeal should be reverenced.
The majority attempts to distinguish Bronson from the present case by positing that “there is a crucial distinction between the denial of parole and the revocation of parole that justifies the difference: in a parole revocation hearing, the parolee’s liberty is at stake but in the matter of parole release, the inmate, of course, is already confined.” 100 Pa. Commonwealth Ct. at 341, 514 A.2d at 971. In my view, this distinction is no more than legerdemain. Whether one’s parole is revoked illegally or one is refused parole in violation of one’s constitutional rights, the liberty interest involved is the same.
In the same context, the majority, in footnote 3 of its opinion, states that under no set of facts except where a prisoner’s maximum sentence has expired is release mandated. I again must disagree. Assume for the moment that the only reason one is denied parole is because of his or her race, religion, gender or ethnic background when all prisoners of a different persuasion are granted parole. Assume further that the prisoner denied parole is capable of proving this discrimination and violation of his constitutional rights as has been done in many criminal and. civil cases in other areas. To hold that release should not be mandated simply ignores a basic principle of constitutional law.
It is true that none of the decisions speaking to the limited scope of review in decisions denying parole have *347 granted a prisoner relief. To use this fact to deny one the opportunity to prove such violations cannot be countenanced. As petitioner here has alleged that the Board denied him parole by abusing its discretion and violating his constitutional rights, I believe the matter must be remanded to the Board to give the petitioner an opportunity to prove his allegations and complete a record which can permit us to exercise our duty of appellate review.
I cannot quarrel with the proposition that the Board has very broad discretion in these matters. At the same time, such discretion is not absolute. The Board must be accountable to a certain degree for its actions and for that reason, I dissent.