Petitioners Reply Brief — Scott v. Kentucky Parole Bd.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 74-6438

Neesivew

OCT4 wry

Orricé Of THe CLERK

& COURT, U.S.

KENTUCKY PAROLE BOARD, et al.,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR PETITIONER

Of Counsel:

HOWARD LESNICK

3400 Chestnut Street

Philadelphia, Pennsylvania 19174

DAVID MURRELL

‘Deputy Kentucky Public Defender

625 Leawood Drive

Frankford, Kentucky 40601

ALVIN J. BRONSTEIN

National Prison Project of the

American Civil Liberties Union

Foundation

1345 Connecticut Avenue, N.W.

Suite 1031

Washington, D.C. 20036

DEAN HILL RIVKIN

Appalachian Research and

Defense Fund of Kentucky

Inc.

630 Maxwelton Court

Lexington, Kentucky 4050

ROBERT ALLEN SEDLER

Kentucky Civil Liberties

Union

Box 802

University Station

Lexington, Kentucky 4050

Counsel for Petitioners

d

TABLE OF CONTENTS

THE ELEMENTARY LIBERTY INTEREST IM-

PLICATED IN THE DECISION TO GRANT OR

DENY PAROLE QUALIFIES FOR PROTECTION

UNDER THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT... cccccccccscsessssesesss

A. UNDER THE PRACTICES OF THE EXISTING

SYSTEM, PRISONERS HAVE A LEGITIMATE

EXPECTATION OF RELEASE ON PAROLE

SUFFICIENT TO TRIGGER THE PROCEDURAL

PROTECTIONS OF THE DUE PROCESS CLAUSE.....

B. THAT PRISONERS DO NOT PRESENTLY EN-

JOY CONDITIONAL LIBERTY IS NO BAR

TO THE RECOGNITION OF DUE P ESS

RIGHTS IN THE PAROLE RE

1

1

1

a

A.

—

i

k PROCESS....-.- -

' RELEASE ON PAROLE OF THE NAMED

I LONER DOES NOT MOOT THIS ACTION. eeeeseoeee 10

DESPITE HIS RELEASE ON PAROLE,

THIS CAUSE 1S NOT MOOT FOR THE

NAMED PETITIONER, WHO MAINTAINS A

PRESENT INTEREST IN THE PAROLE

RELEASE PRACTICES OF THE PAROLE

BOARD..... cccveceensecesooscesedctesoosee SS

SINCE THE CONTROVERSY BETWEEN THE

PARTIES IS CAPABLE OF REPETITION,

YET EVADING REVIEW, THIS ACTION

IS NOT MOOT... cccscccccccccccccsscccerceelkd

UNDER THE STANDARDS ENUNCIATED IN

SOSNA V. IOWA, 419 U.S. 393 (1975)

AND GERSTEIN V. PUGH, 420 U.S. 103

(1975), THIS CASE -- A CLASS ACTION

—— IS NOT MOOT... cccscccccccesecccccseseselhS

UNDER THE SPECIAL CIRCUMSTANCES

PRESENTED IN THIS CASE, EFFECTIVE

JUDICIAL ADMINISTRATION AND FIDELITY

TO THE INTENT OF FED. R. CIV. P. 23

COUNSEL THAT PETITIONERS‘ MOTION

FOR LEAVE TO SUBSTITUE NAMED PET-

ITIONERS, OR, IN THE ALTERNATIVE, TO

INTERVENE BE GRANTED......ceeceecesseceseel8

Ill. THIS ACTION, WHICH DOES NOT SEEK TO AFFECT

THE DURATION OF THE PETITIONERS’ CON-

FINEMENT BUT SEEKS ONLY PROSPECTIVE IN-

JUNCTIVE RELIEF, IS PROPERLY COGNIZABLE

WR 42 U.B.C. GABOR. cc ccihoccwcesceseaccenee

{THE EXHAUSTION REQUIREMENT OF 28 U.S.C.

§2254(b), AS CONSTRUED IN PREISER v. +

RODRIGUEZ, DOES NOT EXTEND TO A SUIT

SEEKING ONLY TO AFFECT THE PROCEDURE

OF FUTURE PAROL. SEES... .ncicver exe tanieee

SECTION 2454(b), EVEN IF IT WERE

APPLICABLE, WOULD NOT REQUIRE EX~-

HAUSTION IN THIS CASE, BECAUSE

PURSUIT OF STATE REMEDIES WOULD

BI FORRMB. én cvecctbeséccckéne cs saeetioteauue

CONCLUSION: oc hess ececkbcescketced'cedeteus chesebiaeksaneecwe

(i)

AUTHORITIES

Page

Cases:

Arnett Vv. Kennedy, 416 U.S. 134 (1974) . cee eneeerrerreree 1,8.

~

~

Baxter v. Palmigiano, 96 S.Ct. 1551 (1976)...-e-eeeeeees 23 9°

Baxtryom Vv. Herold, 383 U.S. 107 (1966) .. cece eeeereeeeeee 3

Benso . State of California, 328 F. 24 159

a : (Sth Cir. 1964) . cece cece rwneeeeeeee 19

Board of Regents v. Roth, 408 U.S. 564 (1972) ...--++1,3,6,8,9

ration of Duval

Brown v. Liberty Loan Corpys-(H-D- Fla- 1974) ....--- 18

Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976).... 4

Board of Regents of the University of Texas System v.

ew t ucation roject,

U eceeeeeeeesoeeeeeoeeoeoee® *“e © ef * 23

Car li v. Norton, 523 F.2d 999 (2d Cir. 1975)..-+++++- 4

Carroll v. Princess Anne, 393 U.S. 175 (1968) ....--eeeeee eel

Cruz Vv. Hauck, 515 F.2d 322 (5th Cir. 1978) cccccccccccccceckd

. & Non-Sectarian

CYPECSS V- HONDO Tene 37S F 2d 648 (4th Cir. 1967)....---18

Dorado v. Kerr, 454 F.2d 892 (9th Cir. 1972) ...-eeeeeeeee +23

Elrod Vv. Burns, 96 s.ct. 2673 (1976) .cccccccccccccccccccccesd

Evans v. Cunning , 335 F.2d 491 (4th Cir. 1964) ...--++++-23

Ex Parte Porsky, 290 U.S. 30 (1933) ..cccccccccccccccecceceeddd

Forbes v. Roebuck [sic], 368 F. Supp. 817 (E.D. Ky. 1973)..10

Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1973)...++++++-+-18

onntie v. Wyman, 304 F. Supp. 713 (S.D.N.Y¥. 1969)....--+++++17

Gatling v. Butler, 52 F.R.D. 389 (D.Conn. 1971)...-.--++-++18

Gerstein v. Pugh, 420 U.S. 103 (1975) ...eeeee eee +e L5,16,17,20

Goldberg v. Kelly, 397 U.S. 254 (1930) .cccececccccccccecesshf

Goldsmith v. U.S. Board of Tax als, 270 U.S. 117

it Union

Gonzales a Automatic. o7a Cea Oe cccecuceeeee23

Goss Vv. Lopez, 419 U.S. 565 (1975) ccccccccccccccccccecccceced

Gregg V- Georgia, 96 s.Ct. 2909 (1976) wcccccccscvccecsecesesd

Hampton v. Mow Sun Wong, 96 S.Ct. 1895 (1976) wceeeeeececeeee?

Harrison v. Robuck, 508 S.W. 2d 767 (Ky. 1974).....--10,16,22

(ii)

cal

Page

Homer Vv. Richmond, 292 F.2d 719 (D.C. Cir. BOGE cccesccceceesoe

Huff v. N.D. Cass Co. of Alabama, 485 F.2d 710

TTT ST TTTLTTTTTTTiTTeTeTTteteTeTtTt ss.

Humphrey v. Cady, 405 U.S. 504 CRUE 6Cceccecceceqeoeeoesoseo‘eegn

Indianapolis School Commissioners v. Jacobs,

eer eeeeeneeeeteneeneeenreee eve ef 8 © seecoene

In re Sturm, 521 P.2d 97 (Cal. 1974) ....ceeceeecrnccevcccceeeel?

Jackson v. Indiana, 406 U.S. 717 (1972)........

neceeseaceseeoeer

Jcues v. Diamond, 519 F.2d 1090 (5th Cir. 1975)....... oscccceel

Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970).........4++-+-18

Kennedy Vv. Mendoza-Martinez, 372 U.S. 144 CROSE) co cccsesocceesgene

LaReau v. Manson, 383 F. Supp. 214 (D. Conn. 1974)........+ «+18

Leonard v. “188255. 8P) State Probation and Parole Board,

. r. ;

88666000 60066 6E6ees eee

McCausland v.

52

Shareholders

ole

t. Co., 52 F.R.D.

TTTTTT TT TTT TP PTT tT? tert esis

Meachum v. Fano, 96 S.Ct. 2532 (1976)....

ee fe © eeecesesosooouséen

Mempa v. Rhay, 389 U.S. 128 (1967) ....cseeeenccceeceeeeececeeeed

Mick v. Sullivan, 476 F.2d 973 (4th Cir. 1973) ....eeeeeeeeeee lB

Monteyne v. Haymes, 96 S.Ct. 2543 (1976) ...ceeceeccecceccceceecdl

Moore v. Ogilvie, 394 U.S. 814 (1969) ....ceeenceneceenecceneeeld

Morales v. Schmidt, 489 F.2d 1335 (7th Cir. 1973).....++4+4++-13

Morrissey v. Brewer, 408 U.S. 471 (1972) ....50seeeeeeeee2,3,4,13

MTM. Inc. v. Baxley, 420 J.S. 799 (1975) ...sneeceecceeneeeeeee dé

Nebraska Press Association v. Stuart, 96 S.Ct. 2791

TTTTTTTTT TT UTTTTtTTTrTeiTtTeteTeTee ier hme

O'Conner v. Donaldson, 422 U.S. 563 (1975)... cncncccccccvccvecel

Ornitz v. Robuck, 366 F. Supp. 183 (E.D.Ky. 1973) ......++++++-10

Perry Vv. Sindermann, 408 U.S. 593 CAGTED coccectooccceeseeeeseeee

Pitts v. Knowles, 339 F. Supp. 1183 (W.D.Wis.1972)......++++++23

Phill v. United States, 312 U.S. 246 (1941)... cee eeeeenseee 23

Preiser v. Rodriquez, 411 U.S. 475 (1973) weeeweeeereeeee20,21,22

Preston v. Piggman, 496 F.2d 270 (6th Cir. 1974)........++-10,12

Ramer v. Saxbe, 522 F.2d 695 (D.C. Cir. 1975) ...seeeeeeeeeeeeedd

Rogers v. Paul, 382 U.S. 198 (1965) ....cseeeeeeecceneeceneeeeld

Scarpa v. U.S. Board of Parole, 477 F.2d 278

r.

rere Tre?) Tet eee

(iii)

Page

|Schware v. Board of Bar Examiners, 353 U.S. 232 (1957)....-+9

}Sosna v. Iowa, 419 U.S. 393 (1975). cee eeceeeeeceeceeehS 16,17

Southern Pacific Terminal Co. v. tcc, 219 U.S. 498

T1911 lL) cere wee eeeccenneee *“e wn? eeenvreeeneneeneee “en 7 14

Super Tire bees Co. v. McCorkle, 4i6 U.S.

Seeseeeseoeoseeeesseeoooeoneoesese 13

u.S. ex rel. Johnson, Vv. Chairman, N.Y. State Bd.

of Parole, 500 F.

(24 Cir. 1974) ..-neeeeeererreces cecceeees 4,14,23

U.S. v. Manderville, 396 F. Supp. 1244 (D. Conn. 1975)...---- 2

U.S. v. Russo, 525 F.2d 673 (ist Cir. 1976)..-+++++- eeccecess 2

. v. Silvermann, 406 F. Supp. 862 (D.t.J. 1975) .---+eeee 2

s

.S. v. Slutsky, 514 F.2d 1222 (2d Cir. 1975) ..-eeeeeeeeeee?

} Vaughn v. Bower, 313 F. Supp. 37 (D. Ariz. (1970)...-+-++++. 18

Vlandis v. Kline, 412 U.S. 441 (1973)..--++>- cece eeeeecccees 5

| pradford v. Weinstein, 519 F.2d 728

(Tth Cir. 1974), vacated as moot 423

u.S. 147 (1975)...-.---- 68650606 asesosece 13,14,20,23

Williams v. New York, 337 U.S. 241 (1949) . ccc ewe eeceeceeeens 3

Willner v. Committee on Character and Fitness,

373 u.Ss. 96 (1963) wc cnn ee eenenenrereerererere “en 7 9

Wolff v. McDonnell, 418 U.S. 539 (1974).....-- 5606600800600NN=

lworkman v. Mitchell, 502 F.2d 1201 (9th Cir. a

itutional Provisions, Statutes Rules, and

——————eeeE

ations:

lucS. Constit. Art. IIIT, $2....cseeceececccecceesceccsccece eh

| u.s. Constit. amend BEC. ccccccccesececcesocecsocccccc cs cpeeeam

HG U.S.C. G42OL cc ceeecccccccccccccccccccsccsreescsseseess 7

} 28 U.S.C. $2254. ..-- ee eeeereeeereeceeereeeess inusdienn

Fed. R. Civ. P. 23. eee eneeeeeneeee eee rvreenenenveeee “ener eee * -11,15,18

Ky. Rev. Stat

§439.340 seeseSd sees OOSSSSHHSOSCHSCOSO SSH SLOSS SOOSCESE® *“enreeve .8

§532, 060... cececececcececccercncececsecccessesecseseced

Ky. Admin. Reg. 50l, SeGOM. cccocescccedescocoucceooesseeseel

(iv)

Page

Other Sources:

Developments in the Law -- Federal Habeas Corpus

83 Harv. L. Rev. 1038 CAGTEP coceocccocosceoeseeese- 23

The Governor's Select Advisory Committee on Prisons,

Report To The Honorable Julian M. Carroll (1976)......7

P. Hoffman & D. Gottfredson, Paroli Poli

A Matter of Equity (Sune cy Guidelines:

56600 Sb O00 CSS SOS OC COC OOH

Kentucky Bureau of Corrections, Office of Statistical

Information, Parole Recommendation and Deferment:

A Study of the Kentucky Parole Board's Activities

for LESH. MEOCLLO IS

J. Moore, Federal Practice (2d ed. 1969) ......cceeeeeeees lB

I.

{HE ELEMENTARY LIBERTY INTEREST IMPLICATED

IN THE DECISION TO GRANT OR DENY PAROLE

QUALIFIES POR PROTECTION UNDER THE DUE

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

A. UNDER THE PRACTICES OF THE EXISTING SYSTEM,

PRISONERS HAVE A LEGITIMATE EXPECTATION OF

RELEASE ON PAROLE SUFFICIENT TO TRIGGER

THE PROCEDURAL PROTECTIONS OF THE DUE PROCESS

CLAUSE.

In the face of the "'magestic'" concept of liberty, Board

of Regents v. Roth, 408 U.S. 564, 571 (1972), the state and

the Solicitor General argue, on the following grounds, that

parole release decisionmaking is immune from the requirements

‘ the due process clause.} They assert that no liberty

interest is involved in the parole decision because it is

impossible for an individual prisoner to maintain that he or

No such

she is absolutely entitled to release on parole.

claim can be made, they argue, because the parole decision

is “committed to the essentially unfettered discretion of 4

'

‘group of experts" (Brief for United States at 15). The

: parole and its place in the criminal justice

system upon which this position is based is a serious distortion

lot reality. A .ore detailed and accurate picture of the

parole system as it exists today will reveal the flaws in the

state's and Solicitor General's due process analysis.

lern a Constitution for a free people, there can be no doubt

that the meaning of ‘liberty’ must be broad indeed.” Board

of Regents v. Roth 408 U.S. at 572. In keeping with this de-

Finition, the Court has been vigilant in rectifying deprivations

of constitutionally protected liberty. See O'Conner v. Donaldson,

422 U.S. 563 (1975); Jackson v. Indiana, 406 U.S. 717 (1 "

It is indeed "paradoxical" (Brief for United States at 17) that

the parole release decision, involving as it does nothing less

than “elemental freedom from external restraint,” Arnett v.

Kennedy, 416 U.S. 134, 157 (1974) (Rehnguist, J., opinion

announcing judgment) is thought to escape constitutional scrutiny.

(1)

\a prisoner. 4

!

This picture will show that parole is a vital part of the process

of governmental decisionmaking -- starting with arrest -- <nat

determines the length of confinement for persons involved in the

criminal justice system; that, as part of this accepted process,

parole is realized by a large majority of prisoners; and that

parole is a practice which not only, under Morrissey v. Brewer,

408 U.S. 471 (1972), implicates a constitutionally protected

liberty interest but also creates a legitimate claim of entitlement

for prisoners that parole will be granted upon a showing adequate

under both the explicit and implicit release criteria used by

parole boards.

As recounted more fully in the Brief for Petitioner,

pp. 21-31, parole is expected -- by legislatures, judges,

prisoners, and parole boards -- to be the central process for

releasing prisoners from confinement. Under the indeterminate

sentencing laws of most states, the parole authority is, in fact,

the body that determines the actual length of confinement for

In Kentucky, this reality is made explicit:

"[A]n initial determination of the length of im-

prisonment for felonies is to be made by the jury

trying the issue of innocence or guilt....Once

this responsibility of the jury is satisfied,

the trial judge has at his disposal the power

of modification granted by KRS 532.070 and the

power granted by Chapter 533 to substitute pro-

bation or conditional discharge in place of

imprisonment. If neither of these powers is

exercised or one is exercised in a way that

immediately or ultimately results in imprison-

ment, the offender is committed to the Department

of Corrections for the maximum term of im-

prisonment established by the jury. The actual

of imprisonment is determined the Parole Boar

eee tary, Kentucky Penal Code, Ky . Rev.

Stat. §532.060 (emphasis added).

2" (T]he paro.e implications of a sentence are a necessary and

important factor for the consideration of the sentencing judge."

United States v. pLuteky: 514 F.2d 1222,1229 196(2d Cir. 1975).

s realization expressed recently by a number of

courts which have considered modifying a defendant's sentence to

insure that the individual would be released by the Parole Board

at the time contemplated by the court, not later. See United

States v. Russo, 535 F.2d 673 (lst Cir. 1976); United siete v-

verman, F. Supp. 862 (D.N.J. 1975); Uni s Vv.

le 396 F. Supp. 1244 (D. Conn. 1975).

(2)

vW——— Oe

.

In light of the fact that approximately 60% of the releases

of adult felons from Kentucky institutions are through parole eS Morrissey v. Brewer, 408

(of those who are released, 68% are released following their

first appearance before the Board), Kentucky Bureau of Corrections, Under this reasoning, the exclusion of the parole release

Office of Statistical Information, Parole Recommendation and decision from the confines of the Fourteenth Amendment |

Deferment: A Study of the Kentucky Parole Board's Activities for "would be to create a distinction too gossamer-thin to stand

1973-74 at 1,6 (1975), it vitiates the role of reality in con- close analysis." United States ex el. Johnson v. Chairman

stitutional adjudication to say that "by virtue of his felony | N.¥. State Board of Parole,500 F2d. 925, 928 (2d Cir.),

conviction the petitoner [h]as been constitutionally deprived of vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015 )

any interest in his own liberty by mandate of law until such time (1974)5.

as he ha[s] served the sentence meted out to him, minus good time"

(Brief for Respondent at 17). This proposition finds scant support —aThe Solicitor General objects to the characterication of

; : his analytical approach to due process as a revival of the dis-

ae Gane de Ae eaeeeoenens oF pateie gasssse ‘Get Sige & credited righi-privilege distinction (Brief for United States

the teachi f Morri . B Ss. 3 at 23 n.13). Yet, as recognized in Cardaro li v. Norton, 523

ea ezigeey v- Brower, 408 0.8. 972 (2972) F.2a 990, 995 n.1l (2d Cir. 1975), the sinifaritics a —*

To distinguish solely between “entitlements unilatera

In Morrissey, the Court recognized that a prisoner can be expectations" is to create a dichotomy almost as analytically

deprived of certain aspects of liberty sufficient to invoke due ~ieg yoo” ny tigate ge re poe ———

process protection. Because so many elements of the constitu- soentey San an a alee nappa a gnon Poo ag aged

tionally protected right to liberty were implicated in the decision the scle seneesieees iis for Sapelanind ent consiouensy (as

to revoke parole, the Court required the Parole Board to abide by cools gf ay oot glimereny > 6 Ss ae

minimum standards of due process. This analysis of the parolee's panes vapeee ee Te caeaciae ee ae tec Uasted

: @ States at 12, 19), contradicts itself by permitting the

liberty interest in parole underscored the importance of "eschew- state to carve out islands of lawlessness in ultimate derogation

[ing] rigid or formalistic limitations on the protection of pro- of he veiate Be Saye ae ee Tae ans,

. > « Ay . , . .

cedural due process...." Board of Regents v. Roth, 408 U.S. at 172: 2683 (1976).

5

"(Plermination of parole inflicts a ‘grievous loss’ on nas ngines the Geoteion 19, WOGELOENE: SS kaso uct sttesh to

odd ng Bp Ayton egg Rm 4 a parole release decisions. Brown v. Lundgren, 528 F.2d 1050

' P ' ' (Sth Cir. 1976) (2-1 decision), petition for cert. filed,

of rn treed the parolee's liberty is a ‘right" or a May 7, 1976 (No. 75-1623)

privilege.' By whatever name, the liberty is val- < .

uable and must be seen within the protection of the In Meachum v. Fano, 96 S.Ct. 2532 (1976) and Montanye v.

Haymes, 96 5.Ct. 2543 (1976), the Court, refusing Place

te (Bue Process] Clause astride the day-to-day functioning

of state prisons, 96 S.Ct. at 2540, rejected the appli-

cability of due process requirements to intra-state

33m a number of cases, the Court has expressed the awareness eriecs Seenecse- ee ee ae ae rt aoe

t, while a conviction is a constitutionally adequate predicate ae ee 8 I Se eee Se aaiae conekaen a

for imposing confinement as long as life (or imposing death where incarceration was not involved. Unlike a prisoner's "ephemeral

ropriate safeguards exist, see Gr v. Georgia, 96 S.Ct. 2909 and insubstantial," id., interest in movement within a state

(1976)), any decision regarding the duration of confinement must penal system, the interest that is at stake here embodies

preceded by due process. See av. Rhay, 389 U.S. 128 (1967)} ;

"many of the core values of unqualified liberty.” Morrissey

illiams v. New York, 337 U.S. 24 49); see also Honpheey Vv. vy. Brewer, 408 U.S. at 482. Second transfers between in-

7 Hears Berole aes o 3. 107 T1966 sal a stitutions often involve questions of institutional security

, ); Baxstrom v. Herold, 5. ) that demand prompt action. These decisions are wholly

3 unlike the decision to grant or deny parole, where decisionmaking

(3) places a much greater emphasis on informed principle than on

(7)

The respondents' approach also includes in its calculus

major reliance on the “unfettered discretion" purportedly

accorded parole boards in determining whether to release a

prisoner on parole. In essence, it is contended that unless

eligibility for parole is clear-cut, any measure of discretion

contained in the eligibility decision destroys an individual's

“entitlement,” and, presumably, converts it into a “unilateral

expectation." This notion of discretionary decisionmaking

once again is at odds with the way parole hoards act in

practice.

The fact that many parole administrators have not articulated

standards guiding their release decisions does not mean that

such standards are not employed. Indeed, as stated by the current

Chairman of the United States Parole Board:

“Without explicit policy to structure and guide

discretions, decision-makers, whether parole

board members, hearing examiners, or judges,

tend to function as rugged individualists.

While this may be desirable in our economic

system, its suitability for our system of

criminal justice is extremely questionable.

However, if we can make what we are presentl

doin explicit and, thus, more consistent,

we will be fairer and closer to justice.”

M. Sigler, Preface In P. Hoffman &

D. Gottfredson, Paroling Policy Guidelines:

A Matter of Equity (June, 1373} (NCCD Parole

Decision-m ng Project Supp. Rep. 9)

(emphasis added).

If it is accepted that parole boards employ implicit criteria in

selecting individuals for release, the idea of unfettered

discretion cannot be used to suggest that no prisoners are en-

titled to release. Many plainly are, and the fact that the

selection criteria have not been made explicit should not shield

parole boards from the limits of the Constitution, ®

6The fact that most prisoners are paroled supports the

argument that, at any given time, a large numberof, prisoners

are “entitled” to parole, whatever the discretion formally

excerised by the parole board. The fact that neither these

individuals nor the parole board know who they are in advance of

the actual parole decision should not diminish their claims for

due process protection. Such a blunderbuss denial of constitu-

tional rights should not be tolerated. Cf. Vlandis v. Kline,

412 U.S. 441 (1973). = ees

(+1

conceived criteria to congeries of fact situations. For all of

Under the system of parole described above, it can be

seen that a prisoner's interest in parole is a product of the

practices and understanding that have grown out of the body of

rules that govern the operation of the parole process. In essence,

there is a practice of granting parole upon a finding that certain

criteria are met by the prisoner. The fact that these criteria

are not all published, or even articulated by all Boards, does

not mean that the parole administrators do not rely on such

principles in their decisionmaking. In this wiy, they are little

different from administrators who make eligibility decisions

regarding welfare or unemployment compensation by applying pre-

these administrators, it is acknowledged that a masure of

discretion is part of their routine.

In this case, the practice of granting parole gives rise to

a legitimate claim of entitlement. This occurs because parole

is an institutionalized routine of assumedly principled govern-

mental determinations, where a set of criteria are applied to

individual situations yielding a given result (parole) upon a

finding that an adequate showing was made under the circumstances.

Under this system, the prisoner's interest is "secured by ‘existing

rules and understandings.' [Roth] at 577. A person's interest

in a benefit is a 'property' interest for due process purposes

if there are such rules or mutually explicit understandings that

support his claim of entitlement to the benefit and that he may

invoke at the hearing." Perry v. Sindermann, 408 U.S. 593, 601

(1972). Just as in Perry with respect to job tenure, there

exists in the parole system "an unwritten ‘common law,'" id.

at 602, that parole is the norm. It is this norm that gives

rise to a legitimate claim of entitlement "to protect those

claims upon which people rely in their daily lives, reliance that

must not be arbitrarily undermined." Board of Regents v. Roth,

supra, 577.

There are two additional grounds supporting the application

of due process in this case. The first, which fits neatly within

the bounds of our opponents' theories, rests on the grant of

parole eligibility to prisoners. As recognized by the state

f call

(Brief for Respondents at 17), prisoners in Kentucky, after

serving a specified portion of their sentence, become eligible

for parole under the regulations of the Parole Board. Ky. Admin.

Reg. 501, 1:010 §§2-7. Under the analysis advanced by the state

and the Solicitor General, this eligibility should be conceived of

as entitlement warranting the procedural protections of due

process when it is deferred or "divested" (Brief for United States

at 21) through an adverse parole decision rendered according to

the standards used by the Board. Whether denominated a liberty

Ox property interest, the legitimate entitlement to parole

eligibility should qualify for process protection.

A second, independent ground of decision rests on a prisoner's

interest not in parole per se but in rational consideration

for parole. This ground is anchored in the statutory scheme

governing the operations of the Kentucky Parole Board. As de-

tailed in the Brief for Petitoner, pp. 6-8, the Parole Board,

in considering whether to grant or deny parole, is required to

amass a considerable amount of data on each eligible prisoner,’

7@he board's handling of prisoner records was severely

criticized in a report published last May by the Governor's

Select Advisory Committee on Prisons. This blue-ribbon panel

found: "The content and quality of records submitted to the

Parole Board are factors which have contributed to the con-

troversy which led to this aspect of the investigation. The

quality of the records submitted is poor. Reports are prepared

by caseworkers who are often untrained and poorly supervised.

There are so few caseworkers that they could not possibly know

all of the inmates assigned to their caseload." The Governor's

Select Advisory Committee on Prisons, Report to the Honorable

Julian M. Carroll 8 (May 5, 1976). The panel also cited

prisoners’ inability to have access to the Board's files as a

contributing factor to the widespread suspicion among inmates

and correctional personnel that Board files are the subject

of “inappropriate influence." To dispell these problems in

the parole release process, the panel recommended that:

(1) through counsel, inmates have access to the records of the

Geliberations and decisions of the Board; (2)upon rendering its

judgment, the Board give a written copy of its decision to each |

inmate, and (3) inmates be given the right to representation by

a lawyer in parole hearings. The panel concluded by noting that

"fa)lthough the Board may view such measures as troublesome,

these changes would have beneficial results which would offset

any inconveniences to the Parole Board.” Id. at 10. As yet,

no action has been taken on these recommendations.

In marked contrast to the system in Kentucky, the U.S. Parole

Board is now required to accord inmates substantial due process

protection in parole hearings. Parole Commission and Reorganiza-

tion Act of 1976, 18 U.S.C. §4201 et seg. These procedural

guarantees include access to evidence to be considered at the

hearing (with limited exceptions), access to an advocate prior to

and during the hearing, a "full and complete record” of the

hearing, and a written explanation for denial. 18 U.S.C. §4208.

conduct a hearing, engage in some form of collegial decisonmaking,

and promulgate regulations which "shall be in accordance with

prevailing ideas of correction and reform." Ky. Rev. Stat.

§240(3). This scheme evinces an intention on the part of the

Kentucky legislature to provide prisoners with a fair and rational

opportunity for parole consideration.® Without the safeguards

urged by the petitioners, the current process falls far short

of the legislature's goal. It can thus be argued that an en-

titlement to rational decisionmaking has been conferred on

prisoners which is abridged by the current practices of che Board. 4

B. THAT PRISONERS DO NOT PRESENTLY ENJOY

CONDITIONAL LIBERTY IS NO BAR TO THE

RECOGNITION OF DUE PROCESS RIGHTS IN

THE PAROLE RELEASE PROCESS.

As a precondition to the recognition of due process rights,

the state argues that “in each and every instance the protections

attendant to the Due Process Clause have only been extended where

an individual is presently enjoying or is presently entitled to

an interest which has been extended to him (Brief for Respondents

at 23) (emphasis in original) .1° This purported requirement, how-

ever, is not harmony with a number of cases of this Court, the

8fhat the Kentucky legislature did not envision a regime of

unbridled discretion distinguishes this case from Board of Regents

v. Roth, supra, where the legislature provided no constraints

on or guidance whatsoever to the administratore involved in the

decision whether to rehire a non-tenured teacher for another year.

Roth also turned on the realization that Roth "“remain[ed] as free

as before to seek another [job]." 408 U.S. at 575. The con-

sequences of an adverse parole decision are clearly more momentous

Moreover, the functional utility of a hearing in Roth was dubious.

There can be little doubt but that the university decisionmakers

included individuals very familiar with Roth's work and personal

qualities. In contrast, the parole decision normally involves a

meeting among strangers. Cf. Goss v. Lopez, 419 U.S. 565, 594-95

(1975) (Powell, J., dissenting).

9While the legislature has provided a statutory guarantee of

fair consideration, it has not “expressly provided also for the

procedure by which [parole suitability is] to be determined and

expressly omitted the procedural guarantees which [petitioner)

insists are mandated by the Constitution." Arnett v Kennedy,

416, U.S. 134, 152 (1974) (Rehnquist, J., opinion announcing

judgment). The position of the majority of the Court in Kennedy

a fortiori supports petitioners’ position here. Id. at 166-

, Je), 185(White J.), 210-11 (Marshall, J.J.

l10fhe Solicitor General does not appear to support the

state's insistence on applying a "present enjoyment" test. In

fact, he concedes that an applicant for unemployment benefits

ee ae to due process. Brief for United States

at n.13.

most recent of which is Hampton v. Mow Sun Wong, 96 S.Ct. 1895

(1976).

There, the Court held that a Civil Service Commission rule

barring aliens from positions in the federal service was of

sufficient significance to be characterized as a deprivation of

liberty which must be accompanied by the due process. No

distinction was made between those plaintiffs who held federal

employment and were fired and those who had applied and were not

hired. Id. at 1899-1900. As recognized in the dissenting opinion

of Mr. Justice Rehnquist, id. at 1913-14, the majority opinion

rested on a passage from Board of Regents v. Roth, supra,

which, in turn, included such cases as Schware v. Board of Bar

Examiners, 333 U.S. 232 (1957) and Willner v. Committee on

Character, 373 U.S. 96 (1963) .2+ In neither of these cases was

the applicant “presently enjoying" a status he desired; yet

due process requirements were held to apply. Mow Sun Wong's

approving citation to these precedents can only be taken as a

repudiation of the present enjoyment notion urged by the

respondents.

llanother case cited in Roth also is persuasive precedent on

this point. In Goldsmith v. United States Board of Tax A als,

270 U.S. 117 (1926), the petitioner, a lawyer, was denie

admission to practice before the Board of Tax Appeals under the

discretionary power exercised by the Board. The denial was

accomplished without a prior hearing or a statement of reasons.

In holding that due process applied to the lawyer's claim of

eligibility to practice, it said that the Board's discretionary

power “must be construed to mean the exercise of a discretion

to be exercised after fair investigation, with such a notice,

hearing and opportunity to answer for the applicant as would

constitute due process." Id. as 123. This position, and the

one assested by the petitioners in this case, rest ultimately on

no more controversial a ground than that the discretion of a

decisionmaker is a discretion to be exercised under law. See

Homer v. Richmond, 292 F.2@ 719, 722 (D.C. Cir. 1961) ("One

may not have a constitutional right to go to Baghdad, but the

Government may not prohibit one from going there unless by

means consonant with due process of law.")

The state construes Wolff v. McDonnell, 418 U.S. 539 (1974)

as demanding satisfaction of a present enjoyment test. Such a

wooden reading of McDonnell cannot be countenanced. To say that

the prisoners there were "presently enjoying" good time credits

is to stretch the concept «eyond logical limits.

Il.

THE RELEASE ON PAROLE OF THE NAMED

PETITIONER DOES NOT MOOT THIS ACTION.

As developed below, there are three independent reasons

hy this action should not be considered moot. Before dis-

ussing them, however, it is instructive to reconstruct the

vents leading to the commencement of this action. Such a brief

review will show the both elusiveness and continuing vitality of

the issues presented in this case.

Rebuffed in prior attempts —~ litigated pro se -~- in both

state and federal courts to infuse due process strictures into

arole release hearings conducted by the Kentucky Parole Board

(compare Harrison Vv. Robuck, 508 S.W. 2d 767 (Ky. 1974) with

rnitz v. Robuck, 366 F. Supp. 183 (E.D. Ky- 1973)), a group

f prisoners at the Kentucky State Penitentiary contacted the

undersigned counsel, who had litigated other issues against the

entucky Parole Board (see, @.g., Preston V- Piggman, 496 F.2d

270 (6th Cir. 1974) and Forbes v. Roebuck [sic], 368 F. Supp. 817

(E.D. Ky. 1974)), and requested representation in what became the

current action. As part of the preparation for drafting the

omplaint, counsel received a number of statements from prisoners

hen confined at the Kentucky State Penitentiary and Kentucky

tate Reformatory setting forth grievances these men had against

the parole release procedures employed by the Parole Board.

amples of these statements are attached to petitioners’ previously

filed Response in Opposition to Respondents’ Motion to Dismiss.

rom these original statments, counsel chose Ewell Scott and Calvin

ll to serve as named plaintiffs in the Complaint because their

fact situations were considered representative of the class.

As filed, the Complaint named Ewell Scott and Calvin Bell

s plaintiffs suing on behalf of the class of Kentucky prisoners

ubject to the jurisdiction of the Parole Board. Paragraph three

£ the Complaint (A. 2-3) specifically alleged all the requisites

or maintaining a class action pursuant to Fed. R. Civ. P.23

\\

(b) (a). Since the District Court did not permit the Complaint

to be formally filed, counsel was precluded from moving to certify

ihe action as required by Fed. R. Civ. P. 23 (c)(1) and pro-

ceeded on appeal both to the Sixth Circuit and this Court on the |

assumption that the class action allegations in the Complaint

were well taken. This assumption was grounded in part on

language in the Memorandum of the District Court and Order of the

Sixth Circuit. both of which acknowledged the class action

status of this case.

Upon the granting of certiorari on December 15, 1975, counsel |

immediately attempted to contact the petitioner Scott only to

learn that he had been paroled a mere two and one-half weeks

prior.12 Pursuing their responsibilities as attorneys for the

class, counsel contacted Kentucky prisoners who both before and

during the course of the lawsuit had contacted them about the

issues presented in the case ana secured the statements attached

to petitioners’ previously filed Motion to Substitue Named

‘Petitioners, or, In the Alternative to Intervene. These

statements, which set forth the experiences of these prisoners

before the Parole Board in the parole release process, are

intended to demonstrate, if necessary, that the issues raised

in this case continue vitally to affect virtually all prisoners

in the Kentucky penal system.

A. DESPITE HIS RELEASE ON PAROLE, THIS CAUSE

IS NOT MOOT FOR THE NAMED PETITIONER, WHO

MAINTAINS A PRESENT INTEREST IN THE PAROLE

RELEASE PRACTICES ©? THE PAROLE BOARD.

Although released from priso: almost one year ago, the

petitioner Scott is still subject to the jurisdiction of the

}

Kentucky Parole Board until 1984. He is, moreover, on close

role supervision, a more restrictive status entailing additional

onditions of parole. Although it is to be hoped that the

titioner scrupulously will abide by the terms and conditions

l2tn the same inquiry counsel also learned that the

laintiff Bell had died.

© ii «

of his parole, the experience of the Kentucky Parole Board

shows that he a well be numbered among the approximately one-

third of the parolees in Kentucky whose paroles are revoked for

any number of potential violations.13 should this more than

speculative eventuality occur, the petitioner will find himself

again before the Parole Board seeking parole. 14

Whatever role they may play in the petitioner's future, the

parole release practices of the Board have played a prominent

role in shaping the petitioner's present life. The restrictive

status imposed by the Board on the petitioner may not have

been imposed had the petitioner been given an opportunity to

speak in his own behalf concerning the desirability of the

special conditions he currently is abiding by. For example,

as a condition of his parole, the petitioner is compelled

to undergo outpatient treatment at 4 local mental health

center. Had petitioner had the chance to discuss the benefits

he derived from the group therapy programs he had participated

in while in prison, ndition of outpatient treatment -~-

certainly an i intrusion on his life -- may never

have been imposed. y™ this second way, the petitioner main-

tains a present interest in the outcome of this case.

In In re gturm, 521 P.2d 57 (Cal. 1974), a constitutional

challenge to parole release policies was found not to be moot

even though the petitioner in the action -- a non-class action -~-

as on parole. The Court declared:

“Although petitioner and the Authority offer

conflicting views as to the continued existence

of a genuine controversy, this court may entertain

the petition notwithstanding that the petitioner

is now on parole. Petitioner remains within the

constructive control of the Authority even though r

he has been released from actual physical custody.

Id. at 101.

13tt is the policy of the Board to institute parole revocation |

roceedings for one alieses commission of “technical” violations

f any of the numerous conditions of parole. Cf. Preston v-

, 496 F.2d 270 (6th ag ® owt nn sees. dn Mee

n Morrissey v. Brewer, -S. ’

ealities of sarote revocation were recognized by the Court:

Yet, revocation of parole is not an unusual phenomenon aseueniog

ly a few parolees. It has been estimated that 35% - 45% of al

olees are subject to revocation and return to prison.

\!

Similar results have been reached by federal courts in analogous

prison cases in recognition of the principle that modification of

the custodial status of the named parties should not moot the

case. See Ramer v. Saxbe, 522 F.24 695, 703-05 (D.C. Cir. 1975)

("If the appellees are correct in their apparent position that

only persons actually in custody...may press these issues, it may

be difficult to find any single plaintiff who would remain

eligible to do so throughout lengthy adjudicatory processes.”");

Workman v. Mitchell, 502 F.2d 1201, 1208 (9th Cir. 1974) ("However

meritorious the motive may have been for this transfer [of the

named party to another institution], it would be intolerable to

permit a defendant, in this mam.er, to destroy the representative |

capacity of a named plaintiff."); Morales v. Schmidt, 489 F.2d |

1335, 1336 (7th Cir. 1973) ("(T)here is always the possibility that!

Morales during his period of parole will violate the terms of his |

conditional release and thus be returned to prison."), aff'd |

en banc, 494 F.2d 85 (1974). |

The petitioner's current parole status distinguishes this

case from the situation in Weinstein v. Bradford, 423 U.S. 147

(1975), where the prisoner who commenced the lawsuit was completely

ge from parole supervision by the time the case reached

this Court. On the other hand, in the present case, if the

petitioner is not found currently to be affected by the residual

effects of the Board's parole release practices, the odds of his

again becoming subject to the Board's persisting practices, while

by no means certain, are quite real. The simple granting of

parole under the circumstances presented here “should not

preclude challenge to state policies that have their impact

and that continue in force, unabated and unreviewed." Super Tire

Engineering Co. v. McCorkle, 416 U.S. 115, 126-27 (1975). As

l governmental entity most directly affecting the petitioner's

daily life, the Kentucky Parole Board should not be immunized

from judicial scrutiny simply because it has shifted a person,

however temporarily, from one aspect of its operation to another.

1

B. SINCE THE CONTROVERSY BETWEEN THE PARTIES

IS CAPABLE OF REPETITION, YET EVADING

REVIEW, THIS ACTION IS NOT MOOT

On a number of occasions, most recently in Nebraska Press

Association v. Stuart 96 S.Ct. 2791 (1976), this Court has re-

cognized that if a controversy is capable of repetition, yet

evading review, a ruling on the merits of the case is warranted

even though the underlying dispute between the parties that led

to the initiation of the lawsuit becomes dormant. See, e.g.,

Roe v. Wade, 410 U.S. 113, 125 (1973); Moore v. Ogilvie, 394

U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 17u,

178-79 (1968). In the present case, the realixtic chances of the

petitioner Scott again becoming subject to the parole release

jurisdiction of the Parole Board already have been recounted.

As discussed, the reappearance of the petitioner before the Parole

Board certainly is as likely as the repetition of the short-term

order in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

(1911), or the reinstitution of proceedings seeking to remove

the plaintiffs from the welfare rolls in Goldberg v. Kelly,

397 U.S. 254 (1970).

Besides being capable of repetition, the controversy in this

case presents a classic example of an issue which has evaded the

plenary review of this Court. On three prior occasions (Brad-

ford v. Weinstein, 519 F. 2d 728 (4th Cir. 1974), vacated as

moot, 423 U.S. 147 (1975); Johnson v. Chairman, New York State

\Board of Parole, 500 F.2d 295 (2d Cir.), vacated as moot sub

nom. Regan v. Johnson, 419 U.S. 1015 (1974); and Scarpa v.

U.S. Board of Parole, 477 F.2d 278 (5th Cir.), remanded for

rere of the question of mootness, 414 U.S. 809, vacated

as moot, 501 F.2d 992 (1973)), the Court, on the grounds of mootness,

declined to address issues indentical to the ones presented here.

Pailure to resolve these issues in this case would only continue

the kind of judicial merry-go-round the capable of repetition,

et evading review principle was designed to stop.

C. UNDER THE STANDARDS ENUNCIATED IN

SOSNA V. IOWA, 419 U.S. 393 (1975)

AND GERSTEIN V. PUGH, 420 U.S. 103

(1975), THIS CASE -- A CLASS ACTION

-- IS NOT MOOT.

In Sosna v. Iowa, 419 U.S. 393 (1975), a controversy no

longer alive as to the named plaintiff, an individual challenging

a durational residency requirement for divorce, was found to be

not moot for the class of persons the named plaintiff represented.

Three factors were specified to guide the mootness inquiry:

(1) whether the suit was certified as a class action, (2) whether

a continuing controversy existed between the defendant and the

members of the class; and (3) whether the controversy was capable

of repetition, yet evading review. Determining that these factors

were satisfied in Sosna, the Court turned from the issue of

mootness to the question of the adequacy of representation under

Fed. R. Civ. P. 23(a). On this point it found that "in the

present suit, where it is unlikely that segments of the class

appellant represents would have interests conflicting with those

she has sought to advance, and where the interests of the class

have been competently urged at each level of the proceeding, we

believe that the test of Rule 23(a) is met." Id. at 406.

Applying the mootness test expounded in Sosna, the Court in

Gerstein v. Pugh, 420 U.S. 103 (1975), held that, in a case

challenging the constitutionality of certain pretrial detention

procedures, the release from custody of the named plaintiffs did

not moot the action. The reasoning employed by the Court should

be used interchangeably to resolve the mootness issve in this oni

"Pretrial detention is by nature temporary,

and it is most unlikely that any given individual

could have his constitutional claim decided on appeal

before he is either released or convicted. The

individual could nonetheless suffer repeated depri-

vations, and it is certain that other persons simi-

larly situated will be detained under the allegedly

unconstitutional procedures. The claim, in short,

is one that is distinctly ‘capable of repetition,

yet evading review. '

At the time the complaint was filed, the name

respondents were members of a class of persons de-

tained without a judicial probable cause determina: -.on,

but the record does not indicate ~hether any of them

were still in custody awaiting trial when the District

Court certified the class. Such a showing ordinarily

would be required to avoid mootness under Sosna. But

this case is a suitable exception to that require-

ment. See Sosna, supra, at 402 n. 1l; cf. Rivera

v. Freeman, 769 F. 59, 1162-1163 (CA9 1572). The

=

|

length of pretrial custody cannot be ascertained

at the outset, and it may be ended at any time

by release on recognizance, dismissal of the

charges, or a guilty plea, as well as by acquittal

or conviction after trial. It is by no means cer-

tain that any given individual, named as plaintiff,

would be in pretrial custody long enough for a

district judge to certify the class. Moreover, in

this case the constant existence of a class of

persons suffering the deprivation is certain. The

attorney representing the, named respondents isa

public defender, and we can safely assume that he

has other clients with a continuing live interest

in the case." Id. at 110-111, n.1li.

Except for one factor, discussed more extensively below, the

present case satisfies all the explicit criteria of Sosna

and Pugh:

(1) There remains a live controversy between the

members of the class and the Parole Board. As the statements

attached to petitioners’ Motion to Substitute show, there is

grave dissatisfaction with the parole release procedures of

the Board, and there has been for sometime. See Harrison

v. Robuck, 508 S.W.2d 767 (Ky. 1974) and Ornitz v. Robuck,

366 F. Supp. 183 (E.D. Ky. 1973). This distinguishes the

present case from Indianapolis School Commissioners v.

Jacobs, 420 U.S. 128 (1975), where it appeared that a continuing

controversy -- at least one sufficient for Art. III, §2

purposes -- no longer existed between the defendants and the

remaining members of the class.

(2) The issues in this case are paradigms of those

that are capable of repetition, yet evading review.

(3) As in Pugh, “the constant existence of a class of

persons suffering the deprivation is certain” and it is

undisputed that the attorneys representing the named petitioner

“hal[ve] other clients with a continuing live interest in the

case." Pugh, supra at 110-111 n.1l.

(4) The named representative will fairly and adequately

protect the interests of the class. In this case, as in

Sosna, “it is difficult to imagine why any person in the

class appellant represents could have an interest in seeing

{the current parole release practices of the repondents]

upheld.” Sosna, supra at 403 n.13.

—- wm

The only factor preventing this case from falling |

squarely within the confines of Sosna and Pugh is the fact

that, although treated as a class action, this case never

was formally certified by the District Judge, who did not

permit the Complaint to be filed in forma pauperis. This

factor, however, should not, under the circumstances presented

here, present a barrier to the Court ebbeessing the merits

of this cause. First, there is a justifiable reason why no

formal certification of the class was obtained: the District

Judge precluded certification by dismissing the Complaint

sua sponte. To moot this cause now because of an occurrence i

wholly outside the control of the litigants would not further

any of the salutary purposes underpinning the mootness

doctrine. Second, although not formally certified, this

cause was treated as a class action by both the District

Court and the Court of Appeals. Third, strong support for

petitioners' position comes from a line of federal cases

holding that subsequent events rendering a case moot as to

the named party in a case initiated as a class action,

though not officially certified, does not affect the justiciability

of the case for the remainder of the class. The leading case

on this point is Gaddis v. Wyman, 304 F. Supp. 713 (S.D.N.Y.

1969), aff'd sub nom. Wyman v. Bowers, 397 U.S. 49 (1970).

There, in a case challenging the constitutionality of a

welfare durational residency requirement, the absence of

formal class certification did not prevent the court from

holding that, despite the resolution of the named plaintiffs’

vc the suit was not moot, and new named members of the

class could intervene. Pertinently, the Court observed:

"When the action was commenced, however,

\Cypress v. Newport News Gen. & Non-Sectarian Hosp. Ass'n., 375

Gaddis was properly a representative of the

the named plaintiff would be contrary to the

express purpose of Rule 23(e), which prohibits

dismissal or compromise of a class action if the

result would be to injure the other members of

a purported class.” Id. at 715.

Even though, as here, the class never officially was certified,

the court found that in the interim between filing and certificatio

the case must be assumed to be a class action: "A holding that an

action commenced as a class action retains that character until a

purported class. To say that the whole action

is mooted simply because it may be moot as to

urt finds otherwise is supported by the Advisory Committee's

—

note on the 1966 amendments to Rule 25." Id. See J. Moore,

Federal Practice §23.50, at 23-1103 (2d ed. 1969). For

other cases employing similar reasoning and reaching a similar

result, see: Jones v. Diamond, 519 F.2d 1090, 1097-99 (Sth

Cir. 1975); Cruz v. Hauck, 515 F.2d 322, 325 n.l (5th Cir.

1975); Frost v. Weinberger, 515 F.2d 57, 62-65 (2d Cir. 1973);

Huff v. N.D. Cass Company of Alabama, 485 F. 2a 710, 713 (5th

Cir. 197.) (en banc); Mick v. Sullivan, 476 F. 2d 973 (4th Cir.

1973); Kahan v. Rosenstiel, 424 F. 2d 161 (3d Cir. 19709);

F. 24 648, 667 (4th Cir. 1967) (en banc); Brown v. Liberty Loan

Corporation of Duval, 392 F. Supp. 1023 (M.D. Fla. 1974); La Reau

vy. Manson, 383 F. Supp. 214 (D. Conn. 1974); Gatling v. Butler,

52 F.R.D 389 (D. Conn. 1971); Vaughan v. Bower, 313 F. Supp. 37,

4u (D. Ariz.) (3-judge ct.), aff'd 400 U.S. 884 (1970).

D. UNDER THE SPECIAL CIRCUMSTANCES PRESENTED

IN THIS CASE, EFFECTIVE JUDICIAL ADMINIS-~

TRATION AND FIDELITY TO THE INTENT OF FED.

R. CIV. P. 23 COUNSEL THAT PETITIONERS’

MOTION FOR LEAVE TO SUBSTITUTE NAMED

PETITIONERS, OR, IN THE ALTERNATIVE, TO

INTERVENE BE GRANTED.

Although it is urged that this action is not moot under the

current state of the record, the petitioners have filed -- out

of an abundance of caution -- a motion, pursuant to Fed. R. Civ.

P. 21, 23, and 24, seeking to substitute, add, or intervene with

additional prisoners currently incarcerated in Kentucky and

immediately subject to the parole release jurisdiction of the

Kentucky Parole Board. The motion primarily is bottomed on the

procedure approved in Mullaney v. Anderson, 342 U.S. 415 (1952),

where the Court sustained a motion to add party plaintiffs filed

to meet a suggestion by the defendants that the named party in

the case did not have standing to maintain the suit. Specifically,

the defendants alleged that the named parties -- a union and its |

officials -- did not have standing to sue on behalf of non-

residents union members in an action challenging a license fee

imposed by the Territorial Legislative of Alaska. To quell this

allegation, the plaintiffs sought to add two non-resident union

members. Relying on Fed. R. Civ. P. 21, the Court granted the

motion; Justice Frankfurter's reasoning is equally applicable

to the present case:

"This addition of these two parties plaintiff

can in no wise embarrass the defendant. Nor ould

their early joinder have in any way affected the

course of the litigation. To dismiss the present

petition and require the new plaintiffs to start

over in the District Court would entail needless

waste and runs counter to effective judicial

administration...." Id, at 417.

On this authority alone, petitioners' motion should be granted.

See also Rogers v. Paul, 382 U.S. 198 (1965); Benson v. State

of California, 328 F.2d 159 (9th Cir. 1964); McCausland v.

Shareholders Mgt. Co., 52 F.R.D. 521 ‘S.D.N.Y¥. 1971).

19.

IIl.

THIS ACTION, WHICH DOES NOT SEEK TO AFFECT

THE DURATION OF THE PETITIONERS’ CONFINE-

MENT BUT SEEKS ONLY PROSPECTIVE INJUNCTIVE

RELIEF, IS PROPERLY COGNIZABLE UNDER

42 U.S.C. §1983.

Relying on Preiser v. Rodriguez, 411 U.S. 475 (1973), the

respondents argue (Brief for Respondent at 9-10) that the

petitioners’ complaint should be treated as a petition for a writ

of habeas corpus under 28 U.S.C. §2254, rather than as a civil

rights action cognizable under 42 U.S.C. §1983. As a habeas

action, they urge that the petitioners be required to exhaust their

state remedies prior to reinstituting this action in federal court.

This argument finds no support either in Rodriguez or in the

settled interpretation of 28 U.S.C. §2254. See Bradford v. |

Weinstein, 519 F.2d 728, 733-35 (4th Cir. 1974).

A. THE EXHAUSTION REQUIREMENT OF 28 U.S.C.

§2254(b), AS CONSTRUED IN PREISER v.

RODRIGUEZ, DOES NOT EXTEND TO A SUIT

NLY TO AFFECT THE PROCEDURE

OF FUTURE PAROLE HEARINGS.

The opinion in Rodriguez espouses three propositions, all

relevant to state's contention. First, the Court reaffirmed its

earlier decisions holding that there is no judicial requirement of

exhaustion of state remedies in suits under the Civil Rights Act

of 1871, 42 U.S.C. §1983 (411 U.S. at 477). Second, the Court

similarly reaffirmed the principle that a §1983 action was

available to state prisoners no less than to others complaining

of unconstitutional conduct engaged in under color of state law,

and that there was to be no general rule that the special problems

of federal involvement in state prison administration warranted an

exhaustion requirement in prisoner suits under §1983 (431 U.S. at

498-99). Third, the Court held that a prisoner “challenging the

very fact or duration of his physical imprisonment, and...

(seeking) a determination that he is entitled to immediate release

or a speedier release" (411 U.S. at 500) (emphasis added), may

not avoid the exhaustion requirement of the habeas corpus

"probable cause determination,” it describes this case. Although |

statute by basing the action on §1983 instead.15 Where the action in both the ultimate motive for the prisoner's challenge is to

is “close to the core” of habeas corpus (411 U.S. at 489), the enhance the likelihood of future release, that insight does not

Court held, the "specific determination" of Congress (411 U.S. convert this proceeding into a challenge to confinement as

at 490) that habeas corpus relators first exhaust state judicial contemplated by Rodriguez. The Complaint here, as in McDonnell,

remedies must be respected regardless of the plaintiff's choice of asked only for declaratory and prospective injunctive relief

jurisdictional base. In light of these propositions, it is (A.8). It cannot be said that the petitioner is using §1983

evident that Rodriguez was carefully grounded in “explicit as a pretext to avoid the exhausion requirement of the habeas

congressional intent" (411 U.S. at 489) and did not attempt, as corpus statute. The legislative judgment requiring exhaustion,

the state does, to convert the exhaustion requirement from a therefore, is not at risk. That is all that Rodriguez properly

legislative one involving habeas corpus to a judicial one in- sought to protect.

volving state prisoners.

S232 VEN IF IT WERE APPLICABLE

Subsequent decisions support this analysis. In Wolff | B. SECTION 2458 (OTRE EXHAUSTION om THIS CASE, ,

E REMEDIES WOULD

v. McDonnell, 418 U.S. 539 (1974), the Court held that Rodriguez, BECAUSE PURSUIT OF STAT

FUTILE.

while barring an attack on the forfeiture of good-time credits ferret by its own terms, provides that exhaustion

by reason of allegedly unconstitutional disciplinary proceedings, is not required where "there is either an absence of available state

did not require exhaustion as to an attempt to obtain "an other- corrective process or the existence of circumstances rendering

wise proper injunction enjoining the prospective enforcement of sesh gucnees ineffective to protect the rights of the prisoner"

invalid prison regulations.” Id. at 555. In Gerstein v. Pugh, tenghaste added). As mentioned above, P- + prisoners in Kentucky

420 U.S. 103 (1975), Rodriguez was held inapplicable to a claim

have availed themselves of the only state route ~~ 4 declaratory

by arrestees that they were constitutionally entitled to a Jedgnent action --available to challenge the constitutional

judicial determination of probable cause for pretrial detention: adequacy of the procedures employed by the Kentucky Parole Board

"Respondents did not ask for release from state

singularl

custody.... They asked only that the state authorities in parole release hearings. shat chaiicage = ’ ,

be ordered to give them a probable cause determination....

Because release was neither asked nor ordered, the unsuccessful.

lawsuit did not come within the class of cases fo hich ‘ 74 in respons

habeas corpus is the exclusive remedy." Id. at 107 ns6. In Harrison v. Robuck, 508 S.W. 2.9 Oy. a F

Board "“abuse(d) their

The foregoing passage from Pugh is fully applicable to the to a prisoner's allegation that the Parole

® feguards, a statement

challenge mounted in this case; indeed, with words such as discretion" by denying him, among other sateg ’

le, the high Court in

"constitutionally adequate parole hearing" substituted for of reasons upon refusing to om i .

Kentucky flatly rejected any notion that due process procedures

15368 U.S.C. §2254(b) provides:

belong in the parole release process. The Court relied on the

"An application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a broad discretionary powers vested in the Board by the legislature

Tate tee auasinane bee Gelenenen Sen pumediet anna tanhe and stated that it was “unwilling to impose more stringent Pro~

Ghommne of queilenie suahe cougeessve paceene or ce. cedural requirements on the Parole Board than are required of

Ss Se Bee vmstapene efhtnsosentvn agensten.® gen 10) wo aneeill

these petitioners to return to the state courts with their present

claims would be an exercise in futility. Section 2254(b) is,

ge satisfied. See e.g., Evans v- Cunningham, 335 F.2d

~

.».) (4th Cir. 1964); Developments in the Law -- Federal Habeas

Corpus, 83 Harv. L. Rev. 1038, 1098-1100 (1970) .%6

léAlthough not raised by the state, the Solicitor General

claims that e substantial question exists whether this action

should have been heard by a three-judge court pursuant to

28 U.S.C. §2281. This submission, based as it is on a technical

statute which is to be strictly construed, see, e.g., Gonzales

v. Automatic Employees Credit Union, 419 U.S. 90 74); Board

of ents of the University of Texas System v. New Left Education

roject, 5. ’ , cannot withstand scrutiny

er the facts of this case. First, the petitioners here do

not challenge a specific statute, reguiation, policy, or practice.

What is complained of is the absence of such a policy or regulation

The petitioners are seeking to a vacuum that the Parole

Board has not filled. Even under a generous definition of the

concept of policy or practice, the practices of the Parole Board

in release hearings are “simply amorphous.” Leonard v.

Mississippi State Probation and Parole Board, -2d 820, 823

(Sth Cir. 1975). This insight is Implic n the decisions of

other Circuits on the issue presented here, e.g. Bradford v.

Weinstein, supra; United States ex rel. Johnson v. Chairman

New York State ard of Parole, supra; Dorado v. Kerr. .2da

: th Cir. 1972), none of which was rendered by a three-

judge court See also Baxter v. Palmigiano 96 S.Ct. 1551,

1555 n.2 (1976).

Second, practices of administrative officers which are

not clearly mandated by a statute or a regulation do not require

the convening of a three-judge court. The statute “precludes a

reading which would bring within its scope every suit to restrain

the conduct of a state official, whenever, in the ultimate

reaches of litigation, some enactment may be said to authorize

the questioned conduct." Phillips v. United States, 312 U.S.

246, 253 (1941).

Third, the granting of the injunctive relief requested here

would not result in the "“improvident state-wide doom by a federal

court of a state's legislative policy.” Phillips v. United States,

supra at 251. It hardly needs saying that there is no state

egislative policy to deny due process to petitioners. Simply

requiring administrative officers to comply with constitutional

mandates in the course of effectuating a state statute is not a

challenge to the statute within the province of §2281. See

Pitts v. Knowles, 339 F. Supp. 1183 (W.D. Wis. 1972), aff'd

776 F.2a 1405 (1973). ———

Fourth, even if the injunctive relief requested here should

properly have been before a three-judge court, the declaratory

ro og gat ae properly be heard by a single district

udge. See Kenn v. Mendoza - Martinez, 372 U.S. 144, 154-55

(1963). Lack of Jurisdiction over the request for injunctive

relief would not destroy the court's jurisdiction over the prayer

for declaratory relief. That portion of the case, therefore,

is properly before this Court.

23

———————

: |

Fifth, in a real sense, the treatment of the suit by

the a@lstrict court mooted the question of the propriety of

convening a three-judge court. It is established that a

single district judge may dismiss a complaint if it raises

incubetantis? conetitutional issues, Ex Parte Poresky, 290

U.S. 30, 31-32 (1933). Im such a case, the proper route of

appeal lies to the Court of Appeals and then to this Court.

MTM. Inc. v. Baxley, 420 U.S. 799 (1975). The evolution of

this litigation properly brings before this Court the question

of the substantiality of the constitutional issues raised

in the Complaint.

Yinally, under The Three-Judge Court Amendments, Pub.

L. No. 94-381 (Aug. 12, 1976), Congress articulated a national

policy limiting the convening of three-judge courts to a

specific class of cases. Under the amendments, the issues

raised in this case would not require the convening of a

eles court.

24:

_—

_—

CONCLUSION

For the foregoing additional reasons, the judgment of the

Court of Appeals should be reversed and the case remanded for

further proceedings.

a

Respectfully submitted,

DEAN HILL RIVKIN

Appalachian Research and Defense

Fund of Kentucky, Inc.

630 Maxwelton Court

Lexington, KY 40508

ROBERT ALLEN SELDER

Kentucky Civil Liberties Union

Box 802

University Station

Lexington, KY 40506

Counsel for Petitioners

Of Counsel

OWARD LESNICK

340 Chestnut Street

hiladelphia, Pa. 19174

AVID MURRELL

puty Kentucky Public Defender

25 Leawood Drive

rankfort, KY 40601

VIN J. BRONSTEIN

ational Prison Project

of the American Civil

Liberties Union Foundation

346 Connecticut Avenue, N.W.

uite 1031

ashington, D.C. 20036