Petition — Gates v. DeLorenzo

Supreme Court, U. S.

FILED

FES 4 1977

SE ‘

MICHAEL RODAK, JR. 6

IN THE DAK, JR, CLERK

Supreme Court of the United States

Octroser TerRM, 1976

ve 76-1084

J. BERNARD GATES, Chairman

Connecticut Board of Parole, et al

Petitioners

Vv.

ARTHUR ANTHONY DeLORENZO

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-—

—

Cari R. AJELLO

Attorney General

30 Trinity Street

Hartford, Connecticut

STEPHEN J. O'NEILL

Assistant Attorney General

340 Capitol Avenue

Hartford, Connecticut 06115

Counsel for Petitioners

(Se0e FOReE FewreRe Herr rots

INDEX

Page

ES ee ee 2

ED pacts bic kun duce swicbnsycevedunucss 2

EY ED onc cvcsecsedriusc unde cece 2

CONSTITUTIONAL PROVISION INVOLVED ....... 2

eee GO BOM UMD non ccc ccevesecccees 3

REASONS FOR GRANTING THE WRIT ............ 8

ee eee ge eee Ce can rinse h eee 11

re iran ages web a Aa ke 1]

ii

TABLE OF CITATIONS

Billiteri v. United States Board of Parole, 541 F.2d 938,

RRR Papers Bee re ier nF,

DeLorenzo v. Gates, et al, Civil No. H-75-416

ey SED én 6 nea twe boceavudueasys cen ees

Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975) ........

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct.

om ‘2? * £ Fy | ePrrrrrrrerrer Tee

LaBonte v. Gates, 406 F. Supp. 1227 (D. Conn. 1976) ..

Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970), cert.

denied 400 U.S. 1023 (1971) ....................

Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L.Ed.2d

ED: oo 4 ks whies coda ee RES Con a Rk

Scarpa v. United States Board of Parole, 477 F.2d 278

.(C.A. 5 en banc), vacated and remanded to consider

mootness, 414 U.S. 809, 94 S. Ct. 79, 38 L.Ed.2d

REE, i 6 ckndcawtanses pecekaneeasee er eeeeee:

Scott v. Kentucky Board of Parole, 423 U.S. 1301, 96 S. Ct.

Se CUE sae dene ces kd uduky dawcaeaeeenenet ieee

Scott v. Kentucky Board of Parole, 97 S. Ct. 342 (1976)

United States ex rel. Johnson v. Chairman, New York

State Board of Parole, 500 F.2d 925 (C.A. 2), vacated

as moot sub nom. Regan v. Johnson, 419 U.S. 1015,

95 S. Ct. 488, 42 L.Ed.2d 289 (1974) .............

Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46

I ne ee SP tae

Page

iii

UNITED STATES CODE

28 U.S.C. Section 1254(1) ...........0..cee econ. 2

FEDERAL RULES OF APPELLATE PROCEDURE

RULES OF THE SUPREME COURT OF THE

UNITED STATES

EE as Ga Phas WRG Ge. 4.506 SRM OR $00.4 ORe 10

IN THE

Supreme Court of the United States

OcrosBer TERM, 1976

No.

J. BERNARD GATES, Chairman

Connecticut Board of Parole, et al

Petitioners

v.

ARTHUR ANTHONY DeLORENZO

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioners, who consist of the membership of the

Connecticut Board of Parole, respectfully pray that a Writ

of Certiorari issue to review only that portion of the judg-

ment and opinion of the United States Court of Appeals for

the Second Circuit which remanded the case to the District

Court for the District of Connecticut for a trial to establish

a record of what burden would be involved and usefulness

would result from allowing prisoners to have access to their

files prior to a parole release hearing.

Said judgment and opinion were entered on October

20, 1976.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit, not yet reported, appears in the Appendix

at pp. la-9a.

The opinion of the District Court for the District of

Connecticut is reported in 406 F. Supp. 1227.

JURISDICTION

The opinion and judgment of the United States Court

of Appeals for the Second Circuit were rendered on October

20, 1976.

The petitioners timely filed a Petition for Re-Hearing

Pursuant to Rule 40, Federal Rules of Appellate Procedure,

With Suggestion For Hearing In Banc. (See Appendix

pp. 10a-13a).

This petition was denied by the United States Court of

Appeals for the Second Circuit by Order dated December

9, 1976. (See Appendix pp. 14a-15a).

This petition for a Writ of Certiorari was filed within

ninety days of the latter date. This Court's jurisdiction is

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Does the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States entitle prospec-

tive parolees to be permitted to inspect the Parole Board's

file prior to a parole release hearing?

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved is the Due Process

Clause of the Fourteenth Amendment to the Constitution

of the United States.

3

STATEMENT OF THE CASE

Three inmates of the Connecticut Correctional Institu-

tion, Somers, after having been denied release on parole by

the Connecticut Board of Parole, instituted separate actions

in the District Court for the District of Connecticut. These

inmates were Thomas LaBonte, Michael Holup and Howard

Studley.

Counsel on both sides were identical and for all relevant

purposes the same claims were made in each action. The

only difference being that Holup claimed he was denied

release on parole because of bias on the part of the parole

panel which denied him parole and claimed money damages

in addition to declaratory and injunctive relief. This claim

was dismissed in the District Court for the reason that

. . . absolutely no evidence was presented to support this

allegation . . .”. See: LaBonte v. Gates, 406 F. Supp. 1227,

1228, footnote 1, (D. Conn. 1976).

By agreement of the parties and with the approval of

the District Court, the three actions were consolidated and

tried together.

Of the various issues raised in their complaints, only two

were claimed in the District Court and in the Court of

Appeals. These claims were that the Due Process Clause of

the Fourteenth Amendment requires (a) that each state

prisoner be allowed to inspect his prison file before it is used

by the Board of Parole in deciding whether or not to release

the inmate on parole, and (b) that each inmate be permitted

the assistance of counsel or counsel substitute during his parole

release hearing.

Jurisdiction was claimed under 42 U.S.C. Sections 1983

and 28 U.S.C. Sections 1343 (3) and 1343 (4), as well as

4

under the Declaratory Judgment Act, 28 U.S.C. Sections

2201 and 2202.

In order to obviate the need for a three-judge court,

prayers for injunctive relief, which were made in each com-

plaint, were dropped. See Kennedy v. Mendoza-Martinez,

372 U.S. 144, 154-55, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963).

This left only a prayer for a declaratory judgment and, in

Holup's action, a demand for money damages.

Following the trial and while the matter was sub judice,

Studley and LaBonte were released on parole. Their cases

were dismissed as moot on the authority of Weinstein v.

Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L.Ed.2d 350 (1975).

This dismissal was affirmed by the Second Circuit (See Ap-

pendix p. 2a).

The controversy between Holup and the Board remained

alive. Following the tria!, Holup moved, in the District Court,

for a certification as a class in order to avoid future mootness

problems. The motion was denied “. . . because the motion

was not filed until after the hearing on the merits and after

the decision had been rendered . . .” LaBonte v. Gates, supra

P. 1229.

The District Court then rendered its opinion rejecting

the above stated claims and entered judgment dismissing

Holup’s action on the merits.

Holup then appealed to the United States Court of

Appeals for the Second Circuit.

At the time of the decision of the District Court, two

other inmates confined in the Connecticut Correctional Insti-

tution, Somers, had cases pending in the District Court raising

the same issues as were dismissed in LaBonte, Studley and

5

Holup’s actions. These inmates were Craig Copley and Arthur

A. DeLorenzo.

These latter actions were dismissed by the District

Court, sua sponte for failure to state a claim upon which

relief can be granted.

These dismissals were based upon the authority of

Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975); Menechino

v. Oswald, 430 F.2d 403 (2d Cir. 1970), Cert. denied 400

U.S. 1023 (1971) and the decision of the District Court in

LaBonte, supra.

The decision of the District Court as well as the judg-

ment in DeLorenzo v. Gates, et al, Civ. No. H75-416 (D.

Conn, 1976), are contained in the Appendix at pp. 16a-18a.

Both Copley and DeLorenzo then appealed to the Sec-

ond Circuit.

Counsel in Holup, Copley and DeLorenzo were identical.

By agreement of the parties and with the approval of the

District Court, the trial record in LaBonte, Studley and

Holup was ordered to be made the record in the Court of

Appeals on the appeals of Holup, Copley and DeLorenzo.

Again by stipulation of the parties and by order of the

Second Circuit, the three appeals were ordered to be argued

at the same time.

Lastly, Holup was released on parole on March 22, 1976

and Copley was discharged from custody on April 23, 1976.

Their appeals then became moot. See Weinstein v. Bradford,

supra.

Therefore, the only appeal actually covered by the

opinion of the Second Circuit was that of Arthur A.

DeLorenzo. (See Appendix p. 3a).

6

The Second Circuit affirmed that portion of the judgment

of the District Court which dismissed the claim that due

process entitles a prospective parolee to be repiesented by

counsel or counsel substitute at a parole release hearing.

(It is only parole release hearings and not parole revocation

hearings which were involved in this case).

On the issue of access by the prisoner to his file, the

Second Circuit stated the issue to be “. . . whether due

process requires us to assume that only by exposing every

prison file in advance can misinformation or failure to con-

sider information favorable to the prisoner in the parole

release process be substantially avoided.” (See Appendix

p. 8a).

Although noting that DeLorenzo, who as observed above,

was the only prisoner with standing at the time the case was

decided, agreed to have his appeal determined upon the trial

record in Holup, Studley and LaBonte and after further

noting, in effect, that a review of that trial record showed

that access by the prisoner to his file would not have con-

tributed to the fairness of the hearing or the accuracy of the

Board’s judgment in denying parole (See Appendix p. 7a)

the Second Circuit held that it did not have sufficient evi-

dence in the record to determine how the question posed

above should be determined.

The portion of the judgment of the District Court which

held that due process did not entitle a prisoner to access to

his file prior to his parole release hearing was remanded to

the District Court “. . . to hold a separate trial in DeLorenzo’s

case in wiich an adequate record will be made . . .” (See

Appendix p. 9a).

This record was to cover: (1) whether access to their

files would be of any help in the average case in view of

the unchallenged facts that 95% of Correctional inmates

7

eligible for parole are released on parole before their sentence

expires and that over 50% are not released at their first

parole release hearing; (2) whether mistakes, if any, in the

Board's files deal with matters material to the parole process;

(3) “. . . whether the burden that would be imposed upon

the Parole Board if appropriate review for the redaction of

confidential material were made, would be onerous, and

whether giving a redacted file to every prospective parolee,

including those who will be granted parole, would make for

an excessive, and, indeed, unnecessary burden”; (4) the his-

tory of the mistakes, if any, actually called to the attention

of the Connecticut Board of Parole; and (5) “. . . the method

that would be used in redacting prisoners’ files and the extent

of such burden, if it were required that only prisoners who

have been denied parole should be given access to their

redacted files with a further prompt second hearing after

the prisoner has had a chance to look through his file for

mistaken items”. (See Appendix pp. 8a-9a).

It is from this portion of the judgment of the Second

Circuit which the petitioners seek review in this Court.

The judgment of the Second Circuit did not clarify

whether in the trial ordered in DeLorenzo a record must

be made:

a) which includes files of persons denied parole other

than Arthur Anthony DeLorenzo;

b) if the record must include such files, then approx-

imately how many files should be considered;

c) if other files must be reviewed, then how can this

be done without prejudicing the possible rights of prisoners

who are not parties to this action; and

8

d) must the record include whether or not material mis-

takes have been made in denying parole to other prisoners

who are not parties to this action.

REASONS FOR GRANTING THE WRIT

1. THE QUESTION OF TO WHAT EXTENT, IF

ANY, DUE PROCESS APPLIES TO PAROLE RELEASE

HEARINGS IS AN IMPORTANT QUESTION OF FED-

ERAL LAW, WHICH HAS NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT.

Rule 19 1 (b) of this Court provides, in part, that one

of the factors to be considered in granting Certiorari is

whether “. . . a Court of Appeals has . . . decided an im-

portant question of Federal Law which has not been, but

should be, settled by this Court . . .”

In Scott v. Kentucky Board of Parole, 423 U.S. 1301, 96

S. Ct. 561 (1975) this Court granted a petition for Writ of

Certiorari to the United States Court of Appeals for the Sixth

Circuit to. review an order from that Court holding that the

requirements of due process are not applicable to parole re-

lease hearings.

It thereafter appearing that the petitioner, Scott, had

been granted parole by the Kentucky Board of Parole, the

judgment of the Sixth Circuit was vacated and the case

remanded for consideration of the question of mootness. Scott

v. Kentucky Board of Parole, 97 S. Ct. 342 (1976).

This latter order was dissented to by Mr. Justices Stevens,

Brennan and Powell.

Not including Scott the dissent cites at least three addi-

tional cases, all involving the issue of to what extent, if any,

due process applies to parole release hearings, which worked

their way to this Court only to run into a mootness problem

9

because the prisoner involved had been paroled or discharged.

Scott v. Kentucky Parole Board, 97 S. Ct. 342, 343, note 1.

These cases are Bradford v. Weinstein, 519 F.2d 728

(C.A. 4, 1974), vacated as moot 423 U.S. 147, 96 S. Ct. 347,

46 L.Ed.2d 350 (1975); United States ex rel. Johnson v. Chair-

man, New York State Board of Parole, 500 F.2d 925 (C.A. 2),

vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015,

95 S. Ct. 488, 42 L.£d.2d 289 (1974), and Scarpa v. United

States Board of Parole, 477 F.2d 278 (C.A. 5 en banc), va-

cated and remanded to consider mootness, 414 U.S. 809, 94

S. Ct. 79, 38 L.Ed.2d 44 (1973).

The above cases which seemed headed for resolution by

this Court held (1) due process applies (Bradford v. Wein-

stein, supra), (2) due process applies to the extent that

reasons for denial of parole must be given (United States

ex rel, Johnson v. Chairman, New York State Board of Parole,

supra), and (3) that due process does not apply (Scarpa v.

United States Board of Parole, supra). See Scott v. Kentucky

Board of Parole, 97 S. Ct. 342, 343, note 1 (1976).

Certainly, in view of the volume of litigation in the

Circuit and District Courts and the variety and conflict in

opinion, this due process issue should be “settled” by this

Court and by granting Certiorari in Bradford v. Weinstein,

supra, and Scott v. Kentucky Board of Parole, supra, it is

obvious that this Court has taken this position.

In this regard, the petitioners represent to this Court

that Arthur A. DeLorenzo was last denied release on parole

on September 21, 1976. He is scheduled for a future parole

release hearing in September, 1977 (See letter dated October

14, 1976 to the Panel of the United States Court of Appeals

for the Second Circuit which rendered the opinion and judg-

ment from which this review is sought).

10

In short, this Court has clearly recognized that the issue

of to what extent, if any, due process applies to a parole

release hearing, is one which should be “settled” by this Court

and the review sought herein is clearly within both the letter

and spirit of Rule 19 1 (b) of this Court.

Further, the conflict among the decisions of the various

Circuits, as noted above, with regard to the issue of to what

extent, if any, due process principles are applicable to parole

release hearings, more than justifies the granting of the in-

stant petition under that portion of Rule 19 1 (b) which

provides that another factor to be considered in determining

whether to grant review on a Writ of Certiorari is whether

“.. . a court of appeals has rendered a decision in conflict

with the decision of another court of appeals on the same

matter...”

Although the Second Circuit in this case did not hold

- that due process requires access by the prisoner to the Parole

Board’s file but rather remanded to the District Court to

make a record on this issue as noted above and did not

“. . . intimate what the District Court should decide after

the full record is made before it.” (See Appendix p. 9a)

the Second Circuit of necessity held that due process is ap-

plicable to parole release hearings. Otherwise, it would have

affirmed the judgment of the District Court in its entirety.

Further, in refusing to affirm the District Court’s judg-

ment in its entirety, the Court acted contrary to its previous

opinion in Billiteri v. United States Board of Parole, 541

F.2d 938, 945 (2d Cir. 1976) where another panel of the

Second Circuit held “The petitioner, therefore, has no such

constitutional right to the information in the parole board’s

file, including but not limited to the pre-sentence report and

the examiner panels report. It was error for the district court

to hold to the contrary.” (Footnote 8. omitted).

ll

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this case presents an important question of federal law

which should be settled by this Court, which question has

been decided in differing and conflicting manners by the

various Circuit Courts of Appeals which have considered it.

The Petitioners respectfully request that a Writ of

Certiorari be issued to review the judgment and the opinion

of the United States Court of Appeals for the Second Circuit.

Cari R. AJELLO

Attorney General

30 Trinity Street

Hartford, Connecticut

STEPHEN J. O'NEILL

Assistant Attorney General

340 Capitol Avenue

Hartford, Connecticut

Counsel for Petitioners

CERTIFICATION

This is to certify that on this 21st day of January, 1977,

two copies of this Petition for Writ of Certiorari and Appendix

thereto were mailed, postage prepaid, to Stephen Wisner and

Phil Kunsberg, New Haven, Connecticut (Judith M. Mears,

Dennis E. Curtis and Mary F. Keller, of counse!, for the

Respondent.

STEPHEN J. O'NEILL

Assistant Attorney General

ee OS -

IN THE

Supreme Court of the United States

Ocroser TERM, 1976

No.

J]. BERNARD GATES, Chairman

Connecticut Board of Parole, et al

Petitioners

Vv.

ARTHUR ANTHONY DeLORENZO

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX

la

UNITED STATES COURT OF APPEALS

For THE SECOND CraculIT

Nos, 1078, 1296, 1297 — September Term, 1975.

(Argued June 17, 1976 Decided October 20, 1976.)

Docket Nos. 76-2013, 76-2018, 76-2045

MicuaAeL Hour, Craig Cop ey,

Artuur ANTIONY DELORENZO,

Plaintiffs-Appellants,

—against—

J. Bernarp Gates, Chairman,

Connecticut Board of Parole, et al.,

Defendants-Appellees.

Before:

MANSFIELD, Oakes and GuRFEIN,

Circuit Judges.

Action for declaratory judgment that the Due Process

clause of the Fourteenth Amendment requires the Connect-

icut Board of Parole (1) to allow each prisoner the assistance

of counsel or a counsel-substitute during the parole release

heariiig and (2)*to allow each prisoner to inspect his prison

file before it is used in deciding whether to grant parole.

From a dismissal by the District Court for the District of

Connecticut (Blumenfeld, J.), a single prisoner appeals. Held:

that counsel or a substitute need not be permitted to attend

the parole hearing. The case is remanded to the District

Court to determine more fully the extent of the burden that

would be imposed upon the Connecticut Parole Board if

redacted files had to be made available to prisoners in var-

ious circumstances, as well as other matters adverted to in

this opinion.

2a

The judgment denying the right to representation at the

parole board hearing is affirmed.

STEPHEN WisNER and PH KunsBerc,*’ New

Haven, Conn. (Judith M. Mears, Dennis E.

Curtis and Mary F. Keller, of counsel), for

Plaintiffs-Appellants.

STEPHEN J. O’Nem, Assistant Attorney Gen-

eral, Hartford, Conn. (Carl R. Ajello, At-

torney General, Hartford, Conn., of coun-

sel), for Defendauts-Appellees.

Gurren, Circuit Judge:

There were originally three plaintiffs in the District

Court of Connecticut, Thomas LaBonte, Michael Holup and

Howard Studley. Each separately sought a declaratory

judgment under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 to

the effect that the Due Process Clause of the Fourteenth

Amendment requires (a) that each state prisoner be allowed

to inspect his prison file before it is used by the Connecticut

Parole Board in deciding whether to grant the inmate parole,

and (b) that each inmate be allowed the assistance of counsel

or a counsel-substitute during the parole release hearing.

These three plaintiffs were given a joint trial by the

District Judge, Hon. M. Joseph Blumenfeld. Following the

trial, but before the decision of the District Court was

announced, Studley and LaBonte were released on parole.

Their actions were properly dismissed as moot. See Weinstein

v. Bradford, US. , 96 S. Ct. 347 (1975). Holup

moved to certify a class of plaintiffs with himself as its

representative. The court denied certification essentially

* Appeared pursuant to the Student Practice Rule (46E) of

this Court.

3a

because the application was made after the trial had already

been held. No attempt has been made to appeal this ruling.

Judge Blumenfeld proceeded to render a decision in the

case of Holup. He rejected both claims in a considered

opinion, LaBonte v. Gates, 406 F. Supp. 1227 (D. Conn.

1976). After the decision Holup, too, was released on parole,

and no appellant of the original three plaintiffs remained.

At the time of the decision, however, two similar actions had

been pending, brought by inmates Craig Copley and Arthur

DeLorenzo.

Without a further hearing, the Judge dismissed their

complaints on the authority of his decision in LaBonte v.

Gates, supra. While three appeals were still pending by Holup

as well as Copley and DeLorenzo, Copley was also paroled.

That leaves one appellant, DeLorenzo, still incarcerated. His

appeal remains the only appeal before us.

I.

Judge Blumenfeld was correct in holding that due process

does not require Connecticut to change its present rules

regarding the participation by counsel in the parole release

hearing. The Connecticut procedure in this regard is eminently

fair. Counsel for the parolee is permitted to have a pre-hearing

conference with the chairman of the panel which will decide

the parolee’s case, and to place in the file which all members

of that panel read, any statement or other documentary

information. The justification advanced by the Board for

excluding counsel or counsel-substitute from the hearing it-

self is quite reasonable: The purpose of the hearing in the

Connecticut system is to enable the members personally to

speak with and observe the inmate, to determine his attitude

towards his crime, readiness for parole and the like. The

members feel that this can best be achieved by hearing the

inmate’s own words, unguided by the presence or promptings

4a

of counsel. We find that the state's interest in excluding

persons other than the inmate from the hearings outweighs

the “need for and usefulness” to the inmate of having such a

representative, despite the inmate’s concededly great interest

in the decision being made. See Haymes v. Regan, supra, 525

F.2d at 543; Frost v. Weinberger, supra, 515 F.2d at 66.

The Supreme Court has declined to hold appointment

of counsel constitutionally required in all parole or probation

revocation cases, Gagnon vy. Scarpelli, 411 U.S. 778 (1973).

On the basis of Gagnon, the Seventh Circuit held that “[s]ince

the arguments favoring the appointment of counsel certainly

have no greater force as applied to a parole release hearing

than to a parole revocation hearing, this holding requires

rejection of plaintiff's dve process arguments” for the right to

counsel in a parole release hearing. Ganz v. Benzinger, 480

F.2d 88, 90 (7th Cir. 1973) (Stevens, J.). And the Court has

also recently refused “to hold that inmates have a right to

either retained or appointed counsel in disciplinary preceed-

ings”, Wolff v. McDonnell, 418 U.S. 539, 570 (1974), even

though these proceedings, which involve the loss of “good

time,” to some extent resemble traditional adversary pro-

ceedings which have been thought to require counsel for the

accused. See also, Baxter v. Palmigiano, 44 U.S.L.W. 4487

(U.S. April 10, 1976).

Although the parole release decision is arguably dis-

tinguishable from the types of proceedings involved in the

above decisions, we do not think this helps appellants and

in any case the direction of the Court is clear.' In view of

'We note the distinctions made in Childs v. United States Board

of Parole, 511 F.2d 1270 (D.C. Cir. 1974). There the court stated:

“There is a substantial difference on the due process issue

between a finding of serious disciplinary action leading to loss

of good-time credits, involved in Wolff, and denial of an ap-

lication for parole. The broad discretion of the Board in the

ge ee lessens the content of required due process... .”

7 .

5a

the generous opportunity afforded counsel to place his or her

views on the record prior to the hearing, we hold that the

Constitution does not require the Connecticut State Board of

Parole to permit counsel or counsel-substitute to attend the

hearings.

Il.

This appeal comes to us in an unusual posture. The

original plaintiffs who had a hearing are no longer engaged

in a case or controversy that is justiciable. See DeFunis v.

Odegaard, 416 U.S. 312 (1974). Cf. Frost v. Weinberger, 515

F.2d 57, 62-63 (2d Cir. 1975). The only remaining appellant,

DeLorenzo, had no hearing. We have no record to review in

appellant’s own case, but he is willing to stand on the trial

record made in the other cases, in which Connecticut Parole

officials testified. The claim is that as a matter of constitutional

law, any parole procedure which fails to allow every prospec-

tive parolee an inspection of his file in advance of his hearing,

whether requested or not, is a violation of the Fourteenth

Amendment by the State involved.? The procedure by which

this abstract proposition is presented is by a request for a

declaratory judgment.’

And Judge Tamm in a concurring opinion stated:

“. . I recognize a distinction between the discretion afforded

the government in denying an application of conditional liberty

and in revoking liberty once Fa gra Consequently, I do not

read our holding as requiring t parole denial procedures in-

corporate all the elements of due process made applicable to

parole revocation proceedings in Morissey.” Id. at 1286.

See Ganz v. Bensinger, 480 F.2d 88, 90 (7th Cir. 1973).

2The district courts are divided on the question of access to files in

role release decision-making. Compare Childs v. United States

oard of Parole, 371 F. Supp. 1246 (D.D.C. 1973), aff'd in part,

vacated in part, 511 F.2d 1270 (D.C. Cir. 1974); Franklin v. Shields,

339 F. Supp. 309, 316-17 (W.D. Va. 1975); Cooley v. Sigler, 381 F.

Supp. 441, 443 (D. Minn. 1974) with Fisher v. United States, 382

F. Supp. 241 (D. Conn. 1974); Wiley v. United States Board of

Parole, 380 F. Supp. 1194 (M.D. Pa. 1974).

3We think that in the absence of a record that tells us what hap-

pened in DeLorenzo’s case we should be reluctant to declare rights

generally. The granting of declaratory relief is governed by equit-

6a

In Haymes v. Regan, 525 F.2d 540, 543 (2d Cir. 1975),

we specifically considered a three-pronged test to be applied

in deciding what procedural protections are constitutionally

due in the particular state proceeding, the balance between

“the inmate’s interest in the proceedings . . . ‘the need for

and usefulness of the particular safeguard in the given cir-

cumstances’ . . . [and] any direct burden which might be

imposed on the Board by this requirement,” citing Frost v.

Weinberger, 515 F.2d 57, 66 (2d Cir. 1975) and: Hannah v.

Larche, 363 U.S. 420, 442 (1960). We followed the balancing

test earlier laid down in United States ex rel. Johnson v.

Chairman, New York State Board of Parole, 500 F.2d 925,

928-29 (2d Cir. 1974). See Bradford v. Weinstein, 519 F.2d

728, 733 (4th Cir. 1974), vacated as moot, __—_ U.S. ——,

96 S. Ct. 347 (1975).

We decided in Haymes that the New York statute (Cor-

rection Law §214) requiring the Board to inform each

prisoner denied parole of “the facts and reason or reasons

for such denial” was sufficient. We held that “[tJhis require-

ment, if properly observed, should serve to protect the inmate

from arbitrary and capricious decisions or actions grounded

upon impermissible considerations. United States ex rel. John-

son, supra, 500 F.2d at 929.” 525 F.2d at 544.

We could accept this as dispositive of the issue here

raised, particularly when we must also balance the possible

administrative hardship in redacting each file to excise infor-

mation given in confidence or which threatens prison discipline.

On the other hand, if we were convinced that errors in

the files of Connecticut are especially common and that the

able principles, Eccles v. Peoples Bank of Lakewood Village, 333

U.S. 426, 431 (1948), and within the sound discretion of the re-

viewing court. See Alabama State Federation of Labor v. McAdory,

325 U.S. 450, 462 (1945). See also Public Service Commission of

Utah v. Wycoff Co., 344 U.S. 237, 245 (1953).

7a

true facts upon which parole is denied are often concealed,

we might reach another conclusion.

The trial of the three original plaintiffs, on which appel-

lant relies, discloses that the Connecticut Parole Board

apparently follows the requirements of Haymes v. Regan, 525

F.2d 540 (2nd Cir. 1975), and United States ex rel. Johnson

v. Chairman, New York State Board of Parole, 500 F.2d 925

(2d Cir. 1974). The Board gives its reasons for denying parole

with respect to each inmate on an individual basis, and also

reveals the adverse information on which it relies. In none

of the cases heard by Judge Blumenfeld did the plaintiff

appear to have been taken by surprise. In each case, the

inmate had been informed at the parole hearing of the infor-

mation in his file about which the Board was concerned. In

each case the inmate was allowed to comment on and to

explain such undisputed facts as a lengthy criminal record,

a recent escape attempt, and a denial of guilt to a psychiatrist

before pleading guilty in court. Inmates were permitted to

rebut the articulated reasons stated by the Board which

militated against parole. Judge Blumenfeld repeatedly sought

to elicit from the plaintiffs specific instances of inaccuracies

in the files or of other prejudice to the plaintiffs because of

the absence of disclosure in advance of the hearing. None

was established. There is nothing in Haymes v. Regan itself

to require that that Parole Board do more than “provide the

inmate with both the grounds for decision to deny him parole,

and the essential facts from which the Board’s inferences have

been drawn.” 525 F.2d at 544. This Connecticut does.

The Supreme Court has never passed on the question,

however, whether a presentence report must be shown to a

Sa

defendant in advance of sentencing. The Court has held that

a sentence canngt stand if it is based on assumptions con-

cerning the defendant’s criminal record that are “materially

untrue.” Townsend v. Burke, 334 U.S. 736, 741 (1948), or if

it is founded “in part upon misinformation of constitutional

magnitude.” United States v. Tucker, 404 U.S. 443, 447 (1972).

With this resolution of the ultimate effect of material mistake,

we must, of course, agree. And, as we explained in United

States ex rel. Johnson, supra, 500 F.2d at 930, in the case of a

parole board, judicial review should be available “when its

decision has no basis in the prisoner's file.” See also Kohlman

v. Norton, 380 F. Supp. 1073, 1074-75 (D. Conn. 1975). The

question is whether due process requires us to assume that

only by exposing every prison file in advance can misinforma-

tion or failure to consider information favorable to the

prisoner in the parole release process be substantially avoided.

In subjecting the due-process claim to a balancing test,

we do not have sufficient hard evidence in this record: upon

which to base a judgment. There is no doubt that many

inmates would like as much preparatory material as possible

in advance of their appearance before the Board. Whether

the divulging of information in the file will, in the average

case, be of any help in allowing the inmate to affect the parole

decision is more doubtful. The Connecticut Parole Board

releases over 95% of the inmates on parole before term ex-

piration, and over 50% at the first parole hearing.5 Nor are

we clear on this record whether the “mistakes” in the parole

files are of matters material to the parole decision. We lack

convincing evidence, morcover, of whether the burden that

‘The Supreme Court has granted certiorari to consider the legality

of a death sentence where the judge refused to disclose a con-

fidential section of the presentence report on which he relied in

part in imposing a death sentence contrary to the recommendation

3! the —a v. Florida, No. 74-6593, 44 U.S.L.W. 3761

une 6, .

5See LaBonte v. Gates, 406 F. Supp. 1227, 1231 n.6 (D. Conn. 1976).

9a

would be imposed upon the Parole Board if appropriate re-

view for’the redaction of confidential material were made,

would be onerous, and whether giving a redacted file to

every prospective parolee, including those who will be granted

parole, would make for an excessive, and, indeed, unneces-

sary burden.

We must accordingly remand to the District Court, with

some reluctance, to hold a separate trial in DeLorenzo'’s case

in which an adequate record will be made to supply the

evidence mentioned above. The history of the mistakes actu-

ally called to the attention of the Connecticut Parole Board

should also be elicited. Testimony should also be taken on

the method that would be used in redacting prisoners’ files,

and the extent of such burden, if it were required that only

prisoners who have been denied parole should be given access

to their redacted files with a further prompt second hearing

after the prisoner has had a chance to look through his file

’ for mistaken items.

We do not intimate what the District Court should de-

cide after the full record is made before it. Since we have

already devoted so much time to this appeal, however, we

believe it to be in the interest of an orderly administration

that this panel retain jurisdiction in the event that there is

a further appeal.

Remanded for further proceedings relating to Part II

of this opinion. The District Court’s judgment denying the

right to representation at a parole board hearing is affirmed.

10a

IN THE

UNITED STATES COURT OF APPEALS

DOCKET NOS. 76-2013, 76-2018, 76-2045

MICHAEL HOLUP, CRAIG COPLEY,

ARTHUR ANTHONY DeLORENZO

Plaintiffs-Appellants,

Vv.

J. BERNARD GATES, CHAIRMAN,

CONNECTICUT BOARD OF PAROLE, ET AL,

Defendants-Appellees

On Appeal from the United States District Court

for the District of Connecticut

PETITION FOR RE-HEARING PURSUANT TO

RULE 40, FEDERAL RULES OF

APPELLATE PROCEDURE, WITH

SUGGESTION FOR HEARING IN BANC

Cari R. AJELLO

Attorney General

STEPHEN J. O'NEILL

Assistant Attorney General

340 Capitol Avenue

Hartford, Connecticut 06115

lla

The Appellees respectfully represent that:

1. On October 20, 1976, a panel of this court rendered

its decision in the instant appeal.

2. The decision of the court was not received by the

Appellees until October 29, 1976.

3. In part, the decision of this court reversed the deci-

sion of the district court (See: Labonte v. Gates, 406 F. Supp.

1227 (D. Conn. 1976)), on the issue of whether or not the

Connecticut Board of Parole is required under due process

principles to allow a prisoner to inspect his prison file prior

to a parole release hearing.

4. The decision of this court remanded the case to the

district court on the issue for an evidentiary hearing to

determine whether or not:

a. Connecticut parole release hearings are based

upon material mistakes;

b. what burden would be imposed upon the Parole

Board if review of the prisoners files were allowed;

c. the history of mistakes actually called to the

attention of the Parole Board in its parole release

decisions;

d. the method that would be used in reviewing

prisoners files for the exclusion of confidential materials

and the burden involved therein; and

e. the burden involved in such review if access

were limited to those inmates who had been denied

parole.

12a

5. In refusing to affirm the decision of the district court

that due process does not require that the Board of Parole

give access to the prisoner to his file prior to his parole

release hearing the court held, contrary to a previous deci-

sion of this court, in Billiteri v. United States Board of Parole,

et al, Docket No. 75-6120, decided August 30, 1976.

6. In Billiteri at page 5296 of the slip opinion another

panel of this court held, relying on Haymes v. Regan, 525

F.2d 540 (2d Cir. 1975), that:

“The petitioner, therefore, has no such constitutional

right to the information in the Parole Board’s file, in-

cluding but not limited to the pre-sentence report and

the examiner panel’s report. Under the new act, see

note 1 supra, however, a prisoner now has the statutory

right under Section 4208(b) to this type of information,

subject to the limitations stated therein.” :

7. Pursuant to the provisions of Rule 35(a), Federal

Rules of Appellate Procedure, a hearing in banc is appro-

priate “(1) when consideration by the full court is necessary

to secure or maintain uniformity of its decisions.”

8. Pursuant to Rule 40(a), a petition for re-hearing is

appropriate when the court “. . . has overlooked . . .” a point

of law.

9. The Appellees respectfully claim that the conditions

for both hearing in banc and re-hearing by this panel, as

set forth above, have been satisfied.

13a

WHEREFORE, the Appellees respectfully request that

this decision be reheard in accordance with this petition.

Appellees

CarL R. AJELLO

Attorney General

By: STEPHEN J. O'NEILL

Assistant Attorney General

340 Capitol Avenue

Hartford, Connecticut 06115

CERTIFICATION

This is to certify that two copies of the petition for

re-hearing were mailed, postage pre-paid to Stephen Wisner

and Phil Kunsberg, Judith M. Mears, Dennis E. Curtis and

Mary F. Keller, of counsel, Yale Lega! Clinic, 127 Wall Street,

New Haven, Connecticu', this 3rd day of November, 1976.

STEPHEN J. O'NEILL

Assistant Attorney General

ORDER

The foregoing petition having been considered by the

court, it is herewith GRANTED.

BY THE COURT

l4a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the ninth day

of December, one thousand nine hundred and seventy-six.

an tt ana x Docket No. 76-2013

MICHAEL HOLUP, et al.,

Petitioners-Appellants,

V.

J. BERNARD GATES, Chairman, Connecticut

Board of Parole, et al.,

Respondents-Appellees.

A petition for rehearing containing a suggestion that the

action be reheard en banc having been filed herein by counsel

for the appellees, and no active judge or judge who was a

member of the panel having requested that a vote be taken

on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

Invinc R. Kaurman, Chief Judge

RECEIVED

Dec 13 1976

Attorney General's Office

340 Capitol Ave., Htfd.

15a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States Court

House, in the City of New York, on the ninth day of December,

one thousand nine hundred and seventy-six.

Present:

HON. WALTER R. MANSFIELD,

HON. JAMES L. OAKES,

HON. MURRAY I. GURFEIN,

Circuit Judges.

MICHAEL HOLUP, CRAIG COPLEY,

ARTHUR ANTHONY DeLORENZO,

Plaintiffs-Appellants,

Vv.

J. BERNARD GATES, CHAIRMAN,

CONNECTICUT BOARD OF PAROLE, et al,

Defendants-Appellees.

Docket No. 76-2013

A petition for a rehearing having been filed herein by

counsel for the appellees,

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. DanteL Fusaro

Clerk

RECEIVED

Dec 13 1976

Attorney General's Office

340 Capitol Ave., Htfd.

16a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ARTHUR ANTHONY DeLORENZO

v.

J]. BERNARD GATES, Chairman

of the Connecticut Board of Parole, ET AL

CIVIL NO. H-75-416

MEMORANDUM OF DECISION

The plaintiff, an inmate at the Connecticut Correctional

Institution at Somers, Connecticut, has filed this action

challenging the constitutionality of the procedures of the

Connecticut State Board of Parole. The complaint states that

the plaintiff has been denied his right to due process by

the defendants, acting under color of state law. 42 U.S.C.

Section 1983. Jurisdiction exists pursuant to 28 U.S.C. Sec-

tions 1343(3) and 1343(4).

The issues raised in the complaint have, however, been

determined against the plaintiff in Haymes v. Regan, No.

75-2096 (2d Cir. Oct. 29, 1975); Menechino v. Oswald, 430

F.2d 403 (2d Cir. 1970), cert. denied, 400 U.S. 1023 (1971),

and my decision in LaBonte v. Gates, No. 75-119 (D. Conn.

Jan. 13, 1976). The plaintiff's claim is too insubstantial to

compel the convocation of a three-judge court even though

the plaintiff requests an injunction age‘nst the Parole Board.

Cf. Andrews v. Maher, No. 75-7029 (2d Cir. Oct. 24, 1975).

Therefore, the action is dismissed for failure to state a

claim upon which relief can be granted. Rule 12(b)(6),

Fed. R. Civ. P.

SO ORDERED.

17a

Dated at Hartford, Connecticut, this 15th day of

January, 1976.

M. JoseEPH BLUMENFELD

United States District Judge

i8a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

ARTHUR ANTHONY DeELORENZO

v.

J. BERNARD GATES, Chairman

of the Connecticut Board of Parole, ET AL

CIVIL ACTION NO. H-75-416

JUDGMENT

The above-entitled action came on for consideration by

the Court by the Honorable M. Joseph Blumenfeld, United

States District Judge;

And the Court having filed its Memorandum of Decision

dismissing the Plaintiffs Complaint for Failure to state a

claim upon which relief can be granted;

It is accordingly ORDERED and ADJUDGED that the

Plaintiffs Complaint be and is hereby dismissed.

Dated at Hartford, Connecticut, this 28th day of

January, 1976.

SYLVESTER A. MARKOWSKI

Clerk, United States District Court

By: Witu1AM D. TEMPLETON

Deputy-in-Charge

19a

STATE OF CONNECTICUT

Orrice or THE ATTORNEY GENERAL

340 Capitol Avenue

Com & A

oe JENN Hartford 06115

Attorney General

October 14, 1976

Honorable Murray I. Gurfein

Circuit Judge

United States Court of Appeals

for the Second Circuit

United States Courthouse

Foley Square

New York, New York 10007

RE: Michael Holup, Craig Copley and Arthur Anthony

DeLorenzo v. J. Bernard Gates, Chairman, Connect-

icut Board of Parole, et al

Civil Action Nos. 76-2013, 76-2018 and 76-2045

Dear Judge Gurfein:

At the request of Mr. Hugh Hansen, I have inquired

of the Connecticut Board of Parole with regard to the parole

status of Mr. Arthur Anthony DeLorenzo.

Mr. DeLorenzo was denied parole at a hearing held on

September 21, 1976. He has been scheduled for a future

parole release hearing in September, 1977.

Very truly yours,

Caru R. AJELLO

Attorney General

STEPHEN J. O'NEILL

Assistant Attorney General

SJO'N/pev

CC: Honorable Walter R. Mansfield

Honorable James L. Oakes

Steven Wizner, Esq.