Petition — Connecticut Board of Pardons v. Dumschat

Supreme Coun, >

IN THE me Court, U. &

FILED

Supreme Court of the Anited States. . ;

OCTOBER TERM, 1978

1979

_ MICHAm RODAK, JR., CLERK

No.

“$8 -1533

CONNECTICUT BOARD OF PARDONS, ET AL

Petitioners

v.

DAVID DUMSCHAT

Respondent

JAMES BROWN, STANLEY CZAJA and

JAMES SHELTON

Intervening Respondents

CONNECTICUT BOARD OF PARDONS, ET AL

Petitioners

v.

JAMES BROWN, STANLEY CZASJA and

JAMES SHELTON

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CARL 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

INDEX

Page

OPINIONS BELOW ........-- eee e reer e rere eeees 2

JURISDICTION ..... 2. ccc cece cere rece erenevens 2

QUESTION PRESENTED .......--- esses eeeeees 2

CONSTITUTIONAL PROVISION INVOLVED 3

STATEMENT OF THE CASE .......-0++++eee: 3

REASONS FOR GRANTING THE WRIT ......-- 6

‘os, we 8 Sateen een Ri eae, 11

CERTIFICATION 2... cnccccccceswccscccsveevvens 11

TABLE OF CITATIONS

Page(s)

Carrona v. John R. Manson, et al, (D. Conn.) Civil

PU MI ei rel Oe ke a ee ea) ee

Dumschat v. Board of Pardons, 432 F.Supp. 1310

EPO SEAN NS ey ats Oa gi CRA Ms waka

Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, et al, 99 S.Ct. 76 (1979)

Holup v. Gates, 544 F.2d 82 (2d Cir. 1976) cert.

gh A SE Lg BFS op 2 er a ne A

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

UE eb cae cs Se PRS EUR EERR SD alee Cars 2 noe Pe Nerd

Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.

8 TEPER ate Ree Seen ge ED Ean Pet Dane ber UN Roe

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

46 L.Ed.2d 350 (1975)

|

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

No.

CONNECTICUT BOARD OF PARDONS, ET AL

Petitioners

V.

DAVID DUMSCHAT

Respondent

JAMES BROWN, STANLEY CZAJA and

JAMES SHELTON

Intervening Respondents

CONNECTICUT BOARD OF PARDONS, ET AL

Petitioners

Vv.

JAMES BROWN, STANLEY CZAJA and

JAMES SHELTON

Respondents

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 Pardons, respectively pray that a

Writ of Certiorari issue to review the judgment and opinion

of the United States court of Appeals for the Second Circuit

which affirmed a declaratory judgment entered by the

5

United States District Court for the District of Connecticut

ordering and adjudging that the Due Process Clause of the

Fourteenth Amendment to the United States Constitution

requires the Board of Pardons to furnish a statement of

reasons and facts relied upon to inmates serving life terms

when their application for pardon is denied.

The opinion of the United States Court of Appeals was

rendered on January 11, 1979.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Second Circuit. not yet reported. appears in the Appen-

dix at pp. la-3a.

The opinion of the District Court for the District of

Connecticut is reported in 462 F. Supp. 509 and appears in

the Appendix at pp. 4a-8a. Incorporated in its decision is an

earlier decision from the District Court in Diemschat v.

Board of Pardons, 432 F. Supp. 1310 (D. Conn. 1977).

JURISDICTION

The opinion and judgment of the United States Court

of Appeals for the Second Circuit were rendered on

January 11. 1979. This Petition for a Writ of Certiorari was

filed within ninety days of this date.

This Court's jurisdiction is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Does the Due Process Clause of the Fourteenth

Amendment to the United States Constitution require the

Connecticut Board of Pardons when denying a pardon to an

inmate serving a sentence of life imprisonment to furnish

the inmate with a written statement of reasons and the facts

relied upon when denying such pardon relief?

3

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved is the Due Proc-

ess Clause of the Fourteenth Amendment to the United

States Constitution.

STATEMENT OF THE CASE

The opinion of the United States Court of Appeals for

the Second Circuit covered a consolidated appeal to that

Court from two declaratory judgments, each entered by the

District Court for the District of Connecticut.

The following is the pertinent background:

In February, 1976, David K. Dumschat instituted an

action in the District Court for the District of Connecticut

claiming, in essence, that he had been deprived of a feder-

ally protected right within the purview of 42 U.S.C. 1983

because the Connecticut Board of Pardons had, on a

number of occasions, denied him a pardon and on no occa-

sion did the Board provide him with a statement of reasons

for this denial. Dumschat’s claim is that he is entitled to

such a statement under the Due Process Clause of the

Fourteenth Amendment of the Constitution of the United

States.

In that action Judge Blumenfeld concluded that **. . .

due process attaches to the denial of a pardon to an inmate

like Dumschat sentenced to life-imprisonment who has

served almost two-thirds of his sentence.”’ (See: Dumschat

v. Connecticut Board of Pardons, 432 F.Supp. 1310, 1315,

Note 17.) In accordance with the Court’s opinion, a de-

claratory judgment was issued ‘*.. . that judgment enter and

hereby does enter for the Plaintiff David K. Dumschat and

that the Defendant the Connecticut Board of Pardons fur-

nish Plaintiff a written statement of reasons and facts relied

upon in denying him a pardon.’”’

4

The authority to pardon which is involved is the au-

thority of the Connecticut Board of Pardons under Section

18-26. Connecticut General Statutes. to reduce the

minimum term of an inmate including. of course, an inmate

serving a life term, thereby accelerating the inmate’s eligi-

bility for consideration for release to the community by the

Connecticut Board of Parole. (See: Dumschat v. Board of

Pardons, State of Connecticut, 432 F.Supp. 1310, 1312

(1977).

The Board of Pardons took an appeal to the United

States Court of Appeals for the Second Circuit from that

judgment.

On June 16, 1977, Dumschat was given relief by the

Board of Pardons. The parties agreed that this relief rend-

ered the appeal moot pursuant to Weinstein v. Bradford,

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

Gates, 544 F.2d 82 (2d Cir. 1976) cert. denied. 97 S.Ct. 1571

(1977).

By order of the Court dated January 12, 1978, the case

was remanded to the District Court.

In December, 1977, James Brown, Stanley Czaja and

James Shelton. each of whom are also serving life sen-

tences, file an action in the District Court making the same

claims as Dumschat.

As with Dumschat, these three plaintiffs had been de-

nied a pardon without being given a statement of reasons.

The defendants moved in the District Court to vacate

its judgment in Dumschat and to dismiss as moot. This

motion was denied.

The plaintiffs in both actions in the District Court were

represented by the same counsel. The plaintiffs Brown,

Czaja and Shelton filed a Motion to Intervene in Dumschat,

5

to consolidate their action with Dumschat and to have the

consolidated action certified as a class action.

All of these motions were granted by Judge Blumen-

feld.

An additional evidentiary hearing was held in the Dis-

trict Court at which the parties agreed and the Court ap-

proved that the record before the Court in Dumschat would

be included in the record in the consolidated actions then

before the Court as well as the record in a previous similar

action which became moot after trial but before decision,

Carrona v. John R. Manson, et al, (D. Conn.), Civil No.

H-74-377.

Judge Blumenfeld reached the same conclusion that he

had reached in his earlier decision in Dumschat and, in

addition, went beyond that earlier decision and held that:

‘*Therefore, because an inmate’s liberty interest is

seriously affected by the pardon procedure, I need not

‘draw the constitutional line’ in the present action.' In

a pardon hearing of an inmate sentenced to life impri-

sonment, the Due Process Clause protects the

inmate’s interest in obtaining reasons for denial of

pardon irrespective of the time served on his sentence

when his pardon application is considered.

After hearing the testimony of the present Chairman of

the Board of Pardons, it appears that the conditions

present at the time of my original decision on this

matter continue to exist without interruption or

change. Therefore, in all respect, I adhere to my prior

decision in this matter and rule that the Connecticut

Board of Pardons furnish any member of the plaintiff

class a written statement of reasons and the facts re-

lied on when he is denied a pardon.’* (See Appendix,

* p. 8a)

'As is noted above, Judge Blumenfeld’s previous decision was limited to

persons sentenced to a term of life imprisonment who have served *’. . .

almost two-thirds of [their] minimum term.”

6

Two judgments were entered in the District Court, one

in Dumschat as consolidated with Brown, Czaja and Shel-

ton as intervening plaintiffs (District Court Docket No.

H-76-102) and the second in the action brought by Brown.

Czaja and Shelton (District Court Docket No. H-77-657).

The pertinent portions of these judgments which were

affirmed by the United States Court of Appeals for the

Second Circuit and which state the question presented in

this Petition for a Writ of Certiorari is that portion of the

judgment which states that “It is therefore accordingly

ORDERED and ADJUDGED that Judgment enter and

hereby does enter... that the Connecticut Board of Par-

dons furnish any member of the Plaintiff class [inmates

currently serving sentences of life imprisonment at the

Connecticut Correctional Institution, Somers and the Con-

necticut Correctional Institution, Enfield] a written state-

ment of reasons and facts relied upon when such member of

the Plaintiff class is denied a pardon by the Board.’ (See |

Appendix, p. 9a-10a)

REASONS FOR GRANTING THE WRIT

1. THE OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DECIDES A FEDERAL QUESTION IN A WAY WHICH

IS IN CONFLICT WITH THE APPLICABLE DECI-

SION OF THIS COURT.

Rule 19.1.(b) of the Rules of this Court provides, in

part, that one of the factors to be considered in granting

certiorari is whether **...acourt of appeals... has decided

a federal question in a way in conflict with applicable deci-

sions of this court... .”’

The Second Circuit concluded that because **The vast

majority of those in the plaintiff class, a class composed of

those serving life sentences, are granted relief by the Board

of Pardons prior to the expiration of 20 years, the statutory

7

minimum period (less time for good behavior) that lifers

must ordinarily serve before they are eligible for parole.

[that] This almost invariable practice creates in the class a

liberty interest in the pardons process.”’

The authority of the Connecticut Board of Pardons,

insofar as is relevant to this action, is provided for in Sec-

tion 18-26, Connecticut General Statutes. This statute pro-

vides, in part, that:

**(a) Jurisdiction over the granting of, and the author-

ity to grant, commutations of punishment or releases,

conditioned or absolute, in the case of any person

convicted of any offense against the state and commu-

tations from the penalty of death shall be vested in the

board of pardons.

(b) Said board shall have authority to grant pardons,

conditioned or absolute, for any offense against the

state at any time after the imposition and before or

after the service of any sentence. No pardon shall

restore the privileges of an elector to any person who

has forfeited the same by reason of conviction of

crime.”’

As is noted above, that authority of the Board which is

involved here is its authority to reduce the minimum term of

the sentence of a person who is confined with the result

being that the person's eligibility to be considered for re-

lease to the community by the Connecticut Board of Parole

is accellerated. (See: Dumschat v. Board of Pardons, State

of Connecticut, 432 F.Supp. 1310, 1312 (1977).

The paroling authority in the State of Connecticut is in

the Connecticut Board of Parole (See: Section 54-124a,

Corinecticut General Statutes). The Board of Parole is a

separate and distinct agency from the Board of Pardons.

Section 54-125, Connecticut General Statutes, pro-

vides, insofar as is relevant (o this case, that **Any person

8

confined for an indeterminate sentence, after having been

in-confinement under such sentence for not less than the

minimum term, or, if sentenced for life. after having been in

confinement under such sentence for not less than the

minimum term imposed by the court. less such time. aot

exceeding a total of five years. as may have been earned

under the provisions of section 18-7, may be allowed to go

at large on parole in the discretion of the panel of the board

of parole for the institution in which the person is confined,

This conclusion of the Second Circuit of a “liberty

interest” iscontrary to the opinion of this Court in Schick v.

Reed, 419 U.S. 256. 95 S.Ct. 379, 42 L.Ed.2d 430 (1974).

In Schick this Court dealt with the authority of the

President to **. . . have Power to grant Reprieves and

Pardons for Offenses against the United States, except in

Cases of Impeachment.”’ Article 2. Section 2, Clause |,

United States Constitution.

In Schick this Court characterized one who seeks a

pardon as a **. . . person who petitions for mercy .. .”"

Schick, supra. 419 U.S. 267.95 S.Ct. 385 (emphasis added).

In Schick, this Court considered the origins of the

President's pardoning power and observed the following:

**At the time of the drafting and adoption of our Con-

stitution it was considered elementary that the pre-

rogative of the English crown could be exercised upon

conditions:

‘It seems agreed, That the king may extend his mercy

on what terms he pleases, and consequently may

annex to his pardon any condition that he thinks fit,

whether precedent or subsequent, on the performance

whereof the validity of the pardon will depend.’ 2 W.

Hawkins, Pleas of the Crown 557 (6th ed. 1787).”’

Schick, supra, 419 U.S. 261, 95 S.Ct. 382.

9

This Court then went on to hold that:

‘*The history of our executive pardoning power re-

veals a consistent pattern of adherence to the English

common law practice.”’ Schick, supra, 419 U.S. 262.

95 S.Ct. 383.

This Court further held that **The plain purpose of the

broad power conferred by Section 2, cl. 1, was to allow

plenary authority in the President to ‘forgive’ the convicted

person in part or entirely, to reduce a penalty in terms of a

specified number of years, or to alter it with conditions

which are in themselves constitutionally unobjectionable.”’

Schick, supra, 419 U.S. 266, 95 S.Ct. 385. (Emphasis

added).

Thus, since the pardoning power is ‘‘plenary’’ subject

only to the attachment of conditions which are constitu-

tionally unobjectionable then the denial of a pardon must be

‘plenary.’ subject only to the condition that a denial may

not be based upon constitutionally impermissable reasons.

There is no claim in this case that the denial was based upon

constitutionally impermissable reasons.

If the Connecticut Board of Pardons were required to

State reasons for denying relief, then it would seem ines-

capable that the President of the United States in denying

pardon relief would similarly be required to state his

reasons. Such a conclusion seems ridiculous on its face.

So long as the Board does not deny a pardon for a

constitutionally impermissable reason there is no state-

ment which it could give which would serve any purpose. It

is impossible to conceive of a situation wherein any court

absent the denial of a pardon because of the applicant's

race, religion, etc. would overrule a Pardon Board decision

to deny clemency.

10

2. THE QUESTION OF TO WHAT EXTENT, IF

ANY. DUE PROCESS APPLIES TO PARDON PRO-

CEEDINGS 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 further provides, in part, that

one of the factors to be considered in granting Certiorari is

whether **. . . a Court of Appeals has . . . decided an

important question of Federal Law which has not been, but

should be, settled by this Court .. .”’

The rationale of the United States Court of Appeals for

the Second Circuit in this case is inextricably related to its

decisions in various cases involving parole release hearing.

The issue of to what extent. if any, Due Process applies to

parole release hearings has not yet been decided by this

Court and the decisions in this regard, among the various

circuits, are in conflict (See: Scott v. Kentucky Parole

Board, 97 S.Ct. 343. f. § (1976).

This Court has recently granted certiorari in

Greenholtz v. Inmates of the Nebraska Penal and Correc-

tional Complex, et al, 99 S.Ct. 76, 77 (1979). to review this

question.

Since, 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 the review sought in this case involving pardon is

clearly within both the letter and spirit of Rule 19.1(b) of

this Court.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this case presents (1) an opinion of a United States

Court of Appeals deciding a federal question ina way which

is in conflict with the applicable decision of this court and

t

(2) which involves.an important question of federal law

which has not been but should be settled by this court.

The Petitioners respectfully request that a Writ of Cer-

tiorari be issued to review the judgment and the opinion of

the United States Court of Appeals for the Second Circuit.

CARL 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 6th day of April, 1979, two

copies of this Petition for Writ of Certiorari and Appendix

thereto were mailed, postage prepaid, to Stephen Wizner.,

127 Wall Street. New Haven, Connecticut, counsel for the

Respondents.

STEPHEN J. O’ NEILL

Assistant Attorney General

EEE EEE OO

IN THE

Supreme Court of the United States

OCTOBER TERM. 1978

No.

— -_»*

CONNECTICUT BOARD OF PARDONS, ET AL

Petitioners

Vv.

DAVID DUMSCHAT

Respondent

JAMES BROWN, STANLEY CZAJA and

JAMES SHELTON,

Intervening Respondents

CONNECTICUT BOARD OF PARDONS, ET AL

Petitioners

Vv.

JAMES BROWN, STANLEY CZAJA and

JAMES SHELTON,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

”

—

APPENDIX

a —— -

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 539, 540 — August Term, 1978.

(Argued January 9, 1979 Decided January i1, 1979.)

Docket Nos. 78-2124-25

Davipb DUMSCHAT,

Plaintiff-Appellee,

JAMES Brown, STANLEY CZAJA and JAMES SHELTON,

Intervening Plaintiffs-Appellees,

Vv.

BOARD OF PARDONS, State of Connecticut; and RICHARD K.

LUBLIN (Chairman), ALVIN DOZEMAN, PAUL J.

DuBisseTteE. Members of the Board of Pardons,

Defendants-Appellants.

JAMES BRowN., STANLEY CZAJA and JAMES SHELTON,

Plaintiffs-Appellees,

v.

BOARD OF PARDONS, State of Connecticut; and PAut J.

McQulILLAN (Chairman), ALVIN DOZEMAN, MICHAEL E.

DUBISSETTE. JOHN SPEZIALE, and PHILIP TATOIAN,

Members of the Board of Pardons,

Defendants-Appellants.

Before:

KAUFMAN,

Chief Judge,

SMITH and OAKES.

Circuit Judges.

Appeal from declaratory judgment entered in the

United States District Court for the District of Connecticut,

2a

M. Joseph Blumenfeld, Judge, requiring statement of

reasons by Connecticut Board of Pardons in case of denial

of application for pardon by prisoners serving life terms.

Affirmed.

STEPHEN J. O'NEILL, Assistant Attorney

General (Carl R. Ajello, Attorney Gen-

eral of the State of Connecticut, of

counsel), for Appellants.

STEPHEN WIZNER, New Haven, Conn. (Yale

Legal Clinic, Dennis E. Curtis. Mary F.

Keller, Alice Bussiere, Judith Resnik,

of Counsel), for Appellees.

PER CURIAM:

On this appeal from a declaratory judgment of the

United States District Court for the District of Connecticut

in a class action requiring a statement of reasons by the

Connecticut Board of Pardons in case of denial of applica-

tion for pardon by prisoners serving life terms, we affirm

essentially for the reasons given by Judge Blumenfeld in his

opinions below, 432 F. Supp. 1310(D. Conn. 1977), —— F.

Supp. —— (Aug. 18, 1978).

Although pardons at first glance might appear to be

different from parole decisions, the Connecticut statutory

authority given to the Board of Pardons and its integral part

in parole decisions make the two processes similar. The

argument by appellants that pardons are solely discretion-

ary decisions of mercy, relying on Schick v. Reed, 419 U.S.

256 (1974), is not well taken since Schick is based on the

constitutional authority of the federal executive rather than

on the processes of a statutory state board essentially de-

termining the date of eligibility for consideration by another

(parole) board.

3a

;

Written statements of reasons for denial are part of the

due process requirements surrounding parole decisions.

Coralluzzo v. New York State Parole Board, 566 F. 2d 375

(2d Cir. 1977), cert. dismissed, 435 U.S. 912 (1978); Zurak

Vv. Regan, 550 F. 2d 86 (2d Cir.). cert. denied, 433 U.S. 914

(1977); and Haymes v. Regan, 525 F. 2d 540 (2d Cir. 1975).

These cases are based on the expectations of inmates in

regard to parole possibilities which lead to those inmates’

acquiring some “‘liberty interest’’ in the parole process.

The facts are not seriously in dispute. The vast major-

ity of those in the plaintiff class, a class composed of those

serving life sentences. are granted relief by the Board of

Pardons prior to the expiration of 20 years, the statutory

minimum period (less time for good behavior) that lifers

must ordinarily serve before they are eligible for parole.

This almost invariable practice creates in the class a liberty

interest in the pardons process. As thoughtfully explained

in Judge Blumenfeld’s opinions, the due process balancing

in regard to decisions of the Board of Pardons is similar to

that involving a parole board, and thus due process in the

proceedings of the Board of Pardons in cases of inmates

serving life sentences also requires written statements set-

ting forth reasons for denial. Such statements would pro-

vide protection against arbitrary and constitutionally im-

permissible decisions by the Board by forcing the Board to

articulate its reasons for denial. The Board would be en-

couraged to give more thoughtful consideration to each

application. A statement of reasons for denial would aid an

inmate in correcting any behavior which was considered

negative by making him aware of such behavior. Finally,

such statements would help the shifting membership of the

Board to be more consistent in its decisions and would

create no undue administrative burden.

The judgment of the district court is affirmed.

4a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

DAVID K. DUMSCHAT, ET AL

v.

BOARD OF PARDONS OF THE

STATE OF CONNECTICUT, ET AL

CIVIL NO. H-76-102

MEMORANDUM OF DECISION

Background

This is a class action by the plaintiffs on behalf of

themselves and all other inmates of the State of Connec-

ticut who are currently serving sentences of life imprison-

ment at the Connecticut Correctional Institutions at

Somers and at Enfield and who have been, or who will be.

denied pardons during their current terms of incarceration

by the defendant Connecticut Board of Pardons. The plain-

tiffs seek a declaratory judgment that the Due Process

Clause of the fourteenth amendment to the United States

Constitution entitles them to a written statement of reasons

when they are denied pardons.

Plaintiff David Dumschat commenced the instant ac-

tion in February 1976. At that time he was serving a sen-

tence of life imprisonment at the Connecticut Correctional

Institution at Enfield following a homicide conviction in

1964. Prior to February 1976, Mr. Dumschat had appeared

before the Board of Pardons several times and had never

been told why he had been denied a pardon.

On November 18, 1976, this court held an evidentiary

hearing at which J. Bernard Gates, Chairman of the Con-

necticut Board of Parole, and Richard Lublin, then Chair-

man of the Board of Pardons, testified. Following addi-

Sa

tional submissions of written evidence by the defendants.

on June 16, 1977, the court issued a declaratory judgment

that Mr. Dumschat was entitled to a written statement of

reasons when the board denied him a pardon. Dumschat v.

Board of Pardons, 432 F. Supp 1310 (D. Conn. 1977). The

defendants appealed the decision to the United States

Court of Appeals for the Second Circuit. However, on June

16, 1977, Mr. Dumschat received a pardon. The defend-

ants, therefore, did not pursue their appeal, but instead

filed a motion with the Court of Appeals on Augusi 16,

1977, requesting that the judgment of the District Court be

vacated and that the case be remanded. On August 29,

1977, the defendants also filed a motion with this court to

vacate the judgment and dismiss the complaint, and on

September 13, 1977, the plaintiff consented to having the

suit remanded to this court.

On December 20, 1977, while the two motions were

pending, the plaintiff-intervenors, James Brown, Stanley

Czaja, and James Shelton, filed a separate action claiming

that their constitutional rights had been denied when the

Board of Pardons denied them pardons without giving them

statements of reasons. The three men were then, and are

now, inmates at the Connecticut Correctional Institution at

Enfield serving sentences of life imprisonment as a result of

homicide convictions. Under the present sentences, Mr.

Brown, Mr. Czaja, and Mr. Shelton will not be eligible for

parole until 1987, 1982 and 1988 respectively. Conn. Gen.

Stat. § 54-125, as amended P.A. 76-336 §7 (June 9, 1976).

Each of them has been denied a pardon by the Board of

Pardons at least twice, with the latest denials for Mr. Brown

and Mr. Shelton being in October 1977, and the latest denial

for Mr. Czaja being in May 1977. At no time have any of the

plaintiff-intervenors been told by any of the defendants

why their applications for pardons have been denied.

In January 1978, the Court of Appeals remanded the

Dumschat suit without further instructions. Following this

6a

court’s denial of the defendants’ motion to vacate the

judgment and dismiss the complaint. the plaintiff-

intervenors filed motions to intervene in Dumschat, to

consolidate their action with Dumschat, and to have the

consolidated suit certified as a class action. On March 9,

1978. an additional hearing was held at which the present

Chairman of the Board of Pardons, Paul J. McQuillan,

testified. After that hearing, the plaintiff-intervenors’ mo-

tion to intervene, motion to have their cases consolidated

with Dumschat, and motion for certification as a class

action were granted.

Discussion

In a previous round on the issue of whether the con-

stitution required the Board of Pardons to give a written

statement of reasons to an inmate when he was denied a

pardon, this court ruled that a written statement of reasons

for the board’s decision, including the facts upon which it

relied, was constitutionally mandated. See Dumschat v.

Board of Pardons, supra. That holding was based upon a

determination that in view of the evidence that 75 percent of

the inmates sentenced to long minimum terms who have

served a substantial portion of that sentence do eventually

receive some form of pardon from the board, the particular

plaintiff acquired a justifiable expectation of pardon and a

liberty interest sufficient to invoke the protection of the

fourteenth amendment. In that case. I stated:

‘*T need. not decide on the facts of this case at what

point in his incarceration an inmate acquires a justifi-

able expectation of pardon and a liberty interest suffi-

cient to invoke the protection of the fourteenth

amendment. I conclude only that due process attaches

to the denial of a pardon to an inmate like Drumschat

sentenced to life imprisonment who has served almost

two-thirds of his minimum term.”’

Id., 432 F. Supp. at 1315 n.17.

Ta

The present case is certified as a class action for all

inmates currently serving sentences of life imprisonment in

Connecticut state facilities at Somers and Enfield. There-

fore, the question whether an inmate must have served a

certain portion of his minimum term before he ‘‘acquires a

justifiable expectation of pardon and a liberty interest suffi-

cient to invoke the protection of the fourteenth amend-

ment.’’ must now be considered.

In Coralluzzo v. New York State Parole Board, 566

F.2d 375 (2d Cir. 1977), cert. dismissed as improvidently

granted, 46 U.S.L.W. 3553 (March 7, 1978), the Second

Circuit decided the question whether the New York

minimum period of imprisonment (MPI) procedure is sub-

ject to the Due Process Caluse of the fourteenth amend-

ment. In holding that due process rights were implicated in

the MPI proceeding. the Second Circuit ruled that the

parole board must provide a written statement of reasons,

including facts relied upon by the board, when it sets a MPI

that exceeds the statutory minimum.

In Coralluzzo the state attempted to distinguish the

MPI proceeding from various parole release situations

where the court had conferred due process protection, see

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

State Board of Parole, 500 F.2d 925 (2d Cir.). vacated as

moot, 419 U.S. 1015 (1974); Zurak v. Regan, 550 F.2d 86

(2d Cir.), cert. denied, 433 U.S. 914 (1977). The state ar-

gued that because the prisoner has no reason to expect

‘‘imminent liberty.’’ the MPI procedure implicates only a

“very tenuous” liberty interest. The Court of Appeals said:

‘(W]e find no indication either in Johnson or in the

-Supreme Court’s recent decisions dealing with liberty

interests of prisoners, see Meachum v. Fano, 427 U.S.

215, 224-25 (1976); Wolff v. McDonnell, 418 U.S. 539,

555-58 (1974); Morrissey v. Brewer, 408 U.S. 471,

480-82 (1972), that a substantial possibility of im-

8a

mediate release is the sine qua non of a cognizable

liberty interest. To draw the constitutional line where

the statistics show it to be more likely than not that the

particular proceeding will result in immediate release

could risk insulating from due process protection

those stages of the parole release process which as a

practical matter most seriously affect a prisoner’s lib-

erty interest.”

Therefore. because an inmate’s liberty interest is seriously

affected by the pardon procedure, I need not ‘draw the

constitutional line’’ in the present action. In a pardon hear-

ing of an inmate sentenced to life imprisonment, the Due

Process Clause protects the inmate’s interest in obtaining

reasons for denial of pardon irrespective of the time served

on his sentence when his pardon application is considered.

After hearing the testimony of the present Chairman of

the Board of Pardons, it appears that the conditions present

at the time of my original decision on this matter continue to

exist without interruption or change. Therefore, in all re-

spect, I adhere to my prior decision in this matter and rule

that the Connecticut Board of Pardons furnish any member

of the plaintiff class a written statement of reasons and the

facts relied on when he is denied a pardon.

SO ORDERED.

Dated at Hartford, Connecticut, this 18th day of Au-

gust, 1978.

M. JOSEPH BLUMENFELD

United States District Judge

9a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

DAVID DUMSCHAT

Plaintiff

JAMES BROWN, STANLEY CZASJA and

JAMES SHELTON

Intervening Plaintiffs

v.

BOARD OF PARDONS. State of Connecticut; and

RICHARD K. LUBLIN (Chairman). ALVIN

DOZEMAN,. PAUL J. McQUILLAN, JOHN P.

COTTER, and MICHAEL E. DuBISSETTE, indi-

vidually and in their capacities as members of the

Board of Pardons

Defendants

CIVIL NO. H76-102

JUDGMENT

The above-identified action having come on for rehear-

ing before the Court by the Honorable M. Joseph Blumen-

feld. United States District Judge. after remand from the

Court of Appeals; and,

The Court, having certified the action as a class action

and after a hearing on the intervening Plaintiffs’ requests

for relief. filed its Memorandum of Decision ruling that the

Connecticut Board of Pardons furnish any member of the

Plaintiff class a written statement of reasons and the facts

relied upon when such member of the Plaintiff class is

dented a pardon by the Board.

It is therefore accordingly ORDERED and AD-

JUDGED that Judgment enter and hereby does enter for

the Plaintiff class and that the Connecticut Board of Par-

10a

dons furnish any member of the Plaintiff class a written

statement of reasons and facts relied upon when such

member of the Plaintiff class is denied a pardon by the

Board.

Dated at Hartford. Connecticut. this 22nd day of Sep-

tember, 1978.

SYLVESTER A. MARKOWSKI

Clerk, United States District

Court

By: WILLIAM D. TEMPLETON

Chief Deputy

APPROVED:

M. JOSEPH BLUMENFELD

United States District Judge

lla

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JAMES BROWN, STANLEY CZAJA

and JAMES SHELTON

Vv.

BOARD OF PARDONS. State of Connecticut, and PAUL

J. McQUILLAN (Chairman), ALVIN DOZEMAN,

MICHAEL E. DuBISSETTE, JOHN SPEZIALE,

and PHILIP TATOIAN, Members of the Board of

Pardons

CIVIL ACTION NO. H77-657

JUDGMENT

The above-identified action came on for consideration

by the Court by the Honorable M. Joseph Blumenfeld,

United States District Judge; and,

The Court having consolidated this action with co-

pending Civil No. H76-102 for disposition; and,

The Court having granted the Plaintiffs’ Motion to

Intervene in said co-pending action, Civil No. H76-102;

and,

The Court, after a hearing in said consolidated actions

on the intervening Plaintiffs’ requests for relief, filed its

Memorandum of Decision ordering that the Connecticut

Board of Pardons provide any member of the Plaintiff class

a written statement of reasons and facts relied upon when

such member is denied a pardon by the Board;

It is therefore accordingly ORDERED and AD-

JUDGED that Judgment enter and hereby does enter for

the Plaintiffs and that the Connecticut Board of Pardons

provide any member of the Plaintiff class with a written

l2a

statement of reasons and facts relied upon when such Plain-

tiff class member is denied a pardon by the Board.

Dated at Hartford. Connecticut. this 22nd day of Sep-

tember. 1978.

SYLVESTER A. MARKOWSKI

Clerk, United States District

Court

By: WILLIAM D. TEMPLETON

Chief Deputy

APPROVED:

M. JOSEPH BILUMENFELD

United States District Judge