Petition — Connecticut Bd. of Pardons v. Dumschat

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IN THE | JUN 18 mi

Supreme Court of the Gnited

OCTOBER TERM. 1979

—?t9 - 1997

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 CZAJA 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

Assis.ant Attorney General

340 Capitol Avenue

Hartford. Connecticut 06115

Counsel for Petitioners

INDEX

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REASONS FOR GRANTING THE WRIT

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THE OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND

CIRCUIT DECIDES A FEDERAL QUES-

TION IN A WAY WHICH IS IN CONFLICT

WITH THE APPLICABLE DECISION OF

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. THE OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND

CIRCUIT IS ALSO IN CONFLICT WITH

THIS COURT'S OPINION IN SCHICK V.

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THE QUESTION OF TO WHAT EXTENT,

IF ANY, DUE PROCESS APPLIES TO PAR-

DON PROCEEDINGS IS AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH

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TABLE OF CITATIONS

. Paves)

Carrona v. Manson, Civil No. H74-377 (D.Conn.). . 6

Connecticut Board of Pardons v. Dumschat, No. 78-

MRL rt aces pia W hes weeps bc deeeces cose 2

1979)

Dumschat v. Board of Pardons, 462 F.Supp. 509

TC ba way 6 Hil 6 4M 0ld'd > 660 owe. ale ee sie 3,6

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

IES a 3,4,9

Fidelity Union Trust Co. v. Field, 61 S.Ct. 176 (1940). 9

Greenholtz v. Inmates of Nebraska Penal Complex

U.S. . 99 S.Ct. 2100 (1979) ....2, 7, 13, 14

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

430 U.S. 941. 97 S.Ct. 1571, 51 L.Ed.2d 787 (1977) . 5

Inmates of Nebraska Penal Complex v. Greenholtz,

SE rr 13

Meachum vy. Fano, 427 U.S. 215. 96 S.Ct. 2532. 49

i eee c oe eevevbeneeeees 13

Schick v. Reed. 419 U.S. 256. 95 S.Ct. 379. 42 L.Ed.2d

Cee cea deele seb secdees 14, 15, 16

Taylor v. Robinson, 171 Conn. 691, 372 A.2d 102 (1976). 9, 11

Weinstein v. Bradford, 423 U.S. 147, °5 S.Ct. 347. 46

a 5

|

IN THe

Supreme Court of the Anited States

OCTOBER TERM. 1979

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

v.

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, respectfully pray that a Writ of

Certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Second Circuit wherein

2

following an order from the Supreme Court remanding the case

to the Second Circuit the latter Court held in part, as follows:

**Upon reconsideration, we affirm our earlier con-

clusions that (1) the consistent issuance of pardons to

inmates serving life sentences in Connecticut has

given them a protected ‘liberty’ interest in the par-

dons process, and (2) the due process rights which

attend this protected interest require that life inmates

receive written explanations of adverse decisions by

the Board of Pardons. We remand to the district

court to determine at what point in an inmate’s in-

carceration the likelihood of his receiving a pardon

becomes sufficiently great to vest him with a pro-

tected ‘liberty’ interest and due process rights.’’ See

Appendix pp. 4a-Sa.

This judgment and opinion of the Second Circuit were

rendered following the order of the Supreme Court in Connec-

ticut Board of Pardons, et al v. David Dumschat, et al, No.

78-1533, entered on June |1, 1979 which provided as follows:

‘*The motion of respondents for leave to proceed in forma

pauperis is granted. The petition for a writ of certiorari is

granted. The judgment is vacated and the case is remanded to

the United States Court of Appeals for the Second Circuit for

further consideration in light of Greenholtz v. Inmates of Neb-

raska Penal Complex, 442 U.S. (1979).””’ See Appendix p. 17a.

See also, U.S. , 99 S.Ct. 2854 (1979).

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

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

pp. !a-l6a.

The previous opinion of the United States Court of Ap-

peals for the Second Circuit upon which the order of the Sup-

3

reme Court of June Il. 1979, was based. appears in the Appen-

dix at p. 18a, and is reported in 593 F.2d 165 (2d Cir. 1979).

The opinion of the District Court for the District of Con-

necticut appears in the Appendix at p. 21a, and is reported in

462 F.Supp. 509(D.Conn. 1978). Incorporated in its decision is

an earlier decision from the District Court in Dumschat \.

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 March 20,

1980. 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

Has the practice of the Connecticut Board of Pardons in

reducing the minimum terms of inmates sentenced to life sen-

tences in Connecticut thus accelerating their eligibility to be

considered for release to the community by the Connecticut

Board of Parole given such inmates after serving an as yet

judicially undetermined amount of time. a protected liberty

interest such that the Due Process Clause of the Fourteenth

Amendment to the United States Constitution requires that

such inmates, when they reach this as yet undetermined point

in their sentence, be given written explanations of adverse

decisions by the Board of Pardons?

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved is the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution.

STATEMENT OF THE CASE

In February. 1976. David K. Dumschat instituted an ac-

tion in the District Court for the District of Connecticut claim-

ing. in essence, that he had been deprived of a federally pro-

tected 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 occasion 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 Constitu-

tion 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 al-

most two-thirds of his minimum term.”’ Dumschat v. Connec-

ticut Board of Pardons, 432 F.Supp. 1310, 1315n.17 (D.Conn.

1977). In accordance with the Court’s opinion, a declaratory

judgment was issued **. . . that judgment enter and hereby does

enter for the Plaintiff David K. Dumschat and that the Defen-

dant the Connecticut Board of Pardons furnish Plaintiff a writ-

ten statement of reasons and facts relied upon in denying hima

pardon.”’

The authority to pardon which is involved is the authority

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 eligibility for consideration

for release to the community by the Connecticut Board of

Parole. (See: Dumschat v. Board of Pardons, State of Connec-

ticut, 432 F.Supp. 1310, 1312 (D.Conn. 1977) and the opinion of

the Second Circuit following remand, (App. p. Sa footnote I.)

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 rendered 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, 430 U.S. 941, 97 S.Ct. 1571, 51

L.Ed.2d 787 (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 sentences.

filed an action in the District Court making the same claims as

Dumschat.

As with Dumschat., these three plaintiffs had been denied 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, to con-

solidate their action with Dumschat and to have the consoli-

dated action certified as a class action.

All of these motions were granted by Judge Blumenfeld.

An additional evidentiary hearing was held in the District

Court at which the parties agreed and the Court approved that

the record before the Court in Dumschat would be included in

the record in the consolidated actions then before the Court as

6

well as the record in a previous similar action which became

moot after trial but before decision, Carrona v. John R. Man-

son, 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 addi-

tion. went beyond that earlier decision and held that:

**Therefore. because an inmate's liberty interest is

seriously affected by the pardon procedure, | need

not ‘draw the constitutional line’ in the present ac-

tion.' In a pardon hearing 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 sen-

tence when his pardon application is considered.

‘*After hearing the testimony of the present Chair-

man 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, | adhere to my

prior decision in this matter and rule that the Connec-

ticut 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.’’ (See

Appendix, p. 25a); Dumschat v. Board of Pardons,

462 F.Supp. 509, 511-12 (D.Conn. 1978).

Two judgments were entered in the District Court, one in

Dumschat as consolidated with Brown, Czaja and Shelton 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).

'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.”

7

Insofar as is pertinent, these judgments provided that ‘‘It

is therefore accordingly ORDERED and ADJUDGED that

Judgment enter and hereby does enter . . . that the Connecticut

Board of Pardons furnish any member of the Plaintiff class

{inmates currently serving sentences of life imprisonment at the

Connecticut Correctional Institution, Somers and the Connec-

ticut Correctional Institution, Enfield] a written statement of

reasons and facts relied upon when such member of the Plain-

tiff class is denied a pardon by the Board.’’ (See Appendix, pp.

26a-27a.)

In a per curiam opinion, the judgments were affirmed by

the United States Court of Appeals forthe Second Circuit. That

Court’s opinion is contained in the Appendix at p 18a;

Dumschat v. Board of Pardons, 593 F.2d 165 (2d Cir. 1979).

The Board of Pardons then petitioned this Court for a Writ

of Centiorari. This petition was granted by this Court on June

11, 1979 and this Court ordered that ‘*The judgment is vacated

and the case is remanded to the United States Court of Appeals

for the Second Circuit for further consideration in light of

Greenholtz v. Inmates of Nebraska Penal Complex [99 S.Ct.

2100 (1979)}.”’

The Second Circuit requested the parties to file further

briefs with that Court taking into consideration this Court’s

opinion in Greenholtz. The parties filed their respective briefs,

and on March 20, 1980 the Second Circuit entered the following

judgment which is the basis upon which this Petition for a Writ

of Certiorari is filed:

‘*Upon reconsideration, we affirm our earlier con-

clusions that (1) the consistent issuance of pardons to

inmates serving life sentences in Connecticut has

given them a protected ‘liberty’ interest in the par-

dons process, and (2) the due process rights which

attend this protected interest require that life inmates

receive written explanations of adverse decisions by

the Board of Pardons. We remand to the district

court to determine at what point in an inmate’s in-

carceration the likelihood of his receiving a pardon

becomes sufficiently great to vest him with a pro-

tected ‘liberty’ interest and due process rights."’ See

Appendix pp. 4a-Sa.

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 DECISION 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 **. . . a court of appeals .. . has decided a federal

question in a way in conflict with applicable decisions of this

court..."

The authority of the Connecticut Board of Pardons, insofar as

is relevant to this action, is provided for in Section 18-26,

Connecticut General Statutes. This statute provides, in part,

that:

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

ity to grant, commutations of punishment or re-

leases, conditioned or absolute, in the case of any

person convicted of any offense against the state and

commutations 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.”

>

As is noted above. the 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 release to the com-

munity by the Connecticut Board of Parole is accellerated.

(See: Dumschat v. Board of Pardons, 432 F.Supp. 1310, 1312

(D.Conn. 1977), and the Opinion of the Second Circuit follow-

ing remand, App. p. Sa footnote 1.)

The paroling authority in the State of Connecticut is in the

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

ticut General Statutes). The Board of Parole is a separate and

distinct agency from the Board of Pardons.

With regard to this paroling authority the Connecticut

Supreme Court has held that:

**The sole statute concerning parole, § 54-125, simply

provides that an inmate who has served his minimum

sentence ‘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.’ There

is no statutory requirement that the panel actually

consider the eligibility of any inmate for parole, the

statute does not vest an inmate with the right to

demand parole, and there is no statutory provision

which even permits an inmate to apply for parole.”’

Taylor v. Robinson, 171 Conn. 691, 697, 372 A.2d 102

(1976).

The interpretation of this statute by*‘[t]he highest state

court is the final authority on state law . . .”” Fidelity Union

Trust Co. v. Field, 61 S.Ct. 176, 178 (1940).

Upon reconsideration following the remand from this

Court the Second Circuit correctly concluded that **. . . Con-

necticut’s pardon’s statute [Sec. 18-26, Conn. Gen. Stat.] con-

10

tains neither a presumption of pardon nor a list of factors to be

considered by the Board of Pardons. Instead. the statute grants

the board unfettered discretion in the exercise of its power... .

The statute offers only a ‘mere hope’ of pardon: it does not

create a legitimate expectation of freedom and therefore does

not implicate due process.’’ (See Appendix p. 9a) (Emphasis

added).

The Second Circuit went on, however. to affirm the con-

tention of Connecticut's life inmate **. . . that they had a

legitimate expectation of pardon and release — and due pro-

cess rights in pardon proceedings — by virtue of the regularity

with which the Board of Pardons grants them relief. Though the

statistical evidence provided below by state officials was not.

as Judge Blumenfeld noted, ‘as extensive as might be desired.”

432 F.Supp. at 1314, it was sufficient to establish that pardons

are granted to Connecticut’s life inmates with compelling fre-

quency. Bernard Gates, then chairman of the Board of Parole.

testified that more than 75 percent of Connecticut's ‘lifers’

have their eligibility for parole accelerated by the Board of

Pardons. Ninety percent of these inmates are then granted

parole within their first year of eligibility, and all are paroled

after no more than a few years’ wait. In addition, the board

grants immediate release to a number of other life inmates by

commuting their sentences to time served.’’ (See App.

pp. 10a-1 la.)

In so holding, the Second Circuit clearly concluded that

this Court’s opinion in Greenholtz did not affect the Second

Circuit’s conclusion before remand that **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 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.”’ (See App. p. 20a); Dumschat v. Board of Pardons,

593 F.2d 165, 166 (2d Cir. 1979).

Thus, the Second Circuit concluded that a lifer in Connec-

ticut who has no statutorily based expectation of being released

on parole or of even being considered eligible or applying for

parole (Taylor v. Robinson, supra) and who under its opinion

applies for a pardon to a board with ‘‘unfettered discretion”’

nevertheless has a ‘‘legitimate expectation of pardon and re-

lease’’ so as to trigger the applicability of due process at least to

the extent of requiring the Board of Pardons to provide the life

term inmate with ‘‘written explanations of adverse decisions”

when he has completed some as yet undetermined portion of

his sentence.

To have this legitimate expectation based solely upon the

Board's history in granting pardons, such as that history ap-

pears thus far in the record, not only raises the question of how

anyone could arrive at such an expectation in view of the

discretion of the Board which considers his case but it is also

difficult to understand in view of the Court’s stated rationale

for requiring such a written statement.

This rationale is that *‘The need to give reasons encour-

ages fair and thoughtful deliberations by the board, thus pro-

tecting against arbitrary and constitutionally impermissable

decisions. Moreover, it promotes consistency, an important

consideration in light of the board’s frequent changes ‘a per-

sonnel.” [Thirteen different people sat on the five person board

between November 1973 and November 1976.] Finally, it helps

inmates to correct misunderstandings by the board or to re-

medy their own behavioral or other problems which influenced

the board’s denial of relief’. (Appendix pp. |4a-1Sa).

It is respectfully claimed that it is simply inconsistent to

say that a lifer, at some point in his sentence, acquires a

constitutionally protected legitimate expectation of relief from

the Board because of the Board’s history in dealing with lifers

12

and at the same time, justify the constitutional relief given on

the grounds that this relief ‘“‘encourages fair and thoughtful

deliberations .. .°’ and that it ‘*protect[s] against arbitrary and

constitutionally impermissable decisions’’ and that it **pro-

motes consistancy”’ and that it “‘corrects misunderstandings’’.

Putting the Board’s statutorily “‘unfettered discretion’

aside, since the Court feels that the administrative process

itself is subject to such defects, and in this regard the petition-

ers do not concede this to be the case, then one has to wonder

how a lifer could have any expectation of favorable action from

a Board whose history of prior decisions upon which that

expectation is promised, has been and presumably will con-

tinue to be so influenced by chance.

‘*The Due Process Clause applies when government

action deprives a person of liberty or property; ac-

cordingly, when there is a claimed denial of due

process we have inquired into the nature of the indi-

vidual’s claimed interest.

‘(T]o determine whether due process requirements

apply in the first place, we must look not to the

‘‘weight’’ but to the nature of the interest at stake . .

.’ Board of Regents v. Roth, 408 U.S. 564, 570-571,

92 S.Ct. 2701, 2705-2706, 33 L.Ed. 2d 548 (1974).

This has meant that to obtain a protectible right ‘a

person clearly must have more than an abstract need

or desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate

claim of entitlement to it.’ Id., at 577, 92 S.Ct. at

2709.

‘*There is no constitutional or inherent right of a

convicted person to be conditionally released before

the expiration of a valid sentence. The natural desire

13

of an individual to be released is indistinguishable

from the initial resistance to being confined. But the

conviction, with all its procedural safeguards, has

extinguished that liberty right: ‘[G]iven a valid con-

viction, the criminal defendant has been constitu-

tionally deprived of his liberty.’ M-achum v. Fano,

427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d

451 (1977).”’ Greenholtz v. Inmates of Nebraska

Penal and Correctional Complex, et al., 99 §.Ct.

2100, 2103-2104 (1979).

a

a

Under the circumstances found by the Second Circuit as

noted above, it is impossible to see how a lifer in Connecticut

when applying for a pardon can be said to have *‘a legitimate

claim of entitlement to it’’.

The lifer’s expectation of obtaining pardon, which is com-

parable to that of a prisoner in remaining at a particular institu-

tion, is simply **. . . too empheral and insubstantial to trigger

procedural due process protections... ."’. Meachum v. Fano,

427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976).

Lastly, with regard to this Court’s opinion in Greenholtz,

the Second Circuit held that in basing their conclusion on the

Board’s history **We find nothing in Greenholtz that precludes

this holding.’’ (App. p. 12a). In so doing, the Second Circuit

rejected the claim of the petitioners that Greenholtz does pre-

clude such a holding. (See App. p. 12a footnote 6).

In Greenholtz, similar statistics were available to this

Court, by virtue of the certified record, for the District Court

had inciuded in its decision a table showing numbers of inmates

eligible for discretionary parole and the number who obtained

it. Inmates of Nebraska Penal and Correctional Complex v.

Greenholtz, 436 F.Supp. 430 (1976) table at 439.

Simple calculation shows that among Caucasians, Blacks

14

and Mexicans eligible for discretionary parole approximately

sixty percent of each group achieved release. Thus. if local

Board practice which resulted in a statistical showing that it

was more likely than not. that one would achieve discretionary

parole were a sufficient basis for a protected liberty interest

then this Court would have so found in Greenholtz.

Instead, this Court found **That the State holds out the

possibility of parole provides no more than a mere hope that the

benefit will be obtained’. Greenholtz, supra, at 2105. (Court's

emphasis).

That Connecticut may grant a slightly higher percentage of

reduced terms to lifers through its pardons process than Neb-

raska does discretionary paroles through its parole process is

not constitutionally significant. There is no basis upon which to

draw a constitutional line at seventy-five percent.

In any event, as ‘Judge Henry Friendly cogently noted. .

.. [T]here is a human difference between losing what one has

and not getting what one wants.’ Friendly, Some Kind of

Hearing, 123 U.Pa.L.Rev. 1267, 1296 (1974).”° Greenholtz,

supra, 2105.

The life inmate in Connecticut who is denied a reduction in

his minimum term is not in the situation of losing what he has

but rather in the situation of not getting what he wants.

2. THE OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT IS ALSO IN CON-

FLICT WITH THIS COURT’S OPINION IN SCHICK V.

REED.

This conclusion of the Second Circuit of a ‘‘liberty in-

terest’’ is contrary to the opinion of this Court in Schick v.

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

IS

In Schick this Court dealt with the authority of the Presi-

dent to “*. .. have Power to grant Reprieves and Pardons for

Offenses against the United States, except in Cases of Im-

peachment.’* Article 2, Section 2, Clause |. United States

Constitution.

In Schick this Court characterized one who seeks a pardon

asa‘*... person who petitions for mercy .. 2° Schick, supra,

419 U.S. 267, 95 S.Ct. 385 (emphasis added).

In Schick, this Court considered the origins of the Presi-

dent's pardoning power and observed the following:

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

Constitution it was considered elementary that the

prerogative 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 perfor-

mance whereof the validity of the pardon will de-

pend.’ 2 W. Hawkins, Pleas of the Crown 557 (6th ed.

1787).°’ Schick, supra, 419 U.S. 261, 95 S.Ct. 382.

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. |, 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

16

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 constitutionally un-

objectionable 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 inescapable that

the President of the United States in denying pardon relief

would similarly be required to state his reasons. Such a conclu-

sion seems ridiculous on its face.

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

tionally impermissable reason there is no statement 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.

3. THE QUESTION OF TO WHAT EXTENT, IF ANY,

DUE PROCESS APPLIES TO PARDON PROCEEDINGS IS

AN IMPORTANT QUESTION OF FEDERAL 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...”

17

In premising their conclusions upon the history of the

Connecticut Board of Pardons in granting relief to lifers the

Second Circuit has *‘decided an important question of Federal

Law which has not been, but should be, settled by this Court.”’

If one regards the pardoning process as a socially useful

instrument, then it is difficult to understand the burdening of

this process only because of its liberal use.

Certainly the rationale of the Second Circuit would serve

as authority for not requiring a written explanation for the

denial of a pardon in a state where prior history showed an

infrequent use of this authority.

If, in fact, the applicability of the due process clause may

differ from state to state depending upon the attitudes,

philosophies, and personalities of the individual pardoning au-

thorities, then that situation should be the result of a decision

from this Court.

18

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 in a way which is in conflict

with the applicable decision of this Court and (2) which in-

volves 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 day of June, 1980, 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 Re-

spondents.

STEPHEN J. O'NEILL

Assistant Attorney General

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

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

APPENDIX

2a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+

Nos. 481, 482—September Term, 1979.

(Submitted November 16, 1979

Decided March 20, 1980.)

Docket Nos. 78-2124, 78-2125

—

DAVID DUMSCHAT,

Plaintiff-Appellee,

JAMES BROWN, STANLEY CZAJA and JAMES SHELTON,

Intervening Plaintiff-

Appellees,

_V—

BOARD OF PARDONS, State of Connecticut; and RICHARD

K. LUBLIN (Chairman), ALVIN DOZEMAN, PAUL J.

MCQUILLAN, JOHN P. COTTER, and MICHAEL E. DuBIs-.

SETTE, Members of the Board of Pardons,

Defendants-Appellants.

1959

i

3a

JAMES BROWN, STANLEY CZAJA and JAMES SHELTON,

Plaintiffs-Appellees,

—_—V—

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,

Defendants-Appellants.

Before:

KAUFMAN, Chief Judge,

SMITH* and OAKES, Circuit Judges.

+

On remand from the Supreme Court vacating the

judgment of this court, 593 F.2d 165 (2d Cir. 1979).

We affirm our earlier decision and remand to the

district court for further proceedings consistent with

this opinion.

Pursuant to §0.14 of the Rules of this Court, this appeal is being

determined by Chief Judge Kaufman and Judge Oakes. Judge

Smith read the briefs in this case and voted before his death on

February 16, 1980, to dispose of the case in the manner set forth

in this opinion. He was unable to concur in the written opinion

since it was drafted after his death.

1960

da

CARI. R. Ado, Attorney General of the

State of Connecticut, Hartford, Connec-

ticut (Stephen J. O'Neill, Assistant At-

torney General, of counsel), for

Defendants-Appellants.

STEPHEN WIZNER, Yale Legal Services, New

Haven, Connecticut (Dennis E. Curtis,

Alice Bussiere and Judith Resnik, of

counsel), for Plaintiffs-Appellees.

>

PER CURIAM:

This case returns to us on remand from the United

States Supreme Court. In our previous decision we af-

firmed, per curiam, the judgment of the United States

District Court for the District of Connecticut, M. Jo-

seph Blumenfeld, Judge, that inmates serving life sen-

tences in Connecticut prisons have a due process right

to written statements from the state Board of Pardons

explaining the denial of their applications for pardon.

See 593 F.2d 165 (2d Cir. 1979). The Supreme Court

vacated our judgment, 99 S.Ct. 2854 (1979), and re-

manded for reconsideration in light of Greenholtz v.

Inmates of Nebraska Penal and Correctional Complex,

99 S.Ct. 2100 (1979).

Upon reconsideration, we affirm our earlier conclu-

sions that (1) the consistent issuance of pardons to

inmates serving life sentences in Connecticut has given

them a protected “liberty” interest in the pardons

process, and (2) the due process rights which attend

this protected interest require that life inmates receive

written explanations of adverse decisions by the Board

of Pardons. We remand to the district court to deter-

1961

aad

Sa

mine at what point in an inmate's incarceration the

likelihood of his receiving a pardon becomes suffi-

ciently great to vest him with a protected “liberty”

interest and due process rights.

I.

This action was commenced by plaintiff David

Dumschat in February 1976. Dumschat was serving a

life sentence following a 1964 homicide conviction,

and, under state law, he was not eligible for parole

until December 1983. Dumschat had appeared several

times before the Connecticut Board of Pardons, which

is empowered by statute to grant a life inmate his

immediate release or to accelerate his eligibility for

parole. Conn. Gen. Stat. Ann. § 18-26.' On each occa-

sion, the board rejected Dumschat’s application without

written or oral explanation.

After rehearing testimony from officials of the par-

don and parole boards, Judge Blumenfeld concluded

that Dumschat had a protected liberty interest in the

pardons process. See 432 F. Supp. 1310 (D. Conn.

1977). Accordingly, he issued a declaratory judgment

holding that the Board of Parole violated Dumschat’s

1 The board is authorized to grant pardons “corditioned or abso-

lute.” Its members testified below that the board has never to their

knowledge granted an inmate an absolute pardon, i.e., a pardon

releasing him unconditionally and absolving him of guilt in the

crime for which he was imprisoned. (Such slate-cleaning pardons are

occasionaily issued to former inmates.) The board occasionally par-

dons an inmate on time served. Such a commutation of sentence

gives the inmate immediate, unconditional freedom but does not

erase the underlying conviction. Favorable action by the board

usually takes the form of a reduction in the inmate’s minimum

term. This type of “pardon” simply hastens the inmate's eligibility

for parole; his release requires a favorable ruling by the Board of

Parole.

1962

Ha

due process rights when it failed to provide a written

statement of reasons explaining its action.

On the very date that Judge Blumenfeld issued his

decision, June 16, 1977, the Board of Pardons com-

muted Dumschat’s sentence to time served, thereby

yranting him his immediate release. Nevertheless,

Judge Blumenfeld denied the defendants’ motion to

vacate his judgment as moot.’ Instead, he allowed

three other life inmates to intervene and to consolidate

their pending suit against the Board of Pardons with

Dumschat’s. The judge also granted the intervenors’

motion to certify the consolidated suit as a class ac-

tion, brought on behalf of all inmates serving life sen-

tences in Connecticut state prisons. After a new round

of hearings, Judge Blumenfeld expanded his original

decision to encompass the new plaintiff class. The

Board of Pardons, he ruled, must furnish a written

statement of reasons whenever a life inmate is denied

a pardon. 462 F. Supp. 509 (D. Conn. 1978). This court

affirmed his decision in a per curiam opinion. Our

affirmance was then vacated by the Supreme Court

and remanded with instructions to reconsider in light

of the Court’s recent decision in Greenholtz v. Inmates

of Nebraska Penal and Correctional Complex, supra.

2 The defendants appealed the original Dumschat decision to this

court, then moved for us to vacate the district court judgment as

moot and remand to Judge Blumenfeld with instructions to dismiss

the complaint. We chose simply to remand without further com-

ment or instructions.

1963

7a

II.

In Greenholtz, the Supreme Court held that Ne-

braska state inmates were not constitutionally entitled

to formal hearings before the Nebraska Board of

Parole or to detailed written explanations of adverse

parole decisions. The Court declared, first, that a state

does not create a constitutionally cognizable liberty in-

terest in parole release simply by establishing the pos-

sibility of parole. The “mere hope” of future freedom,

without more, was deemed insufficient to invoke due

process. See 99 S.Ct. at 2103-05. Analogizing to the

standards for determining the existence of a protected

property interest, as articulated in Board of Regents v.

Roth, 408 U.S. 564, 576-78 (1972), the Court indicated

that the existence of a protected liberty interest in

parole depends on whether inmates enjoy a “legitimate

expectation” of parole release. 99 S.Ct. at 2103-05. The

Court found that such an expectation was gene:ated by

Nebraska’s statutory parole scheme and that “the ex-

pectancy of release provided in this statute is entitled

to some measure of constitutional protection.” Jd. at

2105-06. The Court held, however, that this protection

did not extend so far as to mandate formal hearings

before the parole board or detailed explanations of

parole rejections. Jd. at 2106-08.

III.

Our first task is to consider, in the wake of

Greenholtz, whether Connecticut’s life inmates have a

protected interest in the pardons process. In Boothe v.

Hammock, 605 F.2d 661 (2d Cir. 1979), this court

embraced the Supreme .Court’s. declaration in

1964

Sa

Greenholtz that the establishment of a parole system

does not in itself give rise to due process rights in

parole procedures. Similarly, in Pugliese v. Nelson,

Nos. 79-2136, 2138, 2140 (2d Cir. Mar. 4, 1980), we

acknowledged that Greenholtz required us to overrule

our decision in Cardaropoli v. Norton, 523 F.2d 990

(2d Cir. 1975), which held that simply the threat of

“grievous loss” was sufficient to trigger due process

protection. Thus, we held that no liberty interest was

implicated in a classification scheme that hindered an

inmate's ability to participate in social furlough, work

release, and halfway house programs.

An inmate’s stake in the pardons process is essen-

tially the same as his stake in parole, furlough, or

work release: early release from incarceration. A state

no more creates a protected interest by holding out the

possibility of pardon, absolute or conditional, than it

does by offering the possibility of parole or furlough.

To prevail, therefore, Connecticut’s life inmates must

show more than a “mere hope” or subjective anticipa-

tion of pardon; they must, instead, show an expecta-

tion with some concrete, objective basis. See

Greenholtz, supra, 99 S.Ct. at 2103-05; Board of Re-

gents v. Roth, supra, 408 U.S. at 576-78. As we stated

in Pugliese, supra, slip op. at 1605, to “qualify as

constitutionally protected ‘liberty’, the prisoner’s in-

terest must be .. . one that he would normally ex-

pect to have as a matter of custom and practice.”

In Greenholtz, the Supreme Court found that a con-

stitutionally significant expectation of parole was

created by the language of the Nebraska parole statute.

It provided that the parole board “shall order” an

inmate’s release when he becomes eligible for parole in

the absence of specific disqualifying conditions. See

1965

9a

Neb. Rev. Stat § 88-1,114(1).* In marked contrast,

Connecticut’s pardons statute contains neither a pre-

sumption in favor of pardon nor a list of factors to be

considered by the Board of Pardons. Instead, the stat-

ute grants the board unfettered discretion in the exer-

cise of its power. See Conn. Gen. Stat. Ann. § 18-26.‘

The statute offers only the “mere hope” of pardon; it

does not create a legitimate expectation of freedom

and therefore does not implicate due process. See Pug-

m The statute provides in pertinent part:

Whenever the Board of Parole considers the release of a commit-

ted offender who is eligible for release on parole, it shall order

his release unless it is of the opinion that his release should be

deferred because:

(a) There is a substantial risk that he will not conform to the

conditions of parole;

(b) His release would depreciate the seriousness of his crime

or promote disrespect for law;

() His release would have a substantially adverse effect on

institutional discipline; or

(d) His continued correctional treatment, medical care, or

vocational or other training in’ the facility will substantially

enhance his capacity to lead a law-abiding life when released at a

later date.

It was apparently the presumptive “shall order . . . unless” con-

struction of the Nebraska statute which led the Supreme Court to

conclude that its “unique structure and language” gave rise to due

process rights in parole proceedings. Greenholtz v. Inmates of the

Nebraska Penal and Correctional Complex, 99 S.Ct. 2100, 2106

(1979). See Boothe v. Hammock, supra, 605 F.2d at 664,

| The statute provides in pertinent part:

(a) Jurisdiction over the granting of, and the authority to

grant, commutations of punishment or releases, conditioned or

absolute, in the case of any person convicted of any offense

against the state and commutations from the penalty of death

shall be vested in the board of pardons.

(hb) Said board shall have authority to grant pardons, condi-

tioned or absolute, for any offense against the state at any time

after the imposition and before or after the service of any sen-

tence,

1966

2

10a

liese, supra, slip op. at 1608; Boothe, supra, 605 F.2d

at 664; Wagner v. Gilligan, No. 77-3372 (6th Cir.

1979). Compare Wolff v. McDonnell, 418 U.S. 589

(1974) (inmates had protected liberty interest in “good-

time” credits where statute provided that such credits

were to be forfeited only for serious misbehavior).

Statutory or constitutional language, however, is not

the only ground upon which a legitimate expectation of

liberty or property may rest. Such an expectation, with

attendant due process rights, may also be based on

regulations, policies, understandings, contractual ar-

rangements or institutional practices. See Perry v. Sin-

dermann, 408 U.S. 593, 601-03 (1972); Board of

Regents v. Roth, supra, 408 U.S. at 577-78; Morrissey

v. Brewer, 408 U.S. 471, 480-82 (1972). As we empha-

sized in Pugliese, supra, slip op. at 1605:

Considerable weight is given to whether the al-

leged liberty interest is in the nature of a “bird in

the hand” rather than one in the bush. A protected

liberty interest is created, for example, where the

inmate currently enjoys or may reasonably expect

to enjoy an important and substantial benefit upon

his compliance with or the occurrence of certain

conditions, which may be withdrawn only for good

cause.

Connecticut’s life inmates contend that they have a

legitimate expectation of pardon and release—and due

process rights in pardon proceedings—by virtue of the

regularity with which the Board of Pardons grants

them relief. Though the statistical evidence provided

below by state officials was not, as Judge Blumenfeld

noted, “as extensive as might be desired,” 432 F. Supp.

at 1314, it was sufficient to establish that pardons are

1967

lla

granted to Connecticut’s life inmates with compelling

frequency. Bernard Gates, then chairman of the Board

of Parole, testified that more than 75 percent of

Connecticut's “lifers” have their eligibility for parole

accelerated by the Board of Pardons. Ninety percent of

these inmates are then granted parole within their first

year of eligibility, and all are paroled after no more

than a few years’ wait. In addition, the board grants

immediate release to a number of other life inmates by

commuting their sentences to time served.°

After reviewing these statistics, Judge Blumenfeld

concluded that “the long-term inmate’s expectation of

pardon is a justifiable one rooted in state practice [and]

implicates a liberty interest requiring due process pro-

tections.” 432 F. Supp. at 1314. We affirmed this con-

clusion on appeal, holding that “(tJhis almost invariable

practice creates . . . a liberty interest in the pardons

process,” 593 F.2d at 166, and we reaffirm it now. The

overwhelming likelihood that Connecticut life inmates

will be pardoned and released before they complete

their minimum terms gives them a constitutionally

protected liberty interest in pardon proceedings. See

Perry v. Sindermann, supra, 408 U.S. at 602-03 (state

university professor had protected interest in contin-

ued employment if he could show that “the policies and

practices of the institution” created an unwritten “com-

mon law” of tenure); Phillips v. Bureau of Prisons, 591

F.2d 966, 971 (D.C. Cir. 1979) (“consistent, positive

action of government officials” allowing paralegals to

5 See note 1 supra. Gates also testified that “no more than 10 or 15

percent” of Connecticut's life inmates serve their minimum terms.

This may mean that the Board of Pardons grants relief to 85 or 90

percent of the inmates; on the other hand, the figure may include

those who have died in prison or who for some other reason served

less than their minimum terms without the board's assistance.

1968

l2a

visit prisoners gave paralegals a protected interest in

such visits); Stretton v. Wadsworth Veterans Hospital,

537 F.2d 361, 367 (9th Cir. 1976) (“we believe Roth

recognized that rehire rates under some circumstances

may evidence a ‘common law’ of employment to sup-

port the finding of a property interest”); Schwartz v.

Thompson, 497 F.2d 430, 433 (2d Cir. 1974) (“(nJor is

there any suggestion that the vast majority of staff

attorneys are promoted to supervisory positions so as

to create de facto ‘right’ to such advancement”). We

find nothing in Greenholtz that precludes this holding.®

Indeed, our opinion in Pugliese appears to contemplate

this precise result. See slip op. at 1612.

A finding that life inmates have a legitimate expec-

tation of pardon and release prior to the expiration of

their minimum terms does not mean, however, that

they have a legitimate expectation of pardon after a

year in prison, or two years, or ten. Connecticut’s life

inmates may apply for relief from the Board of Par-

dons after serving a year in prison and may apply

annually thereafter. To determine how many years an

inmate must serve before his application is entitled vo

due process protection, it is necessary to determine at

6 The defendants-appellants point out that the Supreme Court in

Greenholtz had before it figures showing that the Nebraska parole

board awarded discretionary parole to nearly 60 percent of eligible

inmates. If statistical probability were enough to create a protected

interest in prison release, they assert the Supreme Court would have

so found in Greenholtz. The Court's failure to do so, they submit,

means that probability alone is insufficient to invoke due process.

This argument must be rejected. Greenholtz held that Nebraska

inmates had a protected interest in parole proceedings because of

statutory language. The Court, therefore, did not consider whether

Nebraska's historical pattern of parole might also vive rise to due

process rights. The Court's silence on this issue—an issue which it

had no need to reach and which had not heen raised by the parties—

is of no significance in this case.

1969

I3a

what point inmates are vested with a protected in-

terest in the pardons process, t.e., when the probability

that they will receive pardon and release becomes con-

stitutionally significant.

Judge Blumenfeld twice explicitly declined to reach

this question. In his first opinion, he saw no need to

fix a precise point at which due process was implicated

because the suit involved a single plaintiff, Dumschat,

who had already served more than two-thirds of his

minimum sentence and who, therefore, clearly had a

legitimate expectation of pardon based on state prac-

tice.’ In his second opinion, the district court judge

again found it unnecessary to reach the question be-

cause he held the mere possibility of pardon generated

due process rights. This conclusion, of course, is no

longer tenable in light of Greenholtz, Boothe, and Pug-

liese. We therefore remand to the district court to

determine how many years life inmates must serve

before the probability of pardon becomes so significant

as to give rise to a protected liberty interest. Only

after this period has elapsed are lifers entitled to due

process safeguards in the pardons process.

7 Judge Blumenfeld remarked in a footnote that “it is not clear at

exactly what point in their incarceration lifers generally receive a

pardon,” 432 F. Supp. at 1314 n.12. He then noted Bernard Gutes's

testimony that “I can't speak of it recently, but the bulk of commu-

tations [for life inmates] over past years appeared to come between

14 and 17 years” of imprisonment. This was the only testimony

below concerning the timing of pardons. Accordingly, we remand to

Judge Blumenfeld who can obtain additional information on this

question,

1970

Ida

IV.

We turn, finally, to consider what procedural protec-

tion is due those life inmates in whom a liberty in-

terest has vested. Specifically, we review, in light of

Greenholtz, the district court’s decision that a life

inmate’s due process rights require the Board of Par-

dons to provide a written explanation when it rejects

his application for relief.*

Due process is a highly flexible doctrine. To deter-

mine what process is due in a particular case, a court

must consider “the need for and usefulness of the par-

ticular safeguard in the given circumstances,” Friendly,

Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1278

(1975), and its effect on governmental and private in-

terests. See, e.g., Greenholtz, supra, 99 S.Ct. at 2106-

08; Mathews v. Eldridge, 424 U.S. 319, 333-49 (1976);

Wolff v. McDonnell, supra, 418 U.S. at 560-72; Morris-

sey v. Brewer, supra, 408 U.S. at 483-89. As we held

in our previous opinion in this case, the record amply

supports Judge Blumenfeld’s conclusion that a manda-

tory statement of reasons has a number of salutary

consequences. The need to give reasons encourages fair

and thoughful deliberations by the board, thus protect-

ing against arbitrary and constitutionally impermissi-

ble decisions. Moreover, it promotes consistency, an

important consideration in light of the board’s frequent

changes in personnel.® Finally, it helps inmates to cor-

ro In his complaint, Dumschat sought not only a statement of rea-

sons from the board but also access to all information available to

the board in its consideration of his applications. This additional

relief was not granted by Judge Blumenfeld. The claim to access

was dropped in the consolidated suit and class action and is no

longer at issue.

9 Thirteen different people sat on the five-person board between

November 1973 and November 1976.

1971

ISa

rect misunderstandings by the board or to remedy

their own behavioral or other problems which in-

fluenced the board’s denial of relief.'°

The record also supports Judge Blumenfeld’s finding

that a reasons requirement does not unduly burden the

Board of Pardons. Indeed, the requirement involves

only a small number of applicants before the board."

Further, the statements provided by the board need

not be lengthy or detailed—the board should be able to

summarize the grounds for its decision sufficiently in a

sentence or two. Board chairman Paul McQuillan him-

self testified below that the reasons requirement would

be workable and would present no great administrative

difficulty.

Nothing in Greenholtz requires us to overrule Judge

Blumenfeld’s determination regarding the requirements

of due process in this case. In fact, dicta in Greenholtz

suggests support for Judge Blumenfeld’s conclusion.

The Greenholtz plaintiffs already were entitled to brief

statements of reasons from the Nebraska parole board.

They contended that due process required more de-

tailed statements outlining the evidence relied on by

the board in reaching its decision. The Supreme Court

held that a brief statement of reasons was sufficient

under the due process clause, further suggesting that a

brief statement was not only constitutionally sufficient

but also constitutionally necessary:

10 On the benefits of a reasons requirement as a due process safe-

guard, see generally, Wolff v. McDonnell, 418 U.S. 539, 564-65

(1974); Haymes v. Regan, 525 F.2d 540, 543-44 (2d Cir. 1975).

11 Thirty-five inmates were serving life sentences in Connecticut

prisons as of November 1977. Moreover, only those who have served

long enough to have a protected interest in pardon—a length of

time to be determined by the district court on remand—have a right

to statements of reasons from the board.

1972

16a

|Wihen parole is denied [the board] informs the in-

mate in what respects he falls short of qualifying

for parole; this affords the process that is due

under these circumstances.

99 S.Ct. at 2108 (emphasis added).

We hold that Connecticut life inmates who have a

protected interest in the pardon process are entitled to

the procedural safeguard which the Supreme Court

considered “due” in Greenholtz — short statements of

reasons explaining why they have been denied relief.

We remand to the district court to determine at what

point in their incarceration life inmates acquire a pro-

tected liberty interest in pardons.

1973

17a

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

June lls 1979

Steohen J. O*Neilt

Assistant Attorney General

349 Capitol Avenue

Hartford, CI 06115

RE: Connecticut Board of Pardonsse et al.

ve David Dumschate ect al.

No. 78-1533

Dear

The Court today entered the foliowing order in

the abover-entittled case:

The motion of respondents for leave to proceed in forma

pauperis is granted. The petition for a writ of certiorari is

granted. The judgment is vacated and the case is remanded to

the United States Court of Appeals for the Second Circuit for

further consideration in light of Greenholtz v. Inmates of

Nebraska Penal Complex, 442 U.S. (1979).

Very truly yours,

MICHAEL RODAK, JR., Clerk

REO TIVED

me Michel Korat)

Are | > wls CAL = Gitte

, aur AVE, RTED

l8a

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

Nos. 539, 540 — August Term, 1978.

(Argued January 9. 1979 Decided January 11. 1979.)

Docket Nos. 78-2124-25

DaviD DUMSCHAT.

Plaintiff-Appellee,

JAMES BROowN. STANLEY CZAJA and JAMES SHELTON.

Intervening Plaintiffs-Appellees,

v.

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

LUBLIN (Chairman), ALVIN DOZEMAN. PAUL J.

DuBISsETTE. Members of the Board of Pardons,

Defendants-Appellants.

JAMES BROWN. STANLEY CZAJA and JAMES SHELTON.

Plaintiffs-Appellees,

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,

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.

19a

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.

20a

Written statements of reasons for denial are part of the

due process requirements surrounding parole decisions.

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

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

v. 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

‘a 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.

2la

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.

Plaimiff 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-

22a

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 August 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

23a

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:

‘*I 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.

24a

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-

25a

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’’ ih 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

26a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

DAVID DUMSCHAT

Plaintiff

JAMES BROWN. STANLEY CZAJA and

JAMES SHELTON

Intervening Plaintiffs

Vv.

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

denied 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-

27a

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

28a

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

JAMES BROWN. STANLEY CZAJA

and JAMES SHELTON

v.

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

29a

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 BLUMENFELD

United States District Judge