Record and brief — Missouri Board of Probation & Parole v. Williams

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[ Otice- Supreme Court, U.S

FILED

US 14 1987

81-113

STEVAS.,

IN THE = CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

—

MISSOURI BOARD OF PROBATION AND PAROLE,

DICK MOORE, Chairman

CAROLYN V. ATKINS,

and,

BILL DUNCAN,

Members of the Board,

Petitioners,

JUNIOR THEOBALD,

Individually and on Behalf of All Other

Persons Similarly Situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JoHN AsHCROFT

Attorney General

Paul, Rosert Orro

Assistant Attorney General

Broadway State Office

Building

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioners.

December, 1981

———————————— eee

KELLY PRESS, INC., 201 8. Eighth St., Columbia, Missouri Dial 314/149-4163

QUESTIONS PRESENTED

1. Whether the Due Process Clause of the Fourteenth

Amendment applies to parole release determinations made

by the Missouri State Board of Probation and Parole when

the parole statute requires that the inmate will be paroled

only after the Parole Board arrives at an opinion that there

is a probability that parole will not be detrimental to the

inmate or the community.

2. Whether the Due Process Clause of the Fourteenth

Amendment, if found applicable to Missouri parole release

decisions, requires that the prisoner being considered for

parole be allowed access to his parole file.

3. Whether, in regard to ruling on whether or not Mis-

souri parole statutes grant an inmate an entitlement to

parole protectable by the Due Process Clause of the Four-

teenth Amendment, the lower courts should have abstained

until the Missouri courts had an opportunity to interpret

those statutes.

LIST OF ALL PARTIES

1. Petitioners, who were cross-appellants and defendants

below, are the Missouri State Board of Probation and Parole,

Chairman Dick Moore and members, Carolyn V. Atkins and

Bill Duncan.

John Ashcroft

Attorney General

Paul Robert Otto

Assistant Attorney General

P.O. Box 899

Jefferson City, MO 65102

Attorneys for Petitioners.

2. Respondents, who were appellants and plaintiffs be-

low, are James E. Williams and Junior Theobald, as named

parties, and all persons similarily situated.

Michael Thompson

Legal Aid of Western Missouri

1103 Grand Avenue

Kansas City, MO 64106

Attorney for Respondents.

INDEX

r... „„ „0 1

e. 2

Constitutional and Statutory Provisions .............. 2

bates GF Che GSS 2. oe eee 4

Argument I

A. Contrary to Previous United States Supreme

.... 11

B. Contrary to Opinions of Other Circuits ........ 16

C. General Importance of the Issue .............. 17

r ns be ede eienkcxevadeaienebeneanta 18

,s ̃ I!!!! akeuseennensueneeeet 19

! ² dL. » e 26

. iN! de A-1

/ » e A-¹3

r ͤ AAA da ceccedusesadkebesen A-15

CITATIONS

Cases

Ahrens v. Thomas, 570 F.2d 286 (8th Cir. 1978) ........ 24

Averhart v. Tutsie, 618 F.2d 479 (7th Cir. 1980) ........ 23

Babbitt v. United Farm Workers National Union, 442

r costes 20, 21

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

t seu seeueseeeuses 19

Boothe v. Hammock, 605 F.2d 661 (2nd Cir.

— . ees 6enens ecues 13, 15, 16

Campbell v. Montana State Board of Pardons, 470

Dae, Hee CHD, BOGE occ ee eee 17

Cicero v. Olgiati, 426 F.Supp. 1213 (S.D.N.Y. 1976) ..... 24

Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980) .......... 25

Connecticut Board of Pardons v. Dumschat, ____ U.S.

——,, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) ........ 15

Emmons v. State of Missouri, No. 80-0415-CV-W-5

ens sss 12

Franklin v. Shields, 569 F. 2d 784 (4th Cir. 1977), rev’d

on access to files issue en banc, 569 F. 2d 800 (1978)

cert. denied, 435 U.S. 1003 (19789)))))))ů 19

Fronezak v. Warden, El Reno Reformatory, El Reno,

Oklahoma, 553 F.2d 1219 (10th Cir. 1977) ........ 19

George v. Parratt, 602 F.2d 818 (8th Cir. 1979) ........ 24

Greenholtz v. Inmates of Nebraska Penal and Correc-

tional Complex, 442 U.S. 1 (1979) ........ 6, 11, 18, 20

Griffin v. Atkins, No. 79-4243-CV-C (W.D.Mo., May 1,

1980) leave to appeal denied in Misc. No. 80-8110

renner eee see eee es eee 12

Harris County Commissioners Court v. Moore, 420 U.S.

eee eee see esse de 23

Howard v. J. B. Banks, 544 S. W. 2d 601 (Mo. App., St.

eee sse l 14

Inmates of Nebraska Penal and Correctional Complex

v. Greenholtz, 576 F.2d 1274 (8th Cir. 1978) ........ 5

Kansas City, Mo. v. J. I. Case Threshing Mach. Co.,

337 Mo. 913, 87 S.W.2d 195 (bane 1935) ............ 14

Mfeachum v. Fano, 427 U.S. 215 (19760ö᷑ ))) 24

Moore v. Sims, 442 U.S. 415 (1979)9ᷣñ 20, 21

Mullaney v. Wilbur, 421 U.S. 684 (19750)))) 23

Phillips v. Williams, 583 P.2d 488 (Okla. 1978) ......... 14

Phillips v. Williams, 608 P.2d 1131 (Okla. 1980) ........ 14

Rizzo v. Goode, 423 U.S. 362 (19760)))0 :ũ 008 24

Schuemann v. Colorado State Board of Adult Parole,

624 F. 2d 172 (10th Cir. 1980) ................. 15, 19

Shahid v. Crawford, 599 F.2d 656 (Sth Cir. 1979) ...... 17

Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979) ....15

Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va.

1 19

State ex rel. Bowling Green Trust Co. v. Barnett, 235

Mo. 99, 149 S. W. 311 (banc 1912ᷣꝝ!ꝶ: ))) 23

State ex rel. Schultz v. Harper, 573 S. W. 2d 427 (Mo.

pe ree 14

Wetzel v. Edwards, 635 F. 2d 283 (4th Cir. 1980) ........ 23

Williams v. Briscoe, 641 F. 2d 274 (5th Cir. 1981) 15, 17

Williams v. Missouri State Board of Probation and

Parole, 444 F.Supp. 773 (W.D.Mo. 1978) ........... 2

Williams v. Missouri State Board of Probation and

Parole, 585 F.2d 922 (8th Cir. 1978) ............. 2,11

James E. Williams and Junior Theobald v. Missouri

Board of Probation and Parole, W. R. Vermillion,

F. N. Sturm and Dick Moore, Nos. 80-1728 and 80-

1788 (8th Cir., October 9, 198177777. 1

James W. Williams v. W. R. Vermillion, No. 26693

(Cireuit Court of Cole County, May 6, 1974) ....... 4

Statutes and Miscellaneous Citations

eee eee eee 17

eee eee eee eee 2

eee eee 10

28 U.S.C. § 1343 (3) and ()))) 10

eee... eee eee 4

nere 4

Sh Mi Ce concerccoccceccccesce 3, 6, 9, 11, 15

United States Const ution, Amendment XIV §1....... 2

ILE SE OE PEPE TTT SST TTT TTT ee 9

Senate Bill No. 52, § 1.2(3), Laws (Missouri) 1981 ...... 7

Tex. Code Crim. Proc. Art. 42.12 § 15(f) .............. 15

Webster’s Third International Dictionary, p. 2085 ...... 14

No.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MISSOURI BOARD OF PROBATION AND PAROLE,

DICK MOORE, Chairman

CAROLYN V. ATKINS,

and,

BILL DUNCAN,

Members of the Board,

Petitioners,

JAMES E. WILLIAMS

and

JUNIOR THEOBALD,

Individually and on Behalf of All Other

Persons Similarly Situated,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

OPINIONS BELOW

The opinion sought to be reviewed has not yet been

published and was styled and numbered as follows: James

E. Williams and Junior Theobald, Individually and on Be-

half of all Other Persons Similarly Situated, appellants

and cross-appellees v. Missouri Board of Probation and

Parole, W. R. Vermillion, Chairman; F. N. Strum and Dick

Moore, Members of the Board, appellees and cross-appel-

‘ants, Nos. 80-1728 and 80-1788, decided October 9, 1981.

The District Court opinion has not been reported.

It was styled the same as the above-cited Eighth Circuit

opinion and was numbered 74-125-W-2. It was decided on

July 21, 1980.

This Court’s order vacating the judgment of the United

States Court of Appeals for the Eighth Circuit in the first

appeal of this case and remanding it for further considera-

tion is found at 442 U.S. 926 (1979).

The first appeal of this case is reported at Williams

v. Missouri State Board of Probation and Parole, 585 F. 2d

922 (8th Cir. 1978).

The first District Court opinion is reported at 444

F.Supp. 773 (W.D.Mo. 1978).

GROUNDS OF JURISDICTION

The date of the judgment of the United States Court of

Appeals for the Eighth Circuit of which this petition seeks

review is dated October 9, 1981. No motion for rehearing

was filed. The statutory authority for this Court to review

the judgment by way of petition for writ of certiorari is

found at 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The United States Constitution, Amendment XIV, Sec-

tion 1.

„All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any persons within

its jurisdiction the equal protection of the laws.“

Section 549.234.3, RSMo 1978:

„The orders of the board shall not be reviewable except

as to compliance with the terms of sections 549.205 to

549.291.“

Section 549.261, RSMo 1978:

„1. When in its opinion there is reasonable prob-

ability that the prisoner can be released without detri-

ment to the community or to himself, the board shall

release or parole any person confined in any correctional

institution administered by state authorities. All pa-

roles shall issue upon order of the board, duly adopted.

2. Any person who has been committed to a penal

or correctional institution under the administration of

the division of corrections, who has served either one-

third of his time or twelve months of the time for which

he was sentenced, whichever is a shorter period, in an

orderly and peaceable manner without having any in-

fraction of the rules or laws of the institution recorded

against him shall be eligible to make application for

parole and shall be given a hearing. Any person who

has served two-thirds of his time or two years of the

time for which he was sentenced, whichever is the

shorter period, shall be eligible to make application

for parole and shall be given a hearing. Paroles may

be granted, however, before the minimum period spe-

cified has been served.

3. Before ordering the parole of any prisoner, the

board shall have the prisoner appear before it and shall

interview him. A parole shall be ordered only for the

best interest of society, not as an award of clemency;

it shall not be considered a reduction of sentence or

a pardon. A prisoner shall be placed on parole only

when the board believes that he is able and willing to

fulfill the obligations of a law-abiding citizen. Every

prisoner while on parole shall remain in the legal custody

of the institution from which he was released but shall

be subject to the orders of the board.

4. The board may adopt such other rules not in-

consistent with law as it may deem proper or necessary,

with respect to the eligibility of prisoners for parole,

the conduct of parole hearings or conditions to be im-

posed upon parolees. Whenever an order for parole is

issued it shall recite the conditions thereof.’’

STATEMENT OF THE CASE

Preliminary Statement

This petition for writ of certiorari seeks review of the

above referenced judgment of the United States Court of

Appeals for the Eighth Cireuit which reversed the District

Court judgment in which the District Court had denied

plaintiffs’ request for declaratory judgment and injunc-

tive relief under 42 U.S. C. § 1983. There were no damages

requested. The complaint was filed on March 19, 1974, and

was later certified as a class action pursuant to Rule 23(b)

(2), Federal Rules of Civil Procedure. Petitioners (Parole

Board), on April 26, 1974, filed a motion to dismiss claiming

there was a pending state proceeding which involved the

issue of whether or not the procedural safeguards of the

due process clause of the Fourteenth Amendment were ap-

plicable to parole release proceedings. James E. Williams

v. W. R. Vermillion, No. 26693 (Circuit Court of Cole Coun-

ty, Missouri). On May 6, 1974, the Circuit Court of Cole

County dismissed the Williams case. On May 31, 1974, the

United States District denied the motion to dismiss. On

October 3, 1974, the Parole Board filed a motion to re-

consider the denial of the motion to dismiss on the basis

that the named plaintiffs in the instant suit had voluntarily

dismissed their respective suits in state court. In fact,

Theobald had his attorney dismiss the appeal from his

state circuit court action. The District Court denied the

motion to reconsider on January 30, 1975.

Prior to trial the parties arrived at an extensive stipu-

lation of fact and of legal issues. The legal issues were

whether the procedural Due Process protections of the Four-

teenth Amendment were applicable to parole release deter-

mination proceedings conducted by the Missouri State Board

of Probation and Parole and, if so, what minimum pro-

tections were necessary. The case was tried by the Honor-

able William H. Collinson of the United States District

Court for the Western District of Missouri on August 17

and 18, 1976. On January 17, 1978, the Court held that

the procedural protections of the Fourteenth Amendment

of the United States Constitution do not adhere to the

plaintiffs’ interest in the possibility of conditional release

on parole and are not mandated by that amendment in re-

lation to proceedings conducted by the Missouri State Board

of Probation and Parole in its parole release determinations.

The injunctive and declaratory relief sought was denied

and judgment was entered in favor of the Parole Board.

Appealed by the plaintiffs, the judgment was re—

versed and remanded to the District Court for further

proceedings in an opinion reported at 585 F.2d 922 (8th

Cir. 1978). The Court of Appeals held that due process

protections were applicable for the same general reasons

as that court had set forth in its decision of Inmates of

Nebraska Penal and Correctional Complex v. Greenholtz,

576 F. 2d 1274 (8th Cir. 1978). The Court of Appeals found,

in addition, that minimum due process protections required

the disclosure of prisoners’ parole files to them in prepa-

ration for the parole release proceedings. The Parole Board

filed a petition for writ of certiorari in this Court and,

after this Court reversed the Court of Appeals in Green-

holtz v. Inmates of Nebraska Penal and Correctional Com-

plex, 442 U.S. 1 (1979), it also vacated this case and re-

manded it for reconsideration in light of Greenholtz. See

order issued at 442 U.S. 926 (1979). The Court of Appeals

remanded the cause to the District Court which ordered

briefs on the questions of abstention and of due process

analysis in light of the Greenholtz opinion.

The District Court found that under Greenholtz

the Missouri statutes provided no entitlement to parole

protectable by the Due Process Clause of the Fourteenth

Amendment and entered judgment for the defendants. The

prisoners appealed to the United States Court of Appeals

for the Eighth Circuit with the Parole Board filing a cross-

appeal on the issue of abstention. On October 9, 1981, the

Court of Appeals reversed and remanded the cause holding

that the statutes did provide an entitlement to parole pro-

tectable by the Due Process Clause and that one of the

minimal due process protections due an inmate was that

of having access to his parole file.

Parole Release Determination Procedure

A detailed delineation of the operation of the Missouri

State Board of Probation and Parole in its determination

of whom to release on parole is contained in the original

District Court’s opinion at 444 F.Supp. 773. A more concise

statement follows.

The availability of parole to Missouri inmates is estab-

lished by Section 549.261, RSMo 1978, which provides that

inmates will be released on parole when, in the opinion of

the Board of Probation and Parole, there is reasonable

probability that the prisoner can be released without detri-

ment to the community cr to himself. The statute sets forth

minimum times in which inmates may make applications

for parole and in which they may be given a hearing on

that application. Parole is not considered a reduction of

sentence or pardon but is to be ordered only in the best

interest of society. The board may place an inmate on parole

when it believes he is abie and willing to fulfill the obli-

gations of the law abiding citizen. While on parole, the

parolee is in the legal custody of the institution from which

he was released and is subject to the orders of the Board.

The Board referred to contains three members appointed

by the Director of the Department of Social Services with

the approval of the Governor and with the advice and con-

sent of the Senate.“ During most of the pendency of this

lawsuit, W. R. Vermillion was the Chairman of the Board

with Ferd Sturm and Dick D. Moore being the other two

Members. Since the original District Court decision, the

membership of the Board has undergone several changes

and is now constituted of Dick Moore as Chairman, and

Carolyn V. Atkins and Bill Duncan as the remaining mem-

bers.

Within thirty days after an inmate has been assigned

to an institution within the Division of Adult Institutions,

he will receive a written notice informing him of the month

and year in which his parole hearing will be held. He will

be notified in writing of the exact date forty-five days

prior to the hearing. Before his initial hearing the inmate

is interviewed by an institutional parole officer who may,

at that time, go over matters in the file with the inmate.

The institutional parole officer’s pre-parole report sum-

marizes for the Board the matter contained in the files and

other informatien obtained from interviews with the inmate

and other individuals such as personnel in the Division of

1As of September 28, 1981, the Board was transferred from the

Department of Social Services to a newly created Department of Cor-

rections and Human Resources. Senate Bill No. 52, § 1.2(3), Laws (Mis-

souri) 1981.

2Formerly known as Division of Corrections before enactment of

Senate Bill No. 52. See note i, above.

Adult Institutions. The institutional parole officer also

evaluates the inmate and makes a recommendation on

whether or not he should be released on parole. A hearing

is conducted by a three member panel, at least one of which

is a parole board member. The other two will be a parole

analyst and an institutional parole supervisor. The latter

person makes a recommendation as to parole release. The

parole analyst helps conduct the hearing, makes recommen—

dations as to a decision, and draws up a written statement of

reasons explaining to the inmate the Board’s decision and

their reasons therefor. Each member of the hearing panel

has a copy of the institutional parole officer’s report and al-

so has access to the file which is at the hearing. The file con-

tains such matters as the classification report compiled by

the Division of Adult Institutions; pre-sentence report;

psychiatric and psychological reports, if available; previous

institutional parole officer reports; information from pre-

vious periods of supervision by the Board; prison discipli-

nary reports; information concerning any previous time

spent in the Division of Adult Institutions; arrest record;

references to juvenile proceedings; material and comments

sent in gratuitously by concerned law enforcement officials,

friends of the inmate and other citizens. There may also be

official and community attitude reports done by the

Board’s field officers in an effort to determine whether

or not an inmate can be paroled to a particular locale.

At the hearing, the inmate is allowed to have a repre-

sentative with him who may be a lawyer. The representa-

tive is allowed to make a presentation at the end of the

Board’s interview with the inmate and to offer any in-

formation or arguments on behalf of the inmate. The in-

mate is also allowed to have a ‘‘delegation’’, that is, other

people who want to speak on his behalf. Normally the in-

mate is not present when the delegation testifies. People

opposed to the parole may aiso present their views to

the Board outside the presence of the inmate. Such a pres-

entation is extremely rare. The proceedings are preserved

on tape recordings. After the hearing, a decision is

reached on whether to grant parole, put the inmate on

parole planning status, deny parole, or set further con-

sideration of the inmate to a later date. If parole is to be

granted, the decision must be approved by another mem-

ber of the Board. If parole is denied or a set back is given,

the inmate is given written reasons for that action as pre-

pared by a parole analyst. The reasons are given to the

inmate by the institutional parole officer. The inmate may

appeal the decision to two members of the Board on the

ground that the reasons given for denial or continuance

did not support the decision or that there was significant

information in existence but not known to the panel at the

time of the hearing. The inmate is advised in writing of

the appeal decision.

After the initial hearing, an inmate may be set back

for a review or another hearing at a later time. A review

is exactly the same procedure as described above except

that the inmate does not appear before a panel for a hear-

ing. However, persons on his behalf may meet with the

Board in their offices and he may send to the Board any

information that he feels necessary. He also has the op-

portunity to communicate with the institutional parole

officer when the pre-review interview is being made in

order to prepare the pre-review report. Adverse decisions

on review may also be appealed in the manner described

above.

The rules and regulations of the Board, established

under the authority of Section 549.261, RSMo 1978, are

not only published in the Code of State Regulations at 13

CSR 80-2, but are published also in booklet form and dis-

tributed to the inmates when they arrive in the Division of

Adult Institutions. The regulations and booklet fully de-

scribe the above procedures as well as other matters of

concern to the inmates in relation to their possibility of

being paroled. Among other things, the booklet sets out

times that initial hearings are held, hearing and review

procedures, general criteria for release on parole, the fae-

tors which the Board considers, what is expected of the

inmate at the parole hearing and the administrative ap-

peal procedure. Since the proceedings below and this pe-

tition do not raise any issue as to the regulations, they are

not reprinted in the Appendix.

The basis for Federal jurisdiction of the Court of the

first instance, the United States District Court for the

Western District of Missouri, was 28 U.S.C. § 1343(3) and

(4). Basis for the jurisdiction in the United States Court

of Appeals was 28 U.S. C. § 1291.

Contrary to Previous United States Supreme

Court Opinions

The Court of Appeals’ holding on the issue of whether

or not Missouri’s statute Section 549.261, RSMo 1978, grants

inmates an entitlement to parole is in direct conflict with

this Court’s holding in Greenholtz v. Inmates of Nebraska

Penal and Correctional Complex, 442 U.S. 1 (1979), that

the Due Process Clause of the Fourteenth Amendment is

not applicable to parole release decisions made under state

laws which create only a possibility of parole. Jd. 442 U.S.

at 9-11. The Missouri parole statute allows for parole only

after the Board has determined that parole will not harm

the inmate or the community. It contains no language or

structure which grants a prisoner the right to parole de-

feasible only by a parole board decision to the contrary

as did the Nebraska statute in Greenholtz. Nor does it

set out any specific criteria for the Board to follow which

require release on parole if those criteria are met.

In maintaining its previous ruling made on the first

appeal in Williams at 585 F.2d 922 (8th Cir. 1978), which

predated this Court’s Greenholtz decision, the Court of

Appeals has so blatently misinterpreted the Missouri

statute that it has in effect ruled that a right to parole

exists when the statute provides only a possibility of parole

release.

The nature of a prisoner’s interest in parole must be

determined by looking at the statutes involved. The crucial

language in Section 549.261 (part of which the Court of

Appeals failed to cite) is as follows:

**549.261.1 When in its opinion there is reason-

able probability that the prisoner can be released with-

out detriment to the community or to himself, the board

shall release or parole any person confined in any

correctional institution administered by state authori-

ties

3. ...A prisoner shall be placed on parole only

when the board believes that he is able and willing to

fulfill the obligations of a law-abiding citizen. ...’’

The statute requires that the Board form an affirma-

tive opinion that an inmate should be paroled before it

releases the inmate on parole. The Nebraska statute, in

contrast, provided that the Board’s opinion, which was

formed for the purpose of deciding whether or not to de-

fer as opposed to grant parole, was not to be formed until

after the inmate was already granted a presumption of

parole by the statute. The right to parole granted by the

Nebraska statute was defeasible by the Board’s opinion

that at least one of four specific factors listed in the

statute existed. The Missouri statute’s wording requires

the Board’s opinion that the inmate be deserving of parole

be made first before any possible entitlement exists.

The Court of Appeals claimed that the language

created the same shall. .. unless“ formula as in the

Nebraska statute. This rationale had been rejected previ-

ously by two Missouri federal district judges. In the in-

stant case, Judge Collinson decided, as he had in his

original pre-Greenholtz opinion, that Missouri law granted

no entitlement to parole. District Judge Scott O. Wright

arrived at the same conclusion in Emmons v. State of

Missouri, No. 80-0415-CV-W-5 (W. D. Mo., June 10, 1980),

and Griffin v. Atkins, No. 79-4243-CV-C (W. D. Mo., May

1, 1980), leave to appeal denied in Misc. No. 80-8110 (8th

Cir., July 30, 1980). See Appendix D. These judges ex-

plicitly recognized that Missouri’s statute treated the

Board decision as a ‘‘condition precedent’’ to any pos-

sible right the inmate had to release on parole, while in

Nebraska the board’s decision was a ‘‘condition subse-

quent“ to the right to release, operating to take away a

right already granted by the statute.

Such a distinction is not a distinction without a dif-

ference, as was recognized in Boothe v. Hammock, 605 F.2d

661 (2nd Cir. 1979), in which the Court of Appeals reversed

its pre-Greenholtz determination that the due process clause

was applicable to New York parole release decisions.

Once a legislature has identified as factors relevant

to parole release decision-making such amorphous

criteria as whether release will depreciate the serious-

ness of the crime and whether further correctional

treatment will enhance the inmate’s capacity to be law-

abiding, it is difficult to imagine that a board’s de-

cisions will be different under a scheme that requires

release unless adverse findings based on such criteria

are made than under a scheme that simply obligates

the board 10 consider such criteria in exercising its

discretion. But one cannot fairly read the majority’s

opinion in Greenholtz without concluding that the ma-

jority thought there was not only a difference, but

a difference on which entitlement to due process safe-

guards depends. Despite Justice Marshall’s valiant at-

tempt to maintain due process safeguards, the ma-

jority could not have called the Nebraska scheme

‘unique’ if it believed that it resembled the statutes of

the 47 other states that identify, as relevant to parole

decision-making, the same factors mentioned in the

Nebraska statute. The ‘shall/unless’ formula was de-

cisive for the Court.“ Id. 605 F.2d at 664.

The same result was reached in Phillips v. Williams, 608

P.2d 1131 (Okla. 1980), reversing a previous decision in

the same case at 583 P.2d 488 (Okla. 1978) which had been

vacated and remanded for reconsideration in light of

Greenholtz.

The Court of Appeals in the instant case apparently

saw some significance in the use of the word ‘‘shall’’ in

the first sentence of Section 549.261.1. The word ‘‘shall’’,

of course, can mean simply the future of the verb“ to be’’.

See Webster’s Third International Dictionary, ‘‘shall’’,

2(b) and 3(b) page 2085. Missouri courts have often ree-

ognized that ‘‘shall’’ takes on a mandatory meaning

only if it is understood to be such within the purpose and

intent of its statutory context. The courts have long rec-

ognized that the term is used interchangably with ‘‘may’’

and ‘‘must’’ without regard to its literal meaning. Kansas

City, Mo. v. J. I. Case Threshing Mach. Co., 337 Mo. 913,

87 S.W.2d 195, 205 (bane 1935); Howard v. J. B. Banks,

544 S.W.2d 601, 604 (Mo.App., St.L.D. 1976); State ex rel.

Schultz v. Harper, 573 S.W.2d 427 (Mo.App., K.C.D. 1978).

In the latter case, the word ‘‘shall’’ was used in reference

to whether or not a prosecutor should file an information

subsequent to the filing of a complaint by a private citizen.

The filing of the information was held not to be mandatory

because of the traditional discretion accorded a prosecutor.

This is analogous to the instant case in which the tradi-

tional discretion accorded to the parole board would re-

quire that the ‘‘shall’’ not be understood in its mandatory

sense. Furthermore, the use of the word ‘‘shall’’ in this

context simply directs the Board to release the inmate on

parole after it has determined that the inmate is suitable

for parole. In the Nebraska statutes, the word ‘‘shall’’

directed the board to parole the inmate unless it made a

decision that certain factors specified in the statute ex-

isted.

Another indication that there is no entitlement to

parole in the Missouri statute is the lack of any specific

criteria in the statute to guide the Board’s discretion.

Connecticut Board of Pardons v. Dumschat, a

101 S.Ct. 2460, 2465, 69 L.Ed.2d 158, 166 (1981); Shirley v.

Chestnut, 603 F.2d 805, 807 (10th Cir. 1979) (interpreting

Oklahoma’s statute); Schuemann v. Colorado State Board

of Adult Parole, 624 F.2d 172, 174 n.2 (10th Cir. 1980)

(interpreting Colorado’s statute); and, Boothe v. Ham-

mock, supra (interpreting New York’s statute). The Mis-

souri statute has set out in it only the typically generalized

language concerning parole being for the rehabilitation

of the inmate and without detriment to the community.

In construing the Texas parole statutes, the Court of Ap-

peals for the Fifth Cireuit held that language found in

those statutes, which is identical to some of the language

in the Missouri statutes, shows conclusively that no pre-

sumption of entitlement to release on parole is created

by the statute: ‘‘a parole shall be ordered only for the

best interest of society . . . when the Board believes that

[the inmate] is able and willing to fulfill the obligations

of the law-abiding citizen.“ Tex. Code Crim. Proe. Art.

42.12 § 15(f) and Section 549.261.3, RSMo 1978. Williams

v. Briscoe, 641 F.2d 274, 276-277 (5th Cir. 1981).

Another indication of the complete and total discre-

tion allowed the Board in its parole determinations is the

fact that the Legislature did not dictate any detailed rules

for the Board but instead granted the Board the right to

set up its own regulations with respect ‘‘to the eligibility of

prisoners for parole, the conduct of parole hearings or con-

ditions to be imposed upon parolees.’’ Section 549.261.4,

RSMo 1978. The Legislature also prohibits orders of the

Board from being reviewed except as to compliance with

terms of the statutes establishing the Board and parole

release. Section 549.234, RSMo 1978.

Clearly then the Missouri statute conditions any right

to parole on the Board’s making that traditionally predic-

tive and discretionary decision on paroles which was so

well described by this Court in Greenholtz, id., 442 U.S.

8, 9-10. The Missouri statutory scheme is no different than

the typical parole scheme in which the inmate’s release

depends entirely on the Board’s affirmative decision to

release him and which provides only general criteria to

guide the Board’s discretion. This Court needs to review

the Missouri statute and apply the Greenholtz rationale in

a thorough and studied manner which will make clear to

all lower courts interpreting statutes which may contain

the word ‘‘shall’’ that such language does not automatically

create an entitlement to parole protectable by the due

process clause. See Section C, below, for a discussion of

the impact of this case on other jurisdictions.

Contrary to Opinions of Other Circuits

The opinion of the Court of Appeals in the instant

case is the only pre-Greenholtz decision to find an entitle-

ment to parole in a state statute. See Appendix B for a

listing of post-Greenholtz cases. Because the Court of Ap-

peals paid only lip service to the shall. . . unless“ formula

without any foundation for finding that formula existent

in Missouri’s statutory language and structure, the court’s

decision clearly conflicts with the opinion of the Second

Cireuit in Boothe v. Hammock, 605 F.2d 661 (2nd Cir.

1979), which recognized a distinction between the situa-

tions when the opinion of the board precedes the granting

of parole and when it takes away a presumption of parole

already granted by statute. Since the Missouri statute is

the same as if it had the word ‘‘may”’ in the first sentence

of its first subsection, it conflicts with all the post-Green-

holtz opinions which have interpreted such statutes. See

Appendix B. Furthermore, insofar as crucial language in

the Missouri statute is identical with language in the Texas

statute, the Court of Appeals’ holding conflicts with Wil-

liams v. Briscoe, supra, in which the Fifth Cireuit found

that the language was practically conclusive of whether

or not there was any entitlement to parole.

General Importance of the Issue

The decision by the Court of Appeals below has a

major impact on all jurisdictions having similar statutes

especially those using the word ‘‘shall’’. Of particular

importance is the impact on the federal parole commis-

sion since the federal statute provides that, if an inmate

has observed the rules of the institution and if the board

determines that his release would not depreciate the seri-

ousness of his offense or promote disrespect for the law

and would not jeopardize the public welfare, ‘‘such prisoner

shall be released.“ (Emphasis added). 18 U.S.C. § 4206(a).

Other states which have statutes using ‘‘shall’’ but

with the word unless“ are Iowa, Maine, Montana, Ver-

mont and Virginia. The relevant portions of the statutes of

those states have been reprinted in the Appendix C. Of

these states, only the Montana statute has been interpreted

by a federal court since Greenholtz and it has been found

not to provide for an entitlement to parole protectable by

the due process clause. Campbell v. Montana State Board

of Pardons, 470 F.Supp. 1301 (D.Mont. 1979). While there

has been no determinative opinion in regard to the federal

statute, the Fifth Circuit has strongly suggested that there

is no entitlement to parole. Shahid v. Crawford, 599 F.2d

666, 670 n.5 (5th Cir. 1979).

The decision below leaves in a confused state exactly

how the Greenholtz rationale should be applied to those

jurisdictions’ statutes which have mandatory language in

them but do not contain the explicit shall. .. unless“

formula of the Nebraska statute. The Missouri statute

needs examination by this Court to clarify for all lower

federal courts how Greenholtz should be applied in these

situations.

Even before this Court decided Greenholtz, petitioner

was asking the lower federal courts to adopt the rationale

on entitlement eventually enunciated by this Court. The

Missouri federal district judge in this case, long experi-

enced in interpreting Missouri laws, agreed that no en-

titlement existed. Since the Greenholtz decision, that

judge, and another Missouri federal judge have arrived

at the same decision. Their decisions can hardly be con-

sidered logically and rationally refuted by a Court of

Appeals decision which does not address the entire statute

nor even discuss cases from other circuits which arrive at

contrary conclusions. The state is having its statute in-

terpreted in a way in which it never has been interpreted

before and in a way in which the parole board never an-

ticipated that it would be interpreted. The state asks the

highest court of this land to apply those Greenholtz prin-

ciples to the Missouri statute which Missouri has in fact

been seeking to establish since practically the beginning of

this case.

II.

The Court of Appeals’ decision sought to be reviewed

here is unique in another way in that it held that the

prisoner has a right of access to his parole file qualified

by security considerations. This was a point explicitly left

open by this Court in Greenholtz. Id. 442 U.S. at 15

n.7. Of those Courts of Appeals which have considered the

question both before and after Grecnholtz, the Court of

Appeals below is in direct conflict with all the other courts.

This is despite the fact that there was no factual showing

in the proceedings in the District Court that the parole

release determination process was rendered any less fac-

tnally accurate by the procedure of not allowing inmates

access to their parole files.

The Court of Appeals’ decision is in conflict with the

ruling in the post-Greenholtz case of Schuemann v. Colo-

rado State Board of Adult Parole, 624 F.2d 172, 175 (10th

Cir. 1980), and the pre-Greenholtz cases of Franklin v.

Shields, 569 F.2d 784 (4th Cir. 1977), rev’d on access to

files issue en bance, 569 F.2d 800 (1978), cert. denied, 435

U.S. 1003 (1978); Fronczak v. Warden, El Reno Reforma-

tory, El Reno, Oklahoma, 553 F.2d 1219, 1220-1221 (10th

Cir. 1977); Billiteri v. United States Board of Parole, 541

F.2d 938, 945 (2nd Cir. 1976). Accord, Sites v. McKenzie,

423 F.Supp. 1190, 1196 (N.D.W.Va. 1976). Petitioners would

particularly direct this Court’s attention to the en bane

decision in Franklin v. Shields, supra, in which access to

files was held not part of the minimal procedures required

even though factual mistakes had been shown to exist in

the parole files. Here, as stated above, no mistakes were

found in the files.

Because of the clear cut conflicts between the various

Courts of Appeals on this question and because the Court

of Appeals below is in conflict with every other circuit

which has considered the question, it would be appropriate

for the writ of certiorari to issue in this cause.

III.

Abstention is the discretionary exercise of a federal

court’s equity powers by which a federal court decides

that out of consideration of federalism and comity there

is a sufficiently strong interest to abstain adjudication

of a constitutional claim otherwise properly before that

court in order to give the state courts an opportunity to

adjudicate the state law issues upon which are predicated

the constitutional claims. Moore v. Sims, 442 U.S. 415,

427-428 (1979). In the instant case, the Court of Appeals

refused to reverse the District Court on the issue of ab-

stention, brushing aside the Parole Board’s arguments on

its cross-appeal with a footnote simply citing Greenholtz

v. Inmates of Nebraska Penal and Correctional Complex,

442 U.S. 1, 12 (1979), wherein this Court noted the fact

that there had been no judicial interpretation of Nebraska’s

parole statutes by the Nebraska state courts. The issue

of abstention had not been raised in the Greenholtz case.

This Court simply noted that Nebraska, which was the

petitioner in that case, was asking this Court to construe

Nebraska’s parole statutes, without there having been any

state court guidance provided. Therefore, the cite to

Greenholtz does not explain why the Court of Appeals in

the instant case failed to even discuss the abstention claim

on cross-appeal. Such a cursory treatment is tantamount

to a failure even to consider the cross-appeal.

The failure of the lower federal courts to abstain is in

direct conflict with the principles enunciated in Moore v.

Sims, supra and Babbitt v. United Farm Workers National

Union, 442 U.S. 289 (1979). Both cases established prin-

ciples concerning when it is proper, or even required, for

federal courts to abstain in civil rights cases when there

are broad based challenges to state statutory schemes. The

primary principle violated was that established in the

Babbitt case. When state law is ‘‘ ‘fairly susceptible to

an interpretation which will render unnecessary or sub-

stantially modify the federal constitutional question“?

abstention may be required ‘in order to avoid unnecessary

friction in federal-state relations, interference with im-

portant state functions, tentative decisions on questions of

state law and premature constitutional adjudication’. . .

[Citation omitted].’’ Babbitt v. United Farm Workers Na-

tional Union, id., 442 U.S. at 306. The Babbitt case con-

cerned an attack on the constitutionality of the criminal

penalty provisions and consumer publicity provisions of

the Arizona Agricultural Employment Relations Act. The

court held that the federal district court should have ab-

stained so that state courts could have had the opportunity

to interpret the criminal penalty provisions in a way to

undercut or modify the attack for vagueness. Furthermore,

the district court should have abstained from deciding the

consumer publicity provision of the Act because the state

courts may have decided that these provisions apply only

to deliberate or recklessly made misrepresentations.

This Court has identified three distinct considerations

calling for abstention in broad-based challenges to state

statutory schemes. First, federal courts should not be

forced to interpret state law without the benefit of state

court consideration and under circumstances where the

constitutional determination is predicated on a reading

of the state statute that is not binding on state courts and

may be discredited at any time by those courts, rendering

the federal court decision advisory and litigation mean-

ingless. Second, there is need for a concrete case or con-

traversy. Third, there is a threat to the federal system by

needless cbstruction to the state’s policies by forestalling

state action in construing and applying its own statutes.

Moore v. Sims, id., 442 U.S. at 427-427. Moore involved an

injunction issued by a federal court on behalf of the parents

who had had their parental rights terminated temporarily

by a Texas state court, which injunction prohibited the

Texas courts from proceeding any further with their par-

ental rights adjudication proceedings. This Court held

that abstention was required because of a pending state

court proceeding which was adequate to adjudicate the

parents’ constitutional claims. In the instant case, there

is presently pending no state court adjudication by either

of the two named plaintiffs although there is a state court

suit pending which was filed by one of the members of the

class in this suit. Furthermore, plaintiff Williams had a

state court suit pending at the time the federal action was

filed and plaintiff Theobald had an appeal pending from

an adverse ruling against him in a state court suit involving

issues identical to those in the federal suit. After the fed-

eral suit was filed, both plaintiffs dismissed their state

court cases. As described in the Statement of the Case

above, the Parole Board, early in this case, twice asked

the District Court to abstain, but on neither occasion did

it do so. The abstention question was again briefed by order

of the district court after remand from this Court subse-

quent to the Greenholtz opinion, but was not mentioned

in that court’s final opinion. Nevertheless, whether there

was a pending state proceeding at this time or not, the

considerations concerning abstention discussed so thorough-

ly in the Moore opinion, would be just as applicable to the

instant case as showr vy their application in the Babbitt

case.

This Court’s opinion in Greenholtz finally resolved the

issue concerning the application of the due process clause

to parole release determinations by requiring an analysis

of state law to determine whether or not an entitlement

to parole had been created. Before that, federal courts

which had been finding the due process clause applicable

had been doing so generally on the basis that a statute

creating the possibility of parole was sufficient to justify

application of that clause. Once Greenholtz was decided

and it became clear that the due process issue was one

requiring an interpretation of the state’s parole statutes,

the District Court in the instant case, as well as the Court

of Appeals, should have been even more aware of the ap-

plicability of the abstention principles enunciated that same

year in Babbitt and Moore. The issue in this case became

a classic example of when a federal court should abstain.

Whether or not there is entitlement to parole in Missouri

depends solely on an interpretation of the state statutes

setting up the parole release system. In this case, the

named plaintiffs deprived the appellate courts of Mis-

souri of an opportunity to make a definitive ruling on the

subject by dismissing their state court cases.

State courts are supposed to be the principal exposi-

tor of state law with federal courts being bound by their

interpretation of state laws unless the state court inter-

pretation was an ‘‘obvious subterfuge’’ to avoid considera-

tion of a federal issue. Mullaney v. Wilbur, 421 U.S. 684,

691 n.11 (1975). The federal court is bound by clear ex-

pressions of the state legislature as to whether entitle-

ment is intended or by state court interpretations of the

law if there exists no clear legislative expression. See

Averhart v. Tutsie, 618 F.2d 479 (7th Cir. 1980), in which

the court accepted the Indiana Supreme Court’s interpre-

tation of the parole statutes concerning entitlement; and,

Wetzel v. Edwards, 635 F. 2d 283, 289 (4th Cir. 1980), where-

in the court held that it was bound by the North Carolina

Supreme Court’s holding that inmates had no liberty in-

terest in status changes within the correctional system or

in parole. In the instant case, the lower federal courts have

avoided allowing the state courts the opportunity to inter-

pret the state’s own statute. As long as the federal class

action is pending, Missouri courts cannot consider the is-

sues presented, as was the case with Texas in Harris

County Commissioners Court v. Moore, 420 U.S. 77, 88-89

n.14 (1975). See State ex rel. Bowling Green Trust Co., v.

Barnett, 235 Mo. 99, 149 S. W. 311, 317-318 (bane 1912).

The instant case involved a broad-based challenge

to the procedures utilized in parole release determinations.

Although a number of these procedures were independently

adopted by the Board over the course of years during the

pending litigation, the Court of Appeals remanded the

case back to the District Court for consideration of not

only setting up a system by which the inmates would

have access to their parole files, but also to determine

‘‘what procedural safeguards are necessary in the cir-

cumstances of this case to comport with due process.

Issuance of a decree and supervision of the enforcement

of that decree would involve a federal court in managing

the parole release process of the State of Missouri. This

degree of involvement in State administrative and correc-

tional matters is contrary to public policy, especially when

abstention could avoid such problems. Rizzo v. Goode, 423

U.S. 362, 379-380 (1976); Cicero v. Olgiati, 426 F.Supp.

1213, 1218-1219 (S.D.N.Y. 1976); Meachum v. Fano, 427

U.S. 215, 228-229 (1976); Ahrens v. Thomas, 570 F.2d 286,

289-290 (8th Cir. 1978).

Ironically, Courts of Appeals’ cases addressing this

issue and resolving the matter in favor of abstention are

from the Court of Appeals below, although from a panel

different from that sitting in the instant case. In George

v. Parratt, 602 F.2d 818 (8th Cir. 1979), the court held that

abstention was proper in a case in which two Nebraska in-

mates claimed that the warden had refused to grant them

good time credits towards their sentences. This warden was

not giving them good time credit accruing under Nebraska

statutory law, which had been previously recognized by the

federal courts as giving inmates entitlement deserving of

due process safeguards. The warden denied the credits

because of his interpretation of that law in relation to those

inmates being sentenced to indefinite terms under Ne-

braska’s Sexual Sociopath Act. Adjudication of the claim

required an interpretation of the interplay between the

good time credit statute and the Sexual Sociopath Act.

Both the District Court and the Court of Appeals agreed

that they should abstain.

In another case, Coley v. Clinton, 635 F.2d 1364 (8th

Cir. 1980), the Court of Appeals reversed the district

court and ruled that it should have abstained in regard

to claims involving rights of state mental patients who

were alleging due process violations relating to their con-

finement.

The Court of Appeals’ decision in the instant case was

contrary to the principles of abstention laid down by this

Court and contrary to the manner in which this Court

has applied them. Since the Greenholtz opinion, the manner

in which the principles of abstention should apply when

state parole statutes are being interpreted to determine

whether or not a constitutional right has been created

is of particular importance. Petitioner urges this Court to

issue its writ of certiorari and review the question of

abstention.

CONCLUSION

For the foregoing reasons, petitioner requests this

Court to issue its writ of certiorari to the United States

Court of Appeals for the Eighth Circuit.

Respectfully submitted,

JoHN ASHCROFT

Attorney General

Paul, Rosert Orro

Assistant Attorney General

Broadway State Office

Building

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioner

APPENDICES

A-

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1728

James E. Williams and Junior

Theobald, Individually and on behalf

of all other persons similarly situated,

Appellants,

Missouri Board of Probation and

Parole, W. R. Vermillion, Chairman;

F. N. Strum and Dick Moore,

Members of the . ard,

Appellees.

No. 80-1788

James E. Williams and Junior

Theobald, Individually and on behalf

of all other persons similarly situated,

Appellees,

Missouri Board of Probation and

Parole, W. R. Vermillion, Chairman;

F. N. Strum and Dick Moore, Members

of the Board,

Appellants.

Appeals from

the United

States District

Court for the

Western District

of Missouri.

A-2

Submitted: April 13, 1981

Filed: October 9, 1981

Before BRIGHT, HENLEY and ARNOLD, Cireuit Judges.

HENLEY, Circuit Judge.

James E. Williams and Junior Theobald' appeal the

decision of the district court holding that the Missouri

parole statute, Mo. Rev. Stat. § 549.261, does not create a

protected liberty interest in release on parole. We reverse

the judgment and remand the case to the district court.

Appellants brought this civil rights action, 42 U.S.C.

§ 1983, in March, 1974 while they were incarcereted in the

Missouri State Penitentiary at Jefferson City. A stipula-

tion of facts and legal issues into which the parties en-

tered in July, 1976 focused the controversy on whether

the due process clause of the fourteenth amendment ap-

plied to parole release determinations and, if so, whether

the Missouri procedures were constitutionally adequate.

After a trial, the district court ruled in favor of the Board

of Probation and Parole.“ This court reversed the district

court’s decision, holding that ‘‘the inmate’s right to be

considered for parole involves his liberty interest and must

1Appellants are the designated representatives of a class consisting

of all inmates in Missouri penal institutions who are or will be

to the jurisdiction of the Missouri Board of Probation and Parole

who will appear before the Board for a parole release hearing. At

time the cause was certified as a class action, appellants were incarcerated

in the Missouri State Penitentiary at Jefferson City. Williams was released

on parole in 1975. Theobald was paroled in January, 1978.

2After trial but before the district court rendered its decision, the

Board adopted certain rule changes relating to the relief sought by ap-

A-3

not be abrogated without compliance with the minimum due

process procedures required under the circumstances.”’

Williams v. Missouri Board of Probation and Parole, 585

F.2d 922, 924-25 (8th Cir. 1978) (citations omitted), vacated

and remanded, 442 U.S. 926 (1979). On the Board’s success-

ful petition for certiorari, the United States Supreme Court

vacated this court’s judgment and remanded the case for

further consideration in light of the decision in Green-

holtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1979). See Williams v. Missouri Board

of Probation and Parole, supra, 442 U.S. at 926. This court

subsequently remanded the cause to the distriet court,

which again concluded that the Missouri statute did not

create a protected expectation of release on parole. Wil-

liams and Theobald now appeal this decision, contending

that the due process clause applies to parole release de-

terminations in Missouri. In addition, appellants argue

that due process requires that an inmate be allowed ac-

cess to his parole file before parole release hearings and

reviews“ to correct, rebut, or explain any adverse informa-

tion contained in the file.*

We conclude that inmates of Missouri penal institu-

tions have a protected liberty interest, rooted in state law,

in parole release. The Missouri parole statute, Mo. Rev.

Stat. § 549.261, provides:

An inmate appears personally at a parole hearing. A decision fol-

lowing a review, however, is based solely on the information contained

in the file.

The Missouri Board of Probation and Parole has also cross-appealed

the district court’s implicit decision not to abstain in this cause. It is

clear that abstention was neither required nor warranted under the facts

of this case. Thus, without further discussion, we reject cross-appellant’s

argument in this regard. See Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex, 442 U.S. 1, 12 (1979).

A-4

When in its opinion there is reasonable probability

that the prisoner can be released without detriment to

the community or to himself, the board shall release

on parole any person confined in any correctional in-

stitution administered by state authorities.“

Like the language of the Nebraska parole statute, Neb.

Rev. Stat. § 83-1,114(1), considered in Greenholtz, supra,

442 U.S. at 1, this language created a justifiable expecta-

tion that if the statutory criteria are satisfied, the inmate

will be released on parole. The Nebraska parole provision

at issue in Greenholtz provided:

Whenever the Board of Parole considers the re-

lease of a committed offender who is eligible for re-

lease on parole, it shall order his release unless it is of

the opinion that his release should be deferred be-

cause:

(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;

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.

Neb. Rev. Stat. § 83-1,114(1). In considering this statute,

the Court found that its unique structure and language“

created an expectancy of release entitled to ‘‘some measure

of constitutional protection.’’ Greenholtz, supra, 442 U.S.

»The Board of Probation and Parole has adopted detailed guidelines

to aid its parole release decisions. See 13 C.S.R. § 80-2.010(5) (1980).

A-5

at 12. After examining the similar Missouri provision in

the light cast by the Greenholtz decision, we conclude that

the Missouri law providing that when the statutory and

regulatory guidelines are met the inmate shall be released

on parole gives rise to the same protectible entitlement as

the Nebraska scheme providing that the prisoner s/al/

be paroled unless certain findings are made. Compare Mo.

Rev. Stat. § 549.261 with Neb. Rev. Stat. § 83-1,114(1).

Having concluded that the due process clause is impli-

cated, we must now determine whether inmates in Mis-

souri penal institutions must be allowed access to their

parole files. The parties in this case stipulated that the

parole file contains the presentence report; psychiatric

and psychological reports if available: prereview and

progress reports ;° and information concerning any prior

juvenile proceedings, arrests, confinement, probation, or

parole. The file may also contain newspaper articles con-

cerning the immate’s trial or conviction and comments by

law enforcement officials, the sentencing judge, or indi-

viduals who wish to support or protest a particular ap-

plication for parole.

Although the Board of Probation and Parole has the

discretionary authority to allow the inmate or his attor-

ney to inspect certain privileged and confidential reports

The parties also stipulated that lalfter reviewing the parole file

——— 1 eaten Of Gn Sande and 6 mma.

tion concerning parole release by the institutional parole officer.

A-6

contained in the parole file,“ Mo. Rev. Stat. § 549.285, the

Board’s policy is not to disclose any information in the

files.“ See Mo. Rev. Stat. § 549.151. As a policy matter the

Board also does not advise inmates of adverse information

submitted by judges, prosecutors, law enforcement person-

nel, or other persons. Further, it concedes that institutional

parole officers, who interview inmates before parole hear-

ings and reviews and summarize the contents of the parole

files, do not have the time or resources to make independ-

ent investigations to verify the information given them by

sources inside and outside the institution. Since there is

no formal procedure by which the inmate can determine

the existence of adverse information in the file, he remains

unaware of it unless the matter is raised by a member of

the hearing panel during the hearing. Any adverse ma-

terials placed in the file after an initial hearing resulting

in a denial of parole simply remain out of the inmate’s

reach during subsequent parole reviews since such reviews

are conducted without input from the inmate.

It is clear that the current Missouri policy presents a

virtually insurmountable barrier for an inmate seeking

Section 549.285 of the Missouri Revised Statutes provides:

of official duties by

any member or employee of the board, eee ae

shall not be disclosed directly or indirectly . . . , except that

the board or court may at their discretion

of the report or parts thereof by the defendant

Dick D. Moore, a member of the Missouri Board of Probation

and Parole at the time of trial in 1976, testified that the current Board

A-7

to discover the existence of adverse factual information

contained in his parole file. Inaccurate information in the

file that remains unverified or unrebutted inflates the risk

of erroneous decisions and could thus flaw the decisionmak-

ing process. See Greenholtz, supra, 442 U.S. at 13. In our

initial consideration of this case we stated:

We are convinced that as a minimum due process re-

quires that an inmate in Missouri seeking parole be

advised of adverse information in his file. In order for

an inmate to have a meaningful consideration of his

application for parole it is essential that he be ap-

prised of such adverse information and given an op-

portunity to rebut or explain the parts he believes are

incorrect. . . .

Williams v. Missouri Board of Probation and Parole, supra,

585 F. 2d at 925. We remain convinced that dre process im-

poses the requirement that an inmate be advised of ad-

verse information that may lead to an unfavorable decision

and given an opportunity to address it.

In reaching this result, we recognize the state’s strong

and legitimate interests in preserving the confidentiality

of sources of information necessary for parole release de-

cisions® and in maintaining security and discipline within

its institutions. Our decision in no way seeks to abrogate

or minimize these interests.

We remand this case to the district court for a de-

cision on the question what procedural safeguards are

necessary in the circumstances of this case to comport

with due process, including the requirement that an in-

mate be advised of adverse information that may lead to

»In their brief, appellants also recognize that important state in-

terests may militate against disclosure of some items contained in the

parole file.

A-8

an unfavorable decision and given an opportunity to

address it. On remand the court may take additional

evidence, if necessary, and should consider the relevant

Missouri statutes, the Board’s current rules and regula-

tions, the evidence of record, the Greenholtz decision, and

the instant decision. It should then remand the case to the

Missouri Board of Probation and Parole for promulgation

of regulations implementing the guidelines set forth in

the court’s decision.

Reversed and remanded.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-9

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DISTRICT

JAMES E. WILLIAMS and J

JUNIOR THEOBALD, Individually

and on behalf of all other

persons similarly situated,

Plaintiffs, No. 740V125-

Ww-2

vs.

MISSOURI BOARD OF PROBA-

TION AND PAROLE, et al.,

Defendants. |

—

ORDER DIRECTING ENTRY OF FINAL JUDGMENT

This civil rights class action was filed by two in-

mates at the Missouri State Penitentiary. The plaintiffs

attempted, through this action, to have the State of Mis-

souri’s parole procedures declared to be in violation of

the due process clause of the fourteenth amendment. The

action was tried to this Court on August 17, 1976. In a

memorandum opinion filed January 17, 1978, this Court

found all issues in the case in favor of defendants and

against plaintiffs. Plaintiffs appealed this Court’s Janu-

ary 17, 1978, decision to the Court of Appeals, which re-

versed this Court’s January 17, 1978 decision. Defend-

ants filed a petition for writ of certiorari, which was

granted by the Supreme Court. On July 16, 1979, the Su-

preme Court vacated the judgment of the Court of Appeals

A-10

and remanded the action for consideration of the Supreme

Court’s decision in Greenholt v. Inmates of Nebraska Penal

Complex, 422 U.S. 1 (1979) (hereinafter Greenholtz). In

an order entered July 18, 1979, the Court of Appeals re-

manded the action to this Court for consideration in light

of Greenholtz.

This Court carefully reviewed the Supreme Court’s

Opinion in Greenholtz and determined that the only pos-

sible question left for consideration in this case is the

question whether Missouri’s present parole statute ere—

ates a sufficient expectation of release on parole to re-

quire, under the fourteenth amendment, some procedural

protections not presently provided under Missouri’s parole

release procedures. This Court directed the parties to

brief their respective positions on this question. The par-

ties have submitted their briefs, and the cause pends for

determination.

After consideration of the Supreme Court’s Opinion

in Greenholtz, and the parties’ suggestions in support of

their respective positions, this Court is convinced that final

judgment in favor of defendants should be entered in this

action. Unlike the language of the Nebraska statute in-

volved in Greenholtz, a statute which the Supreme Court

characterized as having unique structure and language,“

the Missouri parole statute does not create a protectible

expectation of release on parole. As recently indicated in

Booth v. Hammock, 605 F.2d 661 (2d Cir. 1979), **[t]he

only characteristic of the Nebraska statute that the Court

mentioned as relevant to [the conclusion that protectible

expectations were created by the Nebraska statute] was the

requirement that release ‘shall’ be ordered ‘unless one of

four disqualifying conditions is found to exist.“ Booth

v. Hammock, supra at 663. That language, in effect, was

held to create a situation analogous to a condition subse-

A-11

quent as found in property and contract law; the entitle-

ment to parole vested unless conditions existed to defeat

that entitlement. Here, however, the Missouri statute

creates an entitlement to parole only if the Board finds

in its opinion there is reasonable probability that the

prisoner can be released without detriment to the com-

munity or to himself,’’ the equivalent to a condition pre-

cedent. The language of the statute and the broad discre-

tion conferred upon the Board by its terms is decisive.

„One cannot fairly read the majority’s opinion in Green-

holtz without concluding that the majority thought there

was not only a difference, but a difference on which en-

titlement to due process safeguards depends.’’ Booth v.

Hammock, supra at 664. On this basis, it has been held that

the statutes of other states do not create an expectation of

parole release sufficient to trigger due process procedural

protections. See, Booth v. Hammock, supra (New York

statute) ; Smith v. Shoemaker, 615 F.2d 1362 (6th Cir. 1980)

(Ohio statute); Wagner v. Gilligan, 609 F.2d 866 (6th Cir.

1979) (Ohio statute); Shirley v. Chestnut, 603 F.2d 805

(10th Cir. 1979) (Oklahoma statute ;) ; Austin v. 4rmstrong,

473 F. Supp. 1114 (D. Nev. 1979) (Nevada statute) ; Parisie

v. Irving, F. Supp.— (N.D. III., No. 80-C-151,

1/22/80) (Illinois statute); and Campbell v. Montana State

Board of Pardons, 470 F. Supp. 1301 (D. Mont. 1979) (Mon-

tana statute). But see, Dumschat v. Board of Pardons,

——— (2d Cir., No. 78-2124, 11/16/79) (applying

a statistical approach to the Connecticut statute).

In William v. Missouri Board of Probation and Parole,

585 F.2d 922 (8th Cir. 1978), our Court of Appeals stated,

lalllthough it is true that the language of the Nebraska

and Missouri statutes is not identical, the statutes are

similar in crucial aspects“ in that both statutes state that

it is up to the Board to determine when parole should be

granted,’’ that ‘‘both statutes provide that every inmate

A-12

has the right to be considered for parole and have a hear-

ing after meeting the eligibility standards prescribed by

the statutes,’’ and that ‘‘both statutes anticipate that an

inmate is to be released on parole unless he fails to meet

certain statutory guidelines.’’ 585 F.2d at 924. The lan-

guage of the Missouri statute, however, appears to create

significantly more discretion on the part of the Missouri

Parole Board to grant or deny release on parole than did

the Nebraska statute in Greenholtz. Parole release is to

be granted only after the Board is satisfied ‘‘in its opinion’’

that ‘‘there is reasonable probability that the prisoner

can be released without detriment to the community or

himself.“ R.S.Mo. § 549.261 (1965). That finding is a

prerequisite to parole release. Unlike the Nebraska statute,

discussed in Greenholtz, an expectation to parole release

does not arise under the Missouri statute until that spe-

cific finding is made by the Board. Based upon the ra-

tionale of Greenholtz, and in light of the substantial dif-

ferences between the language of the Nebraska statute

construed in Greenholtz and the language of the Missouri

parole statute, this Court holds that the Missouri parole

statute does not create a protectible expectation of release

on parole. Any due process claim concerning Missouri’s

parole release procedures is, therefore, completely with-

out merit. Greenholtz, supra.

Accordingly, this Court having found all issues in

favor of defendants, it is

ORDERED that final judgment in favor of defend-

ants be, and hereby is, entered; and it is

ORDERED that the Clerk of Court prepare a form

of final judgment in favor of defendants as ordered above.

William R. Collinson

District Judge

Dated: July 21, 1980.

A-13

APPENDIX B

Boothe v. Hammock, 605 F.2d 661 (2nd Cir. 1979) (New

York parole statutes) ;

Schuemann v. Colorado State Board of Adult Parole, 624

F. 2d 172 (10th Cir. 1980) (Colorado parole statutes) ;

Candelaria v. Griffen, F.2d (No. 80-1119, 10th

Cir. 1981) (New Mexico parole statutes) ;

Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979 (Okla-

homa parole statutes) ;

Phillips v. Williams, 608 P.2d 1131 (Okla. 1980) (Oklahoma

parole statutes) ;

Averhardt v. Tutsie, 618 F.2d 479 (7th Cir. 1980) (In-

diana parole statutes) ;

Wagner v. Gilligan, 609 F.2d 866 (6th Cir. 1979) (Ohio

parole statutes) ;

Sharp v. Leonard, 611 F.2d 136 (6th Cir. 1979) (Ohio parole

statutes) ;

Williams v. Briscoe, 641 F.2d 274 (5th Cir. 1981) (Texas

parole statutes) ;

Campbell v. Montana State Board of Pardons, 470 F.Supp.

1301 (D.C. 1979) (Montana parole statutes) ;

Robinson v. Mabry, 476 F.Supp. 1022 (E.D.Ark. 1979) (Ar-

kansas parole statutes) ;

United States ex rel. McCalvin v. Irving, 504 F.Supp. 368

(C. D. III. 1980) (Illinois parole statutes) ;

Parisie v. Irving, No. 80-C-131 (N. D. III., Jan. 22, 1980)

(Illinois parole statutes) ;

A-14

Schrapshier v. Florida Parole and Probation Commission,

P.C.A. 80-0418 (N.D.Fla., May 2, 1980) (Florida parole

statutes) ;

Austin v. Armstrong, 473 F.Supp. 1114 (D.Nev. 1979) (Ne-

vada parole statutes) ;

Murphy v. Indiana Parole Board, 397 N.E.2d 259 (Ind.

1979) (Indiana parole statutes).

A-15

APPENDIX C

Iota: The Board shall release on parole any person

whom it has the power to so release, when in its opinion

there is reasonable probability that such person can be

released without detriment to the community or to himself

or herself.“ Iowa Code Ann. § 906.4

Maine: The Board shall, in accordance with applicable

provisions of this chapter: A. Determine the time of parole

in the case of each inmate and prisoner.’’ Me. Rev. St. tit

34, § 1552

Montana: ‘‘Subject to the following restrictions, the

board shall release on parole by appropriate order any

person confined in the Montana State Prison, except per-

sons under sentence of death and persons serving sentences

imposed under 46-18-202(2), when in its opinion there is

reasonable probability that the prisoner can be released

without detriment to himself or to the community.’’ Mon-

tana Rev. Codes Ann. § 46-25-201

Vermont: After an inmate has served the minimum

term of his sentence, if any minimum has been established,

less any reductions for good behavior which have been

computed in accordance with Section 811 of this Title, he

shall be released on parole by the written order of the

board if the board determines there is reasonable prob-

ability that the inmate can be released without detriment to

the community or to himself.’’ Vt. Stat. Ann. tit 28,

§ 1051(a).

Virginia: [The board shall, subject to other pro-

visions of this chapter: .. release on parole . . . persons

convicted of felonies and confined under the laws of the

commonwealth in any penal institution in the common-

wealth when such persons become eligible, and are found

suitable for parole.’’ Va. Code § 53-238

A-17

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

EDWARD RANDALL EMMONS, )

Petitioner,

vs.

Case No. 80-0415-

STATE OF MISSOURI and ‘ CV-W-5

MISSOURI BOARD OF

PROBATION AND PAROLE,

Respondents.

MEMORANDUM AND ORDER

Petitioner, who is currently confined at the Missouri

State Penitentiary in Jefferson City, Missouri, has filed

a pro se petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241 (1976), alleging that the Missouri statute

concerning eligibility of parole is unconstitutionally vague.

Petitioner seeks leave to proceed in forma pauperis.

Leave to proceed in forma pauperis will be granted

unless it appears that the claims made are frivolous or

malicious. 28 U.S.C. § 1915 (1976). Because this petition is

filed pro se, the allegations presented will be liberally con-

strued under the guidelines of Haines v. Kerner, 404 U.S.

519 (1972).

Petitioner asserts that Mo. Rev. Stat. § 549.261 (1978),

which is titled ‘‘Parole from state penal institutions, pris-

A-18

oners eligible, when—interview by board—rules,’’ is un-

constitutionally vague and imprecise.’’ This statute pro-

vides as follows:

1. When in its opinion there is reasonable prob-

ability that the prisoner can be released without detri-

ment to the community or te himself, the board shall

release or parole any person confined in any correc-

tional institution administered by state authorities. All

paroles shall issue upon order of the board, duly

adopted.

2. Any person who has been committed to a

penal or correctional institution under the adminis-

tration of the division of corrections, who has served

either one-third of his time or twelve months of the

time for which he was sentenced, whichever is a shorter

period, in an orderly and peaceable manner without

having any infraction of the rules or laws of the in-

stitution recorded against him shall be eligible to make

application for parole and shall be given a hearing.

Any person who has served two-thirds of his time or

two years of the time for which he was sentenced,

whichever is the shorter period, shall be eligible to

make application for parole and shall be given a hear-

ing. Paroles may be granted, however, before the

minimum period specified has been served.

3. Before ordering the parole of any prisoner, the

board shall have the prisoner appear before it and shall

interview him. A parole shall be ordered only for the

best interest of society, not as an award of clemency;

it shall not be considered a reduction of sentence or a

pardon. A prisoner shall be placed on parole only when

the board believes that he is able and willing to fulfill

the obligations of a law-abiding citizen. Every prisoner

while on parole shall remain in the legal custody of

A-19

the institution from which he was released but shall

be subject to the orders of the board.

4. The board may adopt such other rules not in-

consistent with law as it may deem proper or neces-

sary, with respect to the eligibility of prisoners for

parole, the conduct of parole hearings or conditions

to be imposed upon parolees. Whenever an order for

parole is issued it shall recite the conditions thereof.

To promote comity between federal and state courts,

a state prisoner seeking federal habeas corpus relief

usually must exhaust state remedies before presenting his

claims in federal court. Pitchess v. Davis, 421 U.S. 482

(1975); Picard v. Connor, 404 U.S. 270 (1972); Tyler v.

Swenson, 527 F.2d 877 (8th Cir. 1976); Green v. Wyrick,

414 F. Supp. 343 (W.D. Mo. 1976). This comity is not

promoted when it is clear that the petitioner has not stated

a claim which would be the basis for relief on a petition

for writ of habeas corpus to this Court. Because this Court

feels petitioner’s claim is controlled by a recent decision

by the United States Supreme Court, petitioner will not

be required to exhaust available state remedies in this

case.

The void for vagueness challenge is based upon the due

process clause of the fourteenth amendment, which re-

quires an enactment by a state legislature to clearly de-

fine prohibited conduct. Grayned v. City of Rockford, 408

U.S. 104 (1972). A statute is unconstitutionally vague if it

does not ‘‘give the person of ordinary intelligence a reason-

able opportunity to know what is prohibited, so that he

may act accordingly.’’ Grayned, supra, at 108. The void for

vagueness challenge is generally used against statutes that

may result in criminal penalties or that may infringe upon

the exercise of first amendment freedoms. E.., Hynes v.

Mayor of Oradell, 425 U.S. 610 (1976); Grayned v. City of

A-20

Rockford, 408 U.S. 104 (1972); Angelico v. Louisiana, 593

F.2d 585 (5th Cir. 1979). For the void for vagueness argu-

ment to be applicable to petitioner’s challenge, his claim

must involve an interest protected by the due process

clause of the fourteenth amendment.

The fourteenth amendment prohibits the states from

depriving a person of life, liberty, or property without due

process of law. Plaintiff does not claim that any life or

property interest is involved in this action. Thus, for the

due process requirements to be applicable in this case,

some liberty interest must be at stake. This liberty interest

must involve more than some abstract need or desire;

plaintiff must have ‘‘a legitimate claim of entitlement to

it.“ Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

The United States Supreme Court recently found that

parole release decisions do not involve a liberty interest

invoking due process protections under the fourteenth

amendment. Greenholtz v. Inmates of Nebraska Penal

Correctional Complex, 442 U.S. 1 (1979). The Greenholtz

Court held that a State prisoner has no ‘‘legitimate claim

of entitlement’’ to release on parole. Greenholtz, supra,

at 7. A convicted person has no constitutional or inherent

right to be conditionally released before the expiration of a

valid sentence. The Court pointed out that although a

state may create a system of parole, it has no duty to do

so. Greenholtz, supra, at 7.

The Court in Greenholtz distinguished between parole

release and parole revocation decisions. In Morrissey v.

Brewer, 408 U.S. 471, 482 (1972), the Supreme Court held

that revocation of parole involves a liberty interest pro-

tected by the fourteenth amendment. In reaching that

conclusion the Court noted that ‘‘the liberty of a parolee,

although indeterminate, includes many of the core values

of unqualified liberty and its termination in,"icts ‘grievous

A-21

loss’ on the parolee and often on others.“ Morrissey, supra,

at 482. Relying on Morrissey, the inmate petitioners in

Greenholtz argued that parole release decisions should be

given the same constitutional protection afforded parolees

in parole revocation decisions. Greenholtz, supra, at 9.

The Greenholtz Court rejected the Morrissey argument

with the following distinction between deprivation of a

liberty one possesses, such as parole, and denial of a con-

ditional liberty one seeks to obtain, such as release on

parole:

The parolees in Morrissey .. . were at liberty and as

such could“ be gainfully employed and [were] free to

be with family and friends and to form the other en-

during attachments of normal life.’’ 408 U.S. at 482, 92

S. Ct. at 2600. The inmates here, on the other hand,

are confined and thus subjected to all the necessary

restraints that inhere in a prison. Greenholtz, supra,

at 9.

The Court also distinguished the nature of the decision

made in parole release as opposed to parole termination.

The decision to revoke parole requires a finding that the

parolee violated one or more conditions of his parole and

that he should be recommitted for the violation or for

society’s benefit. The parole release decision, on the other

hand, involves factual elements as well as subjective ap-

praisal by Board members ‘‘based upon their experience

with the difficult and sensitive tasks of evaluating the

advisability of parole release.“ Greenholtz, supra, at 9-10.

A valid conviction allows a state to confine a prisoner

under the rules of its prison system if the conditions of

confinement do not violate the Constitution. Meachum v.

Famo, 427 U.S. 215, 224 (1976). As the Supreme Court noted

in Greenholtz, a state has no obligation to provide a sys-

tem of parole. By creating a possibility of parole, the

A-22

state provides ‘‘no more than a mere hope that the bene-

fit will be obtained.’’ Greenholtz, supra, at 11, citing Board

of Regents v. Roth, 404 U.S. 564, 577 (1972). Because parole

is not a protected right to which petitioner has a legitimate

claim of entitlement, petitioner’s claim does not invoke

due process protection.

Discussing the creation of a system of parole, the

Greenholtz Court noted that ‘‘to insure that the state-

created parole system serves the public interest purposes of

rehabilitation and deterrence, the state may be specific or

general in defining the conditions for release and the fac-

tors that should be considered by the parole authority.“

Greenholtz, supra, at 7-8 (footnote omitted). Paragraph 4

of Mo. Rev. Stat. § 549.261 permits the Board of Probation

and Parole to develop rules that it feels are proper and

necessary to assist in the execution of this statute. From

this paragraph it appears that the Missouri legislature in-

tended the statute to set out the broad general goal of

providing a system of parole, while delegating to the

specialized Board the power to develop the rules governing

its implementation. Thus, this type of statute appears to

have been within the contemplation of the Court in Green-

holtz. Petitioner does not argue that rules have not been

adopted to clarify the statute or that rules which have

been adopted do not clarify insufficiencies in the statute.

In addition the Court in Greenholtz emphasized that

wide latitude should be given state parole authorities in

fashioning standards and procedures to determine parole

eligibility, as shown by the following passage:

No ideal, error-free way to make parole release de-

cisions has been developed; the whole question has

been and will continue to be the subject of experimen-

tation involving analysis of practical experience of the

actual parole decisionmakers in predicting future be-

A-23

havior. Our system of federalism encourages this state

experimentation. If parole determinations are encum-

bered by procedures that states regard as burdensome

and unwarranted, they may abandon or curtail parole.

Greenholtz, supra, at 13.

The deference to be afforded to state experimentation in

this area is directly applicable to plaintiff’s claim in this

action. This deference necessarily countervails a strict

application of the vagueness doctrine to the state parole

statute which plaintiff now challenges. Sec, v.g., Meyers

v. Alldredge, 492 F.2d 296, 310-11 (3rd Cir. 1974), and

Whie Eagle v. Storie, 456 F. Supp. 302, 309-10 (D. Neb.

1978). Also the statute’s delegation of authority to the more

specialized Bourd emphasizes the experimental nature of

parole and highlights the need of this Court to defer to

this state experiment.

Petitioner directs this Court’s attention to a decision

by the United States District Court for the Southern Dis-

trict of New York that found the New York statute setting

forth the grounds for granting parole release to be uncon-

stitutionally vague. Cicero v. Olgiati, 410 F. Supp. 1080

(S.D.N.Y. 1976). Based upon the reasoning of Morrissey

v. Brewer, supra, the Cicero court found that parole de-

cisions involved a ‘‘conditional liberty’’ entitled to due

process protections. Cicero v. Olgiati, supra, at 109: iting

United States ex rel. Johnson v. Chairman, New Yorn State

Board of Parole, 500 F.2d 925 (2nd Cir. 1974), vacated and

remanded as moot sub. nom., Regan v. Jackson, 419 U.S.

105 (1974). This case was decided prior to the holding in

Greenholtz that parole release decisions do not involve

a liberty interest invoking due process protections. In a

recent opinion the Cicero court noted that in light of Green-

holtz, there is » substantial question as to whether the

complaint [in Cicero] can now be considered to state a

A-24

valid claim.’’ Cicero v. Olgiati, 473 F. Supp. 653, 655

(S.D.N.Y. 1979). Therefore, this Court finds the reasoning

of the Cicero opinion to be of little value in examining

petitioner’s claims.

Assuming that petitioner’s claim does involve an in-

terest protected by the due process clause of the fourteenth

amendment, this Court questions whether this civil statute

would be subject to petitioner’s challenge that it is vague

and imprecise. The statute does not impose criminal pen-

alties or infringe upon the exercise of first amendment

freedoms. Therefore, the application of the void for vague-

ness challenge is doubtful.

Following Greenholtz, petitioner’s claim that section

549.261 of the Missouri statutes is ‘‘unconstitutionally

vague and imprecise’’ does not involve the denial of a

federally protected right. Thus, petitioner has not stated

a claim entitling him to habeas corpus relief. Because pe-

titioner has not stated a claim involving a federally pro-

tected right, this petition for writ of habeas corpus will

be dismissed.

For the reasons set forth above it is

ORDERED (1) that leave to proceed in forma pau-

peris pursuant to 28 U.S.C. § 1915 should be and hereby

is granted. It is further

ORDERED (2) that this petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 should be and hereby

is dismissed.

Seott O. Wright

United States District Judge

Kansas City, Missouri

Date: June 10, 1980

A-25

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

BOBBY LEE GRIFFIN, ,

Plaintiff,

v. ' No. 79 4243

CAROLYN ATKINS, eve

et al.,

Defendants.

FINAL JUDGMENT DISMISSING CAUSE

Pursuant to the governing law and in accordance with

the Temporary Special Order of the Court en banc entered

December 22, 1976, the above-styled cause was referred to

the United States magistrate for the hearing and de-

termining of all pretrial and prehearing matters under

Section 636(b)(1)(A), Title 28, United States Code, and

the making of proposed findings of fact and recommenda—

tions with respect to the disposition of actions and thie

taking of other actions under Section 636(b)(1)(B) of the

same title, and also under Local Rule 26 of the Western

District of Missouri.

After a determination of the issues herein, the United

States magistrate has submitted to the undersigned a re-

port and recommendation that this cause be dismissed.

Plaintiff has had a full and fair opportunity to chal-

lenge the magistrate’s recommended findings of fact,

conclusions of law, and proposed action. And, plaintiff has

A-26

failed to state or show any facts or legal principles which

create a genuine issue of material fact or warrant correc-

tion of the legal principles applied by the magistrate.

Therefore, after a full review of the report and recom-

mendation of the magistrate, and an independent examina-

tion of the records and files in the cause, it is concluded

that the findings of fact, conclusions of law, and proposed

action of the magistrate are correct and should be ap-

proved.

Accordingly, for the reasons stated above, the above-

styled cause is hereby dismissed.

SCOTT O. WRIGHT

UNITED STATES DISTRICT JUDGE

Dated this 1 day

of May, 1980,

at Kansas City, Mo.

A-27

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

BOBBY LHA GRIFFIN, .

Plaintiff,

v. No. 79 4243

CAROLYN ATKINS, { ov

et al.,

Defendants.

REPORT AND RECOMMENDATION OF THE UNITED

STATES MAGISTRATE THAT THE CAUSE BE

DISMISSED AS “FRIVOLOUS” UNDER

28 U.S.C. § 1915(d)

On December 7, 1979, plaintiff, a convicted state

prisoner who is currently serving his state sentence at the

Missouri State Penitentiary at Jefferson City, Missouri,

provisionally filed in forma pauperis a complaint under

the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its cor-

responding jurisdictional statute, 28 U.S.C. § 1983, seeking

equitable and declaratory relief and damages for a claimed

violation of his federally-protected rights by members of

the Missouri Board of Probation and Parole. Named as

parties defendant are the Chairperson of the Board,

Carolyn Atkins, and two of its members, W.R. Vermillion

and Dick D. Moore. Following the provisional filing of

A-28

this cause in forma pauperis,“ it was referred to the under-

signed United States magistrate for processing in ac-

cordance with the provisions of 28 U.S.C. § 636, as amended

by Public Law 96-82, October 10, 1979; the Special Order

of the Court en banc of December 22, 1976, providing for

the reference of such actions; and Local Rule 26 of the

United States District Court for the Western District of

Missouri.

In his complaint, plaintiff alleges that he has been

an inmate of the Missouri State Penitentiary for more than

twenty years in the service of a sentence imposed by the

Circuit Court of Cole County, Missouri. Apparently he

recently applied for his release upon parole, but his ap-

plication was denied by the Board. As grounds for re-

lief in this proceeding, it is plaintiff’s claim that his con-

stitutional.y-protected right to due process of law was

denied during the course of the parole eligibility proceed-

ings because ‘‘only a single member of the Missouri Board

of Probation and Parole attended plaintiff’s latest parole

hearing.“ This failure, he asserts, violates the provisions

of Section 549.261, V.A.M.S., in that he was not afforded

a hearing before the entire board with all three duly-

appointed members in attendance. Plaintiff contends that

one member does not have authority to grant plaintiff a

*It is the practice of this Court to file provisionally those actions

in which leave to proceed in forma pauperis has been requested, and

then to proceed to a determination of whether or not the applicant is

eligible to proceed unconditionally in forma pauperis under 28 U.S.C.

§ 1915. A determination of “frivolity” may then be made at any later

stage of the record, it may be determined that an action is “frivolous”

even though leave to proceed in forma pauperis was initially granted.

See, Section 1915(d), supra. This procedure has been approved by the

United States Court of Appeals for the Eighth Circuit on numerous

occasions. See, Forester v. California Adult Authority, 510 F.2d 58, 60

(Sth Cir. 1975). See also, In re: Willis Smith, 600 F.2d 714 (8th Cir.

1979).

A-29

parole if he so desired’’ and that, therefore, a hearing“

within the meaning of Section 549.261 V.A.M.S., was never

held as required by Missouri law. He alleges that the failure

to conduct a hearing in the presence of all board members

is a violation of the process of law. By way of relief, he

sought (1) an injunction to prohibit the Board from

conducting . . hearings with less than three members

present,“ (2) a writ of mandamus ‘‘directing the [Board]

to give plaintiff an immediate parole hearing with all

three (3) members in attendance,’’ (3) an injunction order-

ing defendants to release plaintiff on parole,’’ (4) a

declaratory judgment declaring unconstitutional any hear-

ings which are conducted with less than three members of

the Board present, and (5) compensatory and punitive

damages. However, he has since requested that his request

for immediate release on parole, and his demand for an

immediate hearing be withdrawn.

Because plaintiff has sought unconditional leave to

proceed in forma pauperis, and in order to further clarify

the issues herein, the undersigned United States magis-

trate, by Order of December 14, 1980, directed defendants

to show cause why leave to proceed in forma pauperis

should not be granted. On January 3, 1980, defendants filed

their response to that Order.

In their response to the Order to Show Cause, dlefend-

ants assert, inter alia, that plaintiff is presently foreclosed

from litigating his present claim by the bar of res judicata.

They contend that the general procedures of the Missouri

Board of Probation and Parole were challenged in the

cause styled, Williams v. Missouri Board of Probation and

Parole, 444 F.Supp. 473 (W.D. Mo. 1978), reversed 585

F. 2d 922 (8th Cir. 1978), judgment vacated a

(1979), and that plaintiff, as a member of the class de-

scribed therein, cannot now relitigate the issue. See, Brown

A-30

v. Vermillion, 593 F.2d 321, 322 (8th Cir. 1979), and Small-

wood v. Missouri Board of Probation and Parole, 587 F.2d

359 (8th Cir. 1978). Moreover, defendants argue that

plaintiff ‘‘would have little chance of success on the merits”’

because of the recent holding of the Supreme Court in

Greenholtz v. Inmates of the Nebraska Penal and Correc-

tional Complex, ___. US. 99 S.Ct. 2100, L. Ed. 2d

(1979), that the possibility of parole provides no

more than a mere hope that the benefit will be obtained...

a hope which is not protected by due process.“ 99 S.Ct. at

2105. And finally, defendants urge that the Missouri statute

itself, Section 549.261, does not mandate an initial parole

eligibility hearing before the entire Board, but instead

specifically permits the Board ‘‘to adopt rules it deems

proper and necessary with respect to the conduct of

parole hearings.’’ The initial parole eligibility hearing,

defendants contend, is ‘‘a screening device to select the

most eligible inmates for parole’’ and that ‘‘before parol-

ing the inmate, the Board can decide by majority vote

whether or not to parole the inmates.’’

Plaintiff, in his traverse, asserts that the issue raised

herein was not raised in Williams and is, therefore, not

res judicata. Moreover, he urges that the provisions of See-

tion 549.261, V.A.M.S., are open to judicial interpreta-

tion’’ and that a requirement that all hearings be conducted

by the entire Board is one possible interpretation. He con-

tends that the rules and regulations adopted by the Board

can only be properly implemented by hearings with all

three board members present.

Because it appeared that plaintiff had not exhausted

his adequate and available state court remedies, and in

light of the unresolved questions of state law presented

by his claims herein, the undersigned United States magis-

trate, by Report and Recommendation of March 5, 1980,

A-31

recommended that the cause be dismissed in favor of plain-

tiff’s state court remedies. However, by Motion for Re-

consideration’’ filed March 17, 1980, planitiff now alleges

that he had attempted to utilize his state court habeas

corpus remedy, but that the Circuit Court of Cole County,

and the Supreme Court of Missouri, have summarily dis-

missed plaintiff’s petitions. Therefore, it now appears that

deference to plaintiff’s state court remedies would be in-

appropriate in light of that action.

It will be recommended that plaintiff’s claims be dis-

missed as ‘‘frivolous’’ under the provisions of 28 U.S.C.

§ 1915. Under the provisions of that statutory section, the

Court is authorized in its discretion to dismiss an action

which appears ‘‘frivolous or malicious.’’ In re Willis

Donald Smith, 600 F.2d 714 (8th Cir. 1979), and Forester

v. California Adult Authority, 510 F.2d 58, 60 (8th Cir.

1975). An action is ‘‘frivolous’’ within the meaning of

Section 1915(d) if plaintiff’s ‘‘realistic chanees”’ for ul-

timate success in the proposed action are ‘‘slight.’’ Jones

v. Bales, 58 F.R.D. 451, 463 (N.D. Ga. 1972), aff’d 480

F.2d 805 (5th Cir. 1973). See also: Covington v. Cole, 528

F. 2d 1365, 1372-73 (5th Cir. 1976); Jones v. Ault, 67 F.R.D.

124, 127 (S.D. Ga. 1973), aff’d 516 F.2d 898 (5th Cir.

1975); Harvey v. Clay County Sheriff’s Department, 473

F.Supp. 741 (W.D. Mo. 1979); Boston v. Stanton, 450

F.Supp. 1049 (W.D. Mo. 1978); State of Louisiana ex rel

Purkey v. Ciolino, 393 F.Supp. 1166, 1178 (N.D. Ga. 1975).

„A determination as to frivolity is a legal determination

as to whether there ‘exists substantiality as to [the plain-

tiff’s claim] of justiciable basis and of impressing re-

ality.’’’ Serna v. O’Donnell, 70 F.R.D. 618 (W.D. Mo.

1976), quoting Carey v. Settle, 351 F.2d 483 (8th Cir. 1965).

And, here, for the reasons which follow, plaintiff’s claims

may be deemed ‘‘frivolous’’ under the standards of Sec-

tion 1915(d), supra.

A-32

First, it is clear that plaintiff does not state a pres-

ently cognizable claim for damages against the members

of the Board. Although our Court of Appeals has not yet

decided whether or not members of state parole boards

have quasijudicial immunity which would absolutely shield

them from liability for acts performed within their statu-

tory authority, it has determined that ‘‘parole examiners

in the exercise of their official duties’’ are protected by

„the good faith immunity from monetary liability out-

lined in Wood v. Strickland, 420 U.S. 308, 316-22, 95 S.Ct.

992, 43 L.Ed.2d 214 (1975).’’ DeShields v. United States

Parole Commission, 593 F.2d 354, 356 (8th Cir. 1979).

Here, like DeShields, plaintiff ‘‘has failed to allege ill

will, malice discrimination, or other improper reasons for

the actions of the parole examiners.’’ Id. Moreover, under

the facts alleged by plaintiff, defendants are, as a matter

of law, entitled to good faith immunity from damages. His

claim of violation of due process is, at best, tied to an inter-

pretation of state law which would create a reasonable

expectation that his parole application must be heard by

the Board sitting en banc. For, even under the most liberal

approach, plaintiff has no right to a hearing by the full

Board unless that right is created by Missouri law. Green-

holtz v. Inmates of the Nebraska Penal and Correctional

Complex, U.S., 99 S.Ct. 2100, L.Ed.2d

(1979), and Kelsey v. State of Minnesota, supra. But he

concedes that Missouri law in this respect is open to

judicial interpretation.“ Thus, ‘‘[b]ecause [defendants]

could not reasonably have been expected to be aware of

a constitutional right that ha[s] not yet been declared,

[defendants] did not act with such disregard for the es-

tablished law that their conduct ‘cannot be reasonably be

characterized as being in good faith.“ Procunier v. Nav-

arette, 434 U.S. 555, 565 (1978). Accordingly, for these

reasons, plaintiff’s claim for damages should be dismissed

A-33

as ‘‘frivolous’’ under the provisions of 28 U.S.C. § 1915(d)

in that it is presently not cognizable under the Civil Rights

Act, or, for that matter, under any other federal consti-

tutional or statutory provisions.

There remain plaintiff’s claims for equitable and de-

claratory relief to compel the Board to sit en banc when

parole eligibility hearings are conducted and to declare

unconstitutional the current practice of the Board to hear

initial parole applications in the presence of one Board

member, a parole officer, and a representative of the cor-

rectional institution, rather than before the entire three-

member board. These claims are not valid if grounded

solely upon the Due Process Clause of the Fourteenth

Amendment. For, under Greenholtz v. Inmates of the Ne-

braska Penal and Correctional Complex, supra at 2106

(1979), the possibility of release on parole is not, in and of

itself, an interest entitled to due process protections. In

Greenholtz, the Supreme Court expressly recognized the

distinction between a liberty interest currently enjoyed,

but subject to termination, and an interest that only can

be enjoyed in the future following favorable action by an

administrative board. Hence, the constitution automatically

mandates the application of due process procedures to

parole revocation proceedings, Morrissey v. Brewer, 408

U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), but not to

parole application proceedings. Accordingly, plaintiff can

succeed in these proceedings only if the language of the

Missouri parole statute itself creates a ‘‘protectible ex-

pectation of parole.“ Greenholtz v. Inmates of the Ne-

braska Penal and Correctional Complex, supra at 2106.

But unlike the language of the Nebraska statute, a

statute which the Supreme Court characterized as having

unique structure and language, 99 S.Ct. 2106, the Mis-

souri statute does not create protectible expectations to

A-34

release on parole. As recently indicated in Boothe v. Ham-

mock, 605 F.2d 661, 663 (2d Cir. 1979), *‘[t]he only char-

acteristic of the Nebraska statute that the Court mentioned

as relevant to [the conclusion that protectible expectations

were created by the Nebraska statute] was the requirement

that release ‘shall’ be ordered ‘unless’ one of four dis-

qualifying conditions is found to exist.’’ That language, in

effect, was held to create a situation analogous to a condi-

tion subsequent as found in property and contract law;

the entitlement to parole vested unless conditions existed

to defeat that entitlement. Here, however, the Missouri

statute creates an entitlement to parole only if the Board

finds ‘‘in its opinion there is reasonable probability that

the prisoner can be released without detriment to the

community or to himself,’’ the equivalent to a condition

precedent. While this analysis may be somewhat seman-

tically artificial, it is decisive. ‘‘One cannot fairly read the

majority’s opinion in Greenholtz without concluding that

the majority thought there was not only a difference, but

a difference on which entitlement to due process safe-

guards depends.’’ Boothe v. Hammock, supra, at 664. On

this basis it has been held that the statutes of other

states do not create an expectation of parole release suf-

ficient to trigger due process procedural protections. See,

Boothe v. Hammock, supra (New York statute); Smith

v. Shoemaker, ____ F.2d (6th Cir. 1980) (Ohio stat-

ute); Wagner v. Gilligan, 609 F.2d 866 (6th Cir. 1979) (Ohio

statute) ; Shirley v. Chestnut, 603 F. 2d 805 (10th Cir. 1979)

(Oklahoma statute); Austin v. Armstrong, 473 F.Supp.

1114 (D. Nev. 1979) (Nevada statute); Parisie v. Irving,

F. Supp.— (N. D. IIL, No. 80 C 131, 1980) (Illinois

statute); and Campbell v. Montana State Board of Par-

dons, 470 F.Supp. 1301 (D. Mont. 1979) (Montana statute).

Moreover, even assuming arguendo that plaintiff has

‘<4 protectible expectation of parole“ created by the Mis-

A-35

souri statute, his claim herein is without merit. Neither the

constitution nor the provisions of Section 549.261, V. A. M. S.,

expressly mandate a hearing in the presence of all mem-

bers of the board. Section 549.261, subsection (2), V. A. M. S.,

provides, inter alia, that a parole applicant who has served

a specified portion of his sentence ‘‘shall be given a hear-

ing.’’ Subsection (3) of the same statutory section pro-

vides that, ‘‘[b]efore ordering the parole of any prisoner,

the board shall have the prisoner appear before it and

shall interview him.“ And finally, subsection (4) of See-

tion 549.261, V. A. M. S., provides that, t jhe board may

adopt such other rules not inconsistent with law as it may

deem proper or necessary, with respect to..., the conduct

of parole hearings.’’ Plaintiff argues that these provisions

entitle him to a hearing before the entire board because

subsection (3) of Section 549.261 requires that the ap-

plicant ‘‘appear before it’’ for an interview. Additionally,

he urges that the regulations of the board, as set forth in

the Rules and Regulations Governing the Granting of

Parole and Related Procedures, can only be accomplished

by a hearing before the entire board, sitting as a three-

member panel. Defendants, on the other hand, point to

the provisions of subsection (4) of Section 549.261,

V.A.M.S., which expressly provides that the board may

adopt rules concerning the conduct of parole hearings,

and they also rely upon the provisions of subsection (2)

which require only ‘‘a hearing.“ They indicate that an

initial hearing, designed as a ‘‘screening device,’’ is con-

ducted by one member of the board. Then, if the applicant

appears parole eligible, he appears before the entire

board. This system, defendants argue, is permissible under

the rule-making power conferred by subsection (4), supra.

A reading of the provisions of Section 549.261,

V.A.M.S., supports defendants’ contention in this regard.

That statute requires, at least on a threshold basis, only

A-36

that ‘‘a hearing’’ be held. There appears to be no limita-

tion within the statute upon the power of the board to

delegate hearing responsibility among its members, or, for

that matter, to hearing examiners employed by the board.

To the contrary, subsection (4) of Section 549.261,

V. A. M. S., explicitly authorizes the board to ‘‘adopt

such. . rules not inconsistent with law as it may deem

proper or necessary, with respect to the . . . conduct of

parole hearings ....’’ Thus, the procedure employed by

the board, as described by defendants in their response

to the Order to Show Cause, does not offend the Missouri

statutory provisions. Accordingly, because a hearing be-

fore the entire board is not mandated by Missouri law, and

cannot be found in the mandate of Greenholtz, plaintiff

states no denial of any federally-protected, or a state-

created right.

For the reasons stated above, and pursuant to the

provisions of 28 U.S.C. § 636, it is therefore

RECOMMENDED that the above-styled cause be dis-

missed as ‘‘frivolous’’ under the provisions of 28 U.S.C.

§ 1915(d).

Under 28 U.S.C. § 636(b)(1)(C) plaintiff may make

specific written exceptions to any or all of the foregoing

recommendations within 10 days of his receipt thereof.

Richard H. Ralston

UNITED STATES MAGISTRATE

Dated this 16th day

of April, 1980, at

Kansas City, Mo.

uonsoq0j%

RECEIVED

B o- 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

No. 81-1133

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MISSOURI BOARD OF PROBATION AND PAROL ,

DICK MOORE, Chairman,

CAROLYN V. ATKINS,

and

BILL DUNCAN,

Members of the Board,

Petitioners,

4 Ve

JAMES E. WILLIAMS

and

JUNIOR THEOBALD,

Individually and on Behalf of All Other

Persons Similarly Situated,

Respondents,

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Michael Thompson

Ronald L. Roseman

Legal Aid of Western Missouri

1103 Grand, Fourth Floor

Kansas City, Missouri 64106

(816) 474-6750

Attorneys for Respondents

— -

QUESTIONS PRESENTED

1. Whether the Due Process Clause of the Fourteenth Amend-

ment applies to parole release determinations made by the Missouri

State Board of Probation and Parole under the provisions of Section

549.261 of the Revised Statutes of Missouri which provides that

the Board “shall” parole a prisoner when the Board is of the

opinion that he can be released without detriment to the community

or himself.

2. Whether the Due Process Clause of the Fourteenth Amend-

ment, if found applicable to Missouri parole release decisions,

requires that the prisoner being considered for parole be allowed

access to his parole file.

3. Whether, in regard to ruling on the above issues, the

lower courts should have abstained.

11.

INDEX

Opinions Below — r

Grounds of Jurisdict 1oo.rU⁰g/, es q 0 1

Statutory Provisions B

Statement of the cas 633

Summary of Argument rr

Argument I — rr

Argument II ͤ— .

At qument 111 bees sees eee eee ee eee eee

cone l us 1o n 16

Appe nd 1x — .

111.

CITATIONS

Cases

Babbitt v. United Parm Workers National Union, 442

9.8. 289 (1979) fin anh dain enebdbedebeds60666 066600600688

Bishop Ve Wood, 426 U.S. 341 (1976) .

Campbell v. Montana State Board of Pardons, 470 F. Supp. 1301

(D. Mont. 1979) r 6bbObe66 0Obbe 60608000 00N

England v. Louisiana Medical Examiners, 375 U.S. 411 (1964) ...14

Gagnon v. Scarpelli, 411 U.S. 778 (1973) „ ell

Greenholtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1979) e eee eee.

Harris County Commissioners Court v. Moore, 420 U.S. 77

(1975) ee ebe sees

MPA Mutual Insurance Company v. Hill, 320 8. . 2d 559

(Mo. 1959) e eee eee eee eee

Mathews v. Eldridge, 424 U.S. 319 (19776ꝶꝶ . 9

Matter of Sinka, 599 P.2d 1275 (Wash. 197990ùꝶůũ ³ ¹Ue II

Meachum v. Pano, 427 U.S. 215 (1976) w.cceccececcceececseceseel B

Moody v. Daggett, 429 U.S. 78 (1976) — ttt ttt

Moore v. Sims, 442 U.S. 415 (1979) V»v»d»vd»̃dvꝑ: ⁊ 2,13

Morrissey v. Brewer, 408 U.S. 471 (1972) ceeceeeeeeee +607 -8,10,11

Railroad Commission v. Pullman co., 312 U.S. 496 (1941) 13

Tasker v. Mohn, 267 8. F. 2d 183 (W.Va. 1986o/ ] « )vPl II

Tovar v. Billmeyer, 609 F.2d 1291 (9th Cir. 1980) 5565 2 „10

United states v. Durham Lumber Company, 363 U.S. 522 (1960) ...14

Vickers v. Trainor, 546 F.2d 739 (7th Cir. 1976ꝶꝶc0 . . 214

Vitek v. Jones, 445 U.S. 480 (196oõ0)))))) ͤẽp. 6813

Williams v. Missouri Board of Probation and Parole,

661 F. 2d 697 (8th Ge. 1981) seen

Wolff Ve McDonnell, 418 U.S. 539 (1974) eee ee eee TTT TTT Ts Tf

Statutes and Miscellaneous Citations

18 U.S.C. 84206 (bcUunuuuuuuu0u. t y] ? M- 2 1I32

1B v. s. c. 84206 P z 132

Section 549.261, RSMO 19 •·e sss 6 66

Section 549.285, RSMO 19 bbb t 3

13 csn 860-2. 01w- bb. ů nn II

No. 81-1133

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MISSOURI BOARD OF PROBATION AND PAROLE,

DICK MOORE, Chairman,

CAROLYN V. ATKINS,

and

BILL DUNCAN,

Members of the Board,

Petitioners,

JAMES E. WILLIAMS

and

JUNIOR THEOBALD,

Individually and on Behalf of All Other

Persons Similarly Situated,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

Since the filing of the Petition for Writ of Certiorari,

the opinion of the United States Court of Appeals for the Eighth

Circuit has been reported at 661 F.2d 697 (8th Cir. 1981).

GROUNDS OF JURISDICTION

Respondents do not question the grounds of jurisdiction

set forth in the Petition.

STATUTORY PROVISIONS

18 U.S.C. §4208(c) and (d):

(b) At least thirty days prior to any parole determination

proceeding, the prisoner shall be provided with (1) written

notice of the time and place of the proceeding, and (2) rea-

sonable access to a report or other document to be used by

the Commission in making its determination. A prisoner may

waive such notice, except that if notice is not waived the

proceeding shall be held during the next regularly scheduled

proceedings by the Commission at the institution in which the

prisoner is confined.

ft 7

(e) Subparagraph (2) of subsection (b) shall not apply to--

(1) diagnostic opinions which, if made known to the eligible

prisoner, could lead to a serious disruption of his institu-

tional program;

(2) any document which reveals sources of information obtained

upon a promise of confidentiality; or

(3) any other information which, if disclosed, might result

in harm, physical or otherwise, to any person.

If any document is deemed by either the Commission, the Bureau

of Prisons, or any other agency to fall within the exclusionary

provisions of subparagraphs (1), (2), or (3) of this subsection,

then it shall become the duty of the Commission, the Bureau, or

such other agency, as the case may be, to summarize the basic

contents of the material withheld, bearing in mind the need

for confidentiality or the impact on the inmate, or both, and

furnish such summary to the inmate.

Section 549.285, RSMo 1978:

"The presentence report, the preparole report and the

supervision history, obtained in the discharge of official

duties by any member or employee of the board, shall be

privileged and shall not be disclosed directly or indirectly

to anyone other than the board, the judge of the court having

jurisdiction over the defendant, or others entitled under

sections 549.205 to 549.291 to receive such information,

except that the board or court may at their discretion permit

the inspection of the report of parts thereof by the defendant

or prisoner or his attorney, or other person having a proper

interest therein, whenever the best interest or welfare

of a defendant or prisoner makes the action desirable or

helpful.”

13 Code of State Regulations, section 80-2.010:

Set forth in Appendix

, on

a. ; 4

STATEMENT OF THE CASE

The statement of facts contained in the Petition for a Writ

of Certiorari is substantially correct. It should, however,

additionally be noted that ordinarily a complete reading of the

parole file is deemed unnecessary by members of the Board hear-

ing panel, and the panel generally relies upon the institutional

parole officer's report for the facts upon which its decision

will be based. The institutional parole officer's sources of

information for the pre-parole report will include, but not

necessarily be limited to, the contents of the parole file,

discussion about the inmate with guards, job supervisors,

teachers, and members of the Division of Adult Institutions’

staff. Views of the Division of Adult Institutions’ staff will

sometimes be included in the report. Institutional parole

officers do not have the time nor the resources to make

independent investigations to verify the information they receive

from sources inside and outside the institution. Generally, two

of the individuals comprising the hearing panel will have

possession only of the pre-sentence report, the classification

report, and the institutional parole officer's report and will

not examine the rest of the parole file.

As a matter of Board policy, inmates are not allowed to ex-

amine the materials contained in the parole file or in the in-

stitutional parole officer's report, nor are inmates’ counsel

allowed such access. There is no other form or procedure by

which an inmate can determine the existence of adverse allega~

tions or factual statements in his parole file.

An inmate is not allowed to be present when any testimony

is taken before the Board at a parole hearing and, should a

witness testify against the inmate at the hearing, as a matter

of Board policy, the inmate is not allowed to be present.

The reasons given to inmates indicating the basis for the

denial or delay of parole are submitted on a printed form indi-

cating 13 reasons, the most common reasons given for denial or

delay of parole, which may be checked. In more than 50 percent

of the cases, the only reasons given to the inmate for denial or

delay of parole are those already printed on the form.

In making parole release decisions, the Board follows its

own regulation, which specifically delineates factual matters

which the Board will examine. The regulation is codified in the

Code of State Regulation at 80 CSR 80-2.010 and is reproduced in

the Appendix.

SUMMARY OF ARGUMENT

Grounds for the granting of the petition in this case are

not present as the Court of Appeals correctly applied the prin-

ciples set forth in this Court's opinion in Greenholtz v. Inmates

of the Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979),

in that the Missouri parole granting statute is mandatory in nature,

providing that the Parole Board "shall" grant parole when the stat-

utory criteria are met and is thus indistinguishable from the Neb-

raska statute examined in Greenholtz.

Since the Greenholtz decision, no Circuit Court of Appeals

has construed a parole statute containing mandatory language such

as those of Missouri and Nebraska. Those cases which have been

decided involved statutes granting absolute discretion to the

paroling authority and thus, under Greenholtz, the due process

clause was found inapplicable. Because of the difference among

the statutes and the significance of that difference, the decisions

are completely consistent and no conflict exists.

The Court of Appeals properly declined to abstain as this

Court's Greenholtz decision indicates that the issue is a proper

one for the federal courts to hear. Further, no state statute

is challenged here; state law specifically permits the Board of

Probation and Parole to disclose the contents of parole files to

inmates. Access to the files is denied only under a policy of

the Board. The relief sought by plaintiffs below would not re-

quire supervision of the parole process by the district court.

Respondents have no adequate state remedy.

ARGUMENT

The threshold substantive issue in this action is whether

the Missouri statue governing parole of prison inmates, §549.261,

RSMo 1978, like the Nebraska statute construed by this Court in

Greenholtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1979), creates an “expectancy of release

entitled to some measure of constitutional protection.” Id. at

12. Respondents submit that because the Missouri act is cast in

mandatory terms, providing the Board of Probation and Parole „shall“

order the release on parole of a prison inmate “when in its opinion

there is reasonable probability that the prisoner can be released

without detriment to the community or himself...," it is constitu-

tionally identical to the Nebraska scheme. If this is true, then

there is no conflict in the Court of Appeals parole decisions

rendered since Greenholtz.

In Greenholtz, this Court stated that the existence of a

discretionary parole system created by state law in which the

state holds out the mere possibility of parole provides only a

hope for release and does not implicate an interest in liberty

protected by due process. The Court held, however, that because

che Nebraska statutory scheme for parole was cast in mandatory

terms, the interest of the inmates in parole was more than

"ephemeral” and was thus deserving of constitutional protection.

That decision was consistent with a line of cases concerning

the rights of convicted felons. Beginning with Morrissey y.

Brewer, 408 U.S. 471 (1972), this Court has made clear how the

extent to which inmates maintain some liberty constitutionally

protected against arbitrary state action is to be determined.

The touchstone of the required analysis is the inmates’ “expect-

ancy" of a particular event. The degree to which an inmate can

justify an expectation of a particular event -- be it granting

or revocation of parole, early release, work release, residence

in a particular institution, housing in general population, or

whatever -- determines whether that expectation is an interest in

liberty subject to due process protection. If a state gives its

executive branch absolute and unfettered discretion regarding

those who violate its criminal laws, then the transgressors have

no right to expect anything. If, on the other hand, that dis-

cretion is limited, and areas of entitlement free of discretion

are defined by statute, regulation, or practice, then there is a

right, ir the constitutional sense, to procedurally fair

treatment within those areas.

In Morrisey vy. Brewer, supra, while recognizing that a parolee

enjoyed only a “conditional liberty,” the Court rejected the notion

that revocation of parole was “so totally a discretionary matter

that some form" of due process hearing was not required. Although

a decision to revoke parole was within the state's discretion, the

discretionary aspect is not reached, “unless there is first an

appropriate determination that the individual has in fact breached

the conditions of parole.” Id. at 483-84.

Similarly, in Wolff v. McDonnell, 418 U.S. 539 (1974), prison

inmates who did not enjoy current freedom were held to have a con-

stitutionally protected interest in the retention of statutorily

created good-time credits. Time earned under the statute could

not be withheld at the discretion of prison officials because the

statute provided such action could be taken only when the inmate wes

guilty of serious misconduct. Such a determination is thus "“critical®

and due process procedures are required.

Because a Massachusetts statute gave prison officials abso-

lute discretion to transfer inmates from one facility to another,

the Court held there was no constitutional right to a due process

hearing prior to transfer in Meachum vy. Fano, 427 U.S. 215 (1976).

The discretion vested by the statute was total, hence the inmates

could not legitimately expect -- nor consider it a right-- to te-

main in any one institution. The Court made it clear that absent

some basis for expecting not to be transferred, there was no legi-

timate interest to protect.

7 : (

The same type of “full discretion” was found in the statutory

power of the United States Board of Parole to determine when to

execute warrants and detainers lodged against federal prisoners in

Moody vy. Daggett, 429 U.S. 78 (1976). Absent any limitation on the

discretion of the Board to act whenever it chose to, the inmates

had no legitimate expectation that action would be taken immediately.

But when prisoners may be transferred to mental institutions

only upon a finding that they suffer from a mental disease or defect,

there is an “objective expectation” that there will be no transfer

unless one of the specified conditions exists and that expectation

is protected by the due procese clause. Vitek v. Jones, 445 U.S.

480 (1980). Vitek was like Morrisey and Wolff and distin-

guishable from Meachum: the Director of Correctional Services did

not have absolute discretion to transfer--he could do so only upon

a finding of the existence of certain specified conditions and

inmates have a legitimate expectation that they will not be trans-

ferred absent the existence of such conditions.

In Greenholtz, Nebraska inmates could legitimately expect parole

because the statute was mandatory: °. . the Board of Parole

shall order... release unless it is of the opinion that...

release should be deferred . . due to one of four abstract

reasons. The Nebraska statute was termed “unique” by the Court

and it is different from the forty-three states who do give their

paroling authorities absolute discretion, usually providing that

they “may” grant paroles.

Missouri is one of the small] number of states where this

executive discretion is limited. Unless the Missouri Board of

Probation and Parole believes there is a reasonable probability

that release of a prisoner would cause detriment to the community

or the prisoner, §549.261 provides that it “shall release on

parole any person confined in any correctional institution admin-

istered by state authorities." The Board cannot deny parole to

one meeting the statutory criteria, thus a legitimate expectation

is created.

Statutes providing that a parole way“ be granted confer

unfettered discretion upon the parole decisionmakers and no

expectation of release can be justified. The Courts of Appeals

have uniformly held that such totally permissive language creates

no entitlement. All of the appellate decisions listed in Appendix

B of the Petition for Writ of Certiorari involve such statutes.

The Eighth Circuit decision in this action is the only case where

a statute providing only limited discretion has been in issue, so

there is no conflict among the circuits on this point. In fact,

all but one of the district court decisions listed in the Petition

involve absolute discretion. The one exception, Campbell vy.

Montana State Board of Pardons, 470 P. Supp. 1301 (D.Mont. 1979),

was a decision denying a pro se in forma pauperis petition. The

court did not analyze the Montana statute, but merely stated:

"The language of the Montana statute does not in my opinion create

an entitlement. “ Had the court reached the merits and had it the

benefit of argument by counsel for the inmate it may well have held

differently, for there is no discernible basis for distinguishing

the Montana parole statute from that of Nebraska.

The Courts of Appeals decisions are completely consistent.

There is therefore no need to grant certiorari to resolve a con-

flict on the issue of when a parole statute creates a legitimate

expectation of release deserving of due process protection.

11.

Respondents cannot contend that the issue of whether due

process requires access to the parole file is not important, but

because Greenholtz did make it clear how that issue was to be

decided and because the court below applied the test properly,

further action by this Court is not necessary.

The Greenholtz opinion reiterated that the three-part analysis

Gescribed in Mathews v. Eldridge, 424 U.S. 319 (1976), is to be

used in determining the extert of the procedural requirements of

the due process clause in a particular situation. The three fac-

tors to be considered are: the private interest that will be

effected by the official action, the risk of an erroneous depri-

vation of such interest through the procedures used and the

probable value, if any, of additional or substitute procedural

safeguards, and the Government's interest in the burdens that

additional safeguards would entail. Id. at 335.

Application of the test in the instant situation is guided

by the opinions in Greenholtz and Morrisey v. Brewer, Supra.

Morrisey held and Greenholtz impliedly reaffirmed that the private

interest involved in parole is liberty--parole “includes many of

the core values of unqualified liberty and its termination inflicts

a ‘grievous loss“ on the parolee and often on others.” Morrisey vs

Brewer, 408 U.S. at 482. It could hardly be disputed that the

interest held by respondents here is enormous.

Greenholtz focused primarily on the second part of the analy-

sis, examining the degree to which the procedures requested by the

inmates minimized the risk of erroneous decisionmaking. It is

that part of the test which inescapably leads to the conclusion

that due process requires providing inmates with access to their

parole files. As Chief Justice Burger noted, there is a risk that

parole files will contain wholly inaccurate information. Because

the Nebraska inmates did not complain, however, about file access

or the possibility of error, it was apparently assumed that

the Nebraska Board was exercising its discretion to disclose the

contents of the files te the inmates. 442 U.S. at 15, n.7. But

in Missouri, it is an ironclad policy of the Board of Probation

and Parole not to provide access to the file information.

It is easy to see just how great a risk there is of erroneous

parole decisions for, as was noted in Greenholtz, the decision

is one that must be made largely on the basis of the inmate's

file.* Id. at 15. In Missouri, in fact, many parole decisions

are made following a “review” at which the inmate is not present

and has no opportunity to communicate with the panel which is to

make the decision. Williams v. Missouri Board of Probation and

Parole, 661 F.2d 697, n. 3, (8th Cir. 1981). As was stipulated

by the parties and found by the Court of Appeals, the parole

files contain a great deal of unverified information. It was

„ 10 «

also stipulated that this material is considered by the Parole

Board. As the Court of Appeals stated, this “inflates the risk

of erroneous decisions and could thus flaw the decisionmaking

process.” Id. at 700.

The Board's regulations detail the issues to be considered

at parole hearings and those matters which will be “weighed

heavily." See Appendix. Among these are the existence of prior

"crime oriented activities,” a “history of assaultive behavior,” a

history of drug or alcohol abuse, institutional infractions, any

possible injury to the victim of the inmate's crime, and the “de-

gree of sophistication” shown in the crime. See 13 CSR 5802. 010.

That these kinds of issues are factual in nature can hardly be

disputed. And that in the Missouri system many if not all these

issues are determined from hearsay and unverified information

contained in the parole files is equally clear. The high risk of

inaccurate decisionmaking is obvious.

Justice Marshall's opinion in Greenholtz points out

that “researchers and courts have discovered many substantial

inaccuracies in inmate files, and evidence in the instant case

revealed similar errors.” 442 U.S. at 33 and n. 15. Other

courts dealing with the issue of file accuracy have reached the

same conclusion. See, e.g., Tasker vy. Mohn, 267 8. F. 2d 183

(W.Va. 1980); Matter of Sinka, 599 P. 2d 1275 (Wash. 1979).

The state has several interests involved. First and foremost,

the state shares an interest with the inmate in “the accurate find-

ing of fact and the informed use of discretion.” See Gagnon v.

Scarpelli, 411 U.S. 778, 785 (1973). It also has an interest in

treating potential parolees “with basic fairness.” Cf. Hoge

v. Brewer, supra. The state undoubtedly has an interest in what-

ever administrative burden might be occasicned by providing inmates

with access to their files. But petitioners have made no showing

that any such burden would be intolerable or that it would somehow

hamper the exercise of their discretion. Indeed, the United States

has provided federal prisoners with access to their files for

- ii -

sometime, 18 U.S.C. §4208(b), and there is no evidence that the

procedure has been onerous. The court below had the benefit of

the record of the trial at which two officials of the Minnesota

parole system testified that the burden resulting from that

state's decision to permit file access had not been great and had

been positive in terms of assuring accurate factual

determinations.

The state undoubtedly also has an interest, as the Court of

Appeals held, in “preserving the confidentiality of sources of

information necessary for parole release decisions and in main-

taining security and discipline within its institutions.” 661 F.2d

at 700. The court remanded the case to the district court for

a decision as to how best to deal with these interests. Recon-

ciling this interest with that of the state and the inmates in

accurate factfinding will not be difficult. Other states and the

federal system provide for withholding sensitive material and

giving the inmate merely a summary of confidential information.

See, e.g., 18 U.S.C. §4208(c).

Here again, because no Court of Appeals has been confronted

with a mandatory parole statute since the Greenholtz decision was

handed down, there is no decision other than this one dealing with

the issue of file access under such a statute. But the test to be

applied is clear and the court below has correctly applied it.

Purther review by this Court would not, therefore, seem warranted.

111.

In Moore y. Sims, 442 U.S. 415 (19/79), this court iequired

abstention where plaintiffs sought to enjoin a state from initia-

ting juvenile court proceedings in a widespread direct challenge

to the constitutionality of the Texas Family Code. Petitioners

attempt to bring this case within the scope of Moore by hyperbol-

ically stating that respondents have mounted a “broad-based chal-

lenge to Mizsouri's parole procedures. (Petition at 23). In

fact, the only modification currently requested by respondents

is access to inmate parole files. All other issues originally

° 13 -

raised by the complaint have either been withdrawn or mooted by

subsequent rule changes promulgated by petitioners. Thus the con-

siderations of federal-state comity implicated by the breadth

of the challenge in Moore are simply not present hece.

Based on their expansion of the relief sought, petitioners

proceed to contend that the relief granted would entail extensive

supervision of the Board of Probation and Parole by the district

court. Again, the case is overstated. Respondents sought only

an order directing promulgation of a regulation providing for

reasonable access to the parole files. It must be assumed that

if petitioners adopt such a regulation they would follow it.

Even if they didn't, state court review would be available. No-

where is the need for any type of ongoing supervision suggested

by respondents and nowhere do petitioners provide a factual

justification for such a contention.

This case does not involve a direct challenge to the constitu-

tionality of a state statue. The bar to the relief respondents

have sought is only a policy adopted by petitioners. The new

policy ordered by the court below is one expressly permitted by

Missouri statute. See $549.285, RSMo 1978. Thus the type of

federal interference in state legislative policies found in Moore

vy. Sims; Railroad Commission v. Pullman Co-, 312 U.S. 496 (1941);

Harris County Commissioners Court v. Moore, 420 U.S. 77 (1975); and

Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979),

is simply not present in this action.

Rather, the examination of state law required here is incidental

to a determination of the federal constitutional question presented.

When Greenholtz was decided, this Court followed the practice used

in numerous procedural due process cases in which the determination

of the existence of an entitlement created by state law was made as

a prelude to determining the applicability of the Fourteenth Amend-

ment. See, e.g., Vitek vy. Jones, 445 U.S. 80 (1980); Bishop v.

Wood, 426 U.S. 341 (1976); Wolff v. McDonnell, 418 U.S. 539 (1974).

Cf. United States v. Durham Lumber Company, 363 U.S. 522 (1960).

— 13

Furthermore, respondents have no adequate state remedy at this

point. The two named plaintiffs who now represent the certified

class in this action have been released on parole. They could

not, therefore, maintain an action in the state court system. No

other member of the b(2) class has come forward to institute and

adequately prosecute an appropriate state action. While Williams

and Theobald continue to adequately represent the class here,

they could not now do so in Missouri. The rights of the class

which they have represented would go unvindicated. The situa-

tion is thus similar to that in Vickers vy. Trainor, 546 f. 2d 739

(7th Cir. 1976), in which the Court of Appeals held that absten-

tion was not appropriate in a federal class action where Illinois

state law would not permit maintenance of a class action.

Even if Williams and Theobald were still incarcerated, they

could not seek the necessary declaration from the Missouri courts

without foregoing their rights to have their claims heard in a

federal forum. If all of the issues in this case were submitted to

the state courts, including the applicability of the due process

clause, then the state court decision would be res judicata and

appellants would be barred from presenting their §1983 claims to

the district court. England v. Louisiana Medical Examiners,

375 U.S. 411 (1964).

On the other hand, if they reserve their federal questions

from state decision, then the question presented in the state

court would be only whether, once the Missouri Board has made a

finding that detriment would not occur because of release, could

it refuse to release an inmate on parole. There is no evidence

that that precise fact situation has occurred, hence any action

raising the issue would present a hypothetical question--one which

the Missouri courts will not entertain. MPA Mutual Insurance Con-

pany vy. Hill, 320 S.W.2d 559 (Mo. 1959).

Thus the class could secure a state decision, assuming someone

agrees to represent it, only by submitting all issues raised here

ané foregoing its right to a federal forum. This choice may not

be forced upon respondents. Tovar vy. Billmeyer, 609 F.2d 1291

= 14 <-

(9th Cir. 1980).

Finally, though not controlling, the time spent in litigation

of this matter should not be overlooked. The action was filed in

March 1974, tried in August, 1976, and finally decided by the dis-

trict court in January, 1978. Since then, a decision rendered

by the Court of Appeals in October, 1978, was vacated and remanded

by this Court in June, 1979, and the case was sent back to the

district court which rendered another judgment in July, 1980, and

it has now been decided again by the Court of Appeals and pends

here for the second time. Surely the equitable principles under-

lying the abstention doctrine do not dictate now starting this

litigation anew.

@ 18 -

CONCLUS ION

Fot the foregoing reasons, respondents request this Court

to deny the Petition for A Writ of Certiorari.

Respectfully submitted,

MICHAEL THOMPSON

RONALD L. ROSEMAN

Legal Aid of Western Missouri

1103 Grand Avenue

Kansas City, Missouri 64106

(816) 474-6750

Attorneys for Respondents

2 1 «

APPENDIX

13 CSR 80-2.010 Parole Hearings

PURPOSE: Parole hearings, which are personal appear-

ances of an inmate of a state adult correctiona

institution before the Board of Probation and Parole,

are required by section 549.261, RSMo (1978). This

rule sets forth the rposes and procedures for such

hearings and the various possible results of such 4

hearing.

(1) Parole hearings are conducted for the following purposes:

(A) To allow the inmate the opportunity to

1. present to the parole board in person his own

version of the present offense;

2. to discuss his own problems and needs;

3. to discuss his evaluation of the progress he

has made towards his rehabilitation while confined;

4. to present his reasons why he thinks he is

ready for parole release consideration;

5. to present his plans for the future;

6. to present and discuss any other matters that

are appropriate for consideration for his parole release;

(B) To provide the parole board the opportunity to:

1. review all available reports and case history

material pertinent to his case: such as, social history,

medical, psychological and psychiatric reports, prior record

of arrests and circumstances pertaining thereto, past and pre-

sent patterns of behavior;

2. review his institutional adjustment, conduct and

progress as such reflects upon his attitude and preparation

to resume his life in a free society;

3. evaluate him as a person in regard to his readi-

ness for parole release.

(2) Parole hearings are conducted each month at the state

penitentiary, intermediate reformatory and the training center

for men. Hearings are conducted each month for those confined

in the honor centers in Kansas City and St. Louis, and at Renz

Farm and Church Farm. Inmates of these institutions are trans-

ported to the state penitentiary for hearings.

- Al -

@. 3 7

(3) Scheduling of parole hearings.

(A) An inmate will be eligible for a parole hearing when

he has served one (1) year or one-third (1/3) of his sentence,

in accordance with the following schedule:

1. Length of No. of Months

Sentence To Be Served

2 years 6 months

3 years 8 months

4 years 10 months

5 years 12 months

6 years 14 months

7 years 16 months

8 years 18 months

9 years 20 months

10 years 22 months

11 years or over 24 months

2. An inmate will receive written notice of the

date of his hearing approximately forty-five (45) days prior

to his personal appearance before the parole board. Accompany-

ing this notice will be a list of factors the board may consider

at the time of the hearing.

3. An inmate may request that his parole hearing be

scheduled for a later date. A request for a setback of less than

three (3) months will not be accepted by the board.

4. After an inmate receives his notice of parole

hearing, if he has further questions he should contact his in-

stitutional parole officer. If he does not receive a satisfac-

tory answer, he should direct his question or request in writing

to the parole board.

5. Inmates with sentences of six (6) years ot more

must make a written request to the board if they desire a parole

hearing prior to the schedule as set out in 13 CSR 80-2.010(3)

91.

(B) An inmate need not make an application for a parole

hearing, since he will be automatically scheduled by the parole

board in accordance with the schedule in paragraph (3) (A 1. of

DDr ·¹¹äꝛä ⁰mů x eee

C ware

this rule. There will be only three (3) exceptions:

1. The first will be when an inmate is serving con-

secutive sentences. After he is heard on his first sentence,

if he wishes to have a parole hearing on subsequent sentences,

he will have to make written application for this hearing. Other-

wise his case will be reviewed by the board at the expiration of

each consecutive sentence as set out in 13 CSR 602. 0 20 (2) (B).

If, however, an inmate closed his case on the first sentence

without having a parole hearing, a hearing will be scheduled in

the first month of the second sentence.

2. The second will be when an inmate has been con-

victed of a felony where a dangerous or deadly weapon is used

and is guilty under the law of “armed criminal action" his parole

hearing will be as follows:

A. First conviction of “armed criminal action“ a

parole hearing will be held once three (3) calendar years have

been served on the sentence.

B. Second conviction of “armed criminal action“ a

parole hearing will be held once five (5) calendar years have

been served on the sentence.

C. Third conviction of “armed criminal action“ a

parole hearing will be held once ten (10) calendar years have

been served on the sentence.

3. When an inmate has been convicted under the capi-

tal murder statute (section 565.008) and has been sentenced to

life imprisonment, he will be eligible for parole after fifty

(50) years have been served on the life sentence.

ducted from the sentence in the scheduling of the hearing date.

(D) A serious conduct violation prior to the hearing date

will not affect the date of the hearing.

(2) If an inmate has not been granted a parole hearing be-

fore escaping from custody he will be scheduled for a hearing

after he serves 2/3rds of his sentence or two (2) years, which-

ever is less.

- AS -

(PF) An inmate who has a court action pending will be given

a parole hearing at the normally scheduled time.

(G) If an inmate has had a parole hearing and escapes after

the hearing, the board will schedule him for a parole review at

any time within one (1) year from the month of his return to the

division of corrections.

(4) Representative allowed for parole hearings.

(A) An inmate may have a person of his choice at the bear-

ing. The function of this representative shall be to offer a

statement at the conclusion of the interview of the inmate and

to provide such additional information as the hearing panel shall

request.

1. Other inmates may not be present at the hearing.

2. Interested parties who oppose parole may select

a representative to appear and offer a statement.

3. The hearing panel shall limit or exclude any

irrelevant or repetitious statement.

(B) It is not at all necessary that an inmate have a

representative at the hearing.

(5) Although the board considers each case on its individual

merits, the following major categories of factors are weighed

heavily in the decision-making process:

(A) Seriousness of the offense and the nature and circum

stances of the offense to determine if the inmate has served

sufficient time for the purposes of retribution and general de-

terrence --

1. the official version of the offense and the

length of the sentence,

2. the inmate's motivation for committing the of-

fense, his role in the offense, the amount of loss and/or in-

jury to the victim, and the degree of sophisticatiion evidenced

in the offense,

3. offenses which involved a weapon and/or physical

injury or possible injury to the victin,

4. crime-oriented activities such as a series of

crimes, which reflect extensive crime involvement, and

5. the board considers the deterrent and retribu-

tive portion of the sentence to have been served when approxi-

mately twenty-five percent (25%) of the maximum sentence has

been served, or when twelve (12) years of the maximum sentence

has been served by inmates with sentences of life or fifty (50)

years or more;

(B) Evaluation of the inmate's criminal record, both

adult and juvenile --

1. seriousness of the criminal record rating con-

siders such things as probations, suspended sentences, ar-

rests not followed by conviction, and multiple sentences,

2. consideration is given to the length of time

between offenses,

3. a history of assaultive behavior, or behavior

related to drug or alcohol abuse is considered,

4. recent failure on community supervision, parti-

cularly through the commission of a new crime is given considera-

tion, and

5. the board will deny or defer parole to inmates

at their first parole eligibility who have a criminal record tat-

ing of serious --

A. serious is defined as a record in which the

total maximum sentences to incarceration exceeds five (5) years

. this includes only sentences on which the inmate

actually served jail or prison time, and

C. commitment to a training school is considered

equivalent to a one (1)-year sentence;

1. number and seriousness of institutional infrac-

tions, particularly during the past twelve (12) months, and

2. poor institutional discipline is commission of

three (3) or more minor infractions and/or one (1) major infrac-

tion during the past twelve (12) months, major infraction may in-

clude possession of a weapon, possession of drugs, theft, creating

a disturbance, assault, escape or attempted escape;

(D) Participation in educational, vocational and rehabili-

tative programs available in the correctional facility --

1. consideration is given to the degree to which the

prospective parolee has participated in and responded to institu-

tional programs, although satisfactory performance will not guaran-

tee favorable decision, and

2. Pailure to participate will be interpreted as a

sign the inmate is unwilling to develop skills to increase the

probability of successful adjustment on parole;

(E) Psychological reports, although not routine, are some-

times considered appropriate. An unfavorable psychological or

psychiatric report will not cause parcle to be denied by itself;

(PF) factors considered when there is neither a poor in-

stitutional discipline nor a serious criminal record and/or

the deterrent and retributive portion of the sentence has been

served --

1. factors related to prior criminal record such 4s,

serious juvenile record, short interval between offenses, his-

tory of crimes related to alcohol or drug abuse, history of as-

saultive behavior, probation violator, or professional drug

dealer,

2. factors related to the present offense such as,

offense committed while on probation or parole, weapon or exces~

sive force involved, relatively high degree of sophistication

shown in the crime, and

3. factors related to the inmate personally such

as, no motivation toward self-improvement, crime-oriented life-

style, alcohol or drug habit serious enough to raise questions

about the probability of a successful parole, rebellious, hos-

tile, anti-social attitude, no remorse, does not understand na-

ture of offense, or a history of psychological problems, and

(G) factors considered and weight attached vary according

to the length of the maximum sentence and the amount of time

served.

CERTIFICATE OF MAILING

I certify that a copy of the foregoing Brief in Opposition

was served upon the Missouri Board of Probation and Parole, Dick

Moore, Chairman, Carolyn V. Atkins, and Bill Duncan by depositing

said document in a United States Postal Service mailbox, with

first-class postage prepaid, addressed to counsel of record for

those parties at their post office address:

John Ashcroft,

Attorney General

Pavl Robert Otto

Assistant Attorney General

Broadway State Office Building

P.O. Box 899

Jefferson City, Missouri 65102

Michael Thompson

Attorney for Resporn tents

r) : (

(6) The procedure which is followed at the time of the parole

hearing is:

(A) The inmate will appear along with his representative,

if any, in person, before the parole board;

(B) The interview will be mechanically recorded;

records of all such hearings shall be treated as confidential

and not be open to inspection by the inmate concerned, his

representative or any other unauthorized persons.

; : RECEI

No. 81-1133 VED

FEB 5 1982

( IN THE SUPREME COURT OF THE UNITED rar 05 „ ng

SUPREME COURT, US.

OCTOBER TERM, 1981

—

MISSOURI BOARD OF PROBATION AND PAROLE,

DICK MOORE, Chairman,

CAROLYN V. ATKINS,

and,

BILL DUNCAN,

Members of the Board,

Petitioners,

JAMES E. WILLIAMS

and

JUNIOR THEOBALD,

Individually and on Behalf of All Other

Persons Similarly Situated,

Respondents,

<r eo

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

—

Respondents James E. Williams and Junior Theobald on behalf

of themselves and all other persons similarly situated, by their

counsel, move the Court for an order permitting them to proceed

in forma pauperis under Rule 46 with their opposition to the

Petition for A Writ of Ce:tiorari filed in this Court by Peti-

tioners.

Respondents sought leave to file their complaint with the

district court in forma pauperis and their motion was granted by

the court on March 28, 1974.

Respondents sought leave to appeal the adverse determination

of the district court in forma pauperis and that motion was granted

by the court on April 20, 1978.

Respondents sought leave to proceed in this Court in forma

pauperis and that motion was granted by this Court on June 11, 1979.

Legal Aid of Western Missouri

1103 Grand Avenue

Kansas City, Missouri 64106

(816) 474-6750

Attorney for Respondents

No. 81-1133

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

MISSOURI BOARD OF PROBATION AND PAROLE,

DICK MOORE, Chairman,

CAROLYN V. ATKINS,

and,

BILL DUNCAN,

Members of the Board,

Petitioners,

JAMES E. WILLIAMS

and

JUNIOR THEOBALD,

Individually and on Behalf of All Other

Persons Similarly Situated,

Respondents,

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

AFFIDAVIT OF MICHAEL THOMPSON

—

STATE OF MISSOURI)

COUNTY OF JACKSON)

Michael Thompson, being duly sworn, deposes and states:

1. I am a member of the Bar of this Court and have represented

the respondents herein since 1974.

2. James E. Williams and Junior Theobald were granted parole

subsequent to commencement of this action but prior to trial, in 1975

and 1978 respectively.

3. Counsel have been unable to maintain contact with Junior

Theobald since his release, but James E. Williams has remained in

contact at all times since the commencement of this action.

4. Following his release on parole, Mr. Williams relocated

to Indianapolis, Indiana, where, last year, he was discharged from

parole. In the fall of 1981, Mr. Williams advised me that he and

his family were moving to Florida.

5. Upon receipt of the Petition for A Writ of Certiorari

filed herein; I attempted to contact Mr. Williams for the pur-

pose of preparing an affidavit of indigency to be submitted in

connection with a motion for leave to proceed in forma pauperis,

but to date have been unsuccessful in doing so.

6. On prior occasions, Mr. Williams has executed affidavits

demonstrating his indigency and copies are attached hereto.

7. Based on conversations with Mr. Williams, I do not be-

lieve his economic status has changed materially since his

affidavit was filed with this court in February, 1979, and to

the best of my knowledge he is unable to pay the costs of oppos-

ing the Petition for A Writ of Certiorari yet he desires to con-

tinue to prosecute his claims.

8. I shall continue to attempt to contact Mr. Williams

in order to obtain an affidavit containing the information

required by Rule 46 of this Court and shall submit it to the

Clerk of the Court as soon as it is obtained.

9. The issues presented in this action continue to affect

the members of the class represented by Mr. Williams and I will

continue to represent Mr. Williams and those he represents.

4“ * A 2 „

Wlwuae. eue

MICHAEL THOMPSON

Subscribed and sworn to before me, a Notary Public this dst

day of February, 1962.

My Commission Expires ag 16, 1S

OCTORER er, 1978

NO. 78-950

MISSOURI BOARD OF PROBATION AND

PAROLE, CAROLYN V. ATKINS,

Chairman, M. R. VERMILLION and

DICK MOORE, Members of the Board,

Petitioners,

JAMES Ek. WILLIAMS and JUNIOR

FHEOLALD, Individually and on

Behalf of All Other Persons

)

vs. )

)

Similarly Situated, .

)

Respondents.

AFFIDAVIT OF JAMES K. WILLTAMS

UNITED STATES) OF AMERICA )

WESTERN DISTRICT OF * *

James E. Williams, being @uly sworn deposes and says:

1. I am a citizen of the United States and the plaintiff in

the above-entitled action.

2. i desire to file my brief in opposition to the Petition

for a Writ of Certiorari from the judgement of the United States

Court of Appeals for the Fighth Circuit filed in this Court by

petitioners on December 13, 1978, but because of my poverty I am

unable to pay the costs of printing said brief and still be able

to provide myself and my dependents with the necessitities of life.

3. I believe that I am entitled to the relicf granted me by

the judgement of the United States Court of Appeals for the Eighth

Circuit and believe that my case is meritorious.

WHEREFORE, affiant prays that he may have relief to proceed

in this Court in forma pauperis.

1 OE

oe S e, ,

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*—

„Js E. WILLIANS

“47

‘Subscribed and sworn to before me, a Notary Public, this

day of N- 1979.

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CERTIFICATE OF MAILING

I certify that a copy of the foregoing Motion for Leave to

Proceed In Forma Pauperis was served upon the Missouri Board of

Probation and Parole, Dick Moore, Chairman, Carolyn V. Atkins,

and Bill Duncan by depositing said document in a United States

Postal Service mailbox, with first-class postage prepaid,

addressed to counsel of record for those parties at their post

office address:

John Ashcroft,

Attorney General

Paul Robert Otto

Assistant Attorney General

Proadway State Office Building

P.O. Box 899

Jefferson City, Missouri 65102

{ala saan pn

Michael Thompson

Attorney for Respondents

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