Petition for Writ of Certiorari — Shoemaker v. Kellogg
Supreme Court brief1995
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FILED
941 964 MAY 5 0 1995
IN MEHE OE THE CLERK
SUPREME COURT OF THE UNITED STATES
October Term 1994,
JOHN W. SHOEMAKER, et al.,
Petitioners,
Vv.
GLENN S. KELLOGG, et al.,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
BETTY D. MONTGOMERY
Ohio Attorney General
JEFFREY S. SUTTON
State Solicitor
SIMON B. KARAS
Deputy Chief Counsel
COUNSEL OF RECORD
CHARLES L. WILLE
Assistant Attorney General
State Office Tower, 17th Floor
30 East Broad Street
Columbus, Ohio 43215-3428
(614) 644-5401
ATTORNEYS FOR PETITIONERS
Il.
QUESTIONS PRESENTED FOR REVIEW
WHETHER THE COURT BELOW SHOULD
RECONSIDER ITS EX POST FACTO
RULING DECIDED PRIOR TO THIS
COURT’S DECISION IN CALIFORNIA V.
MORALES __ U.S. __, 115 S.CT. 1597
(1995).
WHETHER THE EX POST FACTO
CLAUSE, AS INTERPRETED IN
CALIFORNIA V. MORALES, SUPRA,
PERMITS STATES TO AMEND
REGULATIONS GOVERNING’ THE
PROCEDURES UNDER WHICH PAROLE
MAY BE REVOKED AND APPLY THOSE
AMENDMENTS TO _ PREVIOUSLY
SENTENCED INMATES WHO HAVE
COMMITTED A NEW CRIME WHILE ON
PAROLE.
li
PARTIES
JOHN W. SHOEMAKER, CHIEF
Ohio Adult Parole Authority;
RAYMOND E. CAPOTS, Chairman,
Ohio Parole Board;
GEORGE A. BUSTAMANTE, Member,
Ohio Parole Board;
OWEN J. BARNES, Member,
Ohio Parole Board;
MARGARETTE T. GHEE, Member,
Ohio Parole Board;
FREDERICK E. RAMBACHER, Member,
Ohio Parole Board;
WILLIAM E. HUDSON, Member,
Ohio Parole Board;
ROBERT E. SMITH, Member,
Ohio Parole Board;
H. RICHARD GOOCH, Member,
Ohio Parole Board;
GLORIA R. ANDREWS, Member,
Ohio Parole Board,
Petitioners,
GLENN S. KELLOGG;
LANI R. SMITH;
LAWRENCE DESSENBERG;
JOHN STAMPER;
MICHAEL JONES;
ROBERT DONLEY;
DANIEL SCHREIBER;
MICHAEL KARHOFF,
Respondents.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ......... 0.00000. i
pe egy ec a iv
CONSTITUTIONAL PROVISION INVOLVED .... 2
ormsumen) OF THE CASE ...... 0.220000. 3
ARGUMENT IN SUPPORT OF GRANTING
DEES cs ASRS SSSI RNS oO 6
I. THE SIXTH CIRCUIT’S DECISION IS IN
PATENT CONFLICT WITH THIS COURT’S
FUNDAMENTAL VIEW OF THE
APPLICATION OF THE EX POST FACTO
CLAUSE, AS REAFFIRMED IN THE
COURT’S RECENT DECISION OF
CALIFORNIA DEPARTMENT OF
CORRECTIONS V. MORALES, _US. __,
ee eke. 7
If. |THE SIXTH CIRCUIT ERRED IN APPLYING
THE EX POST FACTO CLAUSE BECAUSE
THE REGULATORY CHANGE DID NOT
INCREASE THE INMATES’ PUNISHMENT . 12
Nt ggg ee Wk oy ae On 3 6 Wink 15
I Sone ee yd bk gn 6 Ae kk oc A-1
iV
TABLE OF AUTHORITIES
CASES Page(s)
California Department of Corrections, et al. v. Morales,
eee SL, | as Be CUE se 0 6 0 oa passim
Collins v. Youngblood,
_ fH oi ieee eerie reer rae 7
Lindsey v. Washington,
ee ae Es bo 6 es ere 3S ewe a es 7
Miller v. Florida,
ee EU bg ck 6 hee wwe wk eee een 7,8
Morrissey v. Brewer,
i a Ee ROE «6 eS 6 Gas ee eee ee 6
Moss v. Patterson,
555 F. 2d 137 (6th Cir.), cert. denied, sub nom.,
Kette v. Moss, 434 U.S. 873 (1977) .......... 6
Rodriquez v. U.S. Parole Comm’n,
594 F. 2d 170, 176 (7th Cir. 1979) ........ 7,10
Roller v. Cavanaugh,
O64 F.20 120, 122 (40 Cir. 1993) 2. wc es 7
Warden v. Marrero,
ae TS sk a as alee wes Dawe ee 7
Weaver v. Graham,
Sa Cee So xs ok hk eee wen Se 8
]
OPINIONS AND JUDGMENTS BELOW
The Opinion of the United States Court of Appeals
for the Sixth Circuit, filed on January 9, 1995, in Case No.
93-4287, is reported as Kellogg v. Shoemaker, 46 F. 3d 503
(6th Cir. 1995), and is reproduced at A-1.
The Order of the United States District Court for the
Southern District of Ohio, Eastern Division, filed on March
22, 1995, enjoining Petitioners from applying Ohio
Administrative Code Section 5120:1-1-21 to members of the
class who committed initial offenses prior to September 1,
1992, is reproduced at A-14.
The Order and Opinion of the United States District
Court for the Southern District of Ohio, Eastern Division,
filed on October 22, 1993, denying Respondents’ Motion to
Alter or Amend Judgment, is reproduced at A-16.
The Order and Opinion of the United States District
Court for the Southern District of Ohio, Eastern Division,
filed on May 27, 1993, entering summary judgment for
Petitioners is reproduced at A-21.
The Order of the United States District Court for the
Southern District of Ohio, Eastern Division, filed on
December 9, 1992, granting summary judgment against
named Respondents Glenn S. Kellogg, Lani R. Smith and
John Stamper, is reproduced at A-35.
The Order of the United States Court of Appeals for
the Sixth Circuit, filed on February 28, 1995, denying
Petitions for Rehearing, is reproduced at A-39.
2
JURISDICTIONAL STATEMENT
The opinion of the United States Court of Appeals for
the Sixth Circuit was entered on January 9, 1995. (A-1).
Timely petitions for rehearing were denied on February 28,
1995, and this petition is timely filed. Sup. Ct. R. 13.
Jurisdiction is invoked pursuant to 28 U.S.C. Section
1254(1).
CONSTITUTIONAL PROVISION INVOLVED
U.S. Const. Art. I, Section 10
No State shall ... pass any ... ex post facto Law ...
3
STATEMENT OF THE CASE
On August 15, 1990, inmate Glenn Kellogg brought
suit against Ohio parole authorities under 42 U.S.C. Section
1983, alleging that Ohio’s parole revocation procedures
violated his rights. Subsequently, the District Court certified
the case as a class action, to include "all persons whose
parole was, or will be, revoked by the Ohio Adult Parole
Authority through a so-called parole-violator recommissioned
hearing because they have been convicted of a new felony
committed while on parole." Kellogg and other named
inmates maintained that the hearings provided by State parole
authorities to parole violators recommissioned (PVRs), e.g.,
inmates whose paroles were revoked because they were
convicted of a felony committed while on parole, failed to
satisfy constitutional due process standards. The inmates
sought a declaratory judgment and injunctive relief. '
Effective November 29, 1992, Ohio parole authorities
promulgated Ohio Administrative Code Section 5120: 1-1-21 ;
which provided that parole authorities shall revoke the
release of any parolee who is recommitted based on
conviction for an offense committed while on parole.” In
effect, the regulatory change provided that revocation
hearings would no longer be afforded to PVRs. Based on the
latter administrative change, on May 28, 1993, the District
Court dismissed the class action as moot. (A-21). In its
opinion and order, the District Court noted that the action
' On December 8, 1992, the District Court granted summary
judgment in favor of the parole authorities against named plaintiffs
Kellogg, Smith and Stamper, on the ground that unsuccessful mandamus
actions by these inmates in state court barred them, under the doctrine of
res judicata, from seeking relief in federal court.
* The Sixth Circuit subsequently determined the effective date of the
new regulation to be September 1, 1992.
4
sought only declaratory and future injunctive relief, and that
the inmates did not, and could not, challenge the lawfulness
of the current confinement of a member of the class, because
such an attack is properly brought only in the context of a
habeas corpus action under 28 U.S.C Section 2241.
The inmates then moved to alter or amend the
judgment, arguing, inter alia, that application of the new
administrative rule to inmates initially convicted prior to the
effective date of the new regulation violated the constitutional
prohibition against ex post facto laws. In denying the motion
to alter or amend, the District Court, in its order and opinion
of October 22, 1993, found that the new regulation had not
been applied to remedy any defect in the revocation
procedures followed in the past. Accordingly, the District
Court rejected the inmates’ ex post facto claim. (A-16)
The inmates appealed. On January 9, 1995, the Sixth
Circuit Court of Appeals sustained the District Court’s
mootness determination with respect to the inmates’
challenge to the adequacy of parole revocation hearings
under procedures effective prior to September 1, 1992.
However, the Sixth Circuit also held that with respect to
some of the inmates, the new regulation could be
impermissible under the ex post facto clause. The Sixth
Circuit found specifically that because the new regulation
eliminated a "substantial right" to discretionary consideration
for continued parole, it constituted an impermissible ex post
facto law with respect to inmates whose initial offense
occurred before September 1, 1992, the effective date of the
new regulation. (A-12)
Notwithstanding the above, the Sixth Circuit, in the
concluding paragraph of its opinion, appeared to limit the ex
post facto holding only to those inmates whose subsequent
conviction predated the effective date of the new rule.
5
Accordingly, it sustained the District Court "in all respects,
except as to those prisoners, if any, who committed initial
offenses and also a parole violation offense conviction prior
to September 1, 1992, but whose parole revocation
procedures will be governed by the new regulations." (A-13)
It then remanded the case for the District Court "to provide
prospective injunctive relief as to those limited members of
the plaintiff class described in this opinion." (A-13)
On January 23, 1995, Ohio parole authorities
petitioned for a rehearing, on the basis that the Sixth
Circuit’s opinion was unclear as to the class of inmates for
which application of the new procedure would be enjoined on
ex post facto grounds. On or about January 19, 1995, the
inmates separately petitioned for rehearing. On February 28,
1995, the Sixth Circuit denied both petitions for rehearing.°
While acknowledging an "inconsistency" in its opinion, the
Sixth Circuit declined to elaborate further on its ex post facto
analysis, but instead ordered that the opinion’s references to
"parole offense conviction[s] prior to September 1, 1992" be
stricken. (A-40)
On March 22, 1995, the District Court entered final
judgment consistent with the Sixth Circuit’s mandate. The
District Court’s order provided specifically that application
of Ohio Administrative Code Section 5120: 1-1-21, to
members of the plaintiff class who committed initial offenses
prior to the effective date of the regulation, September 1,
1992, but whose parole revocation procedures are conducted
after September 1, 1992, constitutes an ex post facto law,
and its application to such persons is enjoined. The District
Court’s order further provided that those class members who
committed their initial crime before September 1, 1992, but
*The Sixth Circuit’s denial of the petitions for rehearing
occurred before this Court’s decision in Morales, supra.
6
whose parole revocation proceedings are conducted after
September 1, 1992, "are entitled to the procedural safeguard
outlined in Morrissey v. Brewer, 408 U.S. 471 (1972) and
Moss v. Patterson, 555 F. 2d 137 (6th Cir.), cert. denied,
sub nom. Kette v. Moss, 434 U.S. 873 (1977)," e.g. the
mitigation hearing permitted under the prior parole
revocation procedure. (A-15)
ARGUMENT IN SUPPORT OF GRANTING
CERTIORARI
Petitioners submit that the writ of certiorari should be
granted in this case, because the Sixth Circuit’s decision --
that the ex post facto clause prohibited the change in parole
revocation procedures solely on the ground of an alleged
"substantial disadvantage” to the inmates -- is patently ©
contrary to this Court’s fundamental view of the application
of the clause, as reaffirmed in the Court’s recent decision of
California Department of Corrections et al. v. Morales, _
U.S. _, 115 S.Ct. 1597 (1995). Accordingly, Petitioner
asks that the Court grant certiorari, vacate the Sixth Circuit’s
judgment, and remand the case for reconsideration in light of
Morales. In the alternative, Petitioner asks the Court to
grant certiorari and to review the case, on the basis that the
change in question does not increase in any sense the
inmates’ punishment for their initial offenses. Thus, Mcrales
requires a conclusion that the Sixth Circuit erred in applying
the ex post facto clause.
7
I. | THE SIXTH CIRCUIT'S DECISION IS IN
PATENT CONFLICT WITH THIS
COURT’S FUNDAMENTAL VIEW OF THE
APPLICATION OF THE EX POST FACTO
CLAUSE, AS REAFFIRMED IN THE
COURT’S RECENT DECISION OF
CALIFORNIA DEPARTMENT OF
CORRECTIONS V. MORALES, _ USS.
__, 115 S. Ct. 1597 (1995)
As early as Warden v. Marrero, 417 U.S. 653
(1974), this Court suggested that a change in parole
eligibility could raise ex post facto concerns if the net result
is an increased term of actual imprisonment. In the wake of
Marrero, cases applying the ex post facto clause to such post-
conviction proceedings as parole eligibility and "good time"
credit reflected generally two distinct views with respect to
the scope of the clause’s protection as expressed in the
Court’s decisions. An historical and more limited view
focused on the clause’s basic protection against arbitrary,
retrospective increases in a prisoner’s punishment. See
Miller vy. Florida, 482 U.S. 423 ( 1987); Roller y.
Cavanaugh, 984 F.2d 120, 122 (4th Cir. 1993). A second
view, based primarily on specific language in Warden vy.
Marrero, supra, and Lindsey v. Washington, 301 U.S. 397
(1937), favored a more expansive scope of protection, to the
effect that the ex post facto clause forbade legislation that
operates to the "substantial disadvantage" of prisoners,
whether or not the legislation is "technically an increase in
the punishment annexed to the crime." Lindsey vy.
Washington, supra, at 401-402; Rodriquez v. U.S. Parole
Comm'n, 594 F. 2d 170, 176 (7th Cir. 1979).
In Collins v. Youngblood, 497 U.S. 37 ( 1990), the
Court suggested that the focus of the ex post facto clause
remains on the specific protection against retrospective
8
conviction and punishment, as opposed to a general
prohibition on infringement of "substantial rights.” On April
25, 1995, the Court decided California Department of
Corrections, et al. v. Morales, __ U.S. __, 115 S. Ct.
1597 (1995), wherein the Court held that the ex post facto
clause did not preclude retrospective application of the
statutory changes in question. In so holding, the Court
reaffirmed its rationale in Collins, supra, and disapproved
specifically the language in Lindsey, supra, which suggested
a more expanded view of the clause.
The California statute in question had entitled Morales
to an annual parole suitability hearing, but was amended ten
years after Morales’ conviction to permit parole authorities
to defer the hearing for up to three years under specified
circumstances. Morales contended that parole eligibility is
annexed to the punishment for the underlying offense and
accordingly, under Lindsey v. Washington, supra, Weaver v.
Graham, 450 U.S. 24 (1981), and Miller v. Florida, 482
U.S. 423 (1987), retrospective change to the parole
suitability statute violated the ex post facto clause.
Alternatively, Morales argued that if the statutory change
could not be deemed to have affected his punishment, the ex
post facto clause nevertheless forbade any legislative change
that has any conceivable risk of affecting a prisoner’s
punishment.
Rejecting Morales’ first argument out of hand, the
Court held that the statutory change had nothing to do with
the definition of Morales’ crime nor did it alter the formula
under which Morales’ sentence was calculated, and thus,
under Collins, the ex post facto clause was not implicated.
The Court then noted:
After Collins, the focus of the ex post facto
inquiry is not on whether a legislative change
9
produces some ambiguous sort of
"disadvantage," nor, as the dissent seems to
suggest, on whether amendment affects a
prisoner's “opportunity to take advantage of
provisions for early release," see post, at 5,
but on whether any such change alters the
definition of criminal conduct or increases the
penalty by which a crime is punished.
{Emphasis added].
Morales, supra, at note 3. Accordingly, the Court
discredited totally the premise that a change in parole
eligibility rules, by virtue of a possible effect upon the
prisoner’s opportunity for early release, should be equated
ipso facto with a retrospective increase in punishment
prohibited by the ex post facto clause.
In other words, the ex post facto clause does not
exclusively focus on determining whether there has been a
change in the conditions existing at the time of the inmates’
initial offense, but rather on whether such change has
actually increased the punishment for the initial offense. In
contrast, the Sixth Circuit in this case focused exclusively on
a perceived change in conditions, without considering
whether the change had an impact on the sentence.
But more importantly, in rejecting Morales’ second
argument, the Court stated that the risk of affecting a
prisoner’s punishment posed by a legislative change in the
frequency of parole hearings, even a change that totally
eliminates a possible hearing, is not determinative in
applying the ex post facto clause:
The dissent proposes a line between those
measures that deprive prisoners of a parole
hearing and those that "make it more difficult
10
for prisoners to obtain release." Post, at 12 -
13. But this arbitrary line has absolutely no
basis in the Constitution. Jf a delay in parole
hearings raises ex post facto concerns, it is
because that delay effectively increases a
prisoner’s term of confinement, and not
because the hearing itself has independent
constitutional significance. Other adjustments
to mechanisms surrounding the sentencing
process Should be evaluated under the same
standard. {Emphasis added].
Morales, supra, at note four.
In short, this Court in Morales reaffirmed
categorically the Court’s rejection in Collins of the expanded
view of the clause’s protection; accordingly, the elimination
of a parole hearing, even if to the "substantial disadvantage"
of the prisoner, is not in and of itself a violation of the ex
post facto clause.
In the case at hand, the Sixth Circuit’s resolution of
the inmates’ ex post facto claim hinged upon two basic
conclusions: first, like parole eligibility, for the purposes of
ex post facto analysis, the change in parole revocation
procedures must be considered "retrospective" insofar as it
occurred after the time of the inmates’ initial offenses; and
second, elimination of the mitigation hearing could not be
done "retrospectively" because it would amount to a
“substantial disadvantage" prohibited by the ex post facto
clause.
In reaching the first conclusion, the Sixth Circuit
reasoned, based on Rodriquez v. United States Parole
Comm’n, supra, that the ex post facto clause required
absolutely a focus on the time of the inmate’s initial offense,
11
as opposed to the time of the commission of the parole
violation, e.g., conviction for an offense committed while on
parole. " (‘[A]lthough parole eligibility is determined as of
the date of sentencing for some purposes ... the ex post facto
clause looks to the punishment annexed at the time the crime
was committed.’)" (A-11). Thus the Sixth Circuit found that
the change in parole revocation procedures in question must
be deemed to have "retrospective" effect with respect to all
inmates whose initial offenses were committed prior to the
effective date of the change. The Sixth Circuit then
concluded that with respect to inmates who committed their
initial offenses prior to the effective date of the regulatory
change, the new regulation violated the ex post facto clause
because it did away with the previously available mitigation
hearing, and thereby deprived the inmates of a "substantial
right” to discretionary consideration for continued parole (A-
12).
Petitioners submit that the Sixth Circuit’s reasoning
is part and parcel of the expanded view of the clause’s
protection which this Court has definitively rejected. As the
Court made clear in Morales, a change in parole eligibility
rules cannot be considered ipso facto to effect an increase in
punishment for the purposes of the ex post facto clause;
accordingly, the Sixth Circuit’s reliance on Rodriguez in
focusing on the time of the inmate’s initial offense was
erroneous. Moreover, it can now be stated unequivocally,
based on Morales, that elimination of the inmate’s mitigation
hearing has absolutely no constitutional significance in and of
itself, even if it amounts to a "substantial disadvantage" to
the parolee. Of course, it was the elimination of this hearing
which the Sixth Circuit found to be a "substantial
disadvantage" precluded by the ex post facto clause.
Thus Petitioners submit that the Sixth Circuit’s
reasoning in deciding the ex post facto issue against the state
12
is in patent conflict with this Court’s fundamental view of the
application of the clause, as set forth in Collins and
reaffirmed in Morales. Accordingly, the Court should grant
certiorari, vacate the Sixth Circuit’s judgment, and remand
the case for reconsideration in light of Morales.
II. THE SIXTH CIRCUIT ERRED IN
APPLYING THE EX POST FACTO
CLAUSE BECAUSE THE REGULATORY
CHANGE DID NOT INCREASE THE
INMATES’ PUNISHMENT.
The Sixth Circuit focused exclusively on the alleged
"substantial disadvantage” to the inmates, and did not address
the fundamental question of whether the change in parole
revocation rules resulted in an increase in punishment for the
inmates’ initial offenses. Petitioners submit that the change
does not increase in any sense the inmates’ punishment;
accordingly, Morales requires a conclusion that the Sixth
Circuit erred.
In determining that the statutory amendment in
Morales did not offend the ex post facto clause, the Court
noted several important circumstances which indicated a
procedural as opposed to substantive purpose. The evident
focus of the amendment was to relieve the parole board of
the burdens associated with scheduling hearings for prisoners
who were not likely to obtain parole. In fact, the substantive
standards for granting parole remained the same. Moreover,
the Court declared that "countless changes [which] might
create some speculated, attenuated risk of affecting a
prisoner’s actual term of confinement" could not be
considered determinative for the purposes of the ex post facto
clause.
13
Petitioners submit that the regulatory change involved
in this case is also procedural, and has even less to do with
actual punishment than the statutory amendment in Morales.
Here there is simply no retrospective increase in punishment
involved. Unlike parole eligibility rules, a change in parole
revocation procedures cannot in any way increase the amount
of time an inmate must serve before obtaining release on
parole. In fact, in this case the court below purports to bar
application of the new procedure to inmates who have
already been paroled and who have forfeited that parole by
a new conviction. Also, the change in the rule does not, in
and of itself, have any retrospective effect on the an inmate’s
initial sentence. Rather, it is the prisoner’s subsequent
conviction for an offense committed while on parole which
occasions the parolee’s return to prison. Moreover, the
substantive standards for determining whether parole should
be revoked were not altered by the rule change. Indeed,
even under the old rule, inmates who were convicted of
crimes committed while on parole were conclusively
presumed to be parole violators.‘ In sum, the change
involved here is indeed procedural, and does not involve a
purpose to effect or increase the inmates’ actual incarceration
for their initial offenses.
More importantly, the rule’s elimination of a
mitigation hearing for the inmates, while foreclosing the
Opportunity for immediate continuation on parole,
nevertheless has only the most speculative and attenuated
possible effect on the inmates’ actual terms of confinement.
It cannot be said that at the time of the inmates’ initial
convictions, the calculation of the length of sentence is
“Respondents argued from the outset that the PVR
revocation process under the old rule resulted in the revocation
of parole in every case in which the PVR was found to have
been convicted of a felony while on parole.
a
—ao es
14
dependent upon an expectation of a discretionary parole
revocation hearing at some future date. To argue otherwise
is to suggest that at the time of sentencing, prisoners
anticipate that they will achieve parole, commit other
offenses while on parole, but nevertheless be able to
convince the parole authorities at a discretionary hearing to
continue them on parole. Further, revocation of the inmates’
parole cannot in and of itself be considered an increase in the
inmates’ actual confinement, insofar as they have enjoyed a
previous release on parole, and were on notice, prior to the
commission of their parole violations, that felony convictions
would result in revocation without a mitigation hearing.
In sum, the Sixth Circuit’s holding in this case cannot
be sustained on the merits in light of Morales. Petitioners
therefore ask in the alternative that a writ of certiorari to
review the case be granted.
15
CONCLUSION
For all the foregoing reasons, Petitioners submit that
a writ of certiorari should therefore be issued to review the
decision of the United States Court of Appeals for the Sixth
Circuit.
Respectfully submitted,
BETTY D. MONTGOMERY
Ohio Attorney General
JEFFREY S. SUTTON
State Solicitor
SIMON B. KARAS
Deputy Chief Counsel
COUNSEL OF RECORD
CHARLES L. WILLE
Assistant Attorney General
Capital Crimes Section
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428
(614) 644-7233
May 30, 1995
Lg
LA
A-1
No. 93-4287
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GLENN S. KELLOGG; Lani R.
Smith; Lawrence Dessenberg;
John Stamper; Michael Jones;
Robert Donley; Daniel ON APPEAL from the
Schreiber; and Michael United States District
Karhoff, on behalf of themselves Court for the Southern
and all others similarly situated, District of Ohio
Plaintiffs-Appellants,
v.
JOHN W. SHOEMAKER, et al.,
Defendants-Appellees
Decided and Filed January 9, 1995
Before: Keith, Wellford, and Daughtrey, Circuit
Judges. Harry W. Wellford, Circuit Judge. Glenn S.
Kellogg ("Kellogg"), an Ohio prison inmate, initiated a 42
U.S.C. § 1983 class action suite in 1990 seeking declaratory
and injunctive relief with respect to certain Ohio parole
revocation procedures.
A-2
This case began in federal court in August 1990,
when Kellogg’ filed a pro se complaint alleging, under 42
U.S.C. § 1983, that the Ohio Parole Revocation procedures
violated his procedural due process rights. The Ohio public
defender, who began representing Kellogg, moved to certify
a class to challenge certain parole revocation procedures.
The district court certified the class to include "all persons
who parole was, or will be, revoked by the Ohio Adult
Parole Authority through a so-called parole violator
recommissioned hearing because they have been convicted of
a new felony committed while on parole."
The provisions of Ohio law now under attack are the
new “emergency” provisions that the Ohio Adult Parole
Authority ("agency") enacted effective September 1, 1992.
Originally, the class brought its action against the older
repealed provisions, which were discretionary and would
have required Ohio to provide parolees with a "meaningful"
hearing prior to revoking their parole.° Under these old
regulations, a parolee convicted of a subsequent crime in
Ohio, while on parole, was conclusively presumed to be in
violation of his parole. The parolee under the old
regulations, however, was entitled to a hearing to present any
relevant mitigating circumstances. Although plaintiff
parolees seem to concede they were given a “hearing” under
the old regulations, they argued that it did not meet the
procedural requirements that Morrisey v. Brewer, 408 U.S.
*Kellogg’s probation had been revoked after he was convicted of new
felonies (Attempted Grand Theft, Possession of Criminal Tools, Breaking
and Entering, and Drug Abuse with prior drug law (conviction) while on
parole.
Section 5120: 1-1-19(1) provided: "In the event a releasee is
convicted and sentenced on a new felony under Ohio law, it shall be
conclusively presumed that Administrative Regulation 5120:1-1-12 has
been violated."
A-3
471 (1972), required. The district court agreed with their
argument, holding that the parolees did not receive sufficient
notice, were denied the assistance of counsel, and were not
permitted to call or to subpoena witnesses.
The agency then repealed the old regulations and
implemented new ones. The new regulations did away with
any type hearing if the defendant was convicted by an Ohio
court "for an offense he committed while on any release
granted by the Adult Parole Authority...". There would no
longer be a hearing to determine mitigating circumstances
surrounding the revocation. The only process the parolees
would receive would be the parole authority’s verification
"that the sentence was imposed for an offense that occurred
while the prisoner was under release status."
The agency revised the parole procedures to eliminate
any agency’s discretion in deciding whether to revoke parole.
See Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254
(1985), which nad indicated that the hearing procedures
required in Morrisey were applicable only if the parole board
exercised discretion in revoking parole. See also Snead v.
Donahue, 993 F.2d 1239 (6th Cir. 1993); Harrison v. Parke,
1990 WL 170428 (6th Cir.).
The district court then granted summary judgment in
favor of the agency, sustaining its reliance on the amended
regulation. The district court held that the new policy
rendered the plaintiffs’ challenges moot. The district court
refused to amend its judgment and refused to grant plaintiffs
any relief. The district court discussed rejecting the merits of
the plaintiffs’ constitutional challenges to the new
regulations.
Plaintiffs appeal in order to challenge the district
court’s holding that the change in the parole procedures
A-4
rendered the plaintiffs’ constitutional challenges moot.
Plaintiffs contend that the agency violated its rule-making
powers by adopting the new procedures. Plaintiffs also
argue that this court should reconsider Sneed v. Donahue,
which held that a parole board was not required to provide
the parolee with a hearing if the board exercised no
discretion in revoking parole. Last, they wish to challenge
the constitutionality of the new regulations, arguing that the
change of the parole procedures in this respect constitutes a
violation of the ex post facto clause.
I.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291 since there is an appeal from a final order of
the district court. The appropriate standard of review is de
novo because the appeal concerns issues of law.
I.
MOOTNESS
There is some confusion as to whether the district
court held that the plaintiffs’ constitutional challenges to the
new procedures were moot. The district court discussed the
constitutional merits of the plaintiffs’ arguments, but refused
to amend the court’s judgment dismissing the claims of
plaintiffs:
Plaintiffs now seek to amend this Court’s
judgment, arguing that the application of OAC
§ 5120:1-1-21 to members of the plaintiff
class whose parole had been revoked under
A-5
the old regulation violates the constitutional
prohibition against ex post facto laws...As this
court ruled in its Opinion and Order entered
May 27, 1993, the relevant analysis turns to
whether or not plaintiffs’ claims for relief are
moot. Plaintiffs’ sole claim for injunctive
relief sought to restrain defendants from
violating plaintiffs’ procedural due process
rights in the future through the use of
constitutionally infirm PVR hearing or
procedures. Plaintiffs no longer have any
procedural due process rights to a meaningful
hearing in connection with felonies committed
after the effective date of the new regulation.
Accordingly, the enactment of OAC § 120:1-
1-21 has rendered plaintiffs’ claims for future
injunctive relief moot.
The plaintiffs do not contest the mootness of their
challenges to the original procedures.’ Plaintiffs argue,
however, that they should be allowed to challenge the
constitutionality of the new parole procedures.
"It is apparent that the changes in the parole procedure rendered the
plaintiffs’ challenges to the original procedures moot. There is no need
for this court to issue an injunction when the parole board has voluntarily
changed its allegedly unconstitutional practices. See Cotton v. Mansour,
863 F.2d 1241, 1244-45 (6th Cir. 1988), cert. denied, 493 U.S. 1042
(1990)(refusing to enjoin a social service agency’s calculation of food
stamp eligibility after the agency changed its practice to comply with
federal regulations because "[t]here was simply no ongoing violation...to
enjoin"). See also Corey C. Watson, Comment, Mootness and the
Constitution, 86 Nw. U.L.Rev. 143, 147 (1991). Any remedy that a
member of the class has for the unconstitutional application of the old
parole procedures must, in the future, be obtained through habeas corpus.
A-6
We note that considerable controversy surrounds the
mootness doctrine after Honig v. Doe, 484 U.S. 305 (1988).
One rationale holds that the mootness doctrine is
fundamentaily tied to the case and controversy language of
Article III, and, therefore, the court may only review if there
is a justiciable issue. Another view is that the mootness
doctrine is more flexible, and may be used to accomplish
prudential concerns to avoid the squandering of judicial
resources after the decisional process is underway. See
Corey C. Watson, Mootness and the Constitution, 86 Nw
U.L. Rev. at 143.
Under either rationale, the plaintiffs’ challenge to the
new procedures are not moot. The parole authority may not
be allowed to abort or delay constitutional review of the
parole procedures by substitution of a new procedure on the
eve of adjudication. Prudential concerns also require us to
hear this case rather than to dismiss it as moot as to those
plaintiffs who are alleged to have committed offenses and
had their paroles revoked prior to September 1, 1992. We
conclude that a "case or controversy" exists, and that
plaintiffs have raised proper concerns about the regulations’
constitutionality as applied to offenses which occurred prior
to the date of the amendment.
Il.
DISCUSSION
A. Whether the agency violated its rule-making
authority by adopting the new parole
revocation procedures?
The plaintiffs make two arguments in this respect.
First, the plaintiffs argue that parole authority only has
power to make administrative rules and not broad legislative
A-7
policy rules. Second, the plaintiffs argue that even if the
parole authority has the power to make broad policy rules,
the new regulations conflict with Ohio statutes.
The plaintiffs’ first argument is unavailing. The Ohio
parole authority is charged with administering all statutes
relating to parole, see O.R.C. § 2967.02, including
determining whether a convict has violated parole. O.R.C.
§ 2967.15. The parole authority has a long history of
making regulations governing parole revocation. It should be
noted that the plaintiffs did not contest the authority’s power
to issue the old regulations; they only challenged the
application of the old regulations, arguing that a hearing to
present mitigating circumstances was not a "meaningful
hearing."
Second, plaintiffs argue that the new parole
revocation procedures are inconsistent with § 2967.15 of the
Ohio Code, which requires that a parolee be given an
individual parole revocation hearing when a parole officer
has begun the parole revocation hearing on his own initiative.
This case, however, does not involve a situation in which the
parole officer has begun the parole revocation proceedings on
his own initiative, or based on his charge or conduct, which
has not resulted in a conviction.® Instead, this case is
governed by a different provision of § 2967.15.
The legislature has not specifically required an
individual hearing when the basis for the parole revocation
is a subsequent conviction. The statute provides only: "A
convict who has been conditionally pardoned or a prisoner
who has been paroled, and who, in the judgment of the adult
parole authority, has violated the condition of his, pardon or
*The parole authority does conduct an individual hearing in these
circumstances.
ee
A-8
parole shall be declared a violator." O.C.R. § 967.15.
Thus, the agency can "declare" a parolee to have been
convicted of a subsequent violation while on a parole to be
a "violator" either by administrative rule or through an
individual hearing. The agency has chosen to address these
cases by administrative rule, which is logical as those
parolees who have been convicted of another felony while on
parole have already had a trial or hearing to determine
whether they actually committed the offense charged.” The
agency has also concluded, by administrative rule, that no
mitigating circumstances would overcome a subsequent
conviction of another felony committed while on parole;
thus, an individual hearing would be unnecessary. The
agency’s conclusion is a permissible one, as we have
articulated previously in Sneed v. Donahue, 993 F.2d 1239
(6th Cir. 1993). We find no merit, therefore, in plaintiffs’
contentions in this regard.
B. Whether this court should reconsider its
decision in Sneed v. Donahue.
Alternatively, plaintiffs ask us to reconsider our
decision in Sneed v. Donahue, 993 F.2d 1239 (6th Cir.
1993), in which we upheld the constitutionality of the
Kentucky Parole statutes that eliminated any hearing on
parole violation if the parolee was convicted of a new felony
while on parole. The Kentucky and proposed Ohio parole
revocation statutes are identical in that each statute eliminates
agency discretion and directs revocation when a parolee has
been convicted of a subsequent violation while on parole.
"Even under the old regulations, the parolee did not receive an
individual hearing on every issue, because he was conclusively presumed
to be a parole violator if he had been convicted of another felony while
on parole. The only issue at the hearing was whether mitigating
circumstances warranted leniency in revoking his parole.
A-9
We held in Sneed that the parolee "had no clearly
established right to a parole revocation hearing" once a
subsequent parole violation conviction had been established
and the law gave the parole agency no authority to consider
further mitigating factors.
The Supreme Court in Morrissey [v. Brewer,
408 U.S. 471, 92 S. Ct. 2593 (1972)] clearly
instructed that the purpose of a final
revocation hearing is to give the parolee an
Opportunity to present facts challenging the
determination that he has violated a condition
of parole and to present all circumstances
Surrounding the violation to the parole
authority so that it may exercise its discretion
in a fully informed manner. In this case,
however, a revocation hearing would serve no
such purposes. It is undisputed that Sneed
violated a condition of his parole and has met
all the factual predicates required by Ky. Rev.
Stat. § 439.352 before that section can be
applied to him. In addition, it would be
pointless for him to present mitigating
circumstances to the Board since the Board
has no discretion in determining whether to
revoke his parole status...
Sneed, 993 F.2d at 1243 (emphasis in original). Our
conclusion in Sneed is supported by Black v. Romano, 471
U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636
(1985), in which the Supreme Court stated that
[nJeither Gagnon |v. Scarpelli, 411 U.S. 778,
93 S. Ct. 1756] nor Morrisey considered a
revocation proceeding in which the factfinder
was required by law to order incarceration
oe
ee ea
——
A-10
upon finding that the defendant had violated a
condition of probation or parole. Instead,
those cases involved administrative
proceedings in which revocation was at the
discretion of the relevant decision maker.
Thus, the Court’s discussion of the importance
of the informed exercise of discretion did not
amount to a holding that the factfinder in a
revocation proceeding must, as a matter of
due process, be granted discretion to continue
probation or parole.
Thus, Black teaches that Morrissey does not require that a
parole authority be given discretion regarding when to revoke
a parolee’s parole status; rather, it simply requires that when
such discretion is given, a revocation hearing is required.
Sneed, 993 F.2d at 1243, 1244.
As pointed out also in Sneed, two other court have
reached this same result: United States v. Cornog, 945 F.d
1504 (11th Cir. 1991); Pickens v. Butler, 814 F.2d 237 (Sth
Cir.),cert. denied, 484 U.S. 924 (1987). We have no
occasion (or authority) to revisit Sneed, and we decline
plaintiffs’ invitation to do so. Plaintiffs have, accordingly,
shown no due process violation by the amended procedure
adopted by defendants in Ohio. This procedure would apply
to all situations in which a party or parolee was convicted of
an offense after September 1, 1992.
.. Whether the new parole regulations violate the
ex post facto clause of the United States
Constitution.
As to the ex post facto challenge, we have considered
this challenge in two non-binding parole guideline cases:
Persky v. Edwards, 1986 WL 16754 at *3 (6th Cir.); Ruip
A-11
v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977). This
cose, by contrast, involves binding regulations that are
mandatory after September 1, 1992, and eliminates any
discretion in the parole agency to consider mitigating
circumstances. To establish the claimed ex post facto
violation, plaintiffs must establish that the regulation at issue
(1) is retroactive in its application, and (2) “must
disadvantage the offender affected by it." Miller v. Florida,
482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450
U.S. 24, 29 (1981)). See also Dale v. Haeberline, 878 F.2d
930, 935 (6th Cir. 1989), cert. denied, 494 U.S. 1058
(1990). In this case, the agency action in amending the
pertinent regulation has the same effect as legislation for the
purpose of ex post facto consideration.
The focus in determining whether a new law violates
the ex post facto clause is the time the offense was
committed. Weaver, 450 U.S. at 31, 101 S.Ct. at 965. See
also Persky v. Edwards, 1986 WL 16754 (6th Cir.)(quoting
Forman v. McCall, 709 f.2d 852, 859 (3d Cir. 1983)). ("[I]t
is a fundamental principle of ex post facto jurisprudence that
a court entertaining an ex post facto claim must focus upon
the law in effect at the time of the offense for which a person
is being punished."); Rodriquez v. United States parole
Comm’n, 594 F.2d 170, 176 (7th Cir. 1979)("[A]lthough
parole eligibility is determined as of the date of sentencing
for some purposes...the ex post facto clause looks to the
punishment annexed at the time the crime was committed.").
Next we look to whether the new regulations are
more onerous than the regulations in effect at the time this
subclass committed their initial crime. The defendants,
relying on Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290
(1977), argue that the change is merely a procedural change,
and does not affect the substantive rights of the plaintiff
class. See Dobbert, 97 S.Ct. at 2298 ("Even though it may
A-12
work to the disadvantage of a defendant, a procedural change
is not ex post facto."). Although the distinction between
substance and procedure might sometimes be elusive, "a
change in the law that alters a substantial right can be ex post
facto "even if the statute takes a seemingly procedural
form.’" Miller v. Florida, 482 U.S. at 433, 107 S.Ct. at
2453. Although the change here involves a procedural
matter--the right to a hearing on revocation of parole--it still
affects substantive rights attendant to parole revocation.
Under the old regulations, parole would be revoked for the
full amount of time unless the inmate could convince the
parole authority that mitigating circumstances warranted
mercy. Under the new procedures, there is no opportunity
to present these mitigating circumstances. This procedural
change affects substantive rights.
Thus, the new regulations may violate the ex post
facto clause for a portion of the plaintiff class wherein
described. The plaintiff class in this case has been denied
broadly to include: "all persons whose parole was, or will
be revoked by the Ohio Adult Parole Authority through a so-
called parole-violator recommissioned hearing because they
have been convicted of a new felony committed while on
parole." Obviously, the new regulations cannot be deemed
to be an ex post facto violation as to those inmates whose
paroles were revoked after a hearing under the old
regulations, because the new parole regulations were not
applied to them. Likewise, the statute is not ex post facto as
to those who committed their "initial crime"’° after the date
of enactment (September 1, 1992). The district court’s
opinion, however, does not take into account those plaintiffs
who committed their initial crime before the new regulations
We use the term "initial crime" to refer to the crime from which the
inmate has been paroled. It does not refer to the subsequent violation
while on parole.
+
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A-13
came into effect but whose parole revocation proceedings
will be governed by the new regulations.’ The new
regulations are retroactive only to these members of this
class.”
To the extent any plaintiff falls into this designated
category, he is entitled under the old regulations to a
meaningful hearing as described in Morrisey v. Brewer, 408
U.S. 471 (1972). We may only provide prospective
injunctive relief in this present case to those inmates, if any,
who had committed their initial crime prior to September 1,
1992, and whose parole may be revoked under the new
regulations. Only these plaintiffs have a claim to injunctive
relief.
IV. CONCLUSION
In summary, we AFFIRM the district court in all
respects, except as to those prisoners, if any, who committed
initial offenses and also a parole violation offense conviction
prior to September 1, 1992, but whose parole revocation
procedures will be governed by the new regulations.
Likewise, we REMAND the ex post facto claim for the
district court to provide prospective injunctive relief as to
those limited members of the plaintiff class described in this
opinion.
'The district court concluded that the "defendants have not
retroactively applied [the new regulations] to the subclass of plaintiffs
whose parole had been earlier revoked..."
'2An oral argument, the Ohio Attorney General’s office stated that
there had been no such actions taken.
A-14
FILED KENNETH J. MURPHY CLERK
95 MAR 22 PM 2:46 U.S. DISTRICT COURT
SOUTHERN DIST. OHIO EAST. DIV. COLUMBUS
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GLENN S. KELLOGG, et al.,
Plaintiffs,
V. Civil Action 2:90-CV-606
JOHN W. SHOEMAKER, et al.,
Defendants.
ORDER
This matter is before the Court on remand from the
United States Court of Appeals for the Sixth Circuit.
Consistent with the mandate of the United States
Court of Appeals for the Sixth Circuit, it is hereby
ADJUDGED that application of Ohio Administrative Code
§5120:1-1-21, to the extent applied to those members of the
plaintiff class, if any, who committed initial offenses prior to
the effective date of the regulation, i.e., September 1, 1992,
but whose parole revocation procedures are conducted after
September 1, 1992, constitutes an ex post facto law and its
application to such persons is hereby ENJOINED. Those
class members who committed their initial crime before
September 1, 1992, but whose parole revocation proceedings
are conducted after September 1, 1992, are entitled to the
A-15
pocedural safeguard outlined in Morrissey v. Brewer, 408
U.S. 471 (1972) and Moss v. Patterson, 555 F.2d 137 (6th
Cir.) cert. denied, sub nom. Kette v. Moss, 434 U.S. 873
(1977).
The Clerk shall enter final judgment accordingly.
Sandra S. Beckwith, Judge
United States District Court
2 ements _ — —_
—_ EEE ——
A-16
FILED KENNETH J. MURPHY CLERK
93 OCT 22 PM 12:21 U.S. DISTRICT COURT
SOUTHERN DIST. OHIO EAST. DIV. COLUMBUS
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GLENN S. KELLOGG, et al.,
Plaintiffs,
Vv. Civil Action 2:90-CV-606
JOHN W. SHOEMAKER, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs, a class of inmates whose parole was
revoked by the Ohio Adult Parole Authority ["APA"],
brought this action on behalf of themselves and of a class of
plaintiffs, for prospective declaratory and injunctive relief
pursuant to 42 U.S.C. §1983, alleging that defendants denied
them procedural due process under the Fourteenth
Amendment during the course of plaintiffs’ revocation
proceedings. On May 27, 1993, this Court granted summary
judgment in favor of defendants. Opinion and Order of May
27, 1993. Final judgment was entered on May 28, 1993.
This matter is now before the Court on plaintiffs’ motion to
alter or amend that judgment, Rule 59(e), Fed. R. Civ. P.,
and on plaintiffs’ objections to Magistrate Judge King’s May
24, 1993 Order denying plaintiffs’ Rule 16(f) motion for
sanctions against defendants. Rule 72, Fed. R. Civ. P.
nie pitas
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A-17
The plaintiff class consists of parolees who were
convicted of a subsequent felony while on parole, and whose
parole was subsequently revoked as a parole violator
recommissioned ["PVR"]. Plaintiffs originally claimed that
their PVR hearings failed to comport with procedural due
process. They asked that the Court declare that defendants’
PVR procedures violated plaintiffs’ procedural due process
rights, Second Amended Complaint, and enjoin defendants
from following PVR procedures violative of plaintiffs’
procedural due process rights. Jd.
During the course of this litigation, Ohio
Administrative Code ["OAC"] §5120:1-1-19(A)(1), the
former administrative regulation dealing with PVR
procedures, was repealed and OAC §5120:1-1-21 was
implemented. After evaluating this new regulation by
reference to Black v. Romano, 471 U.S. 606 (1985), this
Court concluded that OAC §5120:1-21, which divested the
Ohio Adult Parole Authority ["APA"] of all discretion
regarding the revocation of a PVR’s parole, is constitutional.
Opinion and Order of May 27, 1993. See also Sneed vy.
Donahue, 993 F.2d 1239, 1243 (6th Cir. 1993). The Court
further held that, because the procedures challenged in the
second amended complaint were no longer in effect, the case
has been rendered moot. Opinion and Order of May 27,
1993. Final judgment for defendants was entered on May
28, 1993.
Plaintiffs now seek to amend this Court’s judgment,
arguing that the application of OAC §5120:1-1-21 to
members of the plaintiff class whose parole had been revoked
under the old regulation violates the constitutional prohibition
A-18
against ex post facto laws. See Article I, Section 10, Untied
States Constitution.”°
In order to demonstrate a violation of the ex posi
facto clause contained in the United States Constitution,
plaintiffs must establish that the law at issue 1) is retroactive
in application and 2) "must disadvantage the offender
affected by it." Miller v. Florida, 482 U.S. 423, 430 (1987)
(quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)); Dale
v. Haeberlin, 878 F.2d 930, 935 (6th Cir. 1989), cert.
denied, 494 U.S. 1058 (1990). The new regulation has not
been applied to remedy any defect in the revocation
procedures followed in the past. Accordingly, defendants
have not retroactively applied OAC §5120:1-1-21 to the
subclass of plaintiffs whose parole had been earlier revoked
pursuant to former OAC §5120:1-1-19(A)(1). Defendants
cannot, and do not, argue that this subclass of plaintiffs will
be subjected to OAC §5120:1-1-21. Accordingly, plaintiffs
have failed to establish an ex post facto violation in this
action.
As this Court ruled in its Opinion and Order entered
May 27, 1993, the relevant analysis turns to whether or not
plaintiffs’ claims for relief are moot. Plaintiffs’ sole claims
for injunctive relief sought to restrain defendants from
violating plaintiffs’ procedural due process rights in the
future through the use of constitutionally infirm PVR
hearings or procedures. Plaintiffs no longer have procedural
due process rights to a meaningful hearing in connection with
PVR parole revocation proceedings in connection with
felonies committed after the effective date of the new
regulation. Accordingly, the enactment of OAC §5120:1-1-
‘3The Eleventh Amendment prevents this Court from considering
claims under Ohio’s Constitution. See Pennhurst State School and
Hospital v. Haldeman, 465 U.S. 89 (1984).
so Hobs. Palit ott Raia ee eS
BRT GR Diet EN WOR ERS Re RA Oo
A-19
21 has rendered plaintiffs’ claims for future injunctive relief
moot.
Plaintiffs assert that their claims or declaratory relief
are not rendered moot by the enactment of OAC §5120:1-1-
21. This Court disagrees. Where the plaintiffs "seek[] a
declaratory judgment as to [the Parole] Board’s past actions -
- without any substantive relief involved -- neither the
Declaratory Judgment Act standard (28 U.S.C. §2201) nor
Article III’s ’case’ or ’controversy’ requirement is satisfied."
Jackson v. Illinois Prisoner Review Board, 657 F.Supp. 823,
827 (N.D. Ill. 1987), aff'd in part and rev’d in part, 856
F.2d 890 (7th Cir. 1988) (citing Green v. Mansour, 474
U.S. 64 (1985); Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 240-41 (1937)). To hold otherwise would constitute "an
end run around habeas corpus procedures." Foster v.
Kassulke, 898 F.2d 1144, 1148 (6th Cir. 1990). Declaratory
relief evaluating the constitutionality of past procedures
would be the functional equivalent of a habeas corpus action,
and is not available in an action under 42 U.S.C. §1983.
See Preiser v. Rodriguez, 411 U.S. 475 (1973).
Plaintiffs also disagree with this Court’s rejection of
their argument that defendants "exceeded their rule-making
authority" when OAC §5120:1-1-21 was enacted. Plaintiffs’
Motion to Alter or Amend May 28, 1993 Order, p. 15. This
Court expressly held that "OAC §5120:1-1-21 is a valid
exercise of rule-making authority and serves to divest
individual APA panels of discretion whether or not to revoke
a PVR’s parole." Opinion and Order of May 27, 1993, at
12. Plaintiffs’ motion to alter or amend fails to persuade this
Court that the judgment of May 28, 1993 was entered in
error in this regard.
Finally, plaintiffs object, pursuant to Rule 72(a) of the
Federal Rules of Civil Procedure, to Magistrate Judge King’s
A-20
denial of plaintiffs’ Rule 16(f) motion for sanctions against
defendants. | Notwithstanding plaintiffs’ claims to the
contrary, this Court concludes that Magistrate Judge King’s
conclusions that the circumstances in this action do not
justify an award of fees or the preclusion of relevant
evidence is neither clearly erroneous nor contrary to law.
Accordingly, plaintiffs’ objections to Magistrate Judge King’s
May 24, 1993 Order are OVERRULED.
WHEREUPON piaintiffs’ motion to alter or amend
this Court’s judgment of May 28, 1993 is without merit, and
it is therefore DENIED. Plaintiffs’ objections to Magistrate
Judge King’s May 24, 1993 Order denying sanctions against
defendants are without merit, and they are therefore
OVERRULED.
Sandra S. Beckwith, Judge
United States District Court
A-21
FILED KENNETH J. MURPHY CLERK
93 MAY 27 PM 1:14 U.S. DISTRICT COURT
SOUTHERN DIST. OHIO EAST. DIV. COLUMBUS
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GLENN S. KELLOGG, et al.,
Plaintiffs,
Vv. Civil Action 2:90-CV-606
JOHN W. SHOEMAKER, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs, inmates whose parole has been revoked by
the Ohio Adult Parole Authority ["APA"], bring this action
on behalf of themselves and of a class of plaintiffs for
prospective declaratory and injunctive relieve pursuant to 42
U.S.C. §1983, alleging that defendants denied them
procedural due process under the Fourteenth Amendment
during the course of their final parole revocation
proceedings. This matter is now before the Court on the
parties’ cross-motions for summary judgment.
The plaintiff class is composed of parolees whose
parole has been or will be revoked because they have been
convicted of a subsequent felony committed while on parole.
Referred to by the APA as Parole Violator Recommissioned
A-22
["PVR"], each inmate was provided a final parole revocation
hearing. The regulation governing those hearings, Ohio
Administrative Code ["OAC"] §5120:1-1-19(A)(1), provided
that the subsequent felony conviction creates a conclusive
presumption that the inmate has violated his parole, and that
the scope of the final revocation hearing would be strictly
limited to the issue of mitigation.’ Plaintiffs claim that their
procedural due process rights have been abridged in several
respects by the manner in which their PVR hearings were
held. Plaintiffs and defendants have filed motions for
summary judgment.
Summary judgement is governed by Rule 56 of the
Federal Rules of Civil Procedure, which provides:
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to judgment as a matter of law.
"[T]his standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an
“OAC §5120:1-1-19(A)(1) provides:
In the event a releasee is convicted and sentenced on a
new felony under the Ohio law, it shall be conclusively
presumed that Administrative Regulation 5120: 1-1-12
[providing that all conditions of parole include a
requirement that the parolee abide by all federal, state
and local laws] has been violated. In such cases, as
applicable, the parole revocation hearing will be
confined to the determination of mitigating
circumstances.
ee
A-23
otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986) (emphasis in original); Kendall v. The Hoover Co.,
751 F.2d 171, 174 (6th Cir. 1984).
The standard to be applied by the Court on motion for
summary judgment mirrors the standard for a directed
verdict.
Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986);
Anderson, 477 U.S. at 250.
The primary difference between the two
motions is procedural; summary judgment
motions are usually made before trial and
decided on documentary evidence, while
directed verdict motions are made at trial and
decided on the evidence that has been
admitted. Bill Johnson’s Restaurants Inc. v.
NLRB, 461 U.S. 731, 745 n.11 (1983). In
essence, thought, the inquiry under each is the
same: whether the evidence presents a
sufficient disagreement to require submission
to a jury or whether it is so one-sided that one
party must prevail as a matter of law.
Id. at 251-52. Accordingly, although summary judgment
should be cautiously invoked, it is an integral part of the
Federal Rules which are designed "to secure the just, speedy
and inexpensive determination of every action." Celotex,
477 U.S. at 327 (quoting Rule 1 of the Federal Rules of
Civil Procedure).
In a motion for summary judgment the moving party
bears the "burden of showing the absence of a genuine issue
as to any material fact, and for these purposes, the [evidence
A-24
submitted] must be viewed in the light most favorable to the
opposing party.” Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970) (footnote omitted); accord, Adams v. Union
Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir. 1984),
cert. denied, 469 U.S. 1062 (1985). Inferences to be drawn
from the underlying facts contained in such materials must be
considered in the light most favorable to the party opposing
the motion. United States v. Diebold, Inc., 369 U.S. 654,
655 (1962); Watkins v. Northwestern Ohio Tractor Pullers
Association, Inc., 630 F.2d 155, 158 (6th Cir. 1980).
Additionally, "unexplained gaps” in materials submitted by
the moving party, if pertinent to material issues of fact,
justify denial of a motion for summary judgment. Adickes,
397 U.S. at 157-60; Smith v. Hudson, 600 F.2d 60, 65 (6th
Cir.), cert dismissed, 444 U.S. 986 (1979).
If the moving party meets its burden and if adequate
time for discovery has been provided, summary judgment is
appropriate if the opposing party fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 326. The mere
existence of a scintilla of evidence in support of the opposing
party’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the opposing
party. Anderson, 477 U.S. at 251 (quoting Improvement Co.
v. Munson, 14 WALL. 442, 448 (1872)). As is provided in
Fed. R. Civ. P. 56(e):
When a motion for summary judgment is
made and supported as provided in this rule,
an adverse party may not rest upon the mere
allegations or denials of his pleading, but his
response, by affidavits or as otherwise
provided in this rule, must set forth specific
facts showing that there is a genuine issue for
GF OP ee See ee ee ee ee AO, ee ae
i en ~~
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trial. If he does not respond, summary
judgment, if appropriate, shall be entered
against him.
Thus, "a party cannot rest on the allegations contained in
his...[pleadings] in opposition to a properly supported motion
for summary judgment against him." First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 259 (footnote
omitted).
The process due parolees charged with violating
conditions of their parole has changed over time. The
United States Supreme Court first held, in Morrisey v.
Brewer, 408 U.S. 471 (1972), that a parolee’s "liberty is
valuable and must be seen as within the protection of the
Fourteenth Amendment. Its termination calls for some
orderly process, however informal." /d., 408 U.S. at 482.
First, the Supreme Court held, a parolee is entitled to
prior notice and a reasonably prompt informal inquiry,
conducted by an impartial hearing officer, to determine if
there is reasonable ground to believe that the arrested parolee
has violated a parole condition. At this preliminary
revocation hearing, the parolee is entitled to present relevant
information and to question adverse witnesses unless security
considerations indicate otherwise. The neutral hearing
officer must summarize the evidence and state the reasons for
his decision. /d., 408 U.S. at 484-87.
If probable, or reasonable, cause is found to believe
that the parolee has violated one or more conditions of his
parole, the parolee is then entitled to a final revocation
proceeding before a neutral and detached hearing body. The
parolee must have been given written notice of the claimed
violations and must be advised of the evidence against him.
He may be entitled to counsel and must be afforded an
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opportunity to be heard in person and to present witnesses
and documentary evidence. He also has the right to confront
and examine adverse witnesses unless security considerations
militate against this. A written statement of the evidence
relied on and reasons for revoking parole must be provided.
id., 408 U.S. at 487-90. See also Gagnon v. Scarpelli, 411
U.S. 778 (1973) [extending the same due process protections
to persons charged with violating conditions of probation].
Thereafter, the United States Court of Appeals for the
Sixth Circuit commented that, "The automatic revocation of
parole for every parole violation, regardless of the mitigating
circumstances, clearly runs counter to the dictates of ...
Morrissey v. Brewer." Preston v. Piggman, 496 F.2d 270,
275 n.1 (1974). The Court held specifically in Moss v.
Patterson, 555 F.2d 137 (6th Cir.), cert. denied sub nom.
Kette v. Moss, 434 U.S. 873 (1977), that a final revocation
proceeding consistent with the dictates of Morrissey v.
Brewer must be afforded even parolees convicted of a
subsequent felony.
Plaintiffs in this case challenge the constitutional
sufficiency of the final revocation proceedings afforded to
PVRs in Ohio under OAC §5120:1-19(A)(1). The evidence
currently before the Court indicates that hearings held at the
correctional institution before the parole panel pursuant to
O.A.C. §5120:1-1-19(A)(1) failed to provide to PRVs notice
sufficient to enable them to marshall witnesses or other
information for presentation in mitigation. Moreover, PVRs
are denied the assistance of counsel and are not permitted to
call or to subpoena witnesses to testify on their behalf at the
final hearing. Although documentary evidence submitted in
mitigation by the PVR will ordinarily be accepted by the
parole panel, the panel does not take into account such
information in determining whether or not the PRV’s parole
status should be revoked. Finally, the parole panels exercise
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no discretion in whether or not to revoke the PVR’s parole.
In this regard, the prevailing view among state officials is
that parole panels have no discretion to take any action other
than revocation of parole until after the minimum term of
imprisonment on the new felony conviction has been served.
Defendants contend, first, that the procedures
followed under OAC §5120:1-1-19(A)(1) do not contravene
any constitutional dictates because PVRs, who are already in
custody on the new conviction, do not in fact qualify as
parolees. Accordingly, defendants argue, no action taken by
parole officials can result in the deprivation of the PVRs’
liberty. This argument is specious.
The United States Court of Appeals for the Sixth
Circuit has specifically recognized that PVRs in Ohio are
entitled to a final revocation hearing consistent with
Morrissey and Gagnon. Inmates’ Councilmatic Voice v.
Rogers, 541 F.2d 633 (6th Cir. 1976). Moreover, Moody v.
Daggett, 429 U.S. 78 (1976), made clear that a parolee’s
incarceration on an entirely new charge is not co-extensive
with the revocation of his parole. Finally, it is indisputable
that the actual result of the final parole revocation hearing is
the panel’s revocation of the PVR’s parole.
Defendants have now, however,substituted OAC
§5120:1-1-19 (A)(1) with OAC §5120:1-1-21, which
provides, in pertinent part:
(A) The Adult Parole Authority shall revoke
the release of any releasee who is recommitted
to the Department of Rehabilitation and
Correction to serve a sentence imposed upon
him by any court in Ohio for an offense he
committed while on any release granted by the
Adult Parole Authority or while serving a
period of intermediate transitional detention
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pursuant to Rule 5120-11-12 of the
Administrative Code or serving a period of
parole supervision pursuant to Rule 5120-11-
19 of the Administrative Code.
(B) This revocation shall be accomplished by
the issuance of minutes by the Adult Parole
Authority after it has been verified that the
sentence was imposed for an offense that
occurred while the prisoner was under release
status (emphasis added).
Thus, unlike former OAC §5120:1-1-19(A)(1), the currently
controlling regulation, OAC §5120-1-1-21, no longer allows
the APA any discretion as to whether or not to revoke the
parole of a PVR. The revocation is effected simply upon
verification by the APA that the PVR has been convicted of
another criminal offense committed while on parole, and the
declaration of revocation by the APA by means of the
"issuance of minutes."
In Black v. Romano, 471 U.S. 606 (1985), the United
States supreme Court distinguished statutory or regulatory
schemes that vested discretion in a parole authority in the
revocation process from those that did not:
[N]either Gagnon nor Morrissey considered a
revocation proceeding in which the factfinder
was required by law to order incarceration
upon finding that the defendant had violated a
condition or probation or parole. Instead,
those cases involved administrative
proceedings in which revocation was at the
discretion of the relevant decisionmaker.
(citations omitted). Thus, the Court’s
discussion of the importance of the informed
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exercise of discretion did not amount to a
holding that the factfinder in a revocation be
granted discretion to continue probation or
parole (emphasis added).
Id., 471 U.S. at 612. As a result, what had been perceived
to be an unconditional right to a parole revocation hearing
with certain due process safeguards now seems to turn on
whether or not discretion is reposed in the factfinder.
All of the judicial authority after Black v. Romano has
held that, if the decisionmaker retains any discretion in
determining whether or not parole should be revoked, the
procedural safeguards of Morrissey must be followed. On
the other hand, if discretion is lacking and the revocation of
parole is automatic once the fact of a subsequent conviction
is established, a parolee is afforded no further due process
safeguards and, indeed, no revocation hearing. Pickens v.
Butler, 814 F.2d 237, 239 (Sth Cir.), cert. denied, 484 U.S.
924 (1987); Alevras v. Neubert, 727 F.Supp. 852, 853-54
(D.D. N.Y. 1990); Witzke v. Withrow, 702 F.Supp. 1338,
1351 (W.D. Mich. 1988). See also United States v. Cornog,
945 F.2d 1504, 1512-13 (11th Cir. 1991). The operative
question here, then, is whether Ohio currently vests any
discretion in the parole panel in determining whether or not
a PVR’s parole will be revoked. The plaintiff class contends
that Ohio law does. Specifically, plaintiff argue that the
parole board may effectively continue parole simply "[b]y not
verifying the facts or by not issuing the minutes, or by
delaying either act, ..." Plaintiffs’ Reply to Defendants’
Memorandum Contra Plaintiff Class’ Motion for Summary
Judgment, at 12. See also United States v. Cornog, 945
F.2d 1504. However, this argument ignores the specific
language of OAC §5120:1-1-21(A), which requires that the
APA "shall revoke the release" of any parolee recommitted
to the Ohio Department of Rehabilitation and Correction to
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serve a sentence imposed upon him for an offense committed
while on parole (emphasis added.)
Plaintiffs also contend that, regardless of OAC §5120-
1-21, the APA is vested with discretion by virtue of O.R.C.
§2967.17, which provides:
The adult parole authority may,in its
discretion, grant an administrative release:'°
(A) To a parole violator serving another
felony sentence in a penal institution within or
without this state for the purpose of
consolidation of the records or where justice
would be best served;
(B) To a parole violator at large whose
case has been inactive for at least ten years
following the date of declaration of parole
violation.
An administrative release shall not be granted
except upon the concurrence of a majority of
the parole board and approval of the chief of
the adult parole authority and shall not operate
to restore the rights and privileges forfeited by
conviction as provided in section 2961.01 of
the Revised Code. Any person granted an
administrative release under this section may
subsequently apply for a commutation of
sentence for the purpose of regaining the
rights and privileges forfeited by conviction.
5" Administrative release" is defined as "a termination of
jurisdiction over a particular sentence by the [APA] for
administrative convenience." O.R.C. §2967.01 (C).
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See State v. Dean, 1986 WL 9071 (Ross Cty. App. 1986) [an
Ohio parolee was administratively released from parole
following his sentence to life imprisonment in another
state]. The statute does not vest any discretion in the APA
or its panels in connection with the revocation of a PVR’s
parole. Accordingly, OAC 15120:1-1-21, which does divest
all discretion from the APA in this regard, is not inconsistent
with this statute.
Plaintiffs also take the position that OAC 5120:1-1-21
is ineffective because it is inconsistent with Ohio statutory
law. In Ohio, an agency "may not issue rules which are
unreasonable or are in clear conflict with statutory enactment
covering the same subject matter." Carroll v. Department of
Administrative Services, 10 Ohio App. 3d, 108, 110 (1983).
Plaintiffs take the position that OAC §5120:1-1-21, which
purports to divest the APA of all discretion where the issue
of revocation of PVRs is concerned, is inconsistent with
ORC §2967.15, which provides, in pertinent part:
A convict who has been conditionally
pardoned or a prisoner who has been paroled,
and who, in the judgment of the adult parole
authority, has violated the conditions of his
pardon or parole shall be declared a violator.
In such case, the time from the date of the
declared violation of his pardon or parole to
the date he becomes available for return to the
institution shall not be counted as a part of
time or sentence served.
The Ohio APA is charged with administering all statutes
relating parole. O.R.C. §2967.02. Read together, O.R.C.
§§2969.02 and .15 reflect the General Assembly’s intent to
confer upon the APA the authority to determine those
circumstances under which a person released on parole
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should be declared a violator and returned to the institution
from which he was paroled. The statutes do not require that
individual members of the APA or that panels of the APA
exercise that discretion in each individual case. Accordingly
a regulation such as OAC §§5120:1-1-21, which expressly
articulates one circumstance under which the APA will
revoke a parolee’s parole, is not, in the judgment of this
Curt, inconsistent with ORC §2967.15.
In short, then, this Court concludes that OAC
§§5120:1-1-21 is a valid exercise of rule-making authority
and serves to divest individual APA panels of discretion in
the decision whether or not to revoke a PVR’s parole.
Because, under the new administrative regulation,
individual parole panels no longer have discretion with
respect to the revocation of the parole of any PVR, the due
process protections afforded parolees by Morrissey v. Brewer
are no longer applicable. See Pickens v. Butler, 814 F.2d
237. See also United States v. Cornog, 945 F.2d 1504 (11th
Cir. 1991); Black v. Romano, 471 U.S. 606.
Defendants contend that, with the passage of the new
regulation, the issues in this case have been rendered moot.
Plaintiffs disagree.
The second amended complaint, filed December 9,
1992, challenges the PVR revocation procedure in place at
the time the complaint was filed, alleging specifically that
that procedure violated the due process rights of the members
of the plaintiff class. Plaintiffs seek declaratory relief
declaring that the revocation procedure is unconstitutional by
virtue of the facts that that procedure fails to give members
of the plaintiff class reasonable and adequate notice of the
scheduling of the PVR hearing and of the PVRs’ rights at the
hearing, fails to provide a meaningful opportunity to present
OT ar eer OSC
A-33
evidence and argument as to mitigation, and prohibits the
exercise of discretion by the members of the Parole Board in
light of mitigating factors. Second Amended Complaint, at
6. The plaintiffs also seek preliminary and injunctive relief
restraining, prohibiting, and enjoining
Defendants from approving, implementing, or
enforcing PVR revocation procedures which
deprive Plaintiffs and all others similarly
situated of their Fourteenth Amendment due
process rights.
Second Amended Complaint, at 7. As this Court stated, in
its October 28, 1991 Opinion and Order denying the
defendants’ motion to dismiss, the plaintiff class in this
action seeks only declaratory and future injunctive relief
enjoining the defendants from following the challenged
procedures. The Court specifically noted that this action did
not, and indeed could not, challenge the lawfulness of the
current confinement of anymember of plaintiff class, because
such an attack is properly brought only in the context of a
habeas corpus action under 28 U.S.C. §2241. See Presiser
v. Rodriquez, 411 U.S. 475 (1973). Because the procedures
challenged by the second amended complaint no longer have
any force or effect in the State of Ohio, this Court concludes
that the issues joined by the second amended complaint and
the answer thereto have, by passage of OAR §5120:1-1-21,
been rendered moot. Accordingly, defendants are entitled to
judgment as a matter of law.'®
‘This determination does not, of course, impact upon the right of any
member of the plaintiff class to challenge, in a petition for a writ of
habeas corpus, the constitutionality of his current confinement under
former procedures.
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WHEREUPON plaintiffs’ motion for summary
judgment is without merit and it is therefore DENIED. The
claims asserted in the second amended complaint have been
rendered MOOT by the passage of OAR §5120:1-1-21 and,
for that reason, the defendants’ motion for summary
judgment is meritorious and it is therefore GRANTED.
The Clerk is DIRECTED to enter FINAL
JUDGMENT for the defendants.
Sandra S. Beckwith, Judge
United States District Court
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FILED
92 DEC 9 AM 9:54 U.S. DISTRICT COURT
SOUTHERN DIST. OHIO EAST. DIV. COLUMBUS
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GLENN S. KELLOGG, et al.,
Plaintiffs,
v. Civil Action 2:90-CV-606
JOHN W. SHOEMAKER, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs, inmates whose parole was revoked by the
Ohio Adult Parole Authority ["OAPA"], bring this action on
behalf of themselves and of a class of plaintiffs. Plaintiffs
seek declaratory and injunctive relief, pursuant to 42 U.S.C.
§1983, alleging that defendants denied them procedural due
process under the Fourteenth Amendment during the course
of plaintiffs’ parole revocation proceedings. This matter is
now before the Court on defendants’ motion to reconsider
this Court’s prior Opinion and Order denying their motion
for summary judgment. Opinion and Order of May 12,
1992.
Rule 54(b) of the Federal Rules of Civil Procedure
provides, in pertinent part:
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[A]ny order ... which adjudicates fewer than
all the claims or the rights and liabilities of
fewer than all the parties shall not terminate
the action as to any of the claims or parties,
and the order ... is subject to revision at any
time before entry of judgment adjudicating all
the claims and the rights and liabilities of all
the parties.
Three of the representative plaintiffs!’ in this class
action’® unsuccessfully sought relief through actions in
mandamus before the state courts prior to instituting the
present action. Defendants argue that the dismissals of the
mandamus actions serves to preclude §1983 claims asserted
by those plaintiffs in this action.
The application of the doctrine of res judicata is
determined by the effect of the prior judgment, in this case,
judgments rendered by Ohio Courts. See Marrese v.
American Academy of Orthopaedic Surgeons, 470 U.S. 373
(1985). In its Opinion and Order of May 12, 1992, this
Court held that the Ohio Supreme Court would, if confronted
with this issue, conclude that the doctrine of res judicata
does not preclude subsequent litigation when the prior action
entails a higher burden of proof. See In re Young, 58 Ohio
St. 2d 90, 92 (1979); Reynolds v. Ross County Children’s
Services Agency, 5 Ohio St. 3d 27, 30 (1983). In Ohio, an
action in mandamus requires the petitioner to establish the
"The three representative plaintiffs are: Glenn S. Kellogg, Lani R.
Smith and John Stamper.
‘’This Court also certified a class of plaintiffs in this action defined
as “all persons whose parole was, or will be, revoked by the Ohio Adult
Parole Authority through a ... parole-violator-recommissioned hearing
because they have been convicted of a new felony committed while on
parole." Opinion and Order of July 17, 1992, at 6.
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elements of the claim by a standard of clear and convincing
evidence, while the burden of proof in a §1983 action is
evidence by a preponderance. Review of Ohio authority
therefore led this Court to conclude that res judicata does not
operate to bar plaintiffs’ claims in this action.
This Court must, however, follow the precedent
provided by the United States Court of Appeals for the Sixth
Circuit. In Childs v. Van Wert County, Case No. 91-3118
(unpublished), (March 30, 1992),’ the United States Court
of Appeals for the Sixth Circuit held that the denial by the
Ohio Supreme Court of a mandamus action precludes a
federal §1983 action based on the same facts. In reaching its
decision, the Court of Appeals borrowed heavily, as did the
underlying District Court, from Seventh Circuit authority.”
The Childs panel also cited with approval Lesher v. Lavrich,
784 F.2d 193 (6th Cir. 1986).”1 The applicability of Childs
to this action is clear.
'?Although citation to unpublished opinions is disfavored in the Sixth
Circuit, See Sixth Circuit Rule 24, the similarity of the facts in the
unpublished opinion to the instant action is so great that this Court would
be remiss if it did not follow this unpublished precedent.
*The Sixth Circuit, after quoting Wozniak v. DuPage County, 845
F.2d 677 (7th Cir. 1988), held that "[w]e regard the quoted language as
a good summary of legal principles that would be no less applicable in
Ohio than in Illinois." Childs v. Van Wert County, 1992 U.S. App.
LEXIS 6297 at 16-17. The Court also cited a District Court opinion
interpreting the doctrine of res judicata in Michigan. /d., at 17-18
(quoting Falk v. State Bar of Michigan, 631 F.Supp. 1515, 1521 (W.D.
Mich. 1986)).
Lesher spoke generally of Ohio’s law of res judicata. Lesher did
not, however, involve a prior action that required a higher burden of
proof.
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Accordingly, defendants’ motion for reconsideration
iS meritorious, and it is therefore GRANTED. Defendants
are entitled to summary judgment as to named plaintiffs Glen
S. Kellogg, Lani R. Smith and John Stamper, who have
previously sought relief by way of an action in mandamus
before the Ohio courts. The remaining named plaintiffs who
have not availed themselves of an action in mandamus before
the Ohio courts, Lawrence Dessenberg, Robert Donley,
Michael Jones, Michael Karhoff, and Daniel Schreiber, are
unaffected, and may continue the instant action.
The Court notes that the second amended complaint,
leave to file which was granted on May 12, 1992, has never
been filed. The Clerk is DIRECTED to file the tendered
second amended complaint forthwith.
Sandra S. Beckwith, Judge
United States District Court
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FILED FEB 28 1995
LEONARD GREEN, CLERK
NO 93-4287
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GLENN S. KELLOGG; LANI R.
SMITH; JOHN STAMPER; LAWRENCE
DESSENBERG; ROBERT DONLEY;
MICHAEL JONES; MICHAEL KARHOFF;
DANIEL SCHREIBER, on behalf
of themselves and all others
similarly situated,
Plaintiffs-Appellants,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
JOHN W. SHOEMAKER, et al. COURT FOR THE
Defenants-Appellees SOUTHERN DISTRICTOF OHIO
BEFORE: KEITH, WELLFORD, and DAUGHTREY,
Circuit Judges.
ORDER
The parties in this case have called the court’s
attention to an inconsistency in the body of our opinion filed
January 9, 1995, by filing petitions for rehearing. Upon
consideration, we shall revise the opinion by striking
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therefrom the phrase, "and also a parole violation offense
conviction" from the first sentence of "IV. CONCLUSION,”
p. 12. We shall also strike this phrase from line three of the
Judgment in this case entered January 9, 1995. Both
petitions for rehearing are DENIED.
No. 93-4287
Kellogg v. Shoemaker
ENTERED BY ORDER OF THE COURT
LEONARD GREEN CLERK
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