Appendix — Shoemaker v. Kellogg

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

» -

«AE tie otes hones spadniali nc inatzeoin

Ss

—™

5)

4

NO. 94-1964

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

JOHN W. SHOEMAKER, ET AL.,

Petitioners,

V.

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,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

APPENDIX

Bee

al

vz 46 FEDERAL REPORTER, 3d SERIES

ing company allegedly negligently commin-

gled with lower grade mineral was adequate-

ly established fur purposes of applying mar-

ket value rule for assessing damages, in view

of publication that listed average price of

high grade mineral.

3. Shipping 131

Published market quotations of bulk

sommodities provide simple proof of market

value and damages so as to support applica-

tion of market value rule for assessing dam-

ages to cargo.

6. Shipping 131

Sales price close in time to discharge

date was sufficient to establish market value

of downgraded mineral at time it was negli-

gently commingled with high graded mineral

for purposes of applying market value rule

‘or assessing damages to shipper.

A. Carter Mills, IV, John C. Persons,

Yiontgomery, Barnett, Brown, Read, Ham-

nond & Mintz, New Orleans, LA, for appel-

ant.

Richard B. Foster, Lemle & Kelleher, New

Irleans, LA, for appellee.

Appeal from the United States District

Jourt for the Eastern District of Louisiana.

Before REAVLEY, DUNE and PARKER,

Jircult Judges.

DUHE, Circuit Judge:

Defendant Turner Marine Bulk, a New

rleans stevedore, negligently commingled

wo lots of ferrochrome that Plaintiff Miner-

is U.S. Inc. was importing for resale in the

Inited States. Mincrais had purchased 700

relric tons (MT) high grade ferrochrome

nd 1000 MT low grade ferrochrome; 250

IT high grade ferrochrome escaped damage,

nd the remaining 460 MT high grade and

ve 1000 MT low grade ferrochrome were

nomingled. None of the combined material

4 within the higher grade, and Plaintiff was

weed to downgrade 460 MT high grade

. .aterial to low grade for purposes of resale.

his appeal concerns only the issue of dam-

The district court awarded damages based

on wholesale values of the material‘ (Le.,

wholesale value of 450 MT high grade ferro-

chrome minus wholesale value of 460 MT low

grade ferrochrome), finding that Plaintiff

failed to estabiish the fair market value as

the appropriate measure of damages. Hold-

ing that Plaintiff adequately established fair

market values, we reverse and remand for

application of the market-value rule using

retail values as specified herein.

1. The Market-Value Rule.

{1,2} The market-value rule requires

that damages be calculated using market val-

ues al the time the cargo is discharged.

Such a damage award places the injured

cargo owner in the same position it was in

before the damage. The market-value rule

makes the cargo claimant whole by awarding

him the difference between the fair market

value of the undamaged cargo and the fair

market value of the cargo as damaged on the

date of discharge at the port of destination.

Cook Indus., Inc. v. Burge UM-308, 622 F.2d

851, 864 (6th Cir.1980).

{3} Nothing in Jllinois Central Railroad

v. Crail compels use of the wholesale price

rather than retail. See Illinois Cent. R.R. v.

Crail, 281 U.S. 67, 64-66, 60 S.Ct. 180, 181,

74 L.Ed. 699 (1930) (“The market-value

rule} may be discarded and other more accu-

rate means [to measure the loss} resorted to,

if, for special reasons, it is not exact or

otherwise not applicable.”) (awarding whole-

sale value of lost shipment). Jdlinvis Central

was a shortage-in-delivery case, not a dam-

aged-goods case; where cargo is downgraded

but not completely destroyed, this Court has

held the market-value rule to be both a con-

venient and accurate means of measuring

damages. Cook Indus., 622 F.2d at 855-66.

We hold the rule provides an accurate mea-

sure of damages in this case as well.

A. Fair Market Value of Undamaged

Cargo.

(4,6) In June 1990, when the shipment

was discharged in New Orleans, the average

market price of high grade ferrochrome was

$1.16 per pound of contained chromium, ac-

cording to Metals Week (a weckly publica-

tion), which was found by the district court to

be the most reliable evidence of the market

KELLUGGE y, SHUb MANIA

Cite 00 46 F.3d S03 (6th Clr. 1995)

price. Published market quotations of bulk

commodities provide simple proof of market

value and damages so as to support applica-

tion of the market-value rule. See 2 Thomas

J. Schoenbaum, Admiralty and Maritime

Law § 10-36 (2d ed. 1994); see also Amstar

Corp. v. M/V ALEXANDROS T., 472

F.Supp. 1289, 1294 (D.Md.1979), aff'd, G64

F.2d 904 (4th Cir.1981). Further, Mineraia’

retail sales price in August 1990 corroborated

Metals Week by establishing $1.16 per pound

of chromiurn as the retail price. The marke’

value of high grade ferrochrome at the time

of the arrival of the shipment was thus ade-

quately established at $1.16 per pound of

chromium.

: B. Fair Market Value of Cargo as Dam-

aged.

The 460 MT damaged cargo after com-

mingling was indistinguishable from the 1000

MT low grade ferrochrome with which it was

mixed. Metals Week did not list a price fur

low grade ferrochrome al the time of dis-

charge of the shipment, because there was no

established market for it at the time. Miner-

ais ordered the low grade to test the market

for it. Minerais sold the 1460 MT low grade

product in varying quantities over several

months and the price varied over those few

months. The district court declined to rely

on a retail price in part because of the declin-

ing market and in part because it was un-

clear which resale accounted for the 460 MT

downgraded material.

16] We hold that the sales price close in

time to the discharge date is nevertheless

aufficient to establish tne inarket value of the

downgraded product at the time of discharge.

Some of the low grade material soki at $.99

per pound chromium in June and July 1990

as shown by two invoices (for sales of 160

MT and 400 MT). ‘These contemporancous

sales provide sufficient evidence from which

to apply the market-value rule. See Slan-

dant Oil Co. v. Southern Pac. Co, 268 US.

146, 166, 46 S.Ct. 466, 466-67, 69 Led. 890

(1926) (recognizing “contemporaneous sales

of like property in the way of ordinary busi-

ness” as one manner of establishing market

value); of Holden v. SS. Kendall Fish, 396

F.2d 910, 913 (6th Cir.1968) (requiring that

damages be calculated at the time of deliv-

ery, because the carrier “ig not and should

not be the guarantor of the ups and downs of

com... ity prices”).

We have no reason to factor in the varying

prices of low grade ferrochrome over the

ensuing months. Regardless of the fact that

Plaintiff intended to introduce only 8 liunited

quantity of low grade ferrochrome into the

United States market, the sale of 660 MT low

grade product for $.99 per pound chromium

near the time of delivery provides adequate

proof of the fair market value of all of the

downgraded product (only 460 MT) at the

time of discharge.

Il. Conclusion.

Applying the general measure of the ship-

per'’s recovery, ie, the difference in market

values before and after damage to the dam-

aged cargo, will accurately compensate Plain-

tiff. Plaintiff having provided sufficient evi-

dence of fair market values of both high and

low grade ferrochrome at the time of deliv-

ery, we remand for calculation of damages

under the market-value rule using the June

1990 retail values.

REVERSED and REMANDED.

A-1

Glenn S. KELLOGG; Lani R. Smith;

Lawrence Dessenberg; John Stamper;

Michael Jones; Robert Donley; Daniel

Schreiber; and Michael Karhoff, on be-

half of themselves and all others simi-

larly situated, Plaintiffs-Appellants,

v.

John W. SHOEMAKER, et al.,

Defendants-Appellees.

No. 93-1287.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 13, 1994.

Decided Jan. 9, 1996.

As Revised on Denial of Rehearing

Feb. 28, 1996.

Prison inmates challenged constitutional-

ity of new Ohio Parole Revocation proce-

504

dures. The United States District Court for

the Southern District of Ohio, Sandra S.

Beckwith, J., granted summary judgment for

Parole Authority afer Authority amended

regulation and held that new policy rendered

challenges moot. Appeal was taken. The

Court of Appeals, Wellford, Circuit Judge,

held that: (1) challenge to conatitutionality of

Ohio's new parole procedures was not moot

where Parole Authority had substituted new

procedure on eve of adjudication; (2) Parole

Authority had power to address by means of

administrative role cases in which parolee

had been convicted of another felony while on

parole; and (3) new state parole regulations

which eliminated parolee’s right to individual

hearing where parole was convicted of felony

while on parole could not be applied to parol-

ees who committed initial crime before new

regulations came inw effect.

Affirmed in part; reversed and remand-

ed in part.

1. Federal Courts 13.16

Challenge to constitutionality of Ohio's

new parole procedures was not moot where

Parole Authority had substituted new proce-

dure on eve of adjudication of challenge to

old procedure. 42 U.S.C.A. § 1983; Ohio

Admin.Code § 6120:1-1-12.

2. Federal Courts 13.15

Fur purposes of determining whether

action is moot, Parole Authority may not

abort or delay constitutions! review of parole

procedures by substitution of new procedure

on eve of adjudication.

3. Pardon and Parole 65.1, 69

Ohio Parole Authority had power to ad-

minister all statutes relating to parole, in-

cluding the power to determine whether con-

vict had violated parole. Ohio KC.

§§ 2967.02, 2967.16.

4. Pardon and Parole 86

Uhio statute requiring that parolee be

given individual parole revocation hearing

when parole officer has begun revocation

hearing on his own initiation does not apply

when basis for parole revocation is subse-

quent conviction. Ohio R.C, § 2067.16.

46 FEDERAL REPORTER, 3d SERIES

6. Pardon and Parole €71, 86 “$0

State Parole Authority can declare thai

parolee who has been convicted of subse-

quent violation while on parole is in violation

of parole either by means of adininistrative

rule or through individual hearing. Ohio

R.C. § 2967.16. :

6. Pardon and Parole ¢71, 86 .

State Parole Authority has power to ad-

dress cases in which parolee has been con-

victed of another felony while on parole by

means of administrative rule, rather than

individual hearing, which includes power to

find that no mitigating circumstances would

overcome subsequent conviction of another |

felony committed while on parole so that

individual hearing is not necessary. Ohio

R.C. § 2967.16.

7. Pardon and Parole 72.1, 86

Parole Authority does not have to have

discretion as to whether to revoke parolee’s

parole status, but, if it has that discretion,

revocation hearing is required.

8. Constitutional Law 272.5

Pardon and Parole 86, 90

Ohio parole procedures which did not -

allow individual hearing for parolees once

subsequent parole violation conviction is es-

tablished and which did not allow parole

agency to consider further mitigating factors

was constitutional and did not violate parol-

ee’s due process rights. U.S.C.A. Const.

Amends. 6, 14.

9. Constitutional Law 199 :

To establish ex post facto violation,

plaintiffs must show that regulation at issue

is retroactive in its application and will disad-

vantage offender affected by it. US.CA

Const. Art. 1, §§ 9, cl. 3, 10, cl. 1.

10. Constitutional Law 199

Focus in determining whether new law

violates cx post facto clause ia time that

offense was committed. U.S.C.A. Const. Art

i, §§ 9, cl. 3, 10, cl. 1.

11. Constitutional Law <—199

Change in law that alters substantial

right can be cx post facto even if statute

KELLOGG v. SHOEMAKER

Cite 00 46 F.3d 503 (6th Cle. 1995)

‘takes geemingly procedural form. U.S.C.A.

Const. Art. 1, $§ 9, cl. 3, 10, cl. 1.

12. Constitutional Law ¢203

Pardon and Parole 86

For purposes of determining whether

new state parole procedures violated ex post

facto clause, fact Uhat change in right to

hearing on revocation of parole involved pro-

* eedural matter did not change fact that new

law affected substantive rights attendant to

1 parole revocation, so that ex post facto viola-

tion was possible. U.S.C.A. Const. Art. 1,

$§ 9, cl. 3, 10, el. 1.

13. Constitutional Law 203

Pardon and Parole 86

Although new state parole regulations

affected parolce’s substantive rights by

changing entitlement to individual revocation

hearing, regulations were nol ex post facto

violation as to inmates whose paroles were

revoked after hearing under old regulations

or as to those who committed initial crime

afler date of enactment. U.S.C.A. Const.

Art. 1, §§ 9, cl. 3, 10, cl. 1.

4. Pardon and Parole €86

New state parole regulations which elim-

inated parolee’s right to individual hearing

where parolee was convicted of felony while

on parole could not be applied to parolees

who committed initial crime before new regu-

lations came into effect but whose parole

revocation proceedings would occur after

Md

new procedures were to take effect.

Kenneth R. Spiert (argued and briefed),

Public Defender’s office, Ohio Public Defend-

er Com'n, Columbus, OH, for plaintiffs-appel-

lants.

Donald A. Catakdi (briefed) and Charles L.

Wille (argued), Office of the Atty. Gen. of

Ohio, Columbus, OU, for defendant-appellee.

Before: KEITH, WELLEORD, and

DAUGHTREY, Circuit Judges.

1. Kellogg's probation had been revoked after he

was convicted of new felonies (Atternpted Grand

Theft, Possession of Criminal Tools, Urcaking

and Entering, and Drug Abuse with prior diug

law conviction) while on parole.

WELLFORD, Circuit Judge.

Glenn S. Kellogg (“Kellogg”), an Ohio pris-

on inmate, initiated a 42 U.S.C. § 1983 class

action suit in 1990 seeking declaratory and

injunctive relief with respect to certain Ohio

parole revocation procedures.

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 tw include

“all persons whose parole was, or will be,

revoked by the Ohio Adult Parole Authority

through a so-called parole-violator recommis-

sioned hearing because they have been con-

victed of a new felony committed while on

parole.”

The provisions of Ohio law now under at-

tack are the new “emergency” provisions

that the Ohio Adult Parole Authority (“agen-

cy”) enacted effective September 1, 1992.

Originally, the class brought its action

against the older repealed provisions, which

were discretionary and woukl have required

Ohio to provide parolees with a “meaningful”

hearing prior to revoking their parole? Un-

der these old regulations, a parolee convicted

of a subsequent crime in Vhio, 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 Morrissey v. Brewer, 408 US. 471, 92

S.CL 2693, 33 L.d.2d 444 (1972), required.

The district court agreed with their argu-

ment, holding that the parolees did not re-

ceive sufficient notice, were denied the assis-

2. Section 5120:1-1-1%1) provided “In the

event a releasce is convicted and sentenced on 8

new felony under Ohio law, it shall be conclu-

sively presumed that Administrative Regulation

5120:1-1-12 has been violated.”

mrtensani testi tees i iieiienaietcsee

vU0

tance of counsel, and were nut permitted to

call or to subpocna witnesses.

The agency then repealed the old regula-

tions and inplemented 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 Authori-

ty....” There would no longer be a hearing

to determine mitigating circumstances sur-

rounding the revocation. The only process

the parolees would receive would be the pa-

role authority's verification “that the sen-

lence was imposed for an offense that oc-

curred while the prisoner was under release

status.”

The agency revised the parole procedures

to eliminate any agency's discretion in decid-

ing whether to revoke parole. See Black v.

Romano, 471 US. 606, 106 S.Ct. 2264, 86

L..Bd.2d 636 (1986), which had indicated that

the hearing procedures required in Morris-

sey were applicable only if the parole board

exercised discretion in revoking parole. See

also Sneed v. Donahue, 993 F.2d 1239 (6th

Cir.1994); Harrison v. Parke, 1990 WL

170428 (Gth 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 ren-

dered the plaintiffs’ challenges moot. The

district court refused lo amend its Judgment

and refused to grant plaintiffs any relief.

The dintrict court discussed rejecting the

merits of the plaintiffs’ constitutional chal-

lenges to the new regulations.

Plaintiffs appeal in order to challenge the

district court's holding that the change in the

parole procedures rendered the plaintiffs’

constitutional challenges moot. Plaintiffs

contend that the agency violated its rule-

making powers hy adopting the new proce-

dures, Vlaintiffs also argue that thia court

shoukl 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

3. Wt is apparent that the changes in the parole

procedure rendered the plaintiffs’ challenges to

46 FEVEKAL KEPORTER, 3d SERIES MS

conatitutionality of the new regulations, arg

ing that the change of the parole procedurd

in this respect constitutes a violation of Ue

ex post facto clause. ve

1. JURISDICTION AND STANDARD ,

OF REVIEW >

We have jurisdiction over this appeal pur

suant to 28 U.S.C. § 1291 since there is as

appeal from a final order of the district court '

The appropriate standard of review is d,

novo because the appeal concerns issues of |

law. 4

Il. MOOTNESS

There is some confusion as to whether the

district court held that the plaintiffs’ constl-

tutional challenges to the new procedures

were moot. The district court discussed the

constitutional merits of the plaintiffs’ argu-

ments, 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 § 6120:1-1-21 to members of the .

plaintiff class whose parole had been re

voked under the old regulation violates the

constitutional prohibition against ez 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 lo restrain defendants from violat

ing 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 lo a mean-

ingful hearing in connection with felonies

committed after the effective date of the

new regulation. Accordingly, the enact

ment of OAC § 120:1-1-21 has rendered

plaintiffs’ claims for fulure injunctive relief

moot.

{1} The plaintiffs do not contest the

mootness of their challenges to the original

procedures.’ Plaintiffs argue, however, that

the miginal procechwcs movot. There is no need

for this court to issue an injunction when the

KELLOGG v. SHURMAKEK

vU/

Che 20 46 F.3d S03 (6th Cle, 1993)

con-

“We note that considerable controversy sur-

rounds the mootness doctrine after Honig v.

Doe, 484 U.S. 306, 108 S.Ct. 692, 98 L.Kd.2d

686 (19838).

mootneas doctrine is fundamentally tied to

the case and controversy language of Article

lil, and, therefore, the court may only re-

view if there is a justiciable issue. Another

‘ew is that the mootness doctrine is more

flexible, and may be used to accomplish pru-

dential concerns to avoid the squandering of

judicial resources after the decisional process

ls underway. See Corey C. Watson, Moot-

ness and the Constitution, 86 Nw.U.L.Rev.

at 143.

’* 12) Under either rationale, the plaintiffs’

challenge to the new procedures are not

One rationale holds that the

moot. The parole authority may not be al-

lowed 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 con-

cerns about the regulations’ constitutionality

as applied to offenses which occurred prior to

the date of the amendment.

iM. DISCUSSION

A. Whether the agency violated its rule-

making authority by adopling the new

parole revocation procedures?

The plaintiffs make two arguments in this

respect. First, the plaintiffs argue that pa-

role authority only has power to make ad-

ministrative rules and not broad legislative

policy rules. Second, the plainulfs argue

parole board has voluntarily changed its alleged-

ly unconstitutional practices. See Cottm v

Mansour, 863 F.2d 1241, 1244-45 (oth Cir. 1988),

cert. demed, 493 US. 1042, 110 S.Ct. 835, 107

L.Fd.2d 831 (1990) (refusing to enjoin a social

service agency's calculation of foud stamp cligi-

bility after the agency changed its practice to

comply with federal regulations because " hes c

was simply no ongoing violation ... to enjom ».

See also Corey C. Watson, Comment, Mootness

that even if the parole authority has the

power to make broad policy rules, the new

regulations conflict with Ohio statutes.

{3} The plaintiffs’ first argument is una-

vailing. The Ohio parole authority is

charged with administering all statutes relat-

ing to parole, are O.1C. § 2967.02, inchuling

determining whether a convict has violated

parole. O.R.C. § 2967.16. The parole au-

thority has a long history of making regula-

tions governing parole revocation. It should

be noted that the plaintiffs did not contest

the authority’s power to issue the old regula-

tions; they only challenged the application

of the old regulations, arguing that a hearing

to present mitigating circumstances was not

a “meaningful hearing.”

14] Second, plaintiffs argue that the new

parole revocation procedures are inconsistent

with § 2067.16 of the Ohio Code, which re-

quires that a parvlee be given an individual

parole revocation hearing when a parvle offi-

cer 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 revoca-

tion 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.

15,6] The legislature has not specifically

required an individual hearing when the ba-

sis 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 authonty,

has violated the condition of his pardon or

parole shall be declared a violator.” O.RC.

§ 2067.16. ‘Thus, the agency can “declare” a

parolee to have been convicted of a subse-

and the Constitution, 86 Nw UT Rew 143, 147

(1991). Any remedy that a member of the class

has for the unconstitutional appheation of the old

parole procedures must, in the future, be ob-

tained through habces corpus.

4. The parole authority docs conduct an individu-

al hearing in these circumstances.

508

quent violation while on a parole to be a

“violator” either by administrative ruie or

through an individual hearing. The agency

has chosen to address these cases by admin-

istrative rule, which is logical as those parol-

ees who have been convicted of another felo-

ny 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 over-

come a subsequent conviction of another felo-

ny committed while on parole; thus, an indi-

vidual 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 plaintiffe’ conten-

tions in this regard.

B. Whether this court should reconsider

ite decision in Sneed v. Donahue.

Alternatively, plaintiffs ask us to reconsid-

er our decision in Sneed v. Donahue, 993

F.2d 1239 (6th Cir.1993), in which we upheld

the constitulionality of the Kentucky Parole

statutes that eliminated any hearing on pa-

role 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 cach statute climinates

agency discretion and directs revocation

when a parolee has been convicted of a sub-

sequent vielation while on parole.

{7} We hekl in Sneed that the paroice

“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. Brew-

er, 408 ULS. 471, 92 S.Ct. 2595, 34 L.Bd.2d

484 (1972) | clearly instructed that the pur-

pose of a final revocation hearing is to give

the parolee an opportunity lo present facts

challenging the determination that he has

violated a condition of parole and lo pres-

ent all circumstances syrrounding the vio-

5. Even under the old scgulations, the parolce did

not receive an individual hearing on cvery issue,

because he was conchisively presumed to be a

perole violator if he had been convicted of anoth-

46 FEDERAL REPORTER, 3d SERIES

lation to the parole authority so that it may

exercise its discretion in a fully informed

manner. In this case, however, a revoca-

tion hearing would serve no such purposes.

it is undisputed that Sneed violated a con-

dition of his parole and has met all the

factual predicates required by Ky.Rev.

Stat. § 439.362 before that section can be

applied to him. In addition, it would be

pointless for him to present mitigating cir-

cumstances te the Board since the Board

has no discretion in determining whether

to revoke his parole status... .

Sneed, 993 F.2d at 1243 (emphasis in origi-

nal). Our conclusion in Sneed is supported

by Black v. Romano, 471 U.S. 606, 612, 106

S.Ct. 2264, 2268, 86 L.Ed.2d 636 (1986), in

which the Supreme Court stated that

{njeither Gagnon |v. Scurpelli, 411 US.

778, 93 S.Ct. 1766, 36 L.ed.2d 666 (1973) )

nor Morrissey considered a revocation pro-

ceeding in which the factfinder was _re-

quired by law to order incarceration upon

finding that the defendant had violated a

condition of probation or parole. /nstlead,

those cases involved administrative pro-

ceedings in which revocation was al the

discretion of the relevant decision maker.

Thus, the Court's discussion of the impor-

tance of the informed exercise of discretion

did not amount to a holding that the fact

finder in a revocation proceeding must, as

a matter of due process, be granted discre-

tion to continue probation or parole.

Thus, Black teaches that Morrissey does not

require that a parole authority be given dis-

cretion regarding when to revoke a parolee’

parole status; rather, it simply requires that

when such discretion is given, a revocation

hearing is required. Sneed, 993 F.2d at

1243, 1244.

18} As pointed out also in Sneed, two

other courts have reached this same result:

United States v. Cornog, 46 F.2d 1604 (ith

Cir. 1991); Pickens v. Butler, 814 F.2d 237

(bth Cir.), cert. denied, 484 U.S. 924, 108

S.Ct. 284, 98 L.ed.2d 246 (1987). We have

no occasion (or authority) to revisit Sneed,

ev fclony while on parole. ‘the only issuc si the

heaing was whether mitigating circumstances

warranted leniency in revoking his parole.

KELLOGG v. SHOEMAKER

509

Cite a0 46 F.3d $03 (6th Cir. 1995)

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 proce-

dure would apply to all situations in which a

party or parolee was convicted of an offense

after September 1, 1992.

C. Whether the new parole regulations

violate the ex post facto clause of the

United States Constitution.

{9} As to the ex post facto challenge, we

have considered this challenge in two non-

binding parole guideline cases: Persky v.

Edwards, 1986 WL 16764 at °3 (6th Cir.);

Ruip v. United States, 656 F.2d 1331, 1336

(6th Cir.1977). This case, by contrast, in-

volves binding regulations that are mandato-

ry after September 1, 1992, and eliminates

any discretion in the parole agency to consid-

er mitigating circumstances. To catablish

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, 107 S.Ct.

2446, 2461, 96 L.Ed.2d 361 (1987) (quoting

Weaver v. Graham, 460 U.S. 24, 29, 101 S.Ct.

960, 964, 67 L.Ed.2d 17 (1981)). See also

Dale v. Haeberlin, 878 F.2d 930, 936 (6th

Cir.1989), cert. denied, 494 U.S. 1068, 110

S.Ct. 1628, 108 L.Ed.2d 767 (1990). In this

case, the agency action in amending the per-

tinent regulation has the same effect as legis-

lation for the purpose of ex post facto consid-

eration.

{10} The focus in determining whether a

new law violates the ex post facto clause is

the time the offense was committed. Weav-

er, 460 U.S. at 31, 101 S.Ct. at 966. See also

Persky v. Edwands, 1986 WL 16764 (6th Cir.)

(quoting Forman v. McCall, 109 F.2d 862,

869 Ghd Cir.1983)) (Ut 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 lime

of the offense for which a person is being

punished.”), Rodriguez v. United States Pa-

role Comm'n, 694 F.2d 170, 176 (7th Cir.

1979) (“{A}ithough parole eligibility is deter-

mined 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.”).

{11] Next we look to whether the new

regulations are more onerous than the regu-

lations in effect at the time this subclass

committed their initial crime. The defen-

dants, relying on Dobbert v. Florida, 432

U.S. 282, 97 S.Ct. 2290, 63 L.Ed2d 344

(1977), argue that the change is merely a

procedural change, and does not affect the

substantive rights of the plaintiff class. See

Dobbert, 432 U.S. at 293, 97 S.Ct at 2298

(“Even though it may work to the disadvan-

tage 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 substantia! right can be ex pont

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 matler—

the right to a hearing on revocation of pa-

role—it still affects substantive rights attend-

ant to parole revocation. Under the old reg-

ulations, parole would be revoked for the full

amount of time unless the inmate could con-

vince the parole authority that mitigating

circumstances warranted mercy. Under the

new procedures, there is no opportunity to

present these mitigaling circumstances.

This procedural change affects substantive

rights.

{12-14} 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 defined

broadly to include: “all persons whose parole

was, or will be, revoked hy 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 te 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

A-4

610

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 came into effect but whose

parole revocation proceedings will be gov-

erned by the new regulations.’ The new

regulations are retronctive 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 Morrissey v. Brewer, 408 U.S.

471, 92 S.Ct. 2693, 33 L.Ed.2d 484 (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 Injunc-

tive relief.

IV. CONCLUSION

In summary, we AFFIRM the district

court in all respects, except as to those pris-

oners, if any, who committed initial offenses

prior to September 1, 1992, but whose parole

revocation procedures will be governed by

the new regulations. Likewise, we RE-

MAND the ez 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.

C=

6. We use the term “Initial crime” to refer to the

crime from which the inmate has been paroled.

Mt docs not teler to the subsequent violation

while on parole. é

7. The district count concluded that the “defen.

dants t:ave mot retroactively applicd (the new

regulations) to the subclass of plaintiffs whose

parole had been carlicr revoked....”

46 FEDERAL REPORTER, 3d SERIES

a

David Lee BOYES, Plainiiff-Appellant;!

“ff

” Te]

SECRETARY OF HEALTH ~~“)

AND HUMAN SERVICES, ° "4

Defendant-Appelice. ‘ee

No. 93-4012. al

United States Court of Appeals, 4

Sixth Circuit.

Argued Nov. 18, 1994. val

ae

Decided Dec. 13, 1994. | ny

|

my

Mentally impaired social security disabil- .

ity and supplemental security income (SSI)

claimant filed complaint challenging final de *

cision of Secretary of Health and Human :

Services denying benefits. The United

States District Court, Northern District of

Ohio, John M. Manos, J., affirmed Secre-

tary's decision, and claimant appealed. The

Court of Appeals, Suhrheinrich, Circuit

Judge, held that: (1) claimant's past relevant .

work as roadside rest cleaner was not “sub

stantial guinful activity,” given special condi-

tions under which he performed his work,

and (2) administrative res judicata did not

bar claimant from challenging prior determi-

nation that his roadside maintenance work

constituted substantial gainful activity.

Reversed and remanded.

1. Social Security and Public Welfare

© 143.40 '

Claimant bears burden of proving his

entitlement to social security disability and

supplemental security income (SSI) benefits.

~ Sucial Security Act, § 206(g), as amended, 42

U.S.C.A. § 406(y).

8. At oral argument, the Uhio Attorncy General's

office stated that there had been no such actions

taken.

* this decision was originally issucd as an “unpub-

lished decision” filed on December 13, 1994

On January 18, 1995, the court designated the

op:nion as one recommended for full-text publi-

cation. "

BOYES v. SECRETARY OF HEALTH AND HUMAN SERVICES

bil

Cite as 46 F.3d SIO (6th Cle. 1994)

2:Social Security and Public Welfare

Qi € 143.76

* Social security disability and supplemen-

- lal security income (SSI) claimant's past rele-

vant work as roadside rest cleancr was not

Peubstantial gainful activity,” given special

conditions under which he performed his

work; adult services director at workshop

purported that claimant's productivity was

less than one half that of typical nonimpaired

person, and claimant relied on special trans-

portation to get to and from work and com-

pleted his work duties through constant on-

site supervision. Social Security Administra-

tion Regulations, 20 C.F.R. §§ 404.162Qe),

404.1673(b, c), 42 US.CAApp.;; 20 C.F.R.

» § 416.920(e).

2"Administrative Law and Procedure

" "e601

, Social Security and Public Welfare

142.20

¥

| Administrative res judicata did not bar

social security disability and supplemental

security income (SSI) claimant from chal-

lenging prior determination that his prior

' poadside maintenance work constituted “sub-

slantial gainful activity”; record showed that

1 ALJ reopened merits of that decision in re-

viewing benefits clair.

Marcia W. Margolius (argued and briefed),

. Brown & Margolius, Cleveland, OH, for

plaintiff-appellant.

Kent W. ‘Penhallurick, Asst. U.S. Alty.,

, Cleveland, OH (argued and briefed), for de-

fendant-appcllee.

Before: KENNEDY and

SUHRHEINRICH, Circuit Judges; and

ZATKOFF, District Judge.**

SUHRUEINRICH, Circuit Judge.

David Boyes appeals the district court’s

judgment affirming the Secretary's find de-

cision denying Boyes’ application for disabili-

ly insurance benefits and supplemental secu-

rily income (SSI) under the Social Security

Act. For the following reasons, we RE-

**The Honorable Lawrence P. Zatkolf, United

States District Judge for the Eastern District of

VERSE and REMAND for an award of

benefits.

Boyes received disabled child's insurance

benefits because of a mental impairment (full

scale 1Q of 69) based on a May 10, 1976

application. In May of 1974, Boyes entered

a sheltered workshop, and after the Secre-

tary determined in May 1986 that his work

as a roadside rest cleaner constituted sub-

stantial gainful activity, the benefits were

terminated. The termination letter indicated

that Boyes’ earnings exceeded the $300 per

month level presumed to indicate substantial

gainful activity. See 2 CFR.

§ 404.1574(b\X2Xvi). Boyes never sought re-

view of this determination.

In January 1989, Boyes filed for SSI, dis-

abled child's benefits and disability insurance

benefits. He alleged disability since June

1988, based on mental impairment. The Sec-

retary denied all three applications on May 8,

1989. Boyes failed to seck review; however,

in September 1989, he filed second ayplica-

tions for disability insurance benefits and

SSI. Boyes alleged that he became unable

to work on May 10, 1989 («disability insurance

applications), and August 29, 1989 (SSI appli-

cation), because of mild mental retardation

and health problems, including tracheobron-

chitis, hiatal hernia and a hole in his heart.

The applications were denied, and Boyes

filed a complaint in district court. The dis-

trict court affirmed the Secretary's decision.

Boyes contends that the district court

erred because the evidence was insufficient

to show he possessed the residual functional

capacity lo engage in employment at a com-

petitive level. Accoriding w Boyes, his past

relevant work did not constilute substantial

gainful activity. Therefore, he asserts his

burden of proving an entitlement to benefits

has been fulfilled.

{1} On review, the Secretary's factual

findings are conclusive when supported by

Michigan, sitting by designation.

NO. 93-4287

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GLENN S. KELLOGG; LANI R. ) FILED

SMITH; JOHN STAMPER; LAWRENCE) FEB 2 8 1995

DESSENBERG; ROBERT DONLEY; )

MICHAEL JONES; MICHAEL KARHOFF; )

DANIEL SCHREIBER, on behalf ) LEONARD GREEN, Clerk

of themselves and all others )

similarly simated, )

)

Plaintiffs-Appellants, )

)

v. ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

JOHN W. SHOEMAKER, ET AL., ) COURT FOR THE SOUTHERN

) DISTRICT OF OHIO

)

Defendants-Appellees.

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 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 Page 2

Kellogg v. Shoemaker

ENTERED BY ORDER OF THE COURT

CLERK iF

IN THE UNITED STATES DISTRICT COURT

} shored ____ POR THE SOUTHERN DISTRICT OF OHIO

poke bar BASTERN DIVISION

GLENN 8. KELLOGG, et al.,

Plaintiffs,

vs. Civil Action 2:90-CV-606

JOEN W. SHOEMAKER, et al.,

Defendants.

OPINION AND OCROER

|

Plaintiffs, inmates whose parcle has been revoked fv the

> =

.

@)

Tr

'

oO

ld

n

f

’ 4

ct

dd

fu

M4

ry)

' 4

©

yy

uthority ("APA"), bring this action on behal¢ of

tne=selives anc of a class cf plaintiffs fer prospective decl.ratory

anc injunctive relief pursuant to 42 U.S.C. §1983, allegirs that

Celer.iants denied then procedural due process under the Fourteenth

Amenc=ment curing the ccurse of their final parole revecation

Pprsceecings. This matter is now before the Court on the parties’

crcess-=actions for summary judgment.

The plaintiff class is composed of parolees whose parcle

a has been or will be revoked because they have been convicted of a

subsequent felcny committed while on parole. Referred to by the

APA as Parole Vioclatcr Recommissioned ["PVR"], each inmate was

prsoviced a final parole revocation hearing. The regulation

governing those hearings, Ohio Administrative Code ["OAC"] §512C:1-

? 1-19(A) (1), provided that the subsequent felony conviction creates

a conclusive presumption that the inmate has violated his parole,

anc that the scope of the final revocation hearing would be

A

strictly limited to the issue cf mitigation.’ Plaintiffs clain

that their procedural due process rights have been abricged in

several respects by the manner in which their FVR hearings were

helc. Plaintiffs and defendants have filed motions for summary

jucégment.

Summary judgement is governed by Rule 56 of the Federal

Rules of Civil Procedure, which provides:

The judomen sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on

file, tesether with the affidavits, if any,

show that there is no genuine issue as to any

material facz and that the moving party is

*%

entitled to judgment as a matter of law. «

[Tjhis standard prevides that the mere existence of some alleged

fac=zual Cispute between the parties will not defeat an otherwise

prssrerly supported section for summary judoment; the resuirezent is

there be no cenuine issue of material fact." Andexrssn v.

Litexscy ILebkv. Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original); Kendall v. The Heever Co., 751 F.2d 171, 174 (6h Cir.

The standard to be applied by the Csurt on meticn for

- 4a ae

—_—

Scxcmary judgment mirrors the standard for a directed verdict.

TOAC §5120:1-1-19(A) (1) provides:

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

(previding that all the conditions of parcle include a

requirement that the paroclee 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 Getermination of mitigating

ircu=stances.

See eee

——

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson, 477

U.S. at 250.

The primary difference between the two moticns

is procedural; summary judsment 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

; \ v. NLRB, 461 U.S.

731, 745 n.11 (1983). In essence, though, 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-siced that one party must prevail as a

matter of law.

Zs. at 251-52. Accordingly, althcush summary judgment should be

cauticusly invoked, it is an integral part of the Federal Rules

which are designee "to secure the just, speedy and inexsensive

Geteraination of every action." Celetex, 477 U.S. at 327 (quoting

Rule 1 of the Federal Rules of Civil Procedure).

In a meticn for summary judgment the moving party bears

tne "Burcen of shewing the absence of a genuine issue as ts any

material fact, and for these purpeses, the (evidence submitted]

must be viewed in the light most favorable to the opposing party."

ickes v. $.H. Kress & Co., 398 U.S. 144, 157 (1970) (footnete

cmittec); accors, Agams 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 cppesing the motion. United States v. Diebold, Inc., 369

U.S. 654, 655 (1962); Watkins v. hwes* ; sller

cciati > @30. 0.20 3458, 3356 (6th Gir. 3990).

3

A-10

Acditionally, "unexplained gaps" in materials submitted by the

meving party, if pertinent to material issues of fact, justify

Genial of a motion for summary judgment. Adickes, 398 U.S. at 157-

60; Smith v. Hudssn, 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

Suprcrt of the opssesing party’s position will Be insufficient;

there must be evicence on which the jury could reasonably find for

the cropcsing party. Anderssn, 477 U.S. at 251 (qucting Improvement

¢. v. Munson, 14 WALL. 442, 448 (1872)). As is provided in Fed.

R. Csv. BP. SéCe@):

When a ncticn fcr 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 thi

rule, must set forth specific facts showings

that there is a genuine issue for trial. If

he does net so respond, summary judgment, if

ppropriate, shall be entered against hin.

Thus, "a party cannot rest on the allegations contained in his ...

(pleadings] in cppeosition to a properly supported motion for

Su=mary judgment against him." First National Bank of Arizona v.

ervi -, 391 U.S. 253, 259 (footnote omitted).

The process due parolees charged with violating

A-11

-

conditions of their parole has changed over time. The United

States Supreme Ccurt first held, in Merrissev v. Brewer, 408 U.s.

471 (1972), that a parolee’s "liberty is valuable and must be seen

as within the prcetection of the Fourteenth Amencnzent. Its

termination calls for scne orderly process, however infornal."

Ie., 408 U.S. at 482.

First, the Supreme Court held, a parolee is entitled to

prior notice ane a reasonably prompt informal inquiry, concucted by

an impartial hearing officer, to determine if there is reascnable

Ground to believe that the arrested parolee has violated a parole

condition. At this preliminary revecation hearing, the parclee is

entitled to present relevant information and to question adverse

witnesses unless security censiderations indicate otherwise. The

neutral hearing officer must summarize the evidence and state the

reascns for his decision. [J¢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 pazcle,

the parolee is then entitled to a final revocaticn proceeding

before a neutral and detached hearing body. The parolee nust 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 ke afforded an cpportunity 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

A-12

previded. Jd., 408 U.S. at 487-90. See also Gacnon v. Scarsel)i,

41. U.S. 778 (1973) (extending the same due process protections to

persons charged with viclating conditions of probation].

Thereafter, the United States Court of Appeals for the

Six=n Circuit commented that, "The automatic revocation of parole

for every parcle viclation, resardless of the mitigating

circumstances, clearly runs counter to the dictates of ...

Mexrsissev v. Brewer." Presson v. Picsman, 496 F.2d 270, 275 n.1

(1974). The Court held specifically in Moss v. Passerson, 555 F.2d

137 (6th Cir.), cert. denied sub nom. Kette v. Moss, 434 U.S. 873

(1577), that a final revocation proceeding consistent witnr the

am owe

éiccaces cf smissevy_ v. Brewer must be afforced even parslees

-~we

convicted of a subsecuent felony.

Plainciffs in this case challenge the constitutional

sufficiency of the final revocation proceedings afforded to PYRs in

Chic under OAC §5120:1-1-19(A) (1). The evidence currently before

the Ccur= indicates that hearings held at the correcticnal

inszitution before the parole panel pursuant to 0.A.C. §5120:1-1-

19(4)(1) failed to provide to PVRs netice sufficient ts enable thes

© marshall witnesses or other information for presentation in

mitigaticn. Moreover, PVRs are denied the assistance of counsel

ane 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 parcle panel, the panel does not take into account

stch information in determining whether or not the PVR’s parole

A-13

status should be revoked. Finally, the parole panels exercise no

discretion in whether or not to revoke the PVR’s parole. In this

resard, 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

mdezr 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 net in fact qualify as parolees. Accordingly,

defendants argue, no acticn taken by parole officials can result in

the desrivation of the PVRs’ liberty. This argument is specious.

The United States Court cf Appeals for the Sixth Circuit

final revceocaticn hearing consistent with Morrissey and Gecnon.

=a=wacee! Csirmeiinmacic Voi vy, Rocers, 541 F.2d 633 (6tn Cir.

1$76). Mcrecver, Mecdy v. Daccett, 429 U.S. 78 (1976), made clear

that a parclee’s incarceration on an entirely new charge is net co-

extensive with the revocation of his parole. Finally, it is

indisputable that the actual result of the final parcle 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_revcke

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 sranted by the

>

A-14

Adult Parole Authority or while serving a

perioe of intermediate transitional detention

pursuant to Rule 5120-11-12 of the

Administrative Code or serving a pericd of

parole surervision pursuant to Rule 5120-11-19

of the Acninistrative 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 fermer OAC §5120:1-1-19(A)(1), the currently

controlling regulation, OAC §5120-1-1-21, no longer allows the APA

any Giscretion es to whether or not to revoke the parole of a PVR.

he revocation is effected simply upon verification by the APA that

the PVR has been ccnvicted of another criminal offense committed

while on parcle, and the declaration of revocaticn by the APA by

means of the "issuance of minutes."

Remano, 471 U.S. 606 (1985), the United

tates Supreme Court distinguished statutcry or resulatory schemes

that vestec discretion in a parole authority in the revocation

process from these that did not:

(NjJeither Gacnon 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 yFevocation was at the

(citations omitted). Thus, the Court’s

discussion of the importance of the informed

exercise of discretion gid not amount to a

holdinc that the factfincer in a revocation

a Aa c ’ —

e bas ea iscr ;

parole (emphasis added).

A-15

ic-, 471 U.S. at 612. As a result, what had been perceived to be

an unconditional right to a parole revocation hearing with certain

G@ue process safeguards now seems to turn on whether or not

Giscreticn 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

Giscretion is lacking and the revocation of parole is autczmatic

once the fact of a subsequent conviction is established, a parclee

is attcordec no further cue process safegquarés and, indeec, no

revocaticn hearing. ickens v. yveler~, 814 F.2d 237, 239 (Sth

Ciz.), Sexe. Genied, 484 U.S. 924 (1987): Alevras v. Nevber>, 727

F¥.Sups. 852, 653-54 ($.D. W.¥. -1990)3 Wigeke wv. Bithrev, 762

Ceemce, 945 F.24 1504, 1812-13 (13th Cis. 1991). The operative

Guesticn here, then, is whether Ohio currently vests any discretion

"e parole panel in determining whether or not a PVR’s parole

will be revckec. The plaintiff class contends that Ohio law

G@ces. Specifically, plaintiffs argue that the parole board may

effecztively continue parole simply "({BbJy not verifying the facts or

by net issuing the minutes, or by delaying either act, ”

Stier for mary cment, at 12. See also United States v.

Commces, 945 F.24 1504. However, this argument ignores the specific

languase of OAC §5120:1-1-21(A), which requires that the APA "shall

. A-16

revoke the release” of any parclee recommitted to the Ohic

Department of Rehabilitation and Correction to serve a sentence

imposed urcen hia for an offense committed while on parole (emphasis

added).

Plai fs also contend that, regardless of OAC §5120-1-

1-21, the APA is vested with discretion by virtue of O.R.C.

§2967.17, which provides:

The acult parcle authority may, in its

Giscretion, grant an administrative release:*

(A) To a parscle violator serving another

felony sentence in a penal institution within

cr witheut thi state fcr the purpose of

consolidation of the records or where justice a

woule be best served;

To @ parcle violator at large whose case

EFeen inactive far a= least ten years

ng the cate of declaration of parole

on.

An ac=inistrative release shall not be granted

except upon ‘th :e concurrence of a majority of

the parole boare and approval of the chief? of

th acult parole authority and shall not

Operate to restcre the rights and privileges

forfeited by conviction as provided in section

2961.01 of the Revised Code. Any person

gGrantec an administrative release under this

section may subsequentl apply for a

commutaticn of sentence for the be a of

regaining the rights and privileges forfeited

by conviction.

See State v. Dean, 1986 WL 9071 (Ress Cty. App. 1986) [fan Ohio

parclee was administratively released from parole following his

sentence to life impriscnzent in another state]. The statute

¢mAdministrative release" is defined as "a termination of

jurisdiction over a pazticular sentence by the [APA] for

ac=inistrative convenience.” O.R.C. §2967.01(C).

10

A-17

ee ee ee OO

-

ecces not vest any discretion in the APA or its panels in connection

with the revecaticn of a PYR’s parole. Accordingly, OAC §5120:1-1-

21, which does divest all discretion from the APA in this recard,

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."

10 Ohio Asp. 3¢€, 108, 110 (1983). Plaintiffs take the position

that OAC §5120:1-1-21, which purports to divest the APA of all

Giscreticn where the issue of revocation of PVRs is concerned, is

inconsistent with ORC §29€7.15, which prevides, in pertinent part:

A convict who has been conditionally pardoned

or a prisoner who has been paroled, and who,

in the jucoment of the adult parole authority,

has viclated the ccnditions of his pardon or

parcle 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 beccmes available for return tc the

institution shail not be counted as a part of

time or sentence served.

The Ohic APA is charged with administering all statutes relating

parcle. 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 deternine these circumstances under which a person

released on parole shoule be declared a violator and returned to

the institution frem which he was parcled. 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,

11

A-18

@ regulation such as OAC §§5120:1-1-21, which expressly articulates

one circumstance under which the APA will revoke a parclee’s

parole, is not, in the judgment of this Court, 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

Givest individual APA panels of discretion in the decision whether

or not to revoke a PVR’s parole.

Because, under the new administrative regulation,

inéivicual parsle panels no longer have discretion with respect to

tne revecation of the parole of any PVR, the due pzrscess

protections affcrdec parclees by Morrissev v. Brewer ire no longer

arrlicable. See Pickens v. Butler, 814 F.2d 237. See also United

Ss2tes v. Cormmoec, 945 F.246 1504 (11th Cir. 1991); Black v. Resano,

471 U.S. 606.

Defencants contend that, with the passase of the new

resulaticn, the issues in this case have been rendered moot.

tg

| ed

fv

intiffs disagree.

The second amended complaint, filed December 9, 1992,

challenges the PVR revocation procedure in place at the time the

ccxmplaint was filed, alleging specifically that that procedure

viclated 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 plaintift? class

reascnable and adequate notice of the scheduling of the PVR hearing

12

: A-19

and of the PVRs’ rights at the hearing, fails to provide a

meaningful opportunity to present evidence and argunent as to

mitigation, ane prohibits the exercise of discretion by the mexters

cf tne Parole Board in light of mitigating factors. mendged

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.

at 7. As this Court stated, in its

Oczsber 28, 1991 Opinien and Order denying the defendants’ motion

to Gismiss, the plaintiff class in this action seeks only

Geclaratcry and future injunctive relief enjoining the defencants

sa follewing the challenged precedures. The Court specifically

class, -Eecause such an attack is properly brought only in the

contexc cf a habeas corpus action under 28 U.S.C. §2241. see

Preiser v. Rodricuez, 411 U.S. 475 (1973). Because the procecures

challenged by the second amended complaint no longer have any force

or effect in the State of Ohio, this Court concludes that the

issues jcined by the second amended complaint and the answer

thereto have, by passage of OAR §5120:1-1-21, been renderec moot.

Accordingly, defendants are entitled to judgment as a matter of

13

A-20

law.

WHEREUPON plaintiffs’ motion for summary judgment is

without merit and it is therefore DENIED. The claims asserted in

the seconde amended complaint have been rendered MOOT by the passage

of OAR §5120:1-1-21 and, for that reason, the defendants’ motion

for summary judoment is meritorious and it is therefore GRANTED.

The Clerk is DIRECTED to enter FINAL JUDGMENT for the

Gefendants.

Safidra $. Beckwith, Judge

United States District Court

[This determination does not, of course, impact upon the right

of any member of the plaintiff class to chalienge, in a petition

for a writ of habeas corpus, the constitutionality of his current

confinement under former procedures.

14

A-21

—- ~— - — Fr OO Om OC on

a

AO 450 (Rev. 5/85) Judgment in a Civil Case

UNITED STATES DISTRICT COURT

Southern District of Ohio £3#5/28 F:0:¢9

~

CePRe Mt. ee

—<—~ ~~ @ Ste we 1?

tauu wree on

GLENN S. KELLOGG, et al . Ber SEP SHS

JUDGMENT IN A CIVIL CASE

US. Cs °":S7 SSurr

VS Case No. C2-90-606

Judge Beckwith

Magistrate Judge King

JOHN W. SEOEMAKER, et al

Q Jury Vercic:. This action came before the Court for a trial by jury. The issues have

been tried and the jury has rendered its verdict.

-

[x] Decision by Cour:. This action came to trial or hearing before the Court. The issues

have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that Plaintiffs’ motion for

Summary judgment is DENIED. Defendants’ motion for summary judgment

is GRANTED. FINAL JUDGMENT is entered for the defendants.

Date: May 28, 1993 Kenneth J. Murphy, Clerk

“A

PA ¥

“en Phere liert

By Peg Lambert /Deputy Clerk

A-22

IN THE UNITED STATES DISTRICT COURT a5. F8,

POR THE SOUTHERN DISTRICT OF OHIO

BASTERN DIVISION

GLENN S. KELLOGG, et al., oe par Cas

Plaintiffs,

vs. Civil Action 2:90-CV-606

JOEN W. SEOEMAKER, et al.,

Defendants.

CPINION ©

Plaintiffs, a class of inmates whose parole wa» revoked

Ey cre Chic Acult Parcle Authority ("APA"), brought this acticn on

Eehalt cf themselves and of a class cof plaintiffs, for prospective

Ceclaratsry anc injunctive relief pursuant to 42 U.S.C. §1983,

aliesing that defendants cenied thez procedural due precess uncer

tne Feurvteenti aAsendment during the csurse of plaint:ffs’

revccaticn preceecings. On May 27, 1993, this Ccurt granted

S=u=—ary jucesent in favor of defendants. Opinion and Orser ¢f Mav

227. i223. Final judgment was entered on May 28, 1993. This matter

is mow before tne Court cn plaintiffs’ motion to alter or amend

that judoement, Rule 59(e), Fed. R. Civ. P., and on plaintiffs’

oO

Bjections to Magistrate Judge King’s May 24, 1993 Order cenying

plaintiffs’ Rule 16(£) metion for sanctions against defendants.

Rule 72, Fed. R. Civ. FP.

The plaintiff class cnsists of parolees who . were

convicted of a subsequent felony while on parole, and whose parole

was suSsequently revoked as a pazrcile violator recommissicnec

A-23

ee

®

("PVR"). Plaintiffs originally Claimed that their FVR hearings

failec te comport with procedural due process. They asked that the

Ccur= ceclare that defendants’ PVR procedures violated plaintiffs’

Procecural due process rights, Second Amended Complaint, and enjoin

Cefencants from following PVR procedures violative of plaintiffs’

Frocecural due process rights. Id.

During the course of this litigation, Ohio Administrative

Ccce [("OAC"] §51220:1-1-159(A)(1), the fermer adninistrztive

regulation dealing with PVR procedures, was repealed anc OAC

§5120:1-1-21 was implemented. After evaluating this new regulation

Sy reference tc Black v. Romano, 471 U.S. 606 (1985), this Ccurt

concliucec that OAC §5120:1-1-21, which divested the Ohio Aéult

Parsle Autherity ("APA"] of all discretion regarding the revocation

isc2. See also Sneed v. Denahue, 993 F.2d 1239, 1243 (6th Cir.

cl a FYR’s parcsle, is esnstitutiona

1$$93). The Court further held that, because the procecures

Challenged in the second amended complaint were no longer in

eltec=, the case has keen rendered mcot. ini Ger ¢s Mav

7, i353. Final judement for defendants was entered on May 28,

Plaintiffs now seek to amend this Ccurt’s judgzuent,

+

arguing that the application of OAC §5120:1-1-21 to members cf the

Plaincziffé class whose parsle had been revoked under the old

resulaticn violates the constitutional prohibition against ex post

A-24

sts laws. See Article I Section 10 nit tates

In creer to demonstrate a violation of the ex post faces

Clause centained in the United States Constitution, plaintiffs must

establish that the law at issue 1) is retroactive in applicaticn

anc 2) "must cisadvantage the offender affected by it." Millerv.

LOric2, 482 U.S. 423, 430 (1987) (quoting Weaver v. Graham, 450

U.S. 24, 29 (1981)); Dale v. Haeberlin. 878 2d 930, 935 (6th Cir.

198S), cers. Senied, 494 U.S. 1058 (1990). The new regulation has

net been arplied to remedy any defecc in the revocation procecures

feilcwec in th past. Accoréinegly, defencants have not

reirzcactively applied CAC §5120:l-1-21 to the subclass cf

plaincitcis whese parcle hac been earlier revcked pursuant to fcr

OAC §5220:1-1-29(A) (1). Defendants cannet, and Go net, argue that

this subclass of plaintiffs will be subjected to OAC §5120:1-i-21.

Acccrcingly, Flaintifcs have failec to establish an ex post Z2cts

As this Court reled in its Ocinicn anc Order enterec May

27, i$$3, the relevant analysis turns to whether or not plaintités’

Ciaixzs for relief are moct. Plaintiffs’ scle clain for injunctive

relief ssusht to restrain defendants from violating plaintiffs’

proececural due process rights in the future through the use of

comsticutionally infirm PVR hearings or procedures. Plaintirfs no

lencer> have any procedural due process rights to a meaningful

Tem

Tme Eleventh Amendment prevents this Court from considering

Clai=zs under Ohio’s Constitution. See Pennhurst State Schceo! and

Ecs>it2) v. Haldeman, 465 U.S. 89 (1984).

—_s

3

A-25

hearing in connection with PVR parole revocation proceedings in

cennecticn with felonies committed after the effective date of the

new regulation. Accordincly, the enactment cf OAC §5120:1-1-2i has

rendered plaintiffs’ claims for future injunctive relief moot.

Plaintiffs assert that their claims for declaratory

relief are not rendered meot by the enactment of OAC §$120:1l-1-21.

This Court disagrees. Where the plaintiffs “seex[] a declaratory

judement as te [the Parole] Board’s past actions -- without any

substantive relief involved -- neither the Declaratory Judgment Act

standard ‘26 «68.8.6. $2203) nor Article III’s ‘case’ or

‘contreversy’ requirement is satistiec."™ Jackson yy, tii i56i8

Upp. 822, 827 (N.D. Ill. 1987), +b

S66 F.2a@ 8$0 (7th Cir. 1988) (citing

sreern_ v. Marscur, 474 U.S. 64 (1985); Aetna Lite Ins. Cs. Vv.

Eawerss, 300 U.S. 227, 240"41 (1937)).- To hold otherwise weulc

assuixe, &98 F.

Nw

€ 1144, 1148 (6th Cir. 1990). Declaratory relief

evaluating the constitutionality of past procedures woulc te the

umcticnal equivalent ef a habeas corpus acticn, anc is net

available in an acticn under 42 U.S.C. §1983. See Preiser v.

Roe<iewez, 411 U.S. 475 (1973).

Plaintiffs also disacree with this Court’s rejecticn of

their rgument that defendants "exceeced their rule-making

authority" when OAC §5120:1-1-21 was enacted. Jainti ‘ Motio

to Alser or Amend Mav 28, 1993 Order, p- 15. This Court expressly

hela chat "CAC §8126:l1-1-21 is a valid exercise of rule-naking

A-26

i

y and serves to divest individual APA panels of discretion

whether cr net to revoke a PVR’sS parcle." Opinion and Orde~ of may

7, 3993, at 12. Plaintiffs’ motion to alter or amend fails to

persuade this Co.rt 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 denial

of plaintiffs’ Rule 16(f) motion for sanctions against defendants.

Notwithstanding plaintiffs’ Claims to the contrary, this Courc

csncludes that Magistrate Judge KXing’s conclusicns that the

cizcurstances in this action do not justify an aware ct fees cr the

preciusicn cf relevant evidence is neither clearly errsnecus ner

contrary to law. Accsrdingly, plaintiffs’ cpjecticns t5 Magistrate

without merit, and they are therefore OVERRULED.

On foe

Sandra’ S% Beckwith, Jucse

United States District Ccur

A-27

IN THE UNITED STATES DISTRICT court

4.47 9 FOR THE SOUTHERN DISTRICT OF OHIO pb

‘i EASTERN DIVISION 25 HA2 22 SH 2:46

US. © TEST COURT

SGUT= =") 5.S7, OHIO

GLENN Ss. KELLOGG, et al., cAST. 3°. SOLUMBUS

Plaintiffs,

vs. Civil Action 2:90-CV-606

JOEN W. SHOEMAKER, et al.,

Defendants.

ORDER

This matter is before the Court on remand fron the United

States Court of Appeals for the Sixth Circuit.

Consistent with the mandate of the Uniteg 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, j.e., September 1, i992, but whose parole revocation

procedures are conducted after September 1, 1992, constitutes an

&x 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

Procedural safeguard outlined in Morrissey v. Brewer, 408 U.S. 471

(1972) and Moss vy. Patterson, 555 F.2d 137 (6th Cir.), cert.

Genied, sub non. Kette v. Moss, 434 U.S. 873 (1977).

A-28 ex

The Clerk shall enter final judgment accordingly.

Yandra Sé/ Beckwith, Judge

United States District Court

A-29

ye. — a

OHIO ADMINISTRATIVE CODE

(FORMER)

5120:1-1-19 Revocation of release; institutional revoca-

too hearing

(A) Within a reasonable period of time after a detainer

has been filed against the releasee. or the holding of the

hearing required by Administrative Regulation

$120:1-1-18. whichever is earlier. the releasee shall be

granted a revocation hearing. A continuance may be

granted bv the Chairman of the Parole Board or designee

upon application by the violator and for good cause shown.

(1) In the event 2 releasee is convicted and sentenced on

a new felony under Ohio law. it shall be conciusively pre-

sumed that Administrative Regulation 5120:1-1-12 has

been violated. In such cases. as applicable. the parole revo-

cation heamng will be confined to the determination of

mitigating circumstances.

(2) The hearing for a releasee who has been convicted in

2 state other than the State of Ohio. and is being returned as

a violator. shall be heid within a reasonable penod of time

after his return to confinement within the boundanes of the

State of Ohio.

(B) The hearing panei shall consist of a member or mem-

bers of the Parole Board. any heanng officer. or any heanng

kody appointed by the Parole Board.

(C) The heanng shail be heid pursuant to the procedure

as set forth in Administrative Regulation $120:1-1-18.

Reauesis for witnesses and ail motions for clanfication of

charges. suppression of evidence. and all other motions.

snail be made at least ten (10) working days pnor to the

scneduied hearing uniess such requirement 1s waived by the

Chairman of the Parole Board or designee in whole or in

pam. and for good cause shown. Requests shall be made to

the Chairman of the Parole Board or designee in lieu of the

wnit supervisor.

(D) If at the heanng it is found by substantial evidence.

considenng the record as a whole. that the alleged violation

has been proved and that mitigating circumstances. if anv.

JO not make revocation inappropriate. reiease snail be

revoked by the Paroie Board.

(E) If at the hearing there is no substantial evidence.

considernng the record as a whole. that the alleged violation

has been proved. or if the hearing panel. in its discretion.

determines that revocation of release is inappropnate even

if the alleged vioiation has been proved. the inmate shall be

released to his former status. provided. however. that in the

discretion of the Parole Board the terms and conditions of

re:ease may be modified in order to assist the releasee :n his

adjustment to society and to his renabilitation. pursuant to

Administrative Regulation 5120:1-1-12.

A-30

OHIO ADMINISTRATIVE CODE, APPROVED EDITIONS120 DEPARTMENT OF REHABILITATION AND

CORRECTIONS5120:1 DIVISION OF PAROLE AND COMMUNITY SERVICESChapter 5120:1-1

Release

§120:1-1-21 REVOCATION OF RELEASE IF RELEASEE RECOMMITTED FOR NEW OFFENSE

(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 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 verified that the sentence was imposed for

an offense that occurred while the prisoner was under release status.

(C) If the prisoner was on release from a definite sentence only, is

recommitted to serve a definite sentence or sentences, and is not serving any

indefinite sentence, there shall be no further release consideration and the

offender shall serve the balance of the aggregate definite sentence, diminished

pursuant to rules 5120-2-04 through 5120-2-08 of the Administrative Code, unless

§120:1-1-23 of the Administrative Code.

(D) If the prisoner was on release from an indefinite sentence or one or more

sentences for which he is recommitted is an indefinite sentence, he shall be

scheduled for a parole release hearing when eligible pursuant to rules 5120-2-03

through 5120-2-08 and rule 5120:1-1-13 of the Administrative Code.

A-31

OHIO REVISED CODE

2967.15 VIOLATION OF PARDON OR PAROLE

(A) Any adult parole authority field officer who has reasonable cause to believe

that any parolee, furloughee, or other releasee under the supervision of the adult parole

authority has violated or is violating any term or condition of his pardon, parole,

furlough, or release may arrest the person without a warrant or order any peace officer

to arrest the person without a warrant. A person so arrested shall be confined in the jail

of the county in which he is arrested or in another facility designated by the chief of the

adult parole authority until a determination is made regarding his release status. Upon

making an arrest under this section, the arresting or supervising adult parole authority

field officer promptly shall notify the superintendent of parole supervision or his

designee, in writing, that the person has been arrested and is in custody and submit in

detail an appropriate report of the reason for the arrest.

(B) Subsequent to the arrest of a parolee, furloughee, or other releasee pursuant

to this section, the person shall be granted a hearing to determine whether he has

violated the terms and conditions of his pardon, parole, furlough, or release and

whether he should be returned to a state correctional institution, except that a parolee,

furloughee, or other releasee who is convicted of or pleads guilty to any offense

committed while on parole, furlough, or other release is not entitled to the hearing. A

member of the parole board, a hearing officer, or other person designated by the chief

of the authority shall conduct the hearing in accordance with rules adopted by the

director of rehabilitation and correction.

If the person who conducts the hearing decides that the parolee, furloughee, or

releasee does not have to return to a state correctional institution, he immediately shall

be released, provided there are no unadjudicated criminal charges pending against him

in this state.

If the person who conducts the hearing decides that the parolee, furloughee, or

releasee should return to a state correctional instition [sic], the superintendent, within a

reasonable time, shall order his return to an institution.

if a parolee is declared to be a violator of the conditions of his pardon, the

authority forthwith shall transmit to the governor its recommendation concerning such

violation and the violator shall be retained in custody until the governor issues an order

concerning such violation.

If the authority fails to make a determination of the case of the parolee alleged to

be a violator of the conditions of his pardon or parole within a reasonable time, the

parolee shall be released from custody under the same terms and conditions of his

original pardon or parole.

A-32

(C)(1) If a parolee, furloughee, or other releasee absconds from supervision, that

fact shall be reported by the superintendent to the authority, in writing, and the authority

shall enter an order upon its official minutes declaring that person to be a violator at

large. The superintendent, upon being advised of the apprehension and availability for

return of a violator at large, shall recommend to the authority that he be returned to the

institution or restored to parole, furlough, or other release. If the violator is not restored

to parole, furlough, or other release, he shall be returned to a state correctional

institution.

The time between the date on which a parolee, furloughee, or other releasee is

declared to be a violator or violator at large and the date on which that person is

returned to custody in this state under the immediate control of the adult parole

authority shall not be counted as time served under the sentence imposed on that

person. :

(2) A furloughee or any releasee other than a person who is released on parole

or pardon is considered to be in custody while on furlough or other release, and, if he

absconds from supervision, he may be prosecuted for the offense of escape.

(D) A parolee, furloughee, or other releasee who has violated any term or

condition of pardon, parole, furlough, or other release shall be declared to be a violator

if he is committed to a correctional institution outside the state to serve a sentence

imposed upon him by a federal court or a court of another state or if he otherwise

leaves the state.

(E) As used in this section, "peace officer" has the same meaning as in section

2935.01 of the Revised Code.