Petition for Writ of Certiorari — Hanrahan v. Williams

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PILE De

In The OFFICE OF THE CLERK

UNITED STATES SUPREME COURT

ceapeieainaeie

October Term 1996

HOMER HANRAHAN,

Petitioner,

JAMES K. WILLIAMS, et al.,

Respondents.

Petition for a Writ of Certiorari

To the Illinois Supreme Court

PETITION FOR WRIT OF CERTIORARI

COUNSEL OF RECORD:

Gary H. Palm

Mandel Legal Aid Clinic

COUNSEL: University of Chicago

Locke E. Bowman Law School

Conor D. McAuliffe 6020 S. University Ave.

MacArthur Justice Center Chicago, IL 60637

University of Chicago Law (773) 702-6911

School

1111 E. 60th Street

Chicago, IL 60637

(773) 753-4405

QUESTIONS PRESENTED

l. Whether, after the decision in Sandin v.

Connor, __ U.S. __, 115 S. Ct. 2293 (1995), the wording

of a parole statute should be the touchstone for determining if

the statute confers a Due Process interest in parole when there

is a direct conflict between the decision of the state supreme

court and the federal court of appeals concerning whether the

wording of the statute confers such an interest under the

analysis called for by Greenholtz v. Nebraska Penal Inmates,

442 U.S. 2 (1979).

ae Whether a state supreme court has the authority

to disregard the decision of a federal appeals court holding that

a State statute creates a liberty interest in parole protected by

the Due Process Clause of the Fourteenth Amendment.

xB Whether the refusal of the Illinois Supreme

Court to follow a 14-year old judgment of the Seventh Circuit

Court of Appeals to the effect that a state statute creates a

liberty interest in parole protected by the Due Process Clause

of the Fourteenth Amendment violates the "judicial" Ex Post

Facto Clause of the Federal Constitution.

4. Whether a 14-year-old judgment of the Seventh

Circuit Court of Appeals and long settled practice of a state

parole board that parole is only denied where enumerated

Statutory criteria are unsatisfied creates a Due Process interest

in parole in a case where those criteria are satisfied.

Homer E. Hanrahan

Respondents

James K. Williams

Joseph T. Dakin

Joanne S. Shea

Joseph J. Longo

Rafael Nieves

William Harris

Barbara Hubbard

Tommy Wells

Herbert D. Brown

Corrine Franklin

Anne E. Taylor

William Redmond

Illinois Prisoner Review Board

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................... i

EE ge eas os ko ke ec es 5 ii

TABLE CONTEMIS §... 0 oe e ee. .eeee iii

pe Be v

ebm Eo Te | a ar 1

ME DS aie Nk oil. Medd. wwe 1

CONSTITUTIONAL AND STATUTORY

eo Bs A 1

STATEMENT OF THECASE .................. 3

REASONS FOR GRANTING THE WRIT ............ 10

I. THE ILLINOIS SUPREME COURT AND

THE SEVENTH CIRCUIT CONFLICT AS TO

THE PRECISE MEANING AND

APPLICATION OF THIS COURT'S

DECISION IN GREENHOLTZ V.

NEBRASKA PENAL INMATES, 442 U.S. 1

(1979)

iil

IT.

Il.

IV.

THE DECISION OF THE ILLINOIS SUPREME

COURT DIRECTLY CONFLICTS WITH THE

DECISION OF THE SEVENTH CIRCUIT COURT

OF APPEALS IN SCOTT

THE DECISION OF THE ILLINOIS SUPREME

COURT CONFLICTS WITH THE HOLDINGS OF

THE FEDERAL COURTS OF APPEALS THAT

RETROSPECTIVE APPLICATION OF STRICTER

CONDITIONS FOR OBTAINING PAROLE

VIOLATE PRINCIPLES UNDERLYING THE EX

POST FACTO CLAUSE OF THE FEDERAL

CONSTITUTION

THE DECISION OF THE iLLINOIS SUPREME

COURT CONFLICTS WITH THIS COURT'S

DECISION IN PERRY V. SINDERMANN, 408 U.S.

593 (1972)

TABLE OF AUTHORITIES

PAGE

Bishop v. Wood, 426 U.S. 341 (1976)........... 15, 16

ey 12,16, 18

Bouie v. Columbia, 378 U.S. 347 (1964) ............ 19

California Dep't of Corrections v. Morale ........ 23

Connor v, Estelle, 981 F.2d 1032 (9th Cir. 1993) ...... 21

Ellard v, Alabama Board of Pardons and Paroles, 824 F.2d

937 C15 Ce TO es Pi 18

page a graeme rake eared passim

Jago v. Van Curen, 454 U.S. 14(1981).......... 27, 28

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) 17, 18

Lynce v. Mathis, No. 95-7452,

1997 WL 65582 (Feb. 19, 1997) .............. 23, 24

Marshall v. Garrison, 659 F.2d 440,

Cs RE oe wee ade bb Oud FA A 16, 21

Meachum v. Fano, 427 U.S. 215 (1976) ............ 13

Miller v. Florida, 482 U.S. 423 (1987) ............. 25

Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991) ...... 26

Van F.26 6S Cree Gee. tee. cee VK aboesk wel... 27

Olim v. Wakinekona, 461 U.S. 238 (1983).......... 16

Outlaw v. O'Leary. 161 Ill. App. 3d 218,

514 N.E.2d 208 (3d Dist. 1987), appeal denied,

Jae AOE GD 6 Siw S EINER Ta ee O. 26

Pard »v. Chrans, 174 Ill. App.. 3d 549,

528 N.E.2d 1071 (4th Dist. 1988), appeal denied,

124 Ill. 2d 556, 535 N.E.2d 916 (1989) .............. 26

Perry v. Sindermann, 408 U.S. 593 (1972)........ 25, 27

Prater v. U.S. Parole Comm'n,

Sue Fan See Cre Ges cee 2 Sih ee ek OS. 22

Royster v. Fauver, 775 F.2d 527 (3d Cir. 1985) ....... 21

Sandin v. Conner, -- U.S. --, 115 S. Ct. 2293 (1995) . passim

Shepard v. Taylor, 556 F.2d 648 (2d Cir. 1977) ....... 21

Tiller v. Klincar, 138 Ill.2d 1 (1990) ............... 26

United S . Hanral Thieret,

ie mw Be Te Le Rb. | Sa eee &. 3

and Pardon Board, 669 F.2d 1185 (7th Cir.),

cert, denied, 459 U.S. 1048 (1982) ............. passim

United States Parole Commission v. Geraghty,

GD Woe. ae ee ets 0b he Pe Powe 22

United States v. Addonizio, 442 U.S. 178 (1979)....... 22

United States v. Burnom, 27 F.3d 283 (7th Cir. 1994) .. . 20

525 F.2d 797 (7th Cir. 1975),

cert, denied, 425 U.S. 914 (1976)................. 20

Wall Illinois Pri iit Dinars

694 F.2d 499 (7G Cr 1988) ie cee ee. 26

Walker v. Klincar, 245 Ill. App. 3d 381,

13 N.E.2d 295 (3d Dist.), appeal denied,

152 Ill.2d 581, 622 N.E.2d 1229 (1993) ............ 26

Weaver v. Graham, 450 U.S. 24(1981)....... 19, 21, 24

Wolff vy. McDonnell, 418 U.S. 539 (1974) ........ 13, 20

Vii

Statutes Cited:

Illinois Uniform Code of Corrections, 730 ILCS 5/3-3-5

(1994) ....., CLG Sate Cee i a a 3

20 Ill. Adm. Code Ch. IV, §§ 1610 (1994) .......... 3-4

28 U.S.C. § 1257 ...... i cikeaabiis, aremaecbatsid. 2

Other Authorities Cited:

Due Process Clause of the Fourteenth Amendment . . . passim

Illinois Fair Employment Practices Act, Ill. Rev. Stat., ch. 48

if | Ceres rer ee eee 17

United States Constitution, Amendment XIV, Section 1. . 2, 2

United States Constitution,

Ex Post Facto Clause of ArticleI .............. passim

Vili

PROCEEDINGS BELOW

The order of the Illinois Supreme Court denying

petitioner's request for a rehearing is reprinted as Appendix A.

The original opinion of the Illinois Supreme Court is reported

at 174 Ill. 2d 268, 673 N.E.2d 251 (1996) and is reprinted as

Appendix B. The petition for rehearing, which addresses

questions the Illinois Supreme Court decided sua sponte in its

decision, is reprinted as Appendix C.

JURISDICTION

The Illinois Suprerne Court issued its judgment and

opinion declining to fotiow the judgment of the Seventh

Circuit Court of Appeals on September 19, 1996. It denied

Mr. Hanrahan's request for rehearing on December 2, 1996.

Petitioner invokes the jurisdiction of this Court pursuant to 28

U.S.C. § 1257 to review the judgment of the Illinois Supreme

Court.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution provides:

" ... No State shall deprive any person of life,

liberty, or property without just process of law

United States Constitution, Amendment XIV, Section 1.

The Ex Post Facto Clause of Article I of the United

States Constitution provides:

"No State shall ... pass any ... ex post facto law

United States Constitution, Article I, Section 10, §1.

The hearing and determination provision of the Illinois

Parole Statute provides:

parole if it determines that:

(1) there is substantial risk that he will not

conform to reasonable conditions of

parole; or

(2) his release at that time would deprecate

the seriousness of his offense or promote

disrespect for the law; or

(3) his release would have a substantially

adverse effect on institutional discipline.

730 ILCS 5/3-3-5.

The Illinois regulations regarding the parole release decision

provide:

The Board shall not parole a person eligible for —

if it determines that:

1) There is substantial risk that he will not

conform to reasonable conditions of

parole; or

2) His release at that time would depreciate

the seriousness of his offense or promote

disrespect for the law; or

3) His release would have a substantially

adverse effect on institutional discipline.

20 Ill. Admin. Code § 1610.50

STATEMENT OF THE CASE

Petitioner Homer E. Hanrahan, an inmate at’ Dixon

Correctional Center, Illinois, was arrested in 1974 on charges

of murder, aggravated kidnaping, aggravated battery and

conspiracy. In 1976, he was convicted on all counts and

sentenced to an indeterminate sentence of 50 to 100 years.

At his parole hearing held on June 1 and June 28,

1993, Mr. Hanrahan introduced evidence that he satisfied each

of the three criteria for parole set forth in the Illinois Uniform

Code of Corrections, 730 ILCS 5/3-3-5(c) and the regulations

of the Prisoner Review Board ("Board" or "PRB"), 20 Ill.

Admin. Code § 1610.50.

First, he demonstrated that his release would not

deprecate the seriousness of the offense. 730 ILCS 5/3-3-

5(c)(2); 20 Ill. Admin. Code § 1610.50(a)(2). The sentencing

judge, the Hon. Robert J. Collins, submitted an affidavit to the

PRB in support of Mr. Hanrahan's release, stating that when

he imposed the original sentence, he expected that Mr.

Hanrahan would be released on parole after 11 to 12 years,

depending on his prison record. Additionally, Mr. Hanrahan

introduced evidence that his period of incarceration -- 17 years

at the time of the June 1993 parole hearing -- was longer than

the average time served for murder by persons released from

the Illinois Department of Corrections in each year since 1978,

the first year for which such statistical information is

available.

Second, Mr. Hanrahan showed that his release would

not have an adverse effect on institutional discipline -- the

factor that requires the PRB to assess Mr. Hanrahan's

institutional performance. 730 ILCS 5/3-3-5(c)(3); 20 III.

Admin. Code § 1610.50(a)(3). It was undisputed that Mr.

Hanrahan had a perfect disciplinary record during the 17 years

of his incarceration.

Third, Mr. Hanrahan demonstrated the absence of a

substantial risk that he would be unable to conform with

reasonable conditions of parole. 730 ILCS 5/3-3-5(c)(1); 20

Ill. Admin. Code § 1610.50(a)(1). Mr. Hanrahan had no prior

convictions, no history of drug dependence or affiliation with

gangs or organized crime. The undisputed evidence was that

Mr. Hanrahan had behaved in an exemplary fashion in the ten

months in 1991 that he was free on bond pending the State's

appeal of the decision of the United States District Court for

the Northern District of Illinois granting his petition for a writ

of habeas corpus. United States ex rel. Hanrahan v. Thieret,

748 F. Supp. 603 (N.D. Ill. 1990). During these ten months,

Mr. Hanrahan complied with each and every condition of his

release, obtained employment, established friendships in the

community where he lived and led a crime-free life. When the

Seventh Circuit Court of Appeals reversed the district court's

decision, United States ex rel. Hanrahan v. Thieret, 933 F.2d

1328 (7th Cir. 1991), Mr. Hanrahan surrendered without

incident to the prison authorities.

On June 30, 1993, the Board denied parole to Mr.

Hanrahan. In spite of Judge Collins’ affidavit, Mr.

Hanrahan's exemplary disciplinary record and his

demonstrated ability to function normally and productively in

free society, the Board's decision stated that granting parole to

Mr. Hanrahan would deprecate the serious nature of the crime

and promote a disrespect for the law.

Mr. Hanrahan subsequently filed an action seeking

mandamus relief and requesting administrative review of the

Board's decision based on a common law writ of certiorari.

The Circuit Court of Cook County dismissed the count of his

complaint that requested a common law writ of certiorari as

insufficient in law. Mr. Hanrahan appealed to the Illinois

Appellate Court for the Second Judicial District, which

reversed the Circuit Court's decision. Hanrahan v. Williams,

267 Ill. App. 3d 735, 643 N.E.2d 262 (2d Dist. 1994).

| Respondents were granted leave to appeal to the Illinois

Supreme Court. The only issue before the court, as reflected

in the briefs filed and oral arguments made by both parties,

was whether State courts may review a decision of the PRB

pursuant to a common law writ of certiorari. Reversing the

appeals court, the Illinois Supreme Court held that a common

law writ of certiorari is not available to challenge a decision of

the PRB.

On its own initiative, the Illinois Supreme Court went

on to declare that it was not bound by the decision of the

Seventh Circuit in United States ex rel. Scott v, Illinois Parole

and Pardon Board, 669 F.2d 1185 (7th Cir.), cert. denied, 459

U.S. 1048 (1982). In Scott, the Seventh Circuit, relying upon

this Court's holding in Greenholtz v, Nebraska Penal Inmates,

442 U.S. 1 (1979), held that the Illinois parole statute

establishes a liberty interest in parole protected by the Due

Process Clause of the Fourteenth Amendment. Scott, 669

F.2d at 1187-90. Although the issue was neither briefed nor

argued by the parties, the Illinois Supreme Court purported to

overrule Scott and to hold to the contrary that the Illinois

parole statute does not create a liberty interest protected by the

Due Process Clause of the Fourteenth Amendment. Hanrahan.

174 Ill.2d at 277, 673 N.E.2d at 255-56. In reaching its

decision, the Illinois Court did not provide Mr. Hanrahan with

an opportunity to argue that Scott was correctly decided and/or

binding on the Illinois Supreme Court. Nor did the Court

articulate any explanation for declining to follow Scott, beyond

a statement that it disagreed with the decision and an assertion

that it was not bound to follow it.' Petitioner filed a petition

for rehearing urging the Illinois Supreme Court to reconsider

its decision not to follow Scott (App. C). The Illinois

' The Illinois court's discussion of Greenholtz in the paragraph following

its refusal to follow Scott concerns the second limb of the due process

enquiry, i.e., what process is due. Id. at 278, 673 N.E.2d at 256. It does

not concern the first stage of the inquiry - whether a statute creates a liberty

interest protected by the Due Process Clause, the precise issue on which

the court disagreed with Scott.

Supreme Court denied the petition without explanation (App.

A).

There are four reasons why Mr. Hanrahan's petition

for a writ of certiorari should be granted. First, the

interpretation of Greenholtz provided by the Illinois Supreme

Court in this case directly conflicts with the interpretation

given the same case by the Seventh Circuit in Scott. In

Greenholtz, this Court held that the Nebraska parole statute

creates a liberty interest in parole because its language issued a

clear command to the Nebraska Parole Board to release

eligible prisoners if they satisfied the statutorily mandated

criteria. Greenholtz, 442 U.S. at 12. Analyzing the Illinois

parole statute in light of Greenholtz, the Seventh Circuit in

Scott observed that it was the "mirror image" of the Nebraska

statute and accordingly, that Greenholtz compelled the

conclusion that it creates a liberty interest in parole. Scott, 699

F.2d at 1188.

The Supreme Court of Illinois reached the opposite

conclusion without analyzing the test that this Court set out in

Greenholtz for determining whether a parole statute creates a

liberty interest. Hanrahan, 174 Ill. 2d at 277, 673 N.E.2d at

256. This Court should resolve the conflict between the

Illinois Supreme Court and the Seventh Circuit as to the

meaning and application of Greenholtz. The case also presents

the Court with the opportunity to re-evaluate Greenholtz in

light of its recent decision in Sandin v. Connor, __ > aaa

115 S. Ct. 2993 (1995), concerning the appropriate test for

determining whether state law creates liberty interests.

Second, this case presents a direct conflict between the

Illinois Supreme Court and the Seventh Circuit on the issue of

whether the Illinois parole statute creates a liberty interest in

parole protected by the Due Process Clause of the Fourteenth

Amendment. The Court has not decided if federal or State

courts have the authority to determine definitively whether

State law creates a liberty interest protected by the Due Process

Clause of the Fourteenth Amendment.

Third, the decision of the Illinois Supreme Court

conflicts with decisions of the federal courts of appeal holding

that the Ex Post Facto Clause prohibits the retrospective

application of new standards for determining parole that are

more onerous than those in effect at the time the potential

parolee committed the offense. Although the Illinois Supreme

Court did not expressly address the issue, its holding that the

Illinois parole statute does not create a liberty interest in parole

means that the PRB is no longer obliged to release Mr.

Hanrahan if he satisfies the statutorily mandated criteria.

Instead, the PRB can deny parole for any reason or for no

reason at all. This holding directly conflicts with decisions of

federal courts of appeals holding that a retrospective and

substantial alteration in the conditions governing parole release

decisions violates the Ex Post Facto Clause.

Fourth, contrary to the settled law of this Court, the

decision of the Illinois Supreme Court interferes with the

expectation interest protected by the Due Process Clause that

arose from the settled practice of the PRB. On each occasion

that PRB considered Mr. Hanrahan's parole eligibility, the

Board measured his eligibility in accordance with the

substantive criteria set out in the Illinois parole statute, as

Scott dictated that it should. Mr. Hanrahan is unaware of a

—

single instance in which the PRB denied parole to any prisoner

on a ground other than the failure to satisfy the statutorily

mandated substantive criteria. In at least one case, the PRB

agreed that Scott was correctly decided. In addition, federal

and Illinois state courts have repeatedly adhered to the holding

in Scott. Prior to the decision under review, the Illinois

Supreme Court has had the opportunity to question the holding

in Scott but instead proceeded on the assumption that it was

correctly decided.

REASONS FOR GRANTING THE WRIT

I. THE ILLINOIS SUPREME COURT AND

THE SEVENTH CIRCUIT CONFLICT AS

TO THE PRECISE MEANING AND

APPLICATION OF THIS COURT'S

DECISION IN GREENHOLTZ V.

NEBRASKA PENAL INMATES, 442 U.S. 1

(1979)

The Illinois Supreme Court in this case and the Seventh

Circuit in Scott reached diametrically opposite results in

interpreting and applying this Court's decision in Greenholtz

v. Nebraska Penal Inmates, 442 U.S. 1 (1979). The resulting

conflict merits this Court's attention because it casts on doubt

the precise meaning and application of its holding in

In Greenholtz, this Court held that the Nebraska parole

statute created a liberty interest in parole protected by the Due

Process Clause of the Fourteenth Amendment. Central to the

Court's decision was the mandatory character of the Nebraska

parole statute. In particular, the requirement that the Parole

Board "shall" order the prisoner's release "unless" one of the

four grounds for deferral set out in the statute existed,

convinced the Court that the statute created a liberty interest in

parole. Id. at 12.

The Seventh Circuit in Scott relied heavily on

Greenholtz in reaching its decision that the Illinois equivalent

of the Nebraska statute created a liberty interest in parole.

Scott, 669 F.2d at 1187-88. After examining Greenholtz and

comparing the relevant provisions of the Illinois and Nebraska

statutes, the Seventh Circuit observed that the Illinois statute

was the "mirror image" of the Nebraska statute. Jd. at 1188.

The Court could see no difference between the statutory

admonition in the Illinois statute that the Board "shall not"

release a prisoner "if" one of the three statutory criteria were

found to exist and the requirement in the Nebraska statute that

the Board "shall" release a prisoner "unless" one of the four

statutory criteria were found to exist:

"Instead of directing the Board to release an

eligible inmate unless one of the conditions is

found, Illinois has simply stated the rule in the

negative - the Board shall not release the inmate

if one of the conditions is found. Even the

specified conditions under which release is to be

deferred are the same, except for the fact that

the Nebraska statute includes an additional

reason for deferral which Illinois’ does not."

Id.

Because there was no practical difference between the

two statutes, the court concluded that the Illinois statute, like

the Nebraska statute, created a liberty interest in parole.

Fourteen years later in this case, the Illinois Supreme

Court reached the opposite conclusion. The Court did not

apply to the Illinois statute, as did the Seventh Circuit in Scott,

the test that this Court set out in Greenholtz for determining

whether a state statute creates a liberty interest in parole. Nor

did the court compare the Illinois and Nebraska statutes, again

as the court did in Scott, to determine whether there is a

distinction between the two sufficient to justify a departure

from this Court's holding in Greenholtz. The court simply

expressed disagreement with the holding of the Seventh Circuit

in Scott and declared that it was not bound by the decision.

Hanrahan, 174 Ill. 2d at 277, 673 N.E.2d at 256.

Resolution by the Court of the conflicting

interpretations of Greenholtz provided by the Illinois Supreme

Court and the Seventh Circuit will have salutary effects that

extend beyond the question presented in the instant case. It

will also provide the Court with an opportunity to decide

whether, and in what circumstances, state law creates liberty

interests other than parole.

In recent years, the Court has begun to question the

wisdom of analyzing the provisions of State statutes and

regulations to determine whether State law creates liberty

interests protected by the Due Process Clause. In Board of

Pardons v. Allen, 482 U.S. 369 (1987), Justice Brennan,

speaking for the majority, observed that he and three other

Members of the Court shared the view that "the existence of a

liberty interest in parole release is not solely a function of the

wording of the governing statute.” Allen, 482 U.S. at 373

n.3. More recently, this Court has signaled a retreat from

analysis of the details of a state statute to examination of the

nature of the deprivation. In Sandinv. Conner, U.S.

115 S. Ct. 2293 (1995), the Court expressed dissatisfaction

with the methodology employed in Greenholtz and its progeny

for determining whether a statute creates a liberty interest.

The Court criticized the microscopic analysis to which the

Court had subjected state statutes:

"In a series of cases since Hewitt [v. Helms,

459 U.S. 460 (1983)], the Court has wrestled

with the language of intricate, often rather

routine prison guidelines to determine whether

mandatory language and substantive predicates

created an enforceable expectation that the state

would produce a particular outcome with

respect to the prisoner's conditions of

confinement."

Id. at 2298.

According to the Court, the methodology used in

Hewitt and other cases impermissibly shifted the focus of the

liberty interest inquiry from the nature of the deprivation to

one based on the language of a particular statute or regulation.

Auguring a return to the line of analysis the Court had

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

apotheosized in Meachum v. Fano, 427 U.S. 215 (1976), the

Court observed that the method for identifying state-created

rights protected by the Due Process Clause looks to the extent

to which the deprivation is “atypical” as compared to the

ordinary incidents of a prisoner's incarceration. Sandip, 115

S. Ct. at 2300.”

2 It should be noted that the four dissenting justices in Sandin would aiso

look beyond the four corners of a state statute to determine whether a

prisoner enjoys a liberty interest. Justice Ginsburg, joined by Justice

Stevens, opined that a prisoner's due process rights should derive from the

Fourteenth Amendment rather than from the prison code. Id. at 2303.

Otherwise, a state could escape constitutional accountability by the simple

Justice Brennan's statement in Allen that the existence

of a liberty interest in parole release is not solely a function of

the words of a governing statute combined with this Court's

admonition in Sandin that the nature of the deprived right

rather than the wording of a State statute or regulation

determines whether due process concerns are implicated,

indicate that the provisions of state law are no longer

controlling. To the extent that state courts are in a better

position to interpret state statutes with a view to determining

whether state regulations contain "language of an unmistakably

mandatory character," so that limitation of an inmate's

interests could not occur "absent specified substantive

predicates," Hewitt, 459 U.S. at 471-72,.this guidance is no

longer necessary because Sandin counsels against an inquiry

into the structure and language of state regulations. Instead,

the touchstone of the due process inquiry is the nature of the

alleged deprivation.

The conflicting interpretations that the Illinois Supreme

Court and the Seventh Circuit have given to the Illinois parole

statute casts doubt on the meaning and application of the

liberty interest analysis that this Court explicated in

Greenholtz. This case provides the Court with an opportunity

to resolve the conflict and to elaborate upon and develop the

expedient of conferring unfettered discretion on prison officials. Id.

Although disclaiming any desire to abandon entirely an examination of state

law, Justice Breyer, with whom Justice Souter joined, stressed that the

inquiry should focus on whether the interest asserted is significant or not.

Id. at 2308-09. Thus, all nine members of the present Court are agreed

that the wording of state law does not determine whether state law creates a

liberty interest.

re-examination of constitutionally protected liberty interests

that it began in Sandip.

Il. | THE DECISION OF THE ILLINOIS SUPREME

COURT DIRECTLY CONFLICTS WITH THE

DECISION OF THE SEVENTH CIRCUIT COURT

OF APPEALS IN SCOTT

This case presents a direct conflict between the

decision of the highest court of a state and the decision of a

federal court of appeals. The Illinois Supreme Court held that

the Illinois parole statute does not create a liberty interest in

parole protected by the Due Process Clause of the Fourteenth

Amendment. This holding directly conflicts with the Seventh

Circuit's decision in Scott. Resolution of this conflict requires

the Court to decide if state or federal courts have the authority

to determine definitively whether state law creates a liberty

interest in parole protected by the Due Process Clause of the

Fourteenth Amendment.

The Court left open this precise question in Greenholtz.

In deciding that the Nebraska statute at issue created a liberty

interest in parole, the Court observed that it did not have the

"benefit" of a decision of the Nebraska Supreme Court.

Greenholtz, 442 U.S. at 12. Nowhere did the Court suggest

that it would be bound to follow a decision of the Nebraska

Supreme Court on the issue.’ Subsequently, in Board of

3 Noting the absence of a decision of the Nebraska Supreme Court, the

Court in Greenholtz referred to Bishop vy. Wood, 426 U.S. 341 (1976).

Greenholtz, 442 U.S. at 12. There, the Court followed the interpretation

Pardons v. Allen, 482 U.S. 369, 377 n.8 (1987), the Court

noted that the Montana Supreme Court had not decided

whether the Montana parole statute created a liberty interest in

parole. The Court did not indicate what weight, if any, it

would give to a decision of the Montana Supreme Court on the

issue.

This Court has not specified if federal or State courts

have the final word on whether state law creates liberty

interests apart from parole. In Olim v. Wakinekona, 461 U.S.

238, 249 (1983), for example, this Court held that Hawaii

State regulations governing the interstate transfer of prisoners

did not create a liberty interest entitled to protection under the

Due Process Clause. The Court mentioned in passing a

decision of the Hawaii Supreme Court to the same effect but

expressed no obligation to follow it, relying instead on its own

precedents to reach the same conclusion. The dissenting

Justices would have ignored the opinion of the Hawaii

Supreme Court altogether because, in their view, the Court's

prior jurisprudence dictated a contrary result. Id. at 259 n.13

(Marshall, J., with whom Brennan and Stevens, J.J., joined,

dissenting).

In the area of property interests, however, this Court

appeals. The Court noted that it lacked an “authoritative” definition of the

ordinance in question by a South Carolina state judge. Bishop v. Wood,

426 U.S. at 345. It is important to note that the interpretation in question

concerned a question of pure state law, i.e., whether the petitioner was an

at-will employee of the city. Here, by contrast, the issue is whether a state

statute creates a liberty interest in parole protected by the Due Process

Clause of the Fourteenth Amendment.

has not hesitated to reverse decisions of the highest court of a

state that improperly deny that state statutes create interests

protected by the Due Process Clause. In Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982), for example,

the Court reversed the Illinois Supreme Court's interpretation

of an Illinois statute without according it any deference. The

petitioner in that case had brought an action under the Illinois

Fair Employment Practices Act, Ill. Rev. Stat., ch. 48 q 851,

et seq., claiming employment discrimination on the basis of

physical handicap unrelated to ability. To obtain relief, a

complainant had to bring a charge of unlawful conduct before

the Illinois Fair Employment Practices Commission within 180

days of the occurrence of the alleged discrimination. The

statute then gave the Commission 120 days within which to

convene a factfinding conference to investigate the allegations.

Appellant filed a timely charge of discrimination with the

Commission. Apparently through inadvertence, the

Commission scheduled the factfinding conference for a date

five days after the expiration of the 120-day statutory period.

The Illinois Supreme Court held that the failure to

schedule a conference within the prescribed statutory limit

deprived the Commission of jurisdiction. It rejected

appellant's argument that his federal due process and equal

protection rights would be violated were the Commission's

error allowed to extinguish his cause of action.

Reversing, this Court held that the statute created a

species of property right protected by the Due Process Clause

of the Fourteenth Amendment. Logan, 455 U.S. at 428-29.

The Court observed that procedural provisions of state statutes

do not govern whether an individual has a protected property

interest. According to the Court, the effect of the decision of

the Illinois Supreme Court "would allow the State to destroy at

will virtually any state-created property interest." Id. at 432.

This case presents the Court with the opportunity to

resolve the direct conflict between the decision of the Illinois

Supreme Court in this case and the decision of the Seventh

Circuit in Scott. It will enable the Court to decide if state or

federal courts have the authority to determine definitively

whether state law creates liberty interests protected by the Due

Process Clause of the Fourteenth Amendment.

III. THE DECISION OF THE ILLINOIS SUPREME

COURT CONFLICTS WITH THE HOLDINGS OF

THE FEDERAL COURTS OF APPEALS THAT

RETROSPECTIVE APPLICATION OF STRICTER

CONDITIONS FOR OBTAINING PAROLE

VIOLATE PRINCIPLES UNDERLYING THE EX

POST FACTO CLAUSE OF THE FEDERAL

CONSTITUTION

Three elements must be present for a judicial

* Relying on Logan, at least one federal court of appeals has expressed

reservations about assigning to the state courts the final word on whether a

state parole statute confers a due process liberty interest. See Ellard v.

Alabama Board of Pardons and Paroles, 824 F.2d 937, 944 n.7 (11th Cir.

1987). The court noted that “a state court's interpretation of a statute might

be so inconsistent with the statute's language and history that the state court

decision itself would be a “wholly arbitrary and irrational" action in

violation of due process. Id.

construction to be ex post facto.’ First, the judicial

construction “must be retrospective, that is, it must apply to

events occurring before its enactment." Weaver v. Graham.

450 U.S. 24, 29 (1981). When Mr. Hanrahan committed the

offenses in 1974, it was the prevailing view that when a state

holds out the possibility of parole and makes it an integral part

of its penological system, “due process includes as a minimum

requirement that reasons be given for the denial of parole

5 The Court has recognized that the ex post facto protection against

arbitrary and unpredictable state acts is so fundamental to our ordered

system of liberty that it must be applied to restrain retroactive government

action even when ex post facto legislation is not in issue. Accordingly the

Court has expressly relied on its Ex Post Facto Clause jurisprudence to

hold that when a government unforeseeably expands the law by judicial

interpretation and then uses that new interpretation to deprive an accused of

liberty, the government violates fundamental rights protected by the Due

Process Clause of the Fourteenth Amendment. In Bouie v. Columbia, 378

U.S. 347 (1964), the Court applied the very same principles that undergird

the Ex Post Facto Clause to retroactive judicial applications of the law.

The Court wrote:

"[A]n unforeseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely like an ex

post facto law such as Art. I, §10, of the Constitution

forbids ... If a state legislature is barred by the Ex Post

Facto Clause from passing such a law, it must follow that

a State Supreme Court is barred by the Due Process

Clause from achieving precisely the same result by

judicial construction."

Id. at 353-54 (footnote omitted).See also, Landgraf v. USI Film Products,

511 U.S. 244 (1994)Scalia, J., concurring)(discussing the unity of purpose

of the Ex Post Facto and Due Process Clauses as reflected in the general

legal policy against retroactivity).

release." See United States, ex rel. Richerson v. Wolff, 525

F.2d 797, 800 (7th Cir. 1975), cert. denied, 425 U.S. 914

(1976). Scott reexamined Richerson in response to this

Court's holding in Greenholtz v. Nebraska Penal Inmates, 442

U.S. 1 (1979). The Seventh Circuit concluded that the Illinois

statute was virtually the "mirror image" of the statute that this

Court had construed in Greenholtz and therefore created a

liberty interest in parole. Scott, 669 F.2d at 1188.

Second, the judicial pronouncement must be

unforeseeable in the sense that it represents a clear break in the

law. United States v. Burnom, 27 F.3d 283, 284 (7th Cir.

1994). The decision of the Illinois Supreme Court clearly

satisfies this criterion. As discussed in greater detail in

Section IV of this petition, the PRB had applied due process to

its parole decisionmaking practices since the time that Mr.

Hanrahan committed his offenses. The Illinois courts and

federal courts consistently applied Scott and on the one

occasion that the Illinois Supreme Court had the opportunity to

question the wisdom of the decision, it instead elected to

proceed on the assumption that it was correctly decided. The

clear break in the law that the decision represents is underlined

by the fact that the respondents did not choose in their briefs

or oral argument to ask the Illinois Supreme Court to

reconsider the Seventh Circuit's holding in Scott.®

° In reaching its conclusion that the judicial construction of the statute in

question in Burmom was not a “clear break” in the law, the Seventh Circuit

was influenced by the fact that the construction did not overrule any

judicial precedent. Burnom, 27 F.3d at 284. In this case, the Illinois

Supreme Court clearly purports to overrule a long-standing, undisturbed

decision of the Seventh Circuit, further underlining the unforeseeability of

Third, the decision "must disadvantage the offender

affected by it." Weaver. 450 U.S. at 30-31. It is on this leg

of the ex post facto analysis that the Illinois Supreme Court

parts company with the decisions of the federal courts of

appeals.

Circuit courts have unvaryingly refused to permit the

retrospective application of new or amended statutes or

administrative rules which purported to alter preexisting rules

to make parole more difficult. See e.g., Royster v. Fauver,

775 F.2d 527, 533-34 (3d Cir. 1985) (if standards under new

parole law were more rigorous than standards that were in

effect when prisoner committed offense, then to apply the new

standards to the prisoner would be a violation of the Ex Post

Facto Clause); Marshall v. Garrison, 659 F.2d 440, 444-46

(4th Cir. 1981) (Parole Commission forbidden to consider

more stringent criteria that did not govern parole eligibility at

the time that prisoner committed crime for which sentenced);

Shepard v. Taylor, 556 F.2d 648, 653-54 (2d Cir. 1977) (the

Ex Post Facto Clause prohibits the invocation of new and more

onerous parole eligibility considerations that were forbidden

when prisoner was originally sentenced).

The same conclusion is implicit in the decisions of the

federal courts of appeals which hold that new restrictions on

eligibility for parole do not violate the Ex Post Facto Clause

where they are not more onerous than the restrictions that

applied when the prisoner committed the offense. See ¢.g.,

Connor v. Estelle, 981 F.2d 1032 (9th Cir. 1992) (no violation

the decision.

of the Ex Post Facto Clause where criteria for determining

eligibility under the new statute were substantially the same as

the criteria when prisoner committed his offense); Prater vy.

U.S. Parole Comm'n, 802 F.2d 948 (7th Cir. 1986)(en banc)

(denial of parole on the basis of a “deprecate the seriousness of

the offense" factor first set out in the parole statute enacted

after prisoner committed offense did not violate the Ex Post

Facto Clause because the same factor was implicit in the old

statute).

Mr. Hanrahan suffered a far more serious deprivation

than the application of more onerous parole criteria that the

courts in the above cases held to run afoul of the Ex Post

Facto Clause. The natural consequence of the Illinois

Supreme Court's decision that state law does not create a

liberty interest in parole is that the PRB is no longer under an

obligation to release prisoners that satisfy the statutorily

mandated criteria. The PRB can now deny parole for any

reason or for no reason at all. Accordingly, the decision of

the Illinois Supreme Court does not simply apply more

onerous criteria to parole determinations but eliminates the

necessity to consider these criteria altogether.

This Court has not addressed the question whether a

retroactive deprivation of a liberty interest in parole violates

the Ex Post Facto Clause. The Court has twice expressly

declined to consider whether retrospective application of the

federal parole guidelines violates the Ex Post Facto Clause.

See United States Parole Commission v. Geraghty, 445 U.S.

388, 390 n.1, 408 (1980); United States v. Addonizio, 442

U.S. 178, 184 (1979). In each of these cases, the Court found

it unnecessary to address any part of the ex post facto issue.

Recently, in California Dep't of Corrections v,

Morales, 514 U.S. __, 116 S. Ct. 1597 (1995), the Court

clarified the degree of "disadvantage" necessary to show an ex

post facto violation. An offender must show that the

retroactive harm was more than some ambiguous

"disadvantage" or the mere denial of an uncertain

“opportunity” to take advantage of early release provisions.

Morales, 115 S. Ct. at 1602 n.3. Instead, a statutory change

violates the ex post facto prohibition if it "alters the definition

of criminal conduct or increases the penalty by which a crime

is punishable." Id. Morales also made clear that the

application of the Ex Post Facto Clause is a matter of degree

and that small "mechanical" changes producing only a

"speculative" or "attenuated" risk of increasing a prisoner's

term of confinement do not fall within the constitutional

prohibition. Id. at 1602-03.

Last week, in Lynce v. Mathis, No. 95-7452, 1997

LW 65582 (Feb. 19, 1997), the Court reiterated the principles

it enunciated in Morales. In Lynce, the court invalidated a

state statute which had retroactively canceled petitioner's

provisional early release credits. The Court reasoned that

cancellation of the credits violated the Ex Post Facto Clause

because it made the petitioner's punishment more onerous than

under the law in effect at the time he committed his offense.

Neither Lynce nor Morales answers the question

presented in this case. The Court was not asked to consider

whether the retroactive application of more onerous criteria for

granting parole that those in effect when a prisoner committed

the offense, runs afoul of the Ex Post Facto Clause.’ More

fundamentally, this case presents this Court with the yet

undecided question whether, and in what circumstances, a

judicial decision (and by extension, a legislative act), may

extinguish a constitutional right which a prisoner enjoyed at

the time of his or her offense. Lynce did not involve the

retroactive deprivation of a constitutional right; the legislation

in question retroactively invalidated a statutory right to early

release credits. The legislation in Morales extinguished a

statutory right to annual parole consideration. Likewise, the

other cases that this Court has decided under ex post facto

principles all involved the retroactive removal of a statutory

right. See ¢.g., Lindsey v. Washington, 301 U.S. 397 (1937)

(invalidating statute that changed discretionary sentence ceiling

to mandatory ser*-ce for crime committed between

commission of criine and sentencing); Weaver v. Graham, 450

” It is clear that an inmate is more likely to be paroled when the Parole

Board is required to justify its decision on the grounds of statutorily

mandated substantive criteria than when Board can deny parole release

arbitrarily for any reason or for no reason at all. See Greenholiz, 442 U.S.

at 9-11 (arbitrary denial is permitted if no liberty interest in parole). If the

availability of Due Process protection did not have practical significance on

sentence length, presumably this Court, in the interests of judicial

economy, would have put swift paid to the many cases that the state and

federal courts have entertained on the issue of whether a state statute

creates liberty interests in parole. The Court would long ago have made

clear that application of due process safeguards to parole eligibility

decisions does not have any practical effect on sentence length and

therefore litigation concerning its applicability holds no more than academic

interest. Instead, the Court has emphasized that the important function of

due process in the parole decisionmaking process is to increase the

accuracy of the administrative factfinding process and "to minimize the risk

of error.” Greenholtz, 442 U.S. at 13.

U.S. 24 (1981) (invalidating statute that retroactively reduced

amount of "gain time” credits available to prisoners at the time

of sentencing); Miller v. Florida, 482 U.S. 423 (1987)

(invalidating guidelines that increased the presumptive

sentencing range between commission of crime and

sentencing).

In this case, by contrast, the Illinois Supreme Court

purports to invalidate a protected constitutional right - the right

to due process in parole eligibility determination - that Mr.

Hanrahan enjoyed at the time of his offenses. This Court

should resolve whether the retrospective deprivation of a

constitutional right, as opposed to the deprivation of a

statutory right, can ever be permissible under ex post facto

principles.

IV. THE DECISION OF THE ILLINOIS SUPREME

COURT CONFLICTS WITH THIS COURT'S

DECISION IN PERRY V. SINDERMANN, 408

U.S. 593 (1972)

In Perry v. Sindermann, 408 U.S. 593 (1972), this

Court held that a property interest may arise from "such rules

or mutually explicit understandings that support an individual's

claim of entitlement to the benefit and that he may invoke at a

hearing." Id. at 601. Explicit "rules" or “undersiandings"

giving rise to a protectible Due Process interest are present in

this case because the established and undisturbed practice of

the PRB since the time that Mr. Hanrahan was incarcerated

has been to deny parole only when a prisoner fails to satisfy

the statutorily mandated criteria.

Throughout the period of his incarceration, Mr.

Hanrahan has enjoyed a liberty interest in parole. Case law in

both Illinois state and federal! courts as well as administrative

practice all point to the settled expectation of Mr. Hanrahan

and other prisoners that the Board will decide their eligibility

for parole in accordance with statutorily mandated substantive

criteria set out in the Illinois parole statute and the applicable

regulations.

In the fifteen years since Scott was decided, numerous

Illinois state appellate courts and lower federal courts have

applied Due Process principles to the decisions made by the

Illinois Prisoner Review Board. See, e.g., Mosley v. Klincar,

947 F.2d 1338 (7th Cir. 1991); Jackson v. Illinois Prisoner

Review Board, 856 F.2d 890 (7th Cir. 1988); Walker v,

Illinois Prisoner Review Board, 694 F.2d 499 (7th Cir. 1982);

Walker v. Klincar, 245 Ill. App. 3d 381, 613 N.E.2d 295 (3d

Dist.), appeal denied, 152 Ill. 2d 581, 622 N.E.2d 1229

(1993); Pardo v. Chrans, 174 Ill. App. 3d 549, 528 N.E.2d

1071 (4th Dist. 1988), appeal denied, 124 Ill. 2d 556, 535

N.E.2d 916 (1989); Outlaw v. O'Leary. 161 Ill. App. 3d 218,

514 N.E.2d 208 (3d Dist. 1987), appeal denied, 118 Ill. 2d

546, 520 N.E.2d 387 (1988). Beyond the reported cases,

there are literally scores of cases in which the various Illinois

Circuit Courts and federal District Courts have held that Due

Process requirements apply to the Illinois parole decision.

On the one occasion where the Illinois Supreme Court

had the opportunity to revisit the holding in Scott, it instead

proceeded on the assumption that Scott was correctly decided.

Tiller v. Klincar, 138 Ill.2d 1, 14, 561 N.E.2d 576, 581-82

(1990).

, : |

Petitioner is unaware of a single instance in the years

since Mr. Hanrahan committed his offense where the Illinois

Prisoner Review Board denied parole on a ground other than a

failure of a prisoner to satisfy the statutorily mandated

substantive criteria. Although in many cases prisoners have

claimed that the Board misapplied the substantive criteria, no

reported decision exists challenging a parole denial on the

ground that the Board failed to apply the criteria altogether.

The absence of such reported challenges strongly suggests that

the Board has in every instance applied Due Process principles

to its decisional practices and procedures. On at least one

occasion, the Board expressly conceded that Scott was

correctly decided. See Newbury v. Prisoner Review Board,

791 F.2d 81, 84 (7th Cir. 1986).

The Illinois Supreme Court decision attempts to reverse

settled practice that the Illinois courts, the federal courts, the

Illinois legislature and the Board itself have followed since the

parole statute was enacted. In so doing, the decision of the

Illinois Supreme Court directly conflicts with this Court's

decision in Perry because the consistent pattern or practice of

the PRB created a protectible due process interest in the

Board's continued adherence to the practice.

In Jago v. Van Curen, 454 U.S. 14 (1981), this Court

held that the implied contract principles underlying the

doctrine of "mutually explicit understandings" in Perry do not

"readily lend themselves to determining the existence of

constitutionally protected liberty interests in the setting of

prisoner parole." Jago, 454 U.S. at 18. It would appear,

however, that the Court's differentiation of property rights and

prisoner's liberty interests in Jago was motivated by the

concern that to permit liberty interests to arise from an alleged

pattern or practice or from mutually explicit understandings,

would curtail the discretion of prison officials. Ig. at 18-20.

This concern is not implicated here. The Board has

consistently and willingly applied due process considerations

to its parole decisionmaking practices. Accordingly, it would

not be contrary to the policy reasons that motivated the

Court's concern in Jago to hold that the Board's established

practice gives rise to a protectible Due Process interest.

CONCLUSION

This Court should grant the writ of certiorari to resolve

the conflict between the Seventh Circuit Court of Appeals and

the Illinois Supreme Court. The Court should decide which of

the two decisions is faithful to its holding in Greenholtz, as the

Court may choose to modify that decision in light of Sandin v.

Connor.

This Court should also make clear that decisions of the

federal courts of appeal prevail over contrary decisions of the

State courts on the issue of whether a State parole statute

creates a liberty interest protected by the Due Process Clause

of the Fourteenth Amendment.

In the alternative, this Court should resolve the conflict

between the Illinois Supreme Court and federal courts of

appeals on the question of whether the application of more

onerous conditions for parole that those in existence at the

time Mr. Hanrahan committed his offenses violates principles

underlying the Ex Post Facto Clause. The Court should hold

that the decision of the Illinois Supreme Court has only

prospective effect in the sense that it does not apply to Mr.

Hanrahan or to other Illinois prisoners who enjoyed a liberty

interest in parole at the time that they committed the offenses

for which they are incarcerated.

At a minimum, this Court should remand the case to

the Illinois Supreme Court in order to provide Mr. Hanrahan

with the opportunity he has been denied to argue that he has a

liberty interest in parole protected by the Due Process Clause

of the Fourteenth Amendment.

Respectfully submitted,

GARY H. PALM

Counsel of Record

Attorney for Petitioner

OF COUNSEL:

Locke E. Bowman.

Conor D. McAuliffe

MacArthur Justice Center

University of Chicago Law School

1111 E. 60th Street

Chicago, IL 60637

(773)753-4405

Mandel Legal Aid Clinic

University of Chicago Law School

6020 S. University Avenue

Chicago, IL 60637

(773)702-6911

, .

Supreme Court of Illinois

Supreme Court Building

Springfield 62701

December 2, 1996

Mr. David J. Bradford

MacArthur Justice Center

1111 E. 60th Street

Chicago, IL 60637

No. 78357- Homer E. Hanrahan, appellee, v. James K.

Williams et al., appellants. Appeal,

Appellate Court, Second District.

The Supreme Court today DENIED the petition for

rehearing in the above entitled cause.

The Mandate of this Court will issue to the appropriate

Appellate Court and/or Circuit Court or other agency on

December 12, 1996.

EXHIBIT

Docket No. 78357—Agenda |$—January 1996

HOMER E. HANRAHAN, Appellee, v. JAMES K. WILLIAMS

et al., Appellants.

JUSTICE MILLER delivered the opinion of the court:

Plainuff, Homer E. Hanrahan, filed a second-amended

complaint in the circuit court of Lee County against defendants,

the Illinois Prisoner Review Board and its individual members

(collectively, the Board), challenging the denial of his parole. In

count III, Hanrahan sought the issuance of a common law writ

of certiorari to obtain review of the Board's June 1993 decision

to deny him parole. The circuit court dismissed count III as

“insufficient in law.” and found no just reason for delaying

appeal of the order (155 Ill. 2d R. 304(a)). The appellate court

reversed the dismissal. 267 Ill. App. 3d 735. We granted the

Board's petition for leave to appeal (155 Ill. 2d R. 315), and

allowed amici curiae to join in filing a brief (155 Ill. 2d R.

345).

BACKGROUND

In 1976, a jury found Hanrahan guilty of murder.

aggravated kidnapping, aggravated battery, and conspiracy. He

was sentenced to serve concurrent indeterminate prison terms of

50 to 100 years for murder. 20 to 40 years for aggravated

kidnapping, and 3 to 10 years for aggravated battery. His

convictions and sentences were affirmed on direct review.

People v. Hanrahan, 64 Ill. App. 3d 207 (1978). Hanrahan is

currently incarcerated at the Dixon Correctional Center, having

served approximately 20 years of his sentences. He has been

eligible for parole since 1983.

In June 1993, the Board conducted parole hearings, and

ultimately denied Hanrahan parole. Thereafter. Hanrahan filed

a second amended complaint consisting of three counts. In count

III, Hanrahan requested that the circuit court issue a common if

law writ of certiorari to review the Board's June 1993 decision 9 —

to deny him parole. Hanrahan alleged in part that the decision :

to deny him parole was “arbitrary and capricious, an abuse FIT

discretion, contrary to law and against the manifest weight of

the evidence.” Ia his prayer for relief, Hanrahan requested that

the circuit court reverse the Board's decision.

After granting Hanrahan leave to file his second-amended

complaint, the circuit court granted the Board's oral motion to

dismiss count III of the complaint. The circuit court ruled that

count III was “insufficient in law.” and found no just reason for

delaying appeal of the order. 155 fll. 2d R. 304(a). Hanrahan

appealed the dismissal.

The appellate court reversed. 267 Ill. App. 34 735. The

appellate court first stated that the Administrative Review Law

is not applicable to review of the Board's parole-release

decisions. The appellate court next noted that a writ of

mandamus would not afford Hanrahan the type of relief he

sought. The appellate court further found unpersuasive the

Board's argument that. because of its discretionary nature and

the minimal record resulting from the action, the parole-release

decision is not reviewable by issuance of a common law writ of

certiorari. To illustrate the feasibility of judicial review of

parole-release decisions, the appellate court pointed to federal

habeas corpus proceedings in which federal courts have

reviewed the merits of parole-release decisions. See Zannino v.

Arnold, $3\ F.2d 687 (3d Cir. 1976) (federal prisoner challenged

federal parole board's decision to deny parole and sought relief

under 28 U.S.C. §2241): United States ex rel. O'Connor v.

MacDonald, 449 F. Supp. 291 (N.D. Ill. 1978) (state prisoner

challenged Illinois parole board's decision to deny parole and

sought relief under 28 U.S.C. §2254). Noting that the extent of

review conducted by a federal court in Aabeas corpus

proceedings is similar to that under a common law writ of

certiorari, the appellate court found that common law writs of

certiorari may issue to review parole-release decisions in

Illinois.

We grarted the Board's petition for leave to appeal (155 Ill.

2d R. 315), and have allowed the American Civil Liberties

Union of Illinois, Chicago Conference of Black Lawyers. Illinois

Attorneys for Criminal Justice, Illinois Public Defender

Association. National Association of Criminal Defense Lawyers.

Northwestern University Legal Clinic, and the office of the State

-2-

Appellate Defender to file a brief. collectively, as friends of the

court (155 Ill. 2d R. 345).

DISCUSSION

Illinois inmates who are denied parole may seek several

remedies, including a writ of mandamus in state court and a writ

of habeas corpus in federal court. In the parole context, a writ

of mandamus may be used to compel the Board to exercise its

discretion, but may not be used to compel the Board to exercise

its discretion in a certain manner. See. e.g., People ex rel. Abner

v. Kinnev, 30 Ill. 2d 201 (1964) (mandamus used to compel

Board to provide parole-eligible inmate with a parole hearing).

In addition. federal courts will grant a writ of habeas corpus if

a petitioner demonstrates that his custody is in violation of the

Constitution or laws of the United States. Lillv v. Gilmore, 988

F.2d 783, 789 (7th Cir. 1993): Escobar v. O'Leary, 943 F.2d

711, 720 (7th Cir. 1991): see also United States ex rel. Arnold

v. Illinois Prisoner Review Board, 803 F. Supp. 222 (N.D. Ill.

1992) (Illinois inmate petitioned for writ of habeas corpus

pursuant to 28 U.S.C. §2254 because of claimed equal

protection violation). Hanrahan did not request either mandamus

or habeas corpus relief in count Ill of his second-amended

complaint. Instead, Hanrahan sought the issuance of a common

law writ of certiorari.

A common law writ of certiorari is a general method for

obtaining circuit court review of administrative actions when the

act conferring power on the agency does not expressly adopt the

Administrative Review Law and provides for no other form of

review. Smith v. Department of Public Aid, 67 Ul. 2d $29, $41

(1977). The standards of review under a common law writ of

certiorari are essentially the same as those under the

Administrative Review Law. Smith, 67 Ill. 2d at $41-42. Under

the Administrative Review Law, courts generally do not

interfere with an agency's discretionary authority unless the

exercise of that discretion is arbitrary and capricious (Dorfman

v. Gerber. 29 Ill. 2d 191, 196 (1963)) or the agency action is

against the manifest weight of the evidence (Murdv v. Edgar,

103 fll. 2d 384, 391 (1984)). In the instant case, the parole-

release statutory scheme fails to adopt the Administrative

Review Law or provide for another form of review. Hanrahan

thus contends that circuit courts may issue common law writs of

certiorari to review the merits of the Board's parole-release

decisions.

Whether, and to what extent. action by an administrative

agency is reviewable is a question of statutory interpretation.

Greer v. Illinois Housing Development Authority, 122 Ill. 2d

462. 497 (1988) (whether IHDA action is reviewable is a

question of statutory interpretation). In this case, we must

determine whether the legislature intended for the merits of the

Board's paroie-release decision to be reviewable by courts, an

issue of first impression in Illinois.

While most agency actions are presumed reviewable, no

presumption arises if there is a statutory bar to review or if

statutory language commits the agency decision to unrevicwable

agency discretion. Greer, 122 Ill. 2d at 497. Factors to consider

in determining whether statutory language precludes judicial

review include the statute's “express language. the structure of

the statutory scheme, its objectives, its legislative history, and

_the nature of the administrative action involved.” Greer, 122 Ml.

2d at 497-98. “Of particular importance is whether the statute

contains standards. goals, or criteria by which a court may

evaluate agency action.” Greer, 122 Ill. 2d at 498, citing

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

410, 28 L. Ed. 2d 136, 180, 91 S. Cr. 814, 820 (1971).

Accordingly, judicial review is precluded if “the statute is drawn

so that a court would have no meaningful standard against

which to judge the agency's exercise of discretion.” Heckler v.

Chanev, 470 U.S. 821, 830, 84 L. Ed. 2d 714, 723, 105 S. Ct.

1649, 1655 (1985).

The Illinois Prisoner Review Board is an administrative

agency created by the legislature. See People ex rel. Abner v.

Kinney, 30 Ill. 2d 201, 205 (1964) (Parole and Pardon Board

“sits as an administrative body with the power to make final

decisions in parole matters”). The members of the Board are

appointed by the Governor with the advice and consent of the

Senate. 730 ILCS 5/3-3—1(b) (West 1992). To be eligible for

appointment, a person must have five years’ experience in the

wie

field of penology. corrections work. law enforcement. sociology.

law, education, social work. medicine. psychology. other

behavioral sciences. or a combination of these fields. 730 ILCS

5/3-3—1(b) (West 1992).

One of the Board's duties is to determine whether an

eligible inmate should be granted or denied parole. 730 ILCS

5/3-3—2(aX 1), (a2) (West 1992): see also 730 ILCS

5/3-3-1(aX 1) (West 1992) (Board is “paroling authority” for

persons sentenced under law in effect prior to effective date of

the determinate sentencing act of 1977). “Parole” is defined as

“the conditional and revocable release of a committed person

under the supervision of a parole officer.” 730 ILCS $/3—1-2(k)

(West 1992). In making parole-release decisions, the Board must

consider certain material and reports, including statements from

the inmate, the State's Attorney and the victim. 730 ILCS

5/3-3—4(d) (West 1992). The Board must render the parole-

release decision within a reasonable time after hearing and must

state the basis for its decision. 730 ILCS 5/3-3—-S(f) (West

1992).

The legislature has also authorized the Board to promulgate

its own rules regarding the conduct of its work and the exercise

of its discretion. 730 ILCS $/3-3~-2(d), 3—3—S(h) (West 1992).

The rules adopted by the Board (20 Ill. Adm. Code §§1610.10

through 1610.180 (1992-93)) provide that “(t]he Board grants

parole as an exercise of grace and executive discretion as

limited or defined by the Illinois General Assembly in duly

adopted legislation” and that “[t]he parole release decision is a

subjective determination based on available relevant

information.” 20 Ill. Adm. Code §§1610.50(a). (6) (1992-93).

The rules provide lists of factors that may be considered by the

Board in determining whether to grant or deny parole. 20 Ill.

Adm. Code §1610.50(b) (1992-93) (listing factors relevant to

inmate's prior history, committing offense, institutional

adjustment, and release plans). The rules, however, specifically

state that the parole-release decision is not limited to the

consideration of only those factors listed. 20 Ill. Adm. Code

§1610.50(b) (1992-93).

The legislature has set forth criteria under which the Board

must deny parole in section 3-3—S(c) of the Unified Code of

-5-

Corrections, which reads:

“The Board shall not parole a person eligible for

parole if it determines that:

(1) there is a substantial risk that he will not conform

to reasonable conditions of parole: or

(2) his release at that time would deprecate the

seriousness of his offense or promote disrespect for the

law: or

(3) his release would have a substantially adverse

effect on imstitutional discipline.” 730 ILCS $/3-3-5(c)

(West 1992).

The rules set forth the same criteria for determining when the

Board must deny parole. 20 Ill. Adm. Code §1610.50(a) (1992-

93). We note that the council commentary of section 3-3-5(c)

states that “(t]he Board should state one or more of the reasons

listed in [section 3-3-S(c)]} as the basis for its decision denying

parole ***. Additional reasons may also be stated.” 730 ILCS

Ann. 5/3-3-5. Council Commentary, at 56 (Smith-Hurd 1992).

Hanrahan contends that the Board's discretion is guided by

statutory criteria, and that the rules set forth well-defined limits

to the Board's discretion. Hanrahan concludes that, because the

parole-release statutory scheme “contains standards, goals, or

criteria by which a court may evaluate agency action” (Greer,

122 Ill. 2d at 498), judicial review by the issuance of a common

law wmnit of certiorari should be available.

We disagree. The statutory provisions provide criteria under

which the Board must deny parole. The statutory provisions do

not, however, state when the Board must grant parole. Heirens

v. Mizell, 729 F.2d 449, 465 (7th Cir. 1984) (neither statutory

scheme nor rules provide for circumstances under which the

Board would be required to grant parole). The Board is free to

consider any available relevant information to make its

determination to grant or deny parole. 20 Ill. Adm. Code

§1610.50(b) (1992-93). Further, the rules expressly provide that

parole is granted “as an exercise of grace and executive

discretion” (20 Ill. Adm. Code §1610.S0(a) (1992-93)), and

Illinois courts have consistently held that parole is not a right

(People v. Hawkins, 54 Ill. 2d 247, 252 (1973); People ex rel.

-6-

Jones v. Brantley, 45 Ill. 2d 335, 337-38 (1970): People ex rei.

Castle v. Spivey, 10 Ill. 2d $86, 594-95 (1957): People ex rel.

Richardson v. Ragen. 400 Ill. 191. 20! (1948); People v.

Nowak, 387 Ill. 11, 14 (1944)).

We believe that Mlinois’ Statutory criteria and the Board's

tules do not provide standards for release on parole sufficiently

objective to allow a court to evaluate the Board's decision to

deny parole. We thus conclude that the legislature, in drafting

the statutory language, intended the Board to have complete

discretion in determining whether to grant parole when the

denial of parole is not mandated by statute.

We recognize that our interpretation of section 3-3-S(c) of

the Unified Code of Corrections differs from the United States

Court of Appeals for the Seventh Circuit's interpretation of the

same statutory language in United States ex rel. Scott v. Illinois

Parole & Pardon Board, 669 F.2d 1185 (7th Cir. 1982). While

the issue presented in Scott differed from the issue presented

here, the Scott court. in its analysis, concluded that section

3-3-S(c) of the Unified Code of Corrections (Ill. Rev. Stat.

1979, ch. 38, par. 1003-3-S(c) (Board “shall not” grant parole

“if” one of three statutory criteria are found)) requires “the

Board to release an inmate who is eligible for parole unless one

of the specified reasons for denial are found to exist.” Scott, 669

F.2d at 1189. As to its interpretation, however. the Scott court

further observed:

“(Bly stating its rule in the negative Illinois has left

open the possibility that its statute can also be

reasonably read as not creating an expectancy of release

00 parole. It can be read as merely a statement by the

Mlinois legislature as to when the Board must deny

parole. leaving the Board free in the absence of those

conditions to exercise its own discretion in deciding

whether or not parole should be granted. Under this

construction, the statute would not create a legitimate

expectation of release and due process considerations

would not apply.” Scott, 669 F.2d at 1189.

Our construction of section 3-3-5(c) is consistent with this latter

construction mentioned but rejected by the Seventh Circuit in

Scott. This court is not bound by the Seventh Circuit's

interpretation of our statutes. People v. Kokoraleis, 132 lll. 2d

235, 293-94 (1989) (“decisions of lower Federal courts are not

conclusive on State courts, except insofar as the decision of the

lower Federal court may become the law of the case”): see also

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

Supreme Court expressly held that state's parole-release statute

created no expectancy of release, the federal court was bound by

that interpretation).

Our finding is supported by the general nature of parole-

release decisions, which are often based on subjective factors

and predictions rather than objective factors. In Greenholiz v.

Inmates of the Nebraska Penal & Correctional Complex, 442

U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), the Supreme

Court characterized the nature of parole-release determinations

as follows:

“The parole-release decision *** depends on an

amalgam of elements, some of which are factual but

many of which are purely subjective appraisals by the

Board members based upon their experience with the

difficult and sensitive task of evaluating the advisability

of parole release. Unlike the revocation decision, there

is no set of facts which, if shown, mandate a decision

favorable to the individual. The parole determination,

like a prisoncr-transfer decision, may be made

‘for a variety of reasons and often involve[s] no more

than informed predictions as to what would best scrve

[correctional purposes] or the safety and welfare of

the inmate.’ “ Greenholt=, 442 U.S. at 9-10, 60 L. Ed.

2d at 677, 99 S. Ct. at 2105, quoting Meachum v.

Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 459, 96

S. Ct. 2532, 2538 (1976).

The Greenholt= court also stated:

“In parole releases, *** few certainties exist. In each

case, the decision differs from the traditional mold of

judicial decisionmaking in that the choice involves a

synthesis of record facts and personal observation

filtered through the experience of the decisionmaker and

leading to a predictive judgment as to what is best both

-8-

for the individual inmate and for the community. ***

The entire inquiry is, in a sense, an ‘equity’ type

judgment that cannot always be articulated in traditional

findings.” Greenholt=, 442 U.S. at 8. 60 L. Ed. 2d at

676, 99 S. Ct. at 2104,

We believe that the discussion in Greenholt: concerning the

general nature of parole is instructive.

Hanrahan argues that the parole-release decision is no

different from other administrative agency decisions, reviewable

upon the issuance of a common law writ of certiorari, where the

See, e.g., Stration v. Wenona Community Unit District No. 1.

133 Ill. 2d 413 (1990) (school board's decision to expel student

for misconduct); Smith v, Department of Public Aid, 67 Ill. 2d

529 (1977) (Illinois Department of Public Aid's decision as to

entitlement of benefits under food Stamp program): Nowicki v.

Evanston Fair Housing Review Board, 62 Ill. 2d 11 (1975) (Fair

Housing Review Board's decision to impose fine after finding

violation of ordinance). We believe, however, that the highly

subjective and predictive nature of the parole-release decision,

along with the fact that there are no standards sufficiently

objective to allow a court to evaluate the Board's decision to

deny parole other than the Statutory criteria mandating denial,

sets the parole-release decision apart from other cases.

We further believe that the Board's parole-release decisions

more closely resemble those decisions found to be unreviewable

in the federal courts pursuant to the Administrative Procedure

Act (S U.S.C. §701(aX2) (1994) (precludes judicial review of

agency action when “action is committed to agency discretion

by law")). See Lincoln v. Vigil, S08 U.S. 182, 124 L. Ed. 24

101, 113 S. Ct. 2024 (1993) (Indian Health Service's decision

to discontinue clinical program for Indian children was

committed to agency discretion by law and thus not subject to

judicial review under APA): Webster y. Doe, 486 U.S. 592, 100

L. Ed. 2d 632, 108 S. Ct. 2047 (1988) (CIA Director's decision

to discharge employee for national security reasons was

committed to agency discretion by law and thus not subject to

judicial review under APA): Heckler v Chaney, 470 U.S. 821,

84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985) (Food and Drug

-9-

Administration's decision not to take enforcement action was

committed to agency discretion by law and thus not subject to

judicial review under APA); Singh v. Mover, 867 F.2d 1035 (7th

Cir. 1989) (United States Information Agency's recommendation

to deny waiver of two-year foreign residency requirement was

committed to agency discretion by law and thus not subject to

judicial review under APA).

Hanrahan recognizes the predictive nature of the parole-

release decision but contends that it does not shield the merits

of the decision from judicial review. Hanrahan compares the

predictive nature of the parole-release decision to the predictive

nature of the Illinois Secretary of State's decision to restore

driving privileges to persons whose licenses have been revoked.

Hanrahan points out that the Secretary of State's actions are

reviewable in the circuit court. Murdy v. Edgar, 103 Ill. 2d 384

(1984). As the Board observes, however. unlike the parole-

release statutory scheme. the Illinois Vehicle Code expressly

provides for review of the Secretary of State actions under the

Administrative Review Law. 625 ILCS $/6-212 (West 1994).

Hanrahan next points out that some states provide for

judicial review of the merits of parole-release decisions. Sce

State v. Goulette, 65 Wis. 2d 207, 222 N.W.2d 622 (1974)

(Wisconsin affords judicial review of parole-release decisions by

issuance of a common law writ of certiorari), Wayne County

Prosecutor v. Parole Board, 210 Mich. App. 148, 532 N.W.2d

399 (1995) (Michigan statute provides for judicial review of

parole-release decisions). Other states, however. have found that

the merits of parole-release decisions are not subject to judicial

review. See Carrion v. New York State Board of Parole, 620

N.YS.2d 420, 210 A.D.2d 403 (1994); In re Question

Concerning State Judicial Review of Parole Denial, 199 Colo.

463, 610 P.2d 1340 (1980). It is apparent that each state must

decide, based on its own statutory. scheme, whether the merits

of parole-release decisions are reviewable.

Finally. amici curiae contend that certain constitutional

rights of inmatcs subject to parole have been violated. Neither

party, however, has raised these issues. We therefore do oot

address them. See People v. P-H., 145 Ill. 2d 209, 234 (1991).

-10-

CONCLUSION

For the reasons set forth above, we find that a common law

writ of certiorari may not be issued to review the merits of the

Board's decision to deny Hanrahan's parole. Because no set of

facts could be proved which would entitle Hanrahan to a

common law writ of certiorari, count III of his second-amended

complaint was properly dismissed.

The judgment of the appellate court is reversed. the

judgment of the circuit court of Lee County is affirmed, and the

cause is remanded for further proceedings.

Appellate court judgment reversed:

circuit court judgment affirmed:

Cause remanded.

wh.

NO. 78357

IN THE

SUPREME COURT OF ILLINOIS

HOMER E. HANRAHAN,

Plaintiff-Appellee,

JAMES K. WILLIAMS, JOSEPH T.

DAKIN, JOANNE S. SHEA, JOSEPH J.

LONGO, RAFAEL NIEVES, WILLIAM

HARRIS, BARBARA HUBBARD,

TOMMY WELLS, HERBERT D. :

BROWN, CORRINE FRANKLIN, ANNE

E. TAYLOR, WILLIAM REDMOND,

and the ILLINOIS PRISONER REVIEW

BOARD,

Defendants-Appellants.

On Appeal from the Appellate Court of Illinois

Second Judicial District No. 2-93-1023

PLAINTIFF-APPELLEE HOMER E. HANRAHAN'S

PETITION FOR REHEARING

Locke E. Bowman

Kathleen M. Banar

MacArthur Justice Center

1111 E. 60th Street

Chicago, IL 60637

(312) 753-4405

Attorneys for Plaintiff-Appellee Homer E. Hanrahan

TABLE OF AUTHORITIES

Page

Illinois Supreme Court cmcinaaad TL Tee ae l

. sarees l

Due Process Clause of United States Constitution... __ 1,2

669 F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1048 (1982)2

Hanrahan v. Williams, No. 78357 (September 19. 1996)... 2

ia eisai oak EE OT TY 2

I, THIS COURT'S OPINION ANNOUNCES A

Walker v. Klincar, 245 Ill. App. 3d 381, 613 N.E.2d 295 (3d

Dist. 1993), appeal denied, 152 Ill. 2d 581, 622 N.E.2d 1229

Cae be Tas WET) on. due... 3

Pardo v. Chrans, 174 Ill. App. 3d 549, 528 N.E.2d 1071 (4th

Dist. 1988), appeal denied, 124 Ill. 2d 556, 535 N.E.2d 916

CHINE aso ek tos ee Lae tne a rd 3

Outlaw v. O'Leary, 161 Ill. App. 3d 218, 514 N.E.2d 208 (3d

Dist. 1987), appeal denied, 520 N.E.2d 387 (1988) ..... 4

Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991) ...... 4

Walker v. Illinois Prisoner Review Board, 694 F.2d 499 (7th

| Rte ae sae Pe eo 4

hack Llinois Pri Review Board,

S56 5.20 Gee cre, ee be ea Sa ew. . 4

Tiller v. Klincar, 138 Ill. 2d 1, 561 N.E.2d 576 (1990),

cert. denied, 498 U.S. 1031 (1991) ................ 4

Sterling v. Klincar, 226 Ill. App. 3d 675,

509 N.B.26 1340-434 Dist: 999] oS RE. ee. 4

Goins v. Klincar, 225 Ill. App. 3d 961, 588 N.E.2d 420 (34

Dist. 1992), appeal denied, 145 Ill. 2d 633, 596 N.E.2d 628

(NORAD cc See eS Ca I Sst eos at. 4

Blythe v. Lane, 194 Ill. App. 3d 451,

351 N.B.2d 680 (Sth Dist. 1990) ................. 4

THUG Pw. ces ee... 3,4, 5

I. | THIS COURT'S RULING IS INCONSISTENT

WITH FEDERAL DUE PROCESS.

aca... Saab eMart) Hid fo oS) ls passim

Complex, 442 U.S. 1 so cides ME Se 6

Melee phosien.otyay . AE ee

Perry v. Sindermann, 408 U.S. 593 es 7

, 824 F.2d

937, 943 n. 7 (11th Cir. 1987), cert. denied, 485 U.S. 981

ok ts ae ee Pate gina er 7

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)... 8

III. THIS COURT'S RULING VIOLATES THE EX

POST FACTO CLAUSE.

aia... 10

[V. THIS COURT'S OPINION CREATES AN

UNSEEMLY CONFLICT WITH THE FEDERAL

COURTS.

669 F.2d 1185 (7th Cir. 1982), cert. denied 10

ili

selycttie cs ny , OPH opti tdacere sheaenhatigaiais: 10

Illinois Supreme Court Rule 367...............__ Ll

NO. 78357

IN THE

SUPREME COURT OF ILLINOIS

HOMER E. HANRAHAN ,

Plaintiff-Appellee,

JAMES K. WILLIAMS, JOSEPH T.

DAKIN, JOANNE S. SHEA, JOSEPH J.

Defendants-Appellants.

PLAINTIFF-APPELLEE HOMER

Appellee Homer E. Hanrahan (“Mr. Hanrahan”)

respectfully petitions pursuant to Illinois Supreme Court Rule

se FFs rape:

367 for rehearing in this matter.

INTRODUCTION

This Court’s opinion was issued on September 19,

1996. The opinion of this Court is inconsistent and

irreconcilable with the 1982 decision of the United States

Court of Appeals for the Seventh Circuit holding that the

protections of the Due Process Clause of the. United States

Constitution protect Illinois inmates seeking parole under 730

ILCS 5/3-3-5(c) (the "Illinois Parole Statute"). United States

ex rel, Scott v. Illinois Parole and Pardon Board, 669 F.2d

1185 (7th Cir.) cert. denied, 459 U.S. 1048 (1982). The

opinion upsets nearly a decade and a half of settled precedent

in the Illinois and federal courts that the Illinois Prisoner

Review Board is constrained by Due Process when it passes

upon the cases of inmates seeking parole pursuant to 730 ILCS

5/3-3-5(c).

Rehearing should be granted for four reasons. First,

this Court announced its divergence with the Seventh Circuit's

longstanding precedent (se¢ Hanrahan v. Williams, No.

78357, Slip Op. at 7 (September 19, 1996)) without the benefit

of briefing or argument by the parties. It is fundamentally

unfair for this Court to decide such an important issue without

Providing the parties the Opportunity even to address the

question. Second, this Court's opinion cannot be reconciled

with Due Process and constitutes an impermissible retraction

of a settled liberty interest that has long existed in this State.

Third, the opinion is inherently legislative in Character and

violates the ex Post facto clause. Fourth, the Opinion

unnecessarily generates an unseemly conflict between the

Illinois and federal courts. |

ARGUMENT

I. THIS COURT'S OPINION ANNOUNCES A

FEDERAL DUE PROCESS RULING WITHOUT

BENEFIT OF ARGUMENT BY THE PARTIES.

This Court's departure from the Seventh Circuit's

decision in Scott, and under which Illinois inmates would have

no Due Process protections at their parole hearings, came

without the benefit of argument or briefing by the parties. For

reasons set forth in Sections II and III of this Petition, Mr.

Hanrahan respectfully submits that this Court's decision

presents serious federal constitutional issues. Whatever the

merits of those ssa they are matters that should be briefed

and argued to this Court before deciding so important a -

question as the existence of Due Process protections for

Illinois inmates seeking parole.

Mr. Hanrahan's counsel could not have predicted that

this Court would in this case issue a ruling removing parole

Principles to the decisional] Practices and Procedures of the

Illinois Paroling agency. See, e.g, Walker v. Klincar. 245 Ill.

App. 3d 381, 613 N.E.2d 295 (3d Dist.), appeal denieg. 152

Ill. 2d 581, 622 N.E. 2d 1229 (1993); Pardo v. Chrans, 174

Ill. App. 3d 549, 528 N.E.24 1071 (4th Dist. 1988), appea]

denied, 124 Ill. 24 556, 535 N.E.2d 916 (1989); Outlaw vy,

O'Leary, 161 Ill. App. 3d 218, 514 N.E.2q 208 (3d

Dist. 1987), appeal denied, 520 N.E.2d 387 (1988); Mosley vy,

Klincar, 947 F.2d 1338 (7th Cir. 1991); Walker v. Illinois

Prisoner Review Board 694 F.2d 499 (7th Cir. 1982).

“ackson v. Illinois Prisoner Review Board 856 F.2d 890 (7th

Cir. 1988), Beyond the reported appellate decisions, there

are literally scores of cases in which Various Illinois Circuit

Courts and the federal District Courts have held that Due

Process requirements apply to the Illinois parole decision.

In all the years since Scott, this Court, although

squarely confronted with the opportunity on one occasion,’ has

not once addressed whether the Illinois Parole Statute confers

a protectible liberty interest in parole. In Tiller v. Klincar,

138 Ill. 2d 1, 14-15, 561 N.E.2d 576, 581, cert. denied, 496

U.S. 938 (1990), this Court explicitly declined to revisit the

issue that Scott had decided then eight years previously.

Nor has the Illinois General Assembly, in all the years

since Scott, once amended the Illinois Parole Statute to

l Decisions of the Illinois Appellate Court have afforded

many other opportunities to address this issue. See, e.g.,

Sterling v. Klincar, 226 Ill. App. 3d 675, 589 N.E.2d 1149

(3d Dist. 1992); Goins v. Klincar, 225 Ill. App. 3d 961,

588 N.E.2d 420 (3d Dist. 1992), appeal denied, 145 Ill. 2d

633, 596 N.E.2d 628 (1992); Blythe v. Lane, 194 Ill. App.

3d 451, 551 N.E.2d 680 (Sth Dist. 1990). This Court has

never availed itself of the opportunity to address this issue

before or after Tiller.

eliminate the protectible liberty interest that Scott found to

exist in that statute.

Given this long history, Mr. Hanrahan's counsel were

entitled to rely upon Scott as settled doctrine. If counsel had

known that this Court's decision would undermine nearly a

decade and a half of established law and practice, counsel

would have thoroughly briefed and argued the issues set forth

in this Petition. We respectfully urge this Court to permit

argument and briefing of whether this Court can and should at

this time reinterpret the Illinois Parole Statute in a manner

inconsistent with Scott. .

II. | THIS COURT'S OPINION IS INCONSISTENT

WITH FEDERAL DUE PROCESS.

On the merits, this Court's decision is inconsistent with

federal due process because it would undermine and unsettle

decades of practice under which Illinois inmates seeking parole

have, consistent with Scott, expected due process protections

in connection with their parole applications.

In the 1982 decision in Scott the Seventh Circuit

undertook a careful analysis of the Illinois Parole Statute to

determine whether persons applying for parole in Illinois are

entitled to Due Process. The Seventh Circuit had the benefit

of the United States Supreme Court’s decision in Greenholtz v.

Inmates of the Nebraska Penal and Correctional Complex, 442

U.S. 1 (1979), and, using Greenholtz as a starting point,

parsed the Illinois Parole Statute and examined the practice of

the (then) Illinois Board of Pardons and Paroles as reflected in

its rules and regulations and the commentary to the Illinois

Parole Statute to conclude that the positive law of Illinois

confers a protectible liberty interest upon applicants for parole.

Scott recognized that the Illinois Parole Statute differs

in certain respects and parallels in others the Nebraska statute

considered in Greenholtz -- terming the Illinois statute

“practically a mirror image of the Nebraska statute. ” 669

F.2d at 1188. Scott noted that the Illinois Parole Statute was

capable of alternative readings, under one of which the statute |

Clearly conferred a Protectible liberty interest. 669 F.2d 1188- |

89. To resolve the question, Scott looked to the actual

Practice of the Illinois Board in exercising its Paroling

discretion. Under that Practice, as reflected in the Board’s |

rules, parole was Only denied in those instances where an |

applicant failed to Satisfy one of the enumerated statutory

factors; where all three factors were absent, parole was

granted. 669 F.2d at 1189-90. |

Since the Scott decision, the Illinois Board of Pardons |

and Paroles and its Successor, the Illinois Prisoner Review |

Board, have continued the practice in thousands of parole |

cases of denying parole Only upon a finding of one of the

Statutory factors. The parole denial in Mr. Hanrahan’s case

(Ex. 9 in the Appendix of Exhibits to Plaintiff's Second

Amended Complaint), which denies parole based on the

seriousness of the offense (730 ILCS 5/3-3-5(c)(2)), is but one

example of the universal practice both before and after Scott.

As set forth in Section I of this Petition (at pp. 3 - 4),

there is a fourteen and one half year history of decisions by the

Illinois Appellate Court and the federal courts applying Due

Process in the Illinois parole context. This Court, moreover,

despite having the opportunity, has never before diverged from

Scott. And the Illinois General Assembly has not amended the

Illinois Parole Statute since Scott in any way material to this

issue.

It is well settled that "the existence of rules and

understandings, promulgated and fostered by state officials"

can give rise to a protectible Due Process interest. See Perry

y._Sindermann, 408 U.S. 593, 602 (1972). Necessarily, since

settled practice and €xpectations can and do give rise to

Protectible Due Process interests, "the question whether state

laws create a federally protected right never could depend

exclusively on the construction of those laws by a state court."

Filard v. Alabama Board of Pardons and Paroles 824 F.2d

937, 943 n. 7 (11th Cir. 1987).

This Court’s opinion violates “rules and

understandings" that have long existed in Illinois. After nearly

a decade and a half of decisional law since Scott, established

Practice of the Illinois Prisoner Review Board both before and

after Scott and legislative acquiescence in Scott’s analysis, this

Court has radically altered the face of parole in this State.

This Court’s decision, therefore, is fundamentally legislative

in character. Under it, for the first time in the history of the

parole statute, the Illinois Prisoner Review Board is free to

deny parole for reasons of caprice or whim completely

EE ee eT. ee

unconnected to the statutory factors for parole.

This Court simply cannot be the final arbiter of

whether there is a protectible Due Process interest in parole in

Illinois. In another context, in Logan v. Zimmerman Brusb

La., 455 U.S. 422 (1982), the United States Supreme Court

reversed a decision of this Court precisely because this Court

had misapprehended the Due Process entitlements that the

plaintiff enjoyed under the Illinois Fair Employment Practices

Act. Here, this Court's opinion reflects a misapprehension of

the Due Process entitlements that have developed over the

course of many years in the Illinois parole process.

Under these circumstances, where the protections of

Due Process have long been held to exist, this Court may not,

under the guise of proffering a new "interpretation" of the

| Illinois Parole Statute simply remove parole from the realm of

Due Process.

« . % we, & ee ibe. . » 2 ¥

——— ie 7 3 sd le, we y. as ee

ee Se aay ee ee SB aa - _

(Il. THIS COURT'S RULING VIOLATES THE Fy

POST FACTO CLAUSE.

For many years, in thousands of Parole cases, the

formula for determining parole eligibility has been whether the

parole applicant presents One of the three enumerated factors

in the Illinois Parole Statute the existence of which requires

denial of parolee. In the absence of all of the factors, parole

has been granted in this State. At the time Mr. Hanrahan and

the other so-called "C" prisoners were sentenced, this was the

understanding of all Participants in the Process -- consistent

with Scott and the Illinois Parole Statute Parole would be

available if no Statutory factor were Present. The affidavit of

Judge Robert J. Collins (C. 453-54, App. 27-28, { 31)

demonstrates conclusively that in Mr. Hanrahan's case this

was what the sentencing judge understood when Mr. Hanrahan

was sentenced.

This Court's opinion retroactively alters the settled

4 Re trtiisines —:

eaita at A Ais es NSO es ean

interpretation of the Illinois Parole Statute by holding that

parole may be denied even in the absence of any statutory

factor. This decision changes the substantive nature of the

parole decision from what prevailed at the time the "C"

prisoners were sentenced. It is not open to this Court to do

what the Illinois General Assembly clearly could not -- is.

alter fundamentally and retroactively the nature of the

permissible considerations in the parole decision and, thereby,

the substantive formula for determining parole eligibility. See

California Department of Corrections v. Morales, 115 S. Ct.

1597 (1995). Such an inherently legislative action is violative

of the ex post facto clause.

IV. THIS COURT'S OPINION CREATES AN

UNSEEMLY CONFLICT WITH THE FEDERAL

COURTS.

As this Court's opinion acknowledged (Slip. Op. at 7),

its interpretation of the Illinois Parole Statute “differ{s]" from

that of the Seventh Circuit in Scott. The result of this

“difference” will be an unseemly and chaotic Situation in

which the federa] Courts recognize a Due Process liberty

interest in Illinois Parole while the Illinois courts do not.

Such

4 conflict is both intolerable and unnecessary.

CONCLUSION

For the foregoing Feasons, Appellee Homer E.

Hanrahan respectfully requests that this Court enter an order

Pursuant to Illinois Supreme Court Rule

367 withdrawing its opinion, permitting supplemental briefing,

and granting reargument in this case.

Respectfully submitted,

HOMER E. HANRAHAN

By:

One of his Attorneys

Locke E. Bowman

Kathleen M. Banar

MacArthur Justice Center

University of Chicago Law School

1111 E. 60th Street

Chicago, IL 60637 .

(312) 753-4405

Conor McAuliffe, a Third Year law student

at the University of Chicago Law School,

assisted in the preparation of this Petition.

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