443 F.2d 942 (8th Cir. 1971), 20328, Morrissey v. Brewer

Docket Nº:20328, 20425.
Citation:443 F.2d 942
Party Name:John J. MORRISSEY, Appellant, v. Lou V. BREWER, Warden, Appellee. G. Donald BOOHER, Appellant, v. LEE AND O'BRIEN COUNTIES and the State of Iowa, et al., Appellees.
Case Date:April 21, 1971
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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443 F.2d 942 (8th Cir. 1971)

John J. MORRISSEY, Appellant,


Lou V. BREWER, Warden, Appellee.

G. Donald BOOHER, Appellant,


LEE AND O'BRIEN COUNTIES and the State of Iowa, et al., Appellees.

Nos. 20328, 20425.

United States Court of Appeals, Eighth Circuit.

April 21, 1971

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W. Don Brittin, Jr., Des Moines, Iowa, for appellants.

Michael J. Laughlin, Asst. Atty. Gen., Des Moines, Iowa, Richard C. Turner, Atty. Gen., Des Moines, Iowa, for appellees.

Before MATTHES, Chief Judge, and VAN OOSTERHOUT, MEHAFFY, GIBSON, LAY, HEANEY and BRIGHT, Circuit Judges, En Banc.

MATTHES, Chief Judge.

These consolidated appeals are from orders entered in two separate cases in the United States District Court for the Southern District of Iowa denying appellants' petitions for writs of habeas corpus.

Appellant John J. Morrissey was convicted in January of 1967 in the District Court of Iowa, Linn County, upon his plea of guilty to the charge of false drawing or uttering of checks in violation of Iowa Code § 713.3 (1966), and was sentenced to a term of imprisonment not to exceed 7 years. After serving a part of this sentence in the Iowa State Penitentiary, Morrissey was paroled from the institution on June 20, 1968. On January 24, 1969, he was arrested as a parole violator, and on January 31, 1969, after review of the parole officer's report, the Iowa Board of Parole entered an order revoking his parole, whereupon he was returned to the Iowa State Penitentiary. 1

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Appellant G. Donald Booher was convicted in April of 1966 in the District Court of Iowa, O'Brien County, upon his plea of guilty to the charge of forgery in violation of Iowa Code § 718.1 (1962), and was sentenced to a term of imprisonment not to exceed 10 years. Having served a portion of this sentence in the Iowa State Penitentiary, Booher was granted a parole on November 14, 1968. In August of 1969, however, Booher was arrested for violation of his parole. On September 13, 1969, on the basis of a report of violations filed by Booher's parole officer, the Iowa Board of Parole revoked his parole, and he was recommitted to the Iowa State Penitentiary to complete service of his sentence. 2

After unsuccessfully pursuing state remedies, 3 each appellant, in separately filed actions, petitioned the federal district court for a writ of habeas corpus alleging that his constitutional rights had been violated because he did not receive a hearing upon revocation of his parole. Morrissey's petition was denied by order entered April 15, 1970, Booher's by order of June 16, 1970. The district court denied applications for certificates of probable cause to appeal in each case.

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Subsequently, our court granted certificates of probable cause, appointed counsel, and ordered that the appeals be consolidated and submitted to the court en banc.

The sole issue presented for review is whether appellants' constitutional fights to due process vere violated when the lowa Board of Parole revoked their paroles without a hearing. Appellants contend that the Due Process Clause of the Fourteenth Amendment requires that a hearing be held prior to the revocation of parole, that at such hearing they be given the opportunity to confront and cross-examine witnesses and to present evidence on their own behalf.

Consideration of the issue raised by appellants requires an understanding of the Iowa procedure for the granting and revocation of paroles. By statute, Iowa Code § 247.1 et seq., Iowa has created an independent three member board of parole which is appointed by the governor with the approval of of the senate. Not more than two members may belong to the same political party, and at least one member must be a practicing attorney. For administrative purposes, the board is a part of the department of social services. The legislature has conferred upon the board the power to grant paroles to convicted persons committed to the state penitentiary or reformatory and to establish rules and conditions under which paroles may be granted. Once an inmate is placed on parole, he is under the supervision of the director of the division of corrections of the department of social services, but while on parole, he remains in the legal custody of the warden or superintendent and under the control of the chief parole officer. Section 247.9 of the Iowa Code provides that all paroled prisoners are subject, at any time, to be taken into custody and returned to the institution from which they were paroled. Parole agents charged with the supervision of paroled persons may not revoke a parole, but may recommend that the board of parole take this action.

The Iowa statutes neither prohibit nor expressly provide for notice and hearing before revocation of parole. 4 In Curtis v. Bennett, 256 Iowa 1164, 131 L.W.2d 1 (1964), cert. denied, 380 U.S. 958, 85 S.Ct. 1096, 13 L.Ed.2d 974 (1965) one of the questions presented to the Iowa Supreme Court was whether the Iowa statutes should be interpreted as requiring that a hearing be afforded prior to revocation of parole. In addressing itself to this issue, the court held:

'The Iowa statutes do not provide for such a hearing before the parole board. The board is given no power to issue subpoenaes nor swear witnesses. There is nothing in the statutes which expressly or by implication requires the board to enter findings of fact of the kind made by judicial bodies. The absence of such provisions shows the legislature did not intend that the board should conduct any such hearings. In other words, the Iowa statutes contemplate that the board of parole shall be guided by the information which shall become available to it through its own investigation procedures. It is thus an administrative function rather than judicial. When the board grants a prisoner a parole, it does so as a matter of grace and not as a duty. It has the right to impose such conditions as it feels proper and, when the prisoner accepts the parole, he does so subject to its terms and conditions. He cannot later in a judicial hearing complain as to their fairness or propriety.'

Id. at 3-4.

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In Curtis v. Bennett, the Iowa Court also held that a parolee had no constitutional right to notice and hearing before the board could revoke his parole. In so holding, the court reaffirmed the position taken in its earlier decision in Pagano v. Bechly, 211 Iowa 1294, 232 L.W. 798 (1930), that parole is a matter of grace on the part of the sovereign and that a defendant acquires no vested rights when granted a parole. 5

As the district court noted in the orders denying appellants' petitions for habeas corpus, our court has approved the procedure followed by Iowa on revocation of parole. In Curtis v. Bennett, 351 F.2d 931 (8th Cir. 1965) 6 we held:

'The Iowa Court in its opinion sets out the contentions made by the petitioner and holds that all proceedings in connection with petitioner's parole, the revocation thereof and his retaking are in conformity with Iowa law. Petitioner makes the same contentions here. We believe that all of the contentions now urged by petitioner were fairly considered and properly answered by the Iowa Supreme Court.

'A parole is a matter of grace, not a vested right. A large discretion is left to the States as to the manner and terms upon which paroles may be granted and revoked. Federal due process does not require that a parole revocation be predicated upon notice and opportunity to be heard.'

Id. at 933.

Appellants, however, urge that we reexamine the position espoused in Curtis, and hold that the revocation of their paroles without a hearing was violative of the basic requirements of due process.

For support appellants rely almost exclusively upon and adopt the reasoning of the opinion in Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970). In Hahn, the Seventh Circuit held that the revocation of probation without a hearing violated the probationer's constitutional right to due process under the Fourteenth Amendment. In so holding, the court recognized that probation is a privilege and not a right, but foung that 'essential procedural due process no longer turns on the distinction between a privilege and a right.' Id. at 103. In reaching this conclusion the Court applied the reasoning of the Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), in which it was held that termination of public assistance payments to a welfare recipient by the State without affording him a pre-termination evidentiary hearing deprives the recipient of procedural due process in violation of the Fourteenth Amendment. In Goldberg, the Supreme Court found that welfare '* * * benefits are a

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matter of statutory entitlement for persons qualified to receive them. Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are 'a privilege and not a right. '' Id. at 262, 90 S.Ct. at 1017.

The Supreme Court reasoned that the extent tow which procedural due process must be afforded the recipient 'depends upon whether the recipient's interest in avoiding that loss outweighs the govermnental interest in summary adjudication.' Id. at 263, 90 S.Ct. at 1018. The Hahn court applied this same balancing test to conclude that the probationer's loss of freedom outweighed the added state burden of granting a hearing prior to revocation of his probation. In its opinion, the Seventh Circuit recognized that the Supreme Court in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935) had held that there is no constitutional right to a hearing on revocation of probation apart from any statute. However, the Hahn court interpreted this statement in Escoe as indicating 'only that the (Supreme) Court's opinion was not based on a constitutional right to a hearing and not as a...

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