Belcher v. Kentucky Parole Bd.

• Decision Date: 15 March 1996
• Docket Number: No. 94-CA-001267-MR,94-CA-001267-MR
• Citation: 917 S.W.2d 584
• Parties: Bill BELCHER, Appellant, v. The KENTUCKY PAROLE BOARD; Helen Howard-Hughes; Joanie Abramson-Muelies; Larry Ball; Richard Brown; Chester Hager; Theodore R. Kister; and Bud Rankin, Appellees.
• Court: Kentucky Court of Appeals

Page 584

917 S.W.2d 584

Bill BELCHER, Appellant, v. The KENTUCKY PAROLE BOARD; Helen Howard-Hughes; Joanie Abramson-Muelies; Larry Ball; Richard Brown Chester Hager; Theodore R. Kister; and Bud Rankin, Appellees.

No. 94-CA-001267-MR.

Court of Appeals of Kentucky.

March 15, 1996.

Appeal from Lyon Circuit Court, Honorable William Cunningham, Judge; Action No. 94-CI-0007.

Bill Belcher, Eddyville, pro se.

Barbara W. Jones, Justice Cabinet, Frankfort, for Appellees.

Before EMBERTON, HUDDLESTON and MILLER, JJ.

EMBERTON, Judge.

Bill Belcher appeals the April 15, 1994, order of the Lyon Circuit Court which dismissed his complaint against the Kentucky State Parole Board for failure to state a cause of action upon which relief can be granted. The complaint styled "Civil Complaint for Constitutional and Statutory Violations" was construed by the trial court as a civil rights action pursuant to 42 U.S.C. Section 1983. Belcher claimed: (1) that the Board violated Ky.Rev.Stat. (KRS) 439.340 in failing to grant him parole; (2) that the Board denied him due process by failing to give him any reasons for deferring his parole for nine months; and (3) that he was entitled to compensatory damages and injunctive relief from the Board's decision.

Belcher construes KRS 439.340 to impose a mandatory, affirmative duty upon the Board to parole all inmates who comply with the eligibility criteria set forth therein. We disagree with this interpretation. Contrary to Belcher's assertions, the statute does not, in our opinion, create a protected liberty interest in parole.

As related in Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989):

The types of interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," Board of Regents v. Roth, 408 U.S. , at 577, 92 S.Ct. [2701] at 2709, [33 L.Ed.2d 548 (1972) ], and must be based on more than "a unilateral hope," Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981). Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests "may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. at 466, 103 S.Ct. at 868, (1983).

Id. 490 U.S. at 460, 109 S.Ct. at 1908.

"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.... [T]he conviction, with all its procedural safeguards, has extinguished that liberty right." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451; reh'g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976).

State laws or regulations create liberty interests when they place "substantive limitations on official discretion." Kentucky Department of Corrections, supra, at 462, 109 S.Ct. at 1909. Such limitations exist where: (1) the law or regulation establishes "substantive predicates" to guide the state's decision makers; and (2) mandatory language is used to ensure that, if the substantive predicates are present, a prescribed result will necessarily follow. Id. at 462-63, 109 S.Ct. at 1909-10, citing Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). ¹

In this instance, Belcher's claim must fail. KRS 439.340 provided at the time of its application to Belcher: ²

The board may release on parole such persons confined in any adult state penal or correctional institution of Kentucky as are eligible for parole. (Emphasis added).

The statute then sets forth minimum eligibility requirements and factors relevant for consideration, and directs the Board to adopt rules and regulations for reviewing inmates for parole. The statute itself does not codify procedural due process requirements; instead, it limits and imposes restrictions upon the granting of parole.

The mere existence of a statutory possibility of parole does not mean the full panoply of due process required to convict and confine must be employed by the Board in deciding to deny parole and continue confinement. The Corrections Cabinet has developed a thorough procedural structure whereby the Board reviews inmates' histories to determine parole eligibility. 501 Ky.Admin.Regs. (KAR) 1:030-1:050. While the statute and regulations entitle Belcher to review, even a finding that certain relevant criteria have been met does not require the Board to release him prior to the expiration of his sentence. Nothing in the statute or the regulations mandates the granting of parole in the first instance, and nothing therein diminishes the discretionary nature of the Board's authority in such matters. Adams v. Ferguson, Ky., 386 S.W.2d 462 (1965); Willard v. Ferguson, Ky., 358 S.W.2d 516 (1962); KRS 439.310 et seq.; 501 KAR 1:030--1:050. The statutes and regulations at issue lack the requisite mandatory language. ³ Belcher has simply failed to demonstrate he has suffered a "grievous loss" of a liberty right retained even after sentenced to a term of imprisonment. Sandin v. Conner, 515 U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

We are aware that the Greenholtz court determined that the Nebraska statute at issue created an expectancy of release, entitling inmates to some measure of due process. As noted, however, it was the statute's unique structure and language that made this so. Like most parole statutes, Nebraska's parole statute vests broad discretion in the Board; however, Nebraska mandates release unless the Board is of the opinion that release should be deferred because of the existence of one or more of the reasons set forth in the statute. ⁴ Greenholtz emphasized the scope of the interest, if any, that other state statutes intend to afford inmates must be decided on a case-by-case basis. We note that Kentucky's statute vests broad discretion in the Board and does not employ language requiring release absent a finding that release would be inappropriate for a specified reason. To the contrary, Kentucky's statute prohibits parole absent a determination that such would be in the best interest of society. See KRS 439.340. We concur with the trial court's view that Kentucky's statute and the regulations promulgated pursuant thereto have not elevated parole to a liberty interest in which inmates have a legitimate claim of entitlement. In Kentucky, parole is a matter of legislative grace. Fowler v. Black, Ky., 364 S.W.2d 164 (1963).

Obviously, Belcher has a legitimate interest in a decision rendered in conformity with the established procedures and policies; one which is based upon consideration of relevant criteria. To this extent, the record reveals Belcher's "due process" rights were satisfied. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

"It is axiomatic that due process 'is flexible and calls for such procedural protections as the particular situation demands.' " Greenholtz, supra, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Flexibility is necessary to tailor the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The legislative body in Kentucky is no doubt mindful that:

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.

Greenholtz, 442 U.S. at 9-10, 99 S.Ct. at 2105.

Belcher asserts that his compliance with the recommendations of a previous review Board entitled him to release upon his subsequent review. Even assuming that Belcher had, in fact, complied with the suggestions and recommendations of a previous Board, we find no authority mandating release by a subsequent Board.

Additionally, Belcher contends that the Board failed to provide him with adequate reasons for its denial of parole and that such constituted a deprivation of his due process rights. We disagree. A review of the record reveals his assertion lacks merit. Among the exhibits in the record is a copy of the Board's decision outlining the reason for its action. It stated: The Board concluded that the resident [Belcher] is a poor parole risk and said resident has received the action recorded above [9-month deferment] for the following reasons: X seriousness of the crime....

The record discloses that Belcher was afforded an opportunity to be heard and was apprised of the Board's decision and the reason for the denial of parole. Even so, due process concepts as thus far developed, do not require the Board to provide a detailed summary or specify the particular evidence on which it rests the discretionary determination that the inmate is not ready for conditional release. We concur with the view expressed in Greenholtz that "to require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board's parole-release determination with a guilt determination." Id. at 15-16, 99 S.Ct. at 2108. ⁵ In light of the record, we conclude Belcher's due process rights were satisfied and that the Board did not abuse its discretion in denying parole.

Finally, Belcher predicates his claim for monetary damages...