Cummings v. Regan

• Decision Date: 07 December 1973
• Parties: Application of Thomas A. CUMMINGS, Petitioner, and Anthony A. DiBenadetto et al., Intervenors, For a Judgment under Article 78 of the Civil Practice Law and Rules in the nature of Mandamus v. Paul J. REGAN, Chairman, New York State Board of Parole, et al., Respondents.
• Court: New York Supreme Court

Page 119

350 N.Y.S.2d 119

76 Misc.2d 137

Application of Thomas A. CUMMINGS, Petitioner, and Anthony

A. DiBenadetto et al., Intervenors, For a Judgment

under Article 78 of the Civil Practice

Law and Rules in the nature of Mandamus v. Paul J. REGAN, Chairman, New York State Board of Parole, et

al., Respondents.

Supreme Court, Erie County.

Dec. 7, 1973.

Herman Schwartz, Buffalo, for petitioner Cummings and intervenor dIbenadetto.

Stephen J. Perello, Jr., for intervenors Charles Locicero, Clarence Calhoun and George Whiteneck.

Louis J. Lefkowitz, Atty. Gen. (Bruce R. Schmidt, of counsel), for respondents.

MEMORANDUM

JOHN H. DOERR, Justice.

This is a proceeding pursuant to Article 78 CPLR wherein a judgment is sought directing the respondents to give a meaningful statement of reasons why release on parole is denied.

The original proceeding was brought by petitioner Thomas A. Cummings ('Cummings'). Subsequently, Anthony DiBenadetto ('DiBenadetto'), Charles Locicero ('Locicero'), George Whiteneck ('Whiteneck') and Clarence Calhoun ('Calhoun') petitioned the Court for permission to intervene. The application of Calhoun has become moot. The court has signed an order permitting Locicero and Whiteneck to intervene, their papers being in order, and will grant herein the application of DiBenadetto to become an intervenor even though his petition is executed on his behalf by his attorney. His wish to intervene is obvious and he qualifies along with the other intervenors.

Application has also been made by petitioner and intervenors (hereinafter referred to as petitioners) to amend the proceeding to include therein class treatment for all inmates in New York State correctional facilities who have been denied release on parole without having been given meaningful reasons for such denial.

The respondents deny the allegations in the petition and oppose the application to treat the matter as a class action, claiming primarily that there is a lack of common questions of law and fact and that the class is indeterminate. The statutory provision for such actions does not appear to be complicated.

'CPLR § 1005. Class actions

(a) When allowed. Where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.'

The courts of New York have not enthusiastically supported class actions (Society Milion Athena v. National Bank of Greece, 281 N.Y. 282, 22 N.E.2d 374; Hall v. Coburn Corp., 26 N.Y.2d 396, 311 N.Y.S.2d 281, 259 N.E.2d 720). This does not mean such actions are not available, especially after a consideration of the types of actions in which representative relief has been denied. The Court is not persuaded by the respondents' argument that a class action herein might deny a member of the class the right to select which remedy the class will pursue or deny or that certain inmates might be deprived of their day in court or choice of remedies. As will be seen from the following, there is such a common and general interest of the persons who constitute the class (inmates of New York State correctional facilities who have attained parole eligibility) and those persons are so numerous that it would be impractical and cumbersome to bring them all before the Court, that the motion to maintain the within proceeding as a class action is granted. There is the further consideration that the relief requested is general in nature, applies to a single administrative body (New York State Board of Parole), whose authority is derived from one statutory authority (Article 8, Correction Law) and whose determinations affect all members of the class who obviously are all similarly situated.

Throughout the entire proceeding, and regardless of which petition is considered, there is but one compelling question before the Court: Should the respondent Board of Parole be required to disclose to a prisoner the reasons why parole has been denied? The resulting answer can and should apply to all petitioners and all parole applicants. Eligibility for parole, after all, is achieved by operation of law, not the discretion of the Parole Board. As parole eligibles, all prisoner applicants stand equal. The discretion of the Board begins only at the hearing and decision stage. On the basic question posed above, the Court is unable to see how each individual challenge made to the Board's policy will differ in any way from a challenge made for a class.

The Court will not refer to the specifics of each petitioner's case. Their situations are all so similar to each other and to the class that general references will be adequate. The petitioners are confined to the Attica Correctional Facility, serving indeterminate terms of imprisonment for their various and several judgments of conviction. They have all qualified by law for parole consideration and have appeared before the Parole Board. Each has been denied parole with the terse written statement in general 'Hold for one year.' No explanation for denial of parole release was given. Requests were made by them and members of their families or their attorneys to the Parole Board for reasons why their conditional release was denied. These inquiries were generally responded to in broad terms, citing past criminal history or referring to confidentiality of records and the responses are conclusory in nature and give no reasons or explanation why parole was denied. The petitioners allege that there are no valid reasons why they should not have been released on parole.

At the outset, the Court wishes to make it clear that it has no intention of making a determination herein whether or not there are valid reasons why the petitioners and others similarly situated should not be released on parole. It must be noted, however, that in some instances the respondents deny any knowledge or information sufficient to form a belief as to certain allegations in the petitions; e.g., petitioner Cummings alleges, Inter alia, 'Since 1970 on his return to prison upon his conviction for escape, he has not been involved in any disciplinary infraction. . . . Cummings had previously driven an ambulance, worked in the operating area of the hospital at the Elmira Correctional Facility and when paroled before, had worked in a hospital in Rochester.' To this the respondents answered that they had no knowledge or information sufficient to form a belief as to the allegations. This is somewhat difficult to reconcile after a reading of Article 8 of the Correction Law wherein the Board of Parole is enjoined to compile and retain at all times complete information relating to all inmates while in prison and also while on parole.

The respondents in their answer assert various affirmative defenses, in essence stating that their actions in granting or denial of parole are performed in accordance with law and that their actions are supported by all the materials presented and reviewed at parole hearings and that parole is a matter of discretion, which discretion is vested solely in the Parole Board. Through counsel they also assert that some parole applicants are given reasons for denial and also through institutional parole officers and others are given suggested forms of proper conduct. Further, that parole release proceedings are not adversary proceedings and questions of due process are not present.

After a review of the recent case law with regard to parole release and the developing body of law relating to due process affecting prison inmates and parolees and probationers, the Court finds itself in agreement with the observation of Judge Judd that the refusal of the New York Parole Board to give reasons for denial of parole release appears to be a vanguard for an inevitable change in New York law on the subject. (United States, ex rel. Woods v. Regan, Judd, J., USDC, EDNY, Case #72--C--1307, March 20, 1973).

The concept that due process considerations are not available to those who have been convicted of crimes and are serving duly imposed sentences therefor or have been conditionally released from imprisonment and charged with violation of the conditions simply is no longer tenable in the light of the growing number of cases which have rejected this principle. (See: Monks v. New Jersey State Parole Board, 58 N.J. 238, 277 A.2d 193, give reasons for denial of parole; People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238, right to counsel at parole revocation hearing; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, right to minimum due process at parole revocation hearing; United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir., 443 F.2d 1079, right to counsel at parole revocation hearing; United States ex rel. Johnson v. Chairman, New York State Board of Parole, D.C.N.Y., 363 F.Supp. 416, give reasons for denial of parole; Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, statements made by inmate at parole revocation hearing may not be used in subsequent criminal proceeding; Clutchette v. Procunier, D.C.Cal., 328 F.Supp. 767, right to counsel in disciplinary hearing to aid in exercising constitutional privileges where crime may be involved; United States ex rel. Harrison v. Pace, E.D.Pa., 357 F.Supp. 354, 1973, grant or denial of parole subject to due process...