EX PARTE ALABAMA BD. OF PARDONS AND PAROLES

CourtAlabama Court of Criminal Appeals
Writing for the CourtPER CURIAM.
Citation849 So.2d 255
PartiesEx parte ALABAMA BOARD OF PARDONS AND PAROLES. (In re Richard E. Henley v. State of Alabama Board of Pardons and Paroles).
Decision Date15 November 2002

849 So.2d 255

Ex parte ALABAMA BOARD OF PARDONS AND PAROLES.
(In re Richard E. Henley v. State of Alabama Board of Pardons and Paroles)

CR-01-2315.

Court of Criminal Appeals of Alabama.

November 15, 2002.


849 So.2d 256
Gregory O. Griffin, Sr., chief counsel; Francis A. Long, Sr., asst. atty. gen.; Steven M. Sirmon, asst. atty. gen.; and Hugh Davis, deputy atty. gen., Alabama Board of Pardons and Paroles, for petitioner

Richard Henley, pro se.

Judge Sarah M. Greenhaw, Montgomery.

PER CURIAM.

The Alabama Board of Pardons and Paroles (hereinafter referred to as "the Board") filed this petition for a writ of prohibition or mandamus directing Judge Sally Greenhaw to vacate her July 24, 2002, order directing the Board to hold a new parole hearing for Richard Henley. In June 2001, Henley filed a petition for a writ of certiorari in the Circuit Court of Montgomery County. He argued that the Board had arbitrarily and capriciously denied him parole on eight prior occasions and that he was entitled to a statement of the reasons it continued to deny him parole.1 The Board responded by asserting that its files are confidential and privileged, except for the Board's order denying parole—a copy of which Henley had been given. It further argued that Henley had no liberty interest in parole; therefore, he was not entitled to any due-process protections. Judge Greenhaw directed the Board to file documentary evidence in support of its actions. The Board filed a motion asking Judge Greenhaw to reconsider her ruling. On July 24, 2002, Judge Greenhaw entered an order denying that motion and directing the Board to hold a new parole hearing for Henley within 30 days. The Board then moved for Judge Greenhaw to rescind her order and to stay

849 So.2d 257
any further action pending review by a higher court. That motion was denied. The Board then filed this petition for a writ of mandamus, or, in the alternative, a writ of prohibition requesting that we stay Judge Greenhaw's July 24, 2002, order. We have stayed the proceedings in the circuit court pending the resolution of this petition

Before we consider the merits of this petition, we must first determine if this Court is the appropriate court to review Judge Greenhaw's ruling. "[T]o activate this court to superintend a lower court, the petitioner must, inter alia, show that the writ sought is in relation to a matter in which this court has appellate jurisdiction." Ex parte Goodman, 43 Ala. App. 183, 184, 185 So.2d 146, 148 (1966). The Court of Civil Appeals has jurisdiction of all appeals from administrative agencies. See § 12-3-10, Ala.Code 1975. However, although the Board is an administrative agency, it is exempt from the Alabama Administrative Procedure Act. See § 41-22-3(3), Ala.Code 1975. Review of proceedings from the Board is by a petition for a common-law writ of certiorari filed in the Circuit Court of Montgomery County. See Gholston v. Board of Pardons & Paroles, 627 So.2d 945 (Ala.Civ.App.1993). The Court of Criminal Appeals has jurisdiction of an appeal from the denial of a writ of a certiorari attacking the Board's denial or revocation of parole. We consider such writs to be "postconviction writs" that, according to § 12-3-9, are within the jurisdiction of the Court of Criminal Appeals. Ellard v. State, 474 So.2d 743 (Ala. Crim.App.1984), aff'd, 474 So.2d 758 (Ala. 1985). Because this Court has subject-matter jurisdiction of an appeal from the Board's denial of parole, this petition is correctly before this Court.

Having determined that this is the appropriate court to consider this petition for an extraordinary writ, we must next determine whether a petition for a writ of mandamus or a petition for a writ of prohibition is the appropriate vehicle by which to review Judge Greenhaw's actions. A petition for a writ of mandamus is appropriate when a lower court has failed to act. See Ex parte Jackson, 780 So.2d 681 (Ala.2000). A petition for a writ of prohibition is appropriate "`when a court acts in excess of its jurisdiction; Ex parte City of Tuskegee, 447 So.2d 713, 716 (Ala.1984), and because it is `the proper remedy to intercept and put an end to a usurpation of jurisdiction.'" Ex parte Coffee County Dep't of Human Res., 771 So.2d 485, 487 (Ala.Civ.App.2000), quoting, Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940). As the Alabama Supreme Court stated in Ex parte Maye, 799 So.2d 944 (Ala.2001):

"`"A writ of prohibition is an extraordinary writ which is to be employed with extreme caution and used only in cases of extreme necessity. Ex parte State Dep't of Mental Health & Mental Retardation, 536 So.2d 78 (Ala.Civ.App.1988); see also Ex parte Perry County Board of Education, 278 Ala. 646, 180 So.2d 246 (1965). Prohibition is not a favored writ and will not issue unless there is no other adequate remedy. Ex parte Strickland, 401 So.2d 33 (Ala.1981); Barber Pure Milk Co. of Montgomery, Inc. v. Alabama State Milk Control Board, 274 Ala. 563, 150 So.2d 693 (1963); Ex parte Burch, 236 Ala. 662, 184 So. 694 (1938). The petition for the writ `properly tests jurisdiction, and lies when a court acts in excess of its jurisdiction.' Ex parte City of Tuskegee, 447 So.2d 713, 716 (Ala.1984). The writ is preventive rather than corrective and is utilized to prevent the usurpation of excessive jurisdiction by a judicial tribunal. Ball v. Jones, 272 Ala. 305, 132 So.2d

849 So.2d 258
120 (1961); see also Mental Health, supra. Issuance of a writ of prohibition lies within the discretion of the court, and the writ is granted or withheld according to the nature and circumstances of the case, not as a matter of right. Barber, supra; Dear v. Peek, 261 Ala. 137, 73 So.2d 358 (1954). `Prohibition is the proper remedy to intercept and put an end to usurpation of jurisdiction.' Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940)."'"

799 So.2d at 947, quoting Ex parte Moody, 681 So.2d 276, 276-77 (Ala.Crim.App.1996), quoting in turn Ex parte Shoemaker, 644 So.2d 958, 959 (Ala.Civ.App.1993), rev'd on other grounds, 644 So.2d 961 (Ala.), on remand, 644 So.2d 966 (Ala.Civ.App.1994). Because the Board alleges that Judge Greenhaw exceeded her jurisdiction by issuing her July 24, 2002, order, we have treated this petition as a petition for a writ of prohibition.

In its brief in support of the issuance of this writ, the Board argues that Judge Greenhaw's review of its decision to deny parole, by way of common-law writ of certiorari, is very narrow in scope—a scope, it argues, that Judge Greenhaw exceeded. It further argues that Judge Greenhaw exceeded her authority by ordering the Board to hold a new parole hearing and file a response within 30 days—doing so would force the Board to violate § 15-22-36(d), Ala.Code 1975.2 It also argues that, according to statutory law, its records are confidential and privileged and that the Board has no obligation to detail the reasons for its actions unless it grants parole. See § 15-22-36(b), Ala.Code 1975.3

Judge Greenhaw has responded by stating that she cannot determine whether the Board's ruling was arbitrary or capricious without additional information.4 Judge Greenhaw stated the following in her first order directing the Board to furnish documents:

"Respondent contends that pursuant to Ala.Code [1975], § 15-22-36(b), the only public records which can be released are the Board's Order and the

849 So.2d 259
statement of reasons for favoring relief by a member. The Court would note that for many years Respondent has submitted affidavits of board members as evidence that their actions were not capricious or arbitrary. Furthermore, any records that Respondent claims are confidential can always be filed with the Court for an in camera review."

(Judge Greenhaw's July 17, 2002, order.) Judge Greenhaw's final order stated:

"Respondent has refused to file any supplementary documents or exhibits. Based on the record, the Court still cannot ascertain whether denial of parole on February 5, 2001, was based on false, insufficient or capricious reasons.
"Wherefore, it is hereby ordered that this matter is remanded to the Alabama Board of Pardons and Paroles to conduct a new parole hearing and file a response within thirty (30) days of the date of the order."

(Judge Greenhaw's July 24, 2002, order.)

Review of the Board's actions by writ of certiorari is more narrow than review by appeal. The appellate courts of this state have often characterized certiorari review as "limited in scope, and ordinarily the courts will only pass on the question of whether the administrative agency has acted within its constitutional or statutory powers, whether its order or determination is supported by substantial evidence, and whether its action is reasonable and not arbitrary." Ellard v. State, 474 So.2d 743, 750 (Ala.Crim.App.1984), aff'd,...

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11 practice notes
  • Board of Pardons and Paroles v. Williams, CR-04-0668.
    • United States
    • Alabama Court of Criminal Appeals
    • September 30, 2005
    ...revocation of parole are considered postconviction writs for purposes of § 12-3-9. See Ex parte Alabama Board of Pardons & Paroles, 849 So.2d 255 (Ala.Crim.App.2002). The Board filed a timely notice of appeal pursuant to § 6-6-641, Ala.Code 1975. See Dearborn Stove Co. v. Dean, 269 Ala.......
  • State v. Cantrell (Ex parte State), CR-18-0536
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 2019
    ...petition as a petition for a writ of prohibition.5 In discussing such writs, this Court in Ex parte Alabama Board of Pardons and Paroles, 849 So. 2d 255 (Ala. Crim. App. 2002), explained:"A petition for a writ of mandamus is appropriate when a lower court has failed to act. See Ex part......
  • Collins v. Alabama Dept. of Corrections, CR-03-0285.
    • United States
    • Supreme Court of Alabama
    • May 28, 2004
    ...when that decision is based on an inmate's conduct that occurred in prison. See also Ex parte Alabama Bd. of Pardons & Paroles, 849 So.2d 255 (Ala.Crim.App.2002).3 However, relying on the Alabama Supreme Court's recent decision in Ex parte Boykins, 862 So.2d 587 (Ala.2002); this Court's......
  • Bostwick v. ALA. BD. OF PARDONS AND PAROLES
    • United States
    • Alabama Court of Criminal Appeals
    • March 21, 2003
    ...(Emphasis added.) See also Hill v. State, 594 So.2d 246 (Ala.Crim.App.1992). In Henley v. State of Alabama Board of Pardons and Paroles, 849 So.2d 255, 260 (Ala. Crim.App.2002), we noted: "This rationale is also found in § 41-22-3(3), which provides that the Board is not subject to pro......
  • Request a trial to view additional results
11 cases
  • Board of Pardons and Paroles v. Williams, CR-04-0668.
    • United States
    • Alabama Court of Criminal Appeals
    • September 30, 2005
    ...revocation of parole are considered postconviction writs for purposes of § 12-3-9. See Ex parte Alabama Board of Pardons & Paroles, 849 So.2d 255 (Ala.Crim.App.2002). The Board filed a timely notice of appeal pursuant to § 6-6-641, Ala.Code 1975. See Dearborn Stove Co. v. Dean, 269 Ala. 561......
  • State v. Cantrell (Ex parte State), CR-18-0536
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 2019
    ...petition as a petition for a writ of prohibition.5 In discussing such writs, this Court in Ex parte Alabama Board of Pardons and Paroles, 849 So. 2d 255 (Ala. Crim. App. 2002), explained:"A petition for a writ of mandamus is appropriate when a lower court has failed to act. See Ex parte Jac......
  • Collins v. Alabama Dept. of Corrections, CR-03-0285.
    • United States
    • Supreme Court of Alabama
    • May 28, 2004
    ...("DOC") when that decision is based on an inmate's conduct that occurred in prison. See also Ex parte Alabama Bd. of Pardons & Paroles, 849 So.2d 255 (Ala.Crim.App.2002).3 However, relying on the Alabama Supreme Court's recent decision in Ex parte Boykins, 862 So.2d 587 (Ala.2002); this Cou......
  • Bostwick v. ALA. BD. OF PARDONS AND PAROLES
    • United States
    • Alabama Court of Criminal Appeals
    • March 21, 2003
    ...(Emphasis added.) See also Hill v. State, 594 So.2d 246 (Ala.Crim.App.1992). In Henley v. State of Alabama Board of Pardons and Paroles, 849 So.2d 255, 260 (Ala. Crim.App.2002), we noted: "This rationale is also found in § 41-22-3(3), which provides that the Board is not subject to provisio......
  • Request a trial to view additional results

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