Ex parte Ellard

• Decision Date: 03 July 1985
• Citation: 474 So.2d 758
• Parties: Ex parte Richard Mark ELLARD. (re Richard Mark Ellard v. State of Alabama). 83-1352.
• Court: Alabama Supreme Court

Page 758

474 So.2d 758

Ex parte Richard Mark ELLARD (re Richard Mark Ellard v. State of Alabama).

83-1352.

Supreme Court of Alabama.

July 3, 1985.

Ralph I. Knowles, Jr., Tuscaloosa, and Ira A. Burnim, Montgomery, for petitioner.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for respondent.

Frank D. McPhillips of Maynard, Cooper, Frierson, & Gale, Birmingham for amicus curiae Johnny Wayne Wade.

Maddox, Justice.

We issued the writ of certiorari in this case in order to review the Court of Criminal Appeals' decision, 474 So.2d 743, upholding the Board of Pardon and Parole's revocation of Richard Mark Ellard's parole. We affirm.

A complete statement of the facts is contained in the opinion of the Court of Criminal Appeals, but we set out a sufficient set of facts to support the reasons why we affirm.

Mark Ellard was incarcerated in the Alabama prison system pursuant to a life sentence for murder and a twenty-year sentence for assault with intent to murder. On December 8, 1980, parole officer Thomas Tate evaluated the social, criminal, and custodial record of Mark Ellard and recommended that he be paroled. The board met with Ellard on December 15, 1980, interviewed him, and later reviewed the parole board file. In addition to the parole evaluations and social histories made at the time of his sentencing, the file included reports on the nature of his crimes and his activities on escape in 1977, as well as documents from classification officers, work supervisors, and the warden of Holman Prison recommending that Ellard be paroled.

Based upon its investigations, evaluations, and interview, the board issued Ellard a certificate of parole. Additional factors established by petitioner's Ala.R.App.P. 39(k) statement shall be considered below in light of their relevance to the issues presented.

In the Court of Criminal Appeals' opinion, Judge Patterson, writing for the court, set forth a detailed history of the establishment of the Board of Pardons and Paroles. He also set forth the applicable law for reexamination of the grant of parole by administrative boards.

The critical questions raised in this petition are: (1) Did Ellard have a liberty interest? and (2) Could the parole board, based on the record in this case, revoke the parole?

I

Did Ellard have a liberty interest?

The Court of Criminal Appeals correctly determined that Alabama's parole statutes do not create a "liberty interest" that cannot be revoked. Andrus v. Lambert, 424 So.2d 5 (Ala.Crim.App.1982); Thomas v. Sellers, 691 F.2d 487 (11th Cir.1982); Johnston v. Alabama Pardon and Parole Board, 530 F.Supp. 589 (M.D.Ala.1982). In Thomas the Middle District held as follows:

"The Alabama statute like the Texas statute calls for discretionary rather than mandatory action on the part of the board. The law directs the board to consider a number of factors in making their determination, which is a subjective rather than objective determination. It does not contain any language that mandates parole as was found in Greenholtz [v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ]. When the statute is framed in discretionary terms there is not a liberty interest created."

Although Ellard did not have a constitutionally protected liberty interest, nevertheless, we recognize that Ellard was entitled to a due process hearing; here, however, as the Court of Criminal Appeals found, Ellard was accorded substantial procedural safeguards in accordance with the mandates of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971).

II

Can a parole be revoked in the absence of a showing that the parolee violated a condition of his parole? There is a split of authority on this issue. In Ex parte Urbanowicz, 24 F.2d 574 (D.Kan.1928), the Court held that a parole granted to a United States prisoner could not be cancelled or rescinded except for some offense committed by him subsequent to the date of the parole which constituted a violation of the terms of the parole.

Courts have reached a contrary conclusion, however, under statutes which confer more extensive authority on the parole board or commission. In Johnson v. Walls, 185 Ga. 177, 194 S.E. 380 (1937), the Georgia Supreme Court held that the parole board did not exceed its power in revoking a parole when the prison commission which granted the parole mistakenly thought that the prisoner had served several months of his sentence instead of, in actuality, only two days of his sentence. See also In re Tobin, 130 Cal.App. 371, 20 P.2d 91 (1933).

This issue of whether a parole board can revoke a parole was addressed most recently in Tracy v. Salamack, 440 F.Supp. 930 (S.D.N.Y.1977), modified and affirmed, Tracy v. Salamack, 572 F.2d 393 (2d Cir.1978).

The Tracy decision, although involving work release inmates and New York statutes, is strikingly similar to this case. We quote the second opinion in that case in its entirety for a complete understanding of the facts and the laws, omitting only the footnotes:

"This appeal is from an order of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, granting appellees' motion for a preliminary injunction and ordering reinstatement of members of the plaintiff class in the temporary release program instituted by the New York State correctional system in 1969. Tracy v. Salamack, 440 F.Supp. 930 (S.D.N.Y.1977) (mem.), and delineating the circumstances under which removal would be proper after a Due Process hearing. Tracy v. Salamack, 440 F.Supp. 930, No. 77 Civ. 3937 (S.D.N.Y., dated Nov. 7, 1977).

"Under the statutory scheme in effect before September 1, 1977, any inmate within one year of eligibility for parole could apply for participation in the program. Each of the 140 original members of the plaintiff class had received approval to participate in the program prior to August, 1977, and many were already doing so. The underlying statute was amended in July, 1977, effective September 1, 1977, (a) to provide that no person otherwise eligible who is under sentence for certain violent crimes may participate in the program 'without the written approval of the commissioner,' and (b) to require the commission to 'promulgate regulations' for the guidance of temporary release committees at each institution in effectuating the statutory mandate. No such regulations were formulated. Nonetheless, in August, 1977, the Department of Correctional Services conducted a four-step screening process of the 824 temporary release participants, resulting in removal of the 140 original members of appellees' class. The inmates then brought this civil rights action and moved for a preliminary injunction requiring the Department to reinstate them and to grant them hearings before future changes in their status could be made.

"Judge Lasker concluded that the Due Process Clause protects appellees against removal from the program without a prior hearing. He first found that appellees had suffered a 'grievous loss' of a liberty interest by analogizing temporary release to other release programs which have been held to merit Due Process protection. Tracy v. Salamack, supra, 440 F.Supp. at 933-34. Relying on these precedents, ... the statute, prior official policy and practice in administering the program, and the wording of the form agreement signed by all participants, the district court further held that appellees had an 'entitlement' in the temporary release program. Id. at 934-36.

"Thus far, we agree with Judge Lasker's findings of fact and conclusions of law. We also agree that a preliminary injunction to maintain the status quo of appellees' eligibility and participation was warranted. However, we cannot agree with the constraints which the district court imposed on the Department's authority to revoke these participation rights.

"Judge Lasker held that 'because plaintiffs' entitlement ... came into existence only after a security check at the time each plaintiff was originally admitted to the program,' Tracy v. Salamack, supra, No. 77 Civ. 3937, 440 F.Supp. at 936,

none of the members of the plaintiff class may be removed from the temporary release program on allegations that their participation would constitute a threat to the security of the community except upon a showing, in accordance with due process, that a change of facts has occurred since the original determination permitting the inmate's participation, or the discovery by the defendants of new relevant facts which, although they existed at the time of the original decision, were unknown to the defendants through no fault of their own and through no lack of reasonable diligence on their part. As to any inmate alleged to be a security risk under such circumstances, he shall be restored to the temporary release program unless within twenty days from the filing of this order the charges against him are heard and determined in accordance with the requirements for hearings at correctional institutions set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Id. at 936.

"We think this order goes too far by in effect prohibiting the State from changing its law regarding the eligibility of inmates already participating in the program. An 'entitlement' rooted in state law may well require an individualized procedural due process hearing before it may be revoked. It does not, however, have the substantive effect of prohibiting alteration of the underlying law which creates the entitlement. See generally Tribe, Structural Due Process, 10 Harv.C.R.-C.L.L.Rev. 269, 270-83, 301-08 (1975). We believe that a Due Process hearing is required before inmates already participating in or approved for the program may be removed. But the formula adopted by the district court--authorizing revocation of participation rights only when based on additional new facts or...