Foley v. Beshear
| Decision Date | 11 June 2015 |
| Docket Number | 2013–SC–000777–MR |
| Citation | 462 S.W.3d 389 |
| Parties | Robert Carl Foley and Ralph Baze, Appellants v. Steve Beshear, Governor of Kentucky; LaDonna Thompson, in her Official Capacity as Commissioner of the Kentucky Department of Corrections; and the Kentucky Parole Board, Appellees |
| Court | United States State Supreme Court — District of Kentucky |
Counsel for Appellants: Euva Denean Blandford, Meggan Elizabeth Smith, Assistant Public Advocate, Department of Public Advocacy
Counsel for Steve Beshear, Governor of Kentucky, Appellee: Steven Travis Mayo, Jessica R.C. Malloy, Assistant Attorney General, Office of the Attorney General
Counsel for LaDonna Thompson, in her Official Capacity as Commissioner of the Kentucky Department of Corrections, Appellee: Angela Turner Dunham, Justice and Public Safety Cabinet, Office of Legal Services
Counsel for the Kentucky Parole Board, Appellee: John C. Cummings, Justice and Public Safety Cabinet, Office of Legal Services
Death-row inmates Robert Foley and Ralph Baze appeal from an Order of the Franklin Circuit Court dismissing their Kentucky Revised Statute (KRS) 418.040 complaint for a declaratory judgment to the effect that “the Kentucky procedures outlining the submission and review of a petition for executive clemency [are] constitutionally inadequate.” Appellants sought an order requiring the Governor, and/or the Department of Corrections (through its Commissioner, LaDonna Thompson), and/or the Kentucky Parole Board “to adopt adequate policies and procedures regarding clemency petitions.” They further sought an order requiring the Parole Board “to adopt administrative procedures governing the ways in which they [the Board] must conduct clemency investigations.” The three defendants, Appellees in this Court, all moved to have the complaint dismissed, and following a hearing and supplemental filings, the trial court granted the defense motions. The court noted that Section 77 of the Constitution of Kentucky vests the power to grant pardons in the Governor. In the court's view, “It would violate the separation of powers for the courts to attempt to dictate to the Governor the procedures he must employ in considering pardons.” Baze and Foley contend that the trial court's reliance on the separation of powers doctrine was inappropriate. As they see it, Kentucky's “paucity” of clemency-related legislation allows for arbitrary clemency decisions and thus violates their rights to due process under the Fourteenth Amendment to the Constitution of the United States,1 a violation the courts can address without trespassing on the power of the executive. Convinced that Appellants' petition has failed to state a claim for relief, we affirm the trial court's order dismissing the complaint.
Both Foley and Baze have been convicted of multiple murders and sentenced to death. Foley was convicted in the Laurel Circuit Court of the 1991 murders of brothers Rodney and Harry Lynn Vaughn and for both killings he was given the death penalty. The conviction and sentence were affirmed in Foley v. Commonwealth, 942 S.W.2d 876 (Ky.1996), cert. denied,
522 U.S. 893, 118 S.Ct. 234, 139 L.Ed.2d 165 (1997). Foley was also convicted in the Madison Circuit Court of four murders that took place in Laurel County in 1989, but that were not discovered until after the Vaughn murders. He was sentenced to death for each killing, and this Court upheld the conviction and sentence in Foley v. Commonwealth, 953 S.W.2d 924 (Ky.1997), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 522 (1998). Baze was convicted and sentenced to death in the Rowan Circuit Court for the 1992 murders of two police officers who were attempting to serve fugitive warrants on him in Powell County. This Court affirmed his conviction and sentence in Baze v. Commonwealth, 965 S.W.2d 817 (Ky.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998).
In addition to their direct appeals, both Appellants have unsuccessfully pursued both state and federal collateral relief.2 Both have also previously sought declaratory relief pursuant to KRS 418.040.3 Baze, in fact, has already sought declaratory relief against the Department of Corrections based on an alleged violation of an asserted clemency-related right to due process. Baze v. Thompson, 302 S.W.3d 57 (Ky.2010) ().4
Appellants tendered the present KRS 418.040 complaint in April 2013. The complaint does not address the statute's requirement that there exist an “actual controversy” between the parties, and in particular Appellants do not allege that the Governor has arbitrarily denied their petitions for clemency or even that they have filed petitions for clemency. Implicit in the complaint, however, is the notion that as death row inmates who have exhausted their appeals Appellants presently have a strong interest in being considered for clemency such that an actual controversy exists between them and the state officials who, according to Appellants, by failing to adopt clemency standards and procedures have, in violation of the federal constitution, “create[d] the overwhelming risk of both an arbitrary review and arbitrary denial of an inmate's [clemency] petition.” The trial court rejected this contention, and so do we.
Section 77 of the Constitution of Kentucky empowers the Governor to “remit fines and forfeitures, commute sentences, [and] grant reprieves and pardons.”5 KRS 439.450 provides that “[o]n request of the Governor the [parole] board shall investigate and report to him with respect to any case of pardon, commutation of sentence, reprieve or remission of fine or forfeiture.” Neither Section 77, KRS 439.450, nor any “other constitutional provision or statute” we have noted, Baze v. Thompson, 302 S.W.3d at 60. The Governor's decision, however, must include “a statement of the reasons for his decision,” and the clemency application and statement must “always be open to public inspection.” Ky. Const., § 77.
In Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), the United States Supreme Court addressed a claim by inmates serving life sentences that the similarly unfettered Connecticut Board of Pardons had violated the Due Process Clause of the Fourteenth Amendment when it denied their petitions for sentence commutation without offering any explanation of the denials. Rejecting that claim, the Supreme Court began by reiterating what it said in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Dumschat, 452 U.S. at 464, 101 S.Ct. 2460 (quoting Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100 ) (emphasis supplied in Dumschat ).
Even in the absence of a substantive constitutional right, however, the federal Constitution's procedural protections can sometimes be called into play by substantive rights emanating from other sources. “A state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right.” Dumschat, 452 U.S. at 463, 101 S.Ct. 2460 (citations omitted). “Plainly, however, the underlying right must have come into existence before it can trigger due process protection.” Id. (citation omitted).
In Connecticut, the Court observed, no right to commutation or to pardon had come into existence. “[A] Connecticut felon's expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate's expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope.”6
Dumschat, 452 U.S. at 465, 101 S.Ct. 2460 (citations omitted). Unlike the parole statute at issue in Greenholtz, which did create a right to conditional release upon a showing of specified facts and thus did implicate due-process protections, Connecticut's pardon statute placed no obligations on the authority exercising clemency. As with Kentucky's Governor, rather, that authority, the Connecticut Board of Pardons, was vested with “unfettered discretion” to rule on clemency requests. Dumschat, 452 U.S. at 466, 101 S.Ct. 2460. “The statute imposes no limit on what procedure is to be followed, what evidence may be considered, or what criteria are to be applied by the Board.” Id.
Much like Appellants here, the Connecticut inmates argued that it was “precisely because of ‘the absence of any apparent standards,’ ” id. that the Board's procedure ran afoul of the Due Process Clause. The Court, however, rejected that attempt to infer a substantive right to clemency from the mere opportunity to apply for it, and so rejected as well the claim to procedural rights to protect the non-existent substantive one. Dumschat, 452 U.S. at 466–67, 101 S.Ct. 2460. The Court held, accordingly, that “the power vested in the Connecticut Board of Pardons to commute sentences conferred no rights on respondents beyond the right to seek commutation.” Dumschat, 452 U.S. at 467, 101 S.Ct. 2460.
Dumschat was decided in 1981. Nearly twenty years later, in Ohio Adult Parole Authority v. Woodard,...
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