Kellogg v. Shoemaker

• Decision Date: 28 February 1995
• Docket Number: No. 93-4287,93-4287
• Citation: 46 F.3d 503
• Parties: P Glenn S. KELLOGG; Lani R. Smith; Lawrence Dessenberg; John Stamper; Michael Jones; Robert Donley; Daniel Schreiber; and Michael Karhoff, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. John W. SHOEMAKER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 503

46 F.3d 503

1995 Fed.App. 6P

Glenn S. KELLOGG; Lani R. Smith; Lawrence Dessenberg John Stamper; Michael Jones; Robert Donley; Daniel Schreiber; and Michael Karhoff, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. John W. SHOEMAKER, et al., Defendants-Appellees.

No. 93-4287.

United States Court of Appeals Sixth Circuit.

Argued Oct. 13, 1994.

Decided Jan. 9, 1995.

As Revised on Denial of Rehearing

Feb. 28, 1995.

Kenneth R. Spiert (argued and briefed), Public Defender's office, Ohio Public Defender Com'n, Columbus, OH, for plaintiffs-appellants.

Donald A. Cataldi (briefed) and Charles L. Wille (argued), Office of the Atty. Gen. of Ohio, Columbus, OH, for defendant-appellee.

Before: KEITH, WELLFORD, and DAUGHTREY, Circuit Judges.

WELLFORD, Circuit Judge.

Glenn S. Kellogg ("Kellogg"), an Ohio prison inmate, initiated a 42 U.S.C. Sec. 1983 class action suit in 1990 seeking declaratory and injunctive relief with respect to certain Ohio parole revocation procedures.

This case began in federal court in August 1990, when Kellogg ¹ filed a pro se complaint alleging, under 42 U.S.C. Sec. 1983, that the Ohio Parole Revocation procedures violated his procedural due process rights. The Ohio public defender, who began representing Kellogg, moved to certify a class to challenge certain parole revocation procedures. The district court certified the class to include "all persons whose parole was, or will be, revoked by the Ohio Adult Parole Authority through a so-called parole-violator recommissioned hearing because they have been convicted of a new felony committed while on parole."

The provisions of Ohio law now under attack are the new "emergency" provisions that the Ohio Adult Parole Authority ("agency") enacted effective September 1, 1992. Originally, the class brought its action against the older repealed provisions, which were discretionary and would have required Ohio to provide parolees with a "meaningful" hearing prior to revoking their parole. ² Under these old regulations, a parolee convicted of a subsequent crime in Ohio, while on parole, was conclusively presumed to be in violation of his parole. The parolee under the old regulations, however, was entitled to a hearing to present any relevant mitigating circumstances. Although plaintiff parolees seem to concede they were given a "hearing" under the old regulations, they argued that it did not meet the procedural requirements that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), required. The district court agreed with their argument, holding that the parolees did not receive sufficient notice, were denied the assistance of counsel, and were not permitted to call or to subpoena witnesses.

The agency then repealed the old regulations and implemented new ones. The new regulations did away with any type hearing if the defendant was convicted by an Ohio court "for an offense he committed while on any release granted by the Adult Parole Authority...." There would no longer be a hearing to determine mitigating circumstances surrounding the revocation. The only process the parolees would receive would be the parole authority's verification "that the sentence was imposed for an offense that occurred while the prisoner was under release status."

The agency revised the parole procedures to eliminate any agency's discretion in deciding whether to revoke parole. See Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), which had indicated that the hearing procedures required in Morrissey were applicable only if the parole board exercised discretion in revoking parole. See also Sneed v. Donahue, 993 F.2d 1239 (6th Cir.1993); Harrison v. Parke, 1990 WL 170428 (6th Cir.).

The district court then granted summary judgment in favor of the agency, sustaining its reliance on the amended regulation. The district court held that the new policy rendered the plaintiffs' challenges moot. The district court refused to amend its judgment and refused to grant plaintiffs any relief. The district court discussed rejecting the merits of the plaintiffs' constitutional challenges to the new regulations.

Plaintiffs appeal in order to challenge the district court's holding that the change in the parole procedures rendered the plaintiffs' constitutional challenges moot. Plaintiffs contend that the agency violated its rule-making powers by adopting the new procedures. Plaintiffs also argue that this court should reconsider Sneed v. Donahue, which held that a parole board was not required to provide the parolee with a hearing if the board exercised no discretion in revoking parole. Last, they wish to challenge the constitutionality of the new regulations, arguing that the change of the parole procedures in this respect constitutes a violation of the ex post facto clause.

I. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C. Sec. 1291 since there is an appeal from a final order of the district court. The appropriate standard of review is de novo because the appeal concerns issues of law.

II. MOOTNESS

There is some confusion as to whether the district court held that the plaintiffs' constitutional challenges to the new procedures were moot. The district court discussed the constitutional merits of the plaintiffs' arguments, but refused to amend the court's judgment dismissing the claims of plaintiffs:

Plaintiffs now seek to amend this Court's judgment, arguing that the application of OAC Sec. 5120:1-1-21 to members of the plaintiff class whose parole had been revoked under the old regulation violates the constitutional prohibition against ex post facto laws.... As this court ruled in its Opinion and Order entered May 27, 1993, the relevant analysis turns to whether or not plaintiffs' claims for relief are moot. Plaintiffs' sole claim for injunctive relief sought to restrain defendants from violating plaintiffs' procedural due process rights in the future through the use of constitutionally infirm PVR hearing or procedures. Plaintiffs no longer have any procedural due process rights to a meaningful hearing in connection with felonies committed after the effective date of the new regulation. Accordingly, the enactment of OAC Sec. 120:1-1-21 has rendered plaintiffs' claims for future injunctive relief moot.

The plaintiffs do not contest the mootness of their challenges to the original procedures. ³ Plaintiffs argue, however, that they should be allowed to challenge the constitutionality of the new parole procedures.

We note that considerable controversy surrounds the mootness doctrine after Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). One rationale holds that the mootness doctrine is fundamentally tied to the case and controversy language of Article III, and, therefore, the court may only review if there is a justiciable issue. Another view is that the mootness doctrine is more flexible, and may be used to accomplish prudential concerns to avoid the squandering of judicial resources after the decisional process is underway. See Corey C. Watson, Mootness and the Constitution, 86 Nw.U.L.Rev. at 143.

Under either rationale, the plaintiffs' challenge to the new procedures are not moot. The parole authority may not be allowed to abort or delay constitutional review of the parole procedures by substitution of a new procedure on the eve of adjudication. Prudential concerns also require us to hear this case rather than to dismiss it as moot as to those plaintiffs who are alleged to have committed offenses and had their paroles revoked prior to September 1, 1992. We conclude that a "case or controversy" exists, and that plaintiffs have raised proper concerns about the regulations' constitutionality as applied to offenses which occurred prior to the date of the amendment.

III. DISCUSSION

A. Whether the agency violated its rule-making authority by adopting the new parole revocation procedures?

The plaintiffs make two arguments in this respect. First, the plaintiffs argue that parole authority only has power to make administrative rules and not broad legislative policy rules. Second, the plaintiffs argue that even if the parole authority has the power to make broad policy rules, the new regulations conflict with Ohio statutes.

The plaintiffs' first argument is unavailing. The Ohio parole authority is charged with administering all statutes relating to parole, see O.R.C. Sec. 2967.02, including determining whether a convict has violated parole. O.R.C. Sec. 2967.15. The parole authority has a long history of making regulations governing parole revocation. It should be noted that the plaintiffs did not contest the authority's power to issue the old regulations; they only challenged the application of the old regulations, arguing that a hearing to present mitigating circumstances was not a "meaningful hearing."

Second, plaintiffs argue that the new parole revocation procedures are inconsistent with Sec. 2967.15 of the Ohio Code, which requires that a parolee be given an individual parole revocation hearing when a parole officer has begun the parole revocation hearing on his own initiative. This case, however, does not involve a situation in which the parole officer has begun the parole revocation proceedings on his own initiative, or based on his charge or conduct, which has not resulted in a conviction. ⁴ Instead, this case is governed by a different provision of Sec. 2967.15.

The legislature has not specifically required an individual hearing when the basis for the parole revocation is a subsequent conviction. The statute provides only: "A convict who has been conditionally pardoned or a prisoner who has been paroled, and who, in the judgment of the adult parole authority, has violated the condition of his pardon or parole shall be declared a violator." O.R.C. Sec. 2967.15. Thus, the agency can "declare" a parolee to have been convicted of a...