Pinzon v. Lane

• Decision Date: 23 December 1987
• Docket Number: No. 87 C 4542.,87 C 4542.
• Citation: 675 F. Supp. 429
• Parties: Norbert PINZON, et al., etc., Plaintiffs, v. Michael LANE, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

675 F. Supp. 429

Norbert PINZON, et al., etc., Plaintiffs, v. Michael LANE, et al., Defendants.

No. 87 C 4542.

United States District Court, N.D. Illinois, E.D.

December 10, 1987.

Preliminary Injunction Order December 23, 1987.

Thomas Peters, Murphy Peters Davis & O'Brien, and Thomas J. Bamonte, Sachnoff, Weaver & Rubenstein, Ltd., Chicago, Ill., for plaintiffs.

Neil F. Hartigan, Atty. Gen., and William F. McGlynn, Asst. Atty. Gen., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Several State of Illinois parolees seek a preliminary injunction on behalf of the class of which they are members: all such parolees arrested on new criminal charges and afforded no opportunity for a preliminary parole revocation hearing, thus being required to remain in custody for extended periods (even though they could make bond if given the opportunity). Plaintiffs' motion for a preliminary injunction has been fully briefed by their appointed pro bono counsel and by counsel for the three defendants — Illinois Department of Corrections ("Department") Director Michael Lane ("Lane"), Parole Agent Robert Guthrie and Adult Community Supervision officer Margaret Flaherty. For the reasons stated in this memorandum opinion and order, a preliminary injunction will issue.

Operative Procedures and Standards

Almost every preliminary injunction situation calls for an evidentiary hearing to allow the entry of findings of fact and conclusions of law called for by Fed.R.Civ. P. ("Rule") 52(a). In this instance the parties have not disputed the operative facts:

1. Members of the plaintiff class are systematically denied preliminary parole revocation hearings and, as later indicated under "Likelihood of Success on the Merits," remain in custody for lengthy periods of time.

2. Illinois law (as well as the Constitution, as hereafter discussed) mandates the provision of such preliminary hearings for all parolees (with limitations hereafter discussed) charged with violation of the terms of their parole, including the asserted commission of another crime (Ill.Rev.Stat. ch. 38, ¶ 1003-3-9(c)).

3. Under an existing administrative regulation (20 Ill.Adm.Code IV, § 1610.140(b)(3)) such preliminary parole revocation hearings must be held within ten days after the parolee's arrest, subject to delays up to an additional 14 days where a continuance is necessary for the State to obtain evidence or produce witnesses.

This Court so finds. Further factual determinations (again uncontested by the litigants) are also included in the balance of this opinion.

As in every preliminary injunction case, the legal burdens plaintiffs must meet are to show (Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433-34 (7th Cir.1986)):

1. They have no adequate remedy at law.

2. Defendants are causing them irreparable harm.

3. They have at least a reasonable likelihood of success on the merits.

4. Balancing of the harms (the harm plaintiffs will sustain if injunctive relief is wrongfully denied, as compared with the harm defendants will sustain if injunctive relief is wrongfully granted) favors plaintiffs.¹

5. Granting injunctive relief will not disserve the public interest.

Each factor will be dealt with, some more at length than others.

Adequacy of Legal Remedies; Irreparability of Harm

These first two prerequisites for preliminary injunctive relief are not alternative requirements (as some cases before Roland Machinery — and even some later cases — seem to suggest), nor do they merge except when damages are the sole remedy a plaintiff seeks at trial (Roland Machinery, 749 F.2d at 386). In this case, the very facts that injunctive relief is essential to afford plaintiffs a real remedy and that a due-process-violative deprivation of liberty is at stake (Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); see Wolff v. McDonnell, 418 U.S. 539, 561, 94 S.Ct. 2963, 2977, 41 L.Ed.2d 935 (1974); Barker v. Wingo, 407 U.S. 514, 520-21, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972)) are enough to satisfy the dual requirement.

Even if plaintiffs could ultimately collect damages for defendants' unconstitutional conduct in keeping plaintiffs in custody without a hearing, they cannot fairly be compelled thus to sell their rights to liberty for some amount in damages. Moreover, the existence of any damage remedy is itself questionable (see Trotter v. Klincar, 748 F.2d 1177, 1181-83 (7th Cir.1984)). And finally, by definition a permanent injunction at the end of trial would be an empty vindication of plaintiffs' constitutional rights.

Likelihood of Success on the Merits

Both sides agree Morrissey v. Brewer marks out the scope of parolees' constitutional interests in remaining at liberty. Morrissey recognized a parolee's liberty "includes many of the core values of unqualified liberty" (408 U.S. at 482, 92 S.Ct. at 2601), with freedom on a day to day basis to "be gainfully employed and ... to be with family and friends and to form the other enduring attachments of normal life" in the same way as all free persons (id.). Those, however, are the more generalized aspects that confirm the existence of a liberty interest. What controls for current purposes is the more particularized constitutional mandate that an asserted parole-condition violator must be given a preliminary parole revocation hearing "at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after the arrest" (408 U.S. at 485, 92 S.Ct. at 2602, emphasis added). That preliminary hearing has as its purpose the determination whether there is probable cause to believe that the parolee has violated a condition of his parole (id.).²

Plaintiffs have provided ample evidence of defendants' violations of the Morrissey standard: By affidavit and offer of proof, undisputed by defendants, they adduce evidence as to ten typical class members forced to spend time in custody without any preliminary parole revocation hearing for periods from over a month to nearly two years. Under the Illinois system, the absence of such a hearing cuts off any possibility of liberty for the arrested parolee.³

Without question that course of conduct on defendants' part flouts Morrissey. Our Court of Appeals has said on that score (Luther v. Molina, 627 F.2d 71, 74 n. 3 (7th Cir.1980)) that Morrissey "seemed to be contemplating an almost immediate hearing." Dealing with the related subject of federal parole revocation guidelines, Luther, id. at 75 n. 3 said:

It is possible that a ten day delay between detention and the preliminary hearing does not meet either constitutional or statutory requirements.

Whether or not the Luther dictum correctly measures the maximum constitutionally-permitted delay, the State of Illinois has itself confirmed (whether intentionally or unintentionally) what may fairly be considered in Morrissey terms "as promptly as conveniently after arrest": Illinois' Administrative Code prescribes the ten-day maximum already discussed, subject to potential continuance up to an added 14 days where necessary to obtain evidence or produce witnesses.⁴ Either in estoppel terms or otherwise, defendants cannot dispute plaintiffs' strong (let alone merely reasonable) likelihood of success on the issue of unconstitutionality of defendants' existing practices, which fall far short of what Illinois law and regulations have prescribed as manageable and convenient.⁵

That should be more than enough for current purposes. But because one special illegality in defendants' conduct bears mention, some brief added discussion is appropriate. As already stated, the recent Illinois statutory revision no longer requires a preliminary parole revocation hearing for parolees as to whom a judicial finding of probable cause has been made at a preliminary hearing on the new charge. Yet defendants, without any warrant in the new legislation, have also established the practice of denying a preliminary parole revocation hearing to all indicted defendants. That impermissibly equates the probable cause determination made by a majority of the lay persons sitting as a grand jury, based on the unilateral presentation of the case by the prosecutor, with a judicial probable cause determination as required by the Illinois statute.

Balancing of Harms

What harms can defendants legitimately claim? At this preliminary injunction stage, they are being required only to comply with what the Illinois General Assembly and their own regulations provide. Even if compliance with the state law they are duty bound to follow could somehow be viewed as a "harm" to defendants, it is perforce far outweighed by the already-identified harms to the plaintiff class.

Public Interest

Morrissey, 408 U.S. at 483-84, 92 S.Ct. at 2601 itself expressed the benefits to both the State and society at large from the kind of meaningful parole revocation process implemented by the preliminary injunction to be issued here. It does not place any member of the plaintiff class at liberty. It assures only that deprivation of such liberty must take place within the boundaries marked out by the Constitution (as minimally measured by Illinois' own legislative and administrative timetables). That cannot by definition disserve the public interest.

Procedural Matters

In the face of the current proceedings (after plaintiffs' motion was on file, and just ten days after the compellingly persuasive supporting memorandum had been filed by plaintiffs' counsel October 30), defendants obviously acted to disable themselves from responsibility here. Their memorandum in opposition attaches this two-sentence November 10 letter from Illinois Prisoner Review Board ("Board") Chairman Paul Klincar to defendant Lane:

As a result of recent discussions, the Board hereby notifies you that the Department of Corrections personnel will no longer be needed as designees of the Board to act as Preliminary Release

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