Turner v. Wainwright

• Decision Date: 16 January 1980
• Docket Number: NN-84,PP-246 and LL-128,MM-448,MM-471,NN-198,Nos. KK-260,s. KK-260
• Citation: 379 So.2d 148
• Parties: Larry TURNER, James Benner Bailey, Jr., William G. Brooker, Richard Lee Rieser, Howard Gene Kilgore, and John Michael Haddon, Petitioners, v. Louie L. WAINWRIGHT, Respondents. Larry Edward TURNER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
• Court: Florida District Court of Appeals

Page 148

379 So.2d 148

Larry TURNER, James Benner Bailey, Jr., William G. Brooker, Richard Lee Rieser, Howard Gene Kilgore, and John Michael Haddon, Petitioners, v. Louie L. WAINWRIGHT, Respondents.

Larry Edward TURNER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.

Nos. KK-260, MM-471, MM-448, NN-84, NN-198, PP-246 and LL-128.

District Court of Appeal of Florida, First District.

Jan. 16, 1980.

Richard A. Belz, and Thomas A. Daniel, of Florida Institutional Legal Services, Inc., Gainesville, for petitioners and appellant.

Michael H. Davidson, Gainesville, Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, and David P. Gauldin, Asst. Attys. Gen., Tallahassee, for respondent and appellee.

ROBERT P. SMITH, Acting Chief Judge:

Does the open public meetings law, Section 286.011, ¹ apply to parole revocation meetings of the Parole and Probation Commission, or would the constraints of that law unconstitutionally invade clemency prerogatives of the executive branch, in violation of Article IV, Section 8, and Article II, Section 3, Constitution of Florida? Last year in Thomas ² we stated that Section 286.011 applies "to all meetings of the Parole and Probation Commission." We now reexamine that question in the light of the Commission's constitutional objections to these three petitions for a writ of habeas corpus, contesting petitioners' imprisonment resulting from nonpublic meetings of the Commission, and Turner's appeal from the Commission's declaratory statement that its parole revocation meetings are constitutionally exempt from the public meetings law. The petitions for habeas corpus and the administrative appeal appropriately raise the issues. Jackson v. Mayo, 73 So.2d 881 (Fla.1954); State v. Sampson, 297 So.2d 120 (Fla. 4th DCA 1974); Sections 120.565, 120.68, Florida Statutes (1977).

Turner's case is typical of Brooker's and Bailey's. Turner is imprisoned by the Department of Corrections, of which respondent Wainwright is head, by reason of a decision of the Parole and Probation Commission, on May 11, 1978, revoking Turner's The Commission on May 5, 1978, gave Turner an opportunity to be heard and to present evidence on the charges of MCR violations. On May 11, 1978, four members of the Parole and Probation Commission met at Tallahassee and, at a meeting that admittedly was not open to the public, press, petitioner, petitioner's counsel, or other interested persons, voted to revoke Turner's release. Thereupon the Commission entered a written order revoking Turner's release status and returning Turner to Florida State Prison.

liberty on mandatory conditional release from a sentence of the Circuit Court of Dade County. "Mandatory conditional release" or MCR is release of a prisoner, "as if on parole," when the prisoner has served the prescribed prison term less gain-time and good-time allowances. ³ Turner's original sentence and, consequently, his MCR or parole status, ⁴ would have terminated February 9, 1978, had Turner not been arrested in August 1977 for violations of his release conditions which were the basis of the Commission's revocation order of May 11, 1978.

Numerous decisions have now acknowledged that the open public meetings law, Section 286.011, serves to "promote a state interest of the highest order," by tending to "enhance and preserve democratic processes." E. g., Byron Harless, Schaffer, Reid and Assoc., Inc. v. State ex rel. Schellenberg, 360 So.2d 83, 97 (Fla. 1st DCA 1978), and cases cited. In defense of its failure to comply with Section 286.011 in the revocation of Turner's release, the Commission's position is simply this: that its function in revoking MCR and parole orders is a function of the executive branch and is, more particularly, akin to the pardon power, which historically and constitutionally is a matter of executive grace, to be exercised on occasions and in a manner determined by the executive, free of legislative or judicial control. Thus, the Commission urges, paroles like pardons are of exclusive concern to the executive and the legislative branch is foreclosed from such control as is exerted by the open public meetings law. The constitutional sources of the Commission's argument are Article II, Section 3 ("Branches of government"), Constitution of Florida (1968), providing:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

And Article IV, Section 8 ("Clemency"), providing:

(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three (b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.

members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.

(c) There may be created by law a parole and probation commission with power to supervise persons on probation and to grant paroles or conditional releases to persons under sentences for crime. The qualifications, method of selection and terms, not to exceed six years, of members of the commission shall be prescribed by law.

We agree with the premise from which the Commission's argument proceeds: that the legislative branch is without authority to prescribe either the occasions for exercising the pardon power or the manner and procedure for its exercise. Singleton v. State, 38 Fla. 297, 21 So. 21 (1896), struck down an act which purported to grant a convicted felon clemency by restoring his competency to testify, forfeited in those days by conviction. Ex parte White, 131 Fla. 83, 178 So. 876 (1938), nullified an act which purported to require commutation to a life prison term of any death sentence affirmed by an equally divided Supreme Court. In re Advisory Opinion of the Governor, 334 So.2d 561 (Fla.1976), held that the Administrative Procedure Act of 1974 could not lawfully constrict the executive's clemency powers under Article IV, Section 8(a), of the 1968 Constitution. Sullivan v. Askew, 348 So.2d 312 (Fla.1977), Cert. den., 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977), held that the clemency powers prescribed by Sections 8(a) and (b) are not subject to constitutional due process strictures as interpreted and enforced by the judicial branch. From this we conclude that the open public meetings law, Section 286.011, could not constitutionally be held to require compliance by the Governor (even assuming he could "meet" with someone in the exercise of exclusive gubernatorial responsibilities), or by the Governor and Cabinet, in dispensing pardons and the other forms of clemency authorized by Article IV, Section 8(a), Constitution of Florida (1968).

Since 1968 the constitutional authority for paroles has been housed with pardons and other clemency measures in Article IV, Section 8. Yet subsection 8(c) is of a character different from 8(a), which grants certain clemency powers outright to the Governor, or to the Governor and Cabinet. Subsection 8(c) provides that a Parole and Probation Commission, having parole powers, "may be created by law." Concerning this the Commission concedes that subsection 8(c) was not self-executing, that the legislature was given power to call parole and the Commission into existence; but the Commission urges that, once created by law, it partakes of the executive's immunity from legislation in dispensing pardon-like paroles. In the terms of subsection 8(c), the Commission urges that it could be and was "created by law," but that legislation cannot control its exercise of powers which historically are those of an unfettered executive branch.

The Commission's argument hangs precariously on the 1968 Constitution's consolidation of various "clemency" powers in Article IV, Section 8, after 28 years in which the parole power was housed separately from pardon powers in the miscellany of the 1885 Constitution, Article XVI, Section 32. The Commission's argument also misreads the history and justification of pardons, which are founded and sustained on considerations not shared by paroles.

In the common law of England the pardon power was a matter of kingly grace; and, as befits regal things, it was all the more wonderful because its exercise was inexplicable and idiosyncratic. As one did not question the king, no further explanation was required but that, by "a private act of grace from an individual happening As a part of Florida's constitutional scheme in the twentieth century, the pardoning power has been justified as a means to correct judicial errors,

to possess power," ⁵ the law's judgment and sentence were set aside.

to prevent pauperization of families, to prevent unwarranted incidence of the punishment on the convict's family instead of on him as intended, or where through the particular condition surrounding incarceration of the prisoner, he should be released irrespective of the views of the accused or his friends in the matter (Davis, ante fn. 5 at 469.)

In 1931, Attorney General Fred Davis likened the pardon power to "that exercised by courts of bankruptcy who in our civil law system relieve debtors to individuals at the expense of their creditors, because the public welfare demands that such relief be granted . . . ." He suggested a social utility in pardons which we may suppose was irrelevant to the justification of kingly grace: because the executive "has generously exercised its power to release the better class of prisoners after they have served a...