United States ex rel. Dereczynski v. Longo

• Decision Date: 16 November 1973
• Docket Number: No. 73 C 1297.,73 C 1297.
• Citation: 368 F. Supp. 682
• Parties: UNITED STATES ex rel. Michael DERECZYNSKI et al., Petitioners-Plaintiffs, v. Joseph J. LONGO, Chairman, Parole and Pardon Board, Illinois Department of Corrections, and Winston Moore, Superintendent, Cook County Dept. of Corrections, Respondents-Defendants.
• Court: U.S. District Court — Northern District of Illinois

368 F. Supp. 682

UNITED STATES ex rel. Michael DERECZYNSKI et al., Petitioners-Plaintiffs, v. Joseph J. LONGO, Chairman, Parole and Pardon Board, Illinois Department of Corrections, and Winston Moore, Superintendent, Cook County Dept. of Corrections, Respondents-Defendants.

No. 73 C 1297.

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

November 16, 1973.

COPYRIGHT MATERIAL OMITTED

Thomas J. Kelly, Chicago Volunteer Legal Services Foundation, Chicago, Ill., for plaintiffs.

William J. Scott, Atty. Gen., of Illinois, Bernard Carey, State's Atty., Cook County, James B. Zagel, Asst. Atty. Gen., Chicago, Ill., for defendants.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Motions to Dismiss, to Convene a Three-Judge Court, and For Leave to Proceed as a Class

This action is brought in two counts by four parolees who are charged with parole violations and who are now incarcerated in the Cook County Department of Corrections. Count I of the complaint is a petition for writ of habeas corpus; Count II is an action for declaratory and injunctive relief. Petitioners seek to bring this action individually, and as representatives of a class whose members consist of:

(a) Those who have been incarcerated in the Cook County Department of Corrections pursuant to parole violation warrants issued by defendant Longo or his agents and have not been afforded a prompt preliminary hearing, nor a prompt parole revocation hearing.

(b) Those who have been denied bail, pending a preliminary or final parole revocation hearing, by defendant Longo or his agents.

(c) Those who have deposited bail with the Clerk of the Circuit Court of Cook County on Illinois criminal charges pursuant to order of the court and have been denied release due to the issuance of parole violation warrants by defendant Longo or his agents.

(d) Those who have deposited bail and been released pending trial of the Illinois criminal charges, and who were then subsequently incarcerated without bail pursuant to parole violation warrants based upon the same allegations as the State charges.

The original respondents in this action were Joseph Longo, Chairman of the Parole and Pardon Board of the Illinois Department of Corrections, and Winston Moore, Superintendent of the Cook County Department of Corrections. Moore has already been dismissed from this action.

The parolees base their claims upon violations of the Eighth and Fourteenth Amendments to the U.S. Constitution, and seek to convene a three-judge panel in conjunction with their plea to enjoin Ill.Rev.Stats. ch. 38, § 1003-3-9, dealing with parole revocation.

Respondent Longo contends that plaintiffs' exclusive remedy resides in the writ of habeas corpus, in accordance with the holding of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L. Ed.2d 439 (1973), and that the action should be dismissed for failure of plaintiffs to exhaust state remedies.

No benefit would be derived at this time in setting forth the particularities of the factual situation which underlies the complaint of parolees Michael Dereczynski, Ernest Lockett, Levi Royster, and Jammell Thompson; the court deems it sufficient to note, for purposes of disposing of the issues herein, that the petitioners are all presently incarcerated in the Cook County Department of Corrections, and are members of one of the four classes enumerated above.

The Habeas Corpus Jurisdiction

The initial question to be resolved is whether Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) compels the use of habeas corpus as the exclusive remedy for relief. Preiser holds that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that it is entitled to immediate or more speedy release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Petitioners argue that they are not seeking immediate or more speedy release, but are seeking immediate and more speedy hearings to determine if they are entitled to release. The court does not find this distinction persuasive. Preiser specifically uses the example of an unlawful parole revocation which causes one to be reincarcerated, as in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), as the type of grievance in which one is being unlawfully subjected to physical restraint, and in which habeas corpus has been accepted as the specific instrument to obtain release from such confinement. The granting of the writ of habeas corpus in Morrissey would make release dependent upon the result of the due process parole revocation hearing afforded petitioner, and is indistinguishable in that respect from the case at hand. The remedy required in this action is a petition for habeas corpus.

Petitioners also contend that even if we find that this complaint is properly brought only under habeas corpus, petitioners have no adequate state remedies available to them. We agree with this contention.

There seems to be no disagreement that petitioners have no right to a state court appeal. Further the state writ of habeas corpus is not available to review claims of a non-jurisdictional nature, even though such claims may involve denial of constitutional rights. People ex rel. Shelley v. Frye, 42 Ill.2d 263, 246 N.E.2d 251 (1969). The claims in this case are clearly not jurisdictional in nature. Nor is this court provided with a single instance where mandamus, or any other remedy, has proven effective in this situation. When the Supreme Court was confronted by a dearth of effective state remedies in a petition for habeas corpus in Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), they said, "Furthermore, we are not referred to a single instance, regardless of the remedy invoked, in which the Missouri courts have granted a hearing to state prisoners on the conditions of their confinement. In these circumstances § 2254 did not require petitioners to pursue the suggested alternatives as a prerequisite to taking their claims to federal court. As Mr. Justice Rutledge stated in his concurrence in Marino v. Ragen, 332 U.S. 561, 568 68 S.Ct. 240, 244, 92 L.Ed. 170 (1947):

`The exhaustion - of - state - remedies should not be stretched to the absurdity of requiring the exhaustion of . . . separate remedies when at the outset a petitioner cannot intelligently select the proper way, and in conclusion he may only find that none of the alternatives is appropriate or effective.'" 404 U.S. at 250, 92 S.Ct. at 409.

Finally, we note that as to any possible remedies which petitioners might have pursued, but failed to do so, that the federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies. Fay v. Noia, 372 U.S. 391, 398, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Thus, the motion to dismiss is denied; we accept habeas corpus jurisdiction.

Declaratory Judgment

The Federal Declaratory Judgment Act, 28 U.S.C. § 2201, provides that "in a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such." This chapter is designed to enable the court to declare the rights of adverse parties, and the court should exercise its discretion to invoke use of this equitable remedy when to do so will clarify the legal issues and aid in the settlement of the controversy. Sears Roebuck & Co. v. Zurich Ins. Co., 299 F.Supp. 518 (N.D.Ill.1969); Dayao v. Staley, 303 F.Supp. 16 (S.D.Texas 1969). Granting of such judgment is proper when it will terminate and afford relief from the uncertainty, insecurity and controversy giving rise to the proceedings. Maryland Cas. Co. v. Rosen, 445 F.2d 1012 (2d Cir. 1971).

I. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) is explicit as to the requirements and need for parole revocation hearings, and Ill. Rev.Stats. ch. 38, § 1003-3-9, has been drafted to comply with the orders of that opinion. Nonetheless, we shall briefly summarize the requirements as set forth in Morrissey to emphasize that we consider such to be implied in the Illinois statute.

(i) Preliminary Hearing

Due process requires that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. Such an inquiry should be seen as in the nature of a "preliminary hearing" to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.

With respect to the preliminary hearing before this officer, the parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, persons who have given adverse information on which parole revocation is to be based are to be made available for questioning in his presence. However, if the hearing officer determines that the informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.

An independent hearing officer, not necessarily a judicial officer, should be...