Varner v. Indiana Parole Bd.

• Decision Date: 04 May 2009
• Docket Number: No. 45A04-0812-CR-693.,45A04-0812-CR-693.
• Citation: 905 N.E.2d 493
• Parties: Kevin S. VARNER, Appellant-Petitioner, v. INDIANA PAROLE BOARD, Appellee-Respondent.
• Court: Indiana Appellate Court

905 N.E.2d 493

Kevin S. VARNER, Appellant-Petitioner, v. INDIANA PAROLE BOARD, Appellee-Respondent.

No. 45A04-0812-CR-693.

Court of Appeals of Indiana.

May 4, 2009.

Kevin S. Varner, Indianapolis, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary and Issues

Kevin Varner, an inmate at Plainfield Correctional Facility, filed a pro se action for mandate requiring the Indiana Parole Board (the "Board") to determine his parole eligibility based on a vote of all five Board members. The trial court summarily dismissed that action, either for lack of subject matter jurisdiction or pursuant to Indiana Code section 34-58-1-2(a), a statute requiring trial courts to prescreen the legal sufficiency of claims filed by pro se prisoners such as Varner. On appeal, Varner contends the trial court's summary dismissal was improper because the relief he seeks—a five-member vote to determine his parole eligibility—is mandated by Indiana Code section 11-13-3-3(b).

For reasons stated below, we conclude the trial court's summary dismissal was improper because it did not lack subject matter jurisdiction and because Varner's mandate action states a claim upon which relief can be granted. We also elect to address Varner's mandate action on its merits, concluding that because Indiana Code section 11-13-3-3(b) requires a five-member vote to determine his parole eligibility, he is entitled to the relief he seeks. Accordingly, we reverse the trial court and instruct it to enter judgment in favor of Varner and to grant him the relief he seeks.

Facts and Procedural History

On October 9, 2008, four of the Board's five members conducted a hearing to determine whether Varner should be paroled. Following the hearing, two members voted for parole and two members voted against. The tie did not go to Varner, however, because the Board's rules preclude it from granting parole unless at least three members vote to do so. See 220 Ind. Admin. Code 1.1-2-2(a)(4). Accordingly, the Board denied Varner parole.

Unsatisfied with this result, Varner asked the Board to rehear the matter so the absent member, Randall Gentry, could cast his vote. The Board did not respond, so Varner filed a mandate action in Lake Superior Court on October 30, 2008, alleging the Board had failed to discharge its statutory obligation under Indiana Code section 11-13-3-3(b) to determine his parole eligibility based on a five-member Board vote. For relief, Varner requested that the trial court "issue a mandate requiring the Indiana Parole Board to render its final decision determining whether Varner should be granted or denied parole after the final member, Mr. Randall P. Gentry, casts his vote based upon the record of the proceedings and the hearing conductor's findings." Appellant's Appendix at 4. On the same day, the trial court entered an order summarily dismissing Varner's mandate action on the ground that it "has no jurisdiction over the Indiana Parole Board." Id. at 7. Varner now appeals.

Discussion and Decision

We note at the outset some confusion over the proper standard of review to apply. On the one hand, the trial court's summary dismissal of Varner's mandate action on the same day it was filed suggests the trial court was performing the screening function required for pro se prisoner litigation. See Ind.Code §§ 35-58-1-1 and -2. On the other hand, the trial court's stated reason for dismissing the action, lack of jurisdiction, is not an enumerated ground for dismissal under the screening statutes, see id, which suggests the trial court set out to review Varner's mandate action as required by the screening statutes, but ultimately decided to dismiss for lack of subject matter jurisdiction.¹ Given this confusion, and for the sake of completeness, we will review the trial court's summary dismissal of Varner's mandate action under both standards. Cf. Burke v. Town of Schererville, 739 N.E.2d 1086, 1090 (Ind.Ct.App.2000) (addressing propriety of trial court's dismissal where party moved for dismissal pursuant to Trial Rule 12(B)(1) and (6), but trial court did not specify on which ground it based the dismissal), trans. denied.

I. Lack of Subject Matter Jurisdiction

"[S]ubject matter jurisdiction entails a determination of whether a court has jurisdiction over the general class of actions to which a particular case belongs." Samuels v. State, 849 N.E.2d 689, 690 (Ind.Ct.App.2006), trans. denied. In making this determination, "[t]he only relevant inquiry ... is to ask whether the kind of claim which the plaintiff advances falls within the general scope of authority conferred upon such court by the constitution or by statute." State v. Schuetter, 503 N.E.2d 418, 420 (Ind.Ct.App.1987). We review de novo the trial court's determination of whether it lacked subject matter jurisdiction. See Truax v. State, 856 N.E.2d 116, 121 (Ind.Ct.App.2006).

The parties focus their arguments on whether Indiana Code section 11-13-3-3(b) grants Varner the right to have his parole eligibility determined by a full, five-member Board vote. That provision states in relevant part that a parole eligibility hearing

shall be conducted by one (1) or more of the parole board members. If one (1) or more of the members conduct the hearing on behalf of the parole board, the final decision shall be rendered by the full parole board based upon the record of the proceeding and the hearing conductor's findings.

Ind.Code § 11-13-3-3(b). Varner argues that "final decision" means the decision to grant or deny parole and that "full parole board" means all five members. The State counters that because the Board's rules define a full board as consisting of at least three members, see 220 Ind. Admin. Code 1.1-2-2(a)(3) and (4), the four-member vote was a proper discharge of its obligation under Indiana Code section 11-13-3-3(b).

However, rather than plunge into the merits of what Indiana Code section 11-13-3-3(b) requires, the fundamental question for purposes of resolving the issue of subject matter jurisdiction is whether Varner's mandate action falls within the general scope of authority conferred upon the trial court by the constitution or by statute. See Schuetter, 503 N.E.2d at 420. Resolution of that question requires us to address the Indiana Administrative Orders and Procedures Act ("AOPA"), Indiana Code sections 4-21.5-1-1 to 4-21.5-7-9, as well as some general principles regarding mandate actions.

Chapter five of the AOPA "establishes the exclusive means for judicial review of an agency action," Ind.Code § 4-21.5-5-1, and Indiana Code section 4-21.5-2-5(6) ("Section 5(6)")—the operative provision for purposes of our discussion here—precludes judicial review of "[a]n agency action related to an offender within the jurisdiction of the department of correction." The AOPA defines "agency" as "any officer, board, commission, department division, bureau, or committee of state government that is responsible for any stage of a proceeding under this article," Ind.Code § 4-21.5-1-3, and "agency action" to include "[a]n agency's performance of, or failure to perform, any other duty, function, or activity under this article," Ind. Code § 4-21.5-1-4(3).

Indiana Code section 34-27-3-1 states that "[a]n action for mandate may be prosecuted against any inferior tribunal, corporation, public or corporate officer, or person to compel the performance of any ... act that the law specifically requires ... or ... duty resulting from any office, trust, or station." Such an action exists only where no adequate remedy at law is available. See Whitney v. Bd. of Sch. Trs. of Dekalb County, 416 N.E.2d 1289, 1292 (Ind.Ct.App.1981). Moreover, even if there is no adequate remedy at law, this court has stated consistently that an action for mandate is a disfavored, extraordinary remedy that will only lie if the relator has a clear and unquestioned right to relief, as well as an absolute duty on the part of the respondent to perform the act demanded. Robert Lynn Co., Inc. v. Town of Clarksville Bd. of Zoning Appeals, 867 N.E.2d 660, 673 (Ind.Ct.App.2007), trans. denied; Murray v. Hamilton County Sheriff's Dep't, 690 N.E.2d 335, 338 (Ind.Ct.App. 1997).

As the State points out, because Section 5(6) precludes judicial review of "[a]n agency action related to an offender within the jurisdiction of the department of correction," it "appears that Varner had no adequate remedy at law." Appellee's Brief at 4. Given that a mandate action is designed to provide a remedy in such an instance, see Whitney, 416 N.E.2d at 1292, we think this is precisely the type of claim that "falls within the general scope of authority conferred upon such court by the constitution or by statute," Schuetter, 503 N.E.2d at 420. Indeed, such a conclusion is consistent with this court's opinion in State ex rel. J.A.W. v. Indiana Juvenile Parole Committee, 581 N.E.2d 989 (Ind.Ct. App.1991), reh'g denied with opinion, 585 N.E.2d 729. J.A.W. involved a mandate action seeking to compel the juvenile parole board to consider parole eligibility based on criteria enumerated by administrative rule only (e.g., the nature of the offense, the offender's criminal history, etc.). Although the court affirmed the trial court's dismissal of the mandate action on the merits, it also concluded, as a threshold issue, that the mandate action was proper because the preclusive effect of Section 5(6) indicated the relator "had no adequate remedy at law." 581 N.E.2d at 991. Thus, consistent with J.A.W., we conclude the trial court does not lack jurisdiction over Varner's mandate action.

Although we conclude the trial court has jurisdiction over Varner's mandate action, we note in closing that there is a line of cases not cited by the parties— Ratliff v. Cohn, 693 N.E.2d 530 (Ind.1998); Blanck v. Indiana Department of Correction, 829 N.E.2d...