decided: April 9, 1980.
RUFUS LEE AVERHART, PLAINTIFF-APPELLANT,
ALBERT TUTSIE, PAROLE BOARD CHAIRMAN, ET AL., DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S 78 C 190 -- Allen Sharp, Judge.
Before Sprecher and Wood, Circuit Judges, and Bua, District Judge.*fn*
The primary issues raised in this appeal are (1) whether the Due Process Clause of the Fourteenth Amendment mandates more stringent procedures for parole release determinations than those followed by the Indiana Parole Board, and (2) whether the Indiana Administrative Adjudication Act (A.A.A.), Ind.Code § 4-22-1-1, et seq., applies to Parole Board proceedings. We hold that neither the Due Process Clause nor the Indiana A.A.A. applies to parole release determinations by the Indiana Parole Board.
Plaintiff, Rufus Averhart, is presently incarcerated in the Indiana State Prison pursuant to a conviction for involuntary manslaughter. On May 6, 1974, he was sentenced to a term of not less than two nor greater than twenty-one years, with 494 days credit for time spent in jail prior to sentencing. On September 27, 1978, plaintiff filed a pro se suit against the members of the Indiana Parole Board, requesting both injunctive and monetary relief under 42 U.S.C. § 1983.
Before filing suit, plaintiff had been denied parole five times, each time because of the seriousness of his offense with the additional reason on one occasion of unsatisfactory institutional conduct. Other inmates who had been denied parole because of the "seriousness or circumstances of the offense" filed briefs in this court as amici curiae. Plaintiff and amici argue that the procedures and practices of the Indiana Parole Board deprived them of due process of law as well as the rights to which they are entitled under the Indiana Administrative Adjudication Act. The district court found that the Indiana A.A.A. did not apply to Parole Board proceedings. Moreover, it concluded that while due process required certain safeguards in parole release proceedings, the Indiana parole procedure satisfied due process.
We will first consider whether the strictures of due process apply to the parole release procedures of the Indiana parole system. It is axiomatic that before due process protections can apply, there must first exist a protectible liberty or property interest. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S. Ct. 2701, 2705-2706, 33 L. Ed. 2d 548 (1972). Just last term, after the decision by the district court in this case, the United States Supreme Court considered whether inmates have a general, constitutionally protected interest in being conditionally released on parole before the expiration of a valid sentence. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Court concluded that an inmate does not have a protectible expectation of parole unless that expectation is created by a state statute. According to the Court, a validly obtained conviction, with all its procedural safeguards, extinguishes a convict's liberty interest in release. A state is under no constitutional obligation to create a parole system, and even when it does, the mere possibility of parole does not a fortiori result in a protectible expectation of release. Rather, the state statute must be phrased in such a way that it creates a real expectation of and not just a unilateral hope for parole. 442 U.S. at 7-8, 11-12, 99 S. Ct. at 2103-2104, 2105-2106.
The Court suggested that a determination by the highest court of a state would be important in ascertaining the scope of any interest a statute was intended to afford state prisoners. Id. at 12, 99 S. Ct. at 2106. Since the state courts of Nebraska had not considered the question, the Court made an independent determination. The Greenholtz Court found that Nebraska's parole statute did create a protectible expectation of parole, but it emphasized that the Nebraska statute had unique structure and language.*fn1 Thus, whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis. The Court identified as crucial the language of the statute which mandated that the Nebraska Parole Board shall grant parole to an inmate unless one of four enumerated negative determinations are made.*fn2 Id. at 11-12, 99 S. Ct. at 2105-2106.
Unlike the Supreme Court in Greenholtz, we have the benefit of a decision by the highest court of Indiana interpreting the scope of interest created by the Indiana parole statute. Ind.Code §§ 11-1-1-7 to 11-1-1-14 & 11-1-1-26.*fn3 In Murphy v. Indiana Parole Board, Ind., 272 Ind. 200, 397 N.E.2d 259 (1979), the Indiana Supreme Court distinguished its state statute from the Nebraska statute:
Our parole release statute creates no expectancy of release as envisioned in the Nebraska statutory scheme; rather, our Legislature has invested the Parole Board with almost total discretion in such matters.
397 N.E.2d at 263 (emphasis added).*fn4
Since "the sufficiency of the claim of entitlement must be decided by reference to state law," Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2076, 48 L. Ed. 2d 684 (1976) (footnote omitted), and since we have an authoritative interpretation by the Indiana Supreme Court of the rights created by its state's parole statute, see Bishop, supra, 426 U.S. at 345, 96 S. Ct. at 2077; Greenholtz, supra, 422 U.S. at 12, 99 S. Ct. at 2106, we hold that Indiana state prisoners do not have a protectible interest in being paroled. We do not hear plaintiff to complain that the Parole Board did not comply with the procedures set out in the statute; rather, he argues that the procedures do not comport with due process. Because of our holding that the Indiana parole statute does not create a constitutionally protectible interest, plaintiff's procedural due process arguments must fail.
Plaintiff and amici also argue that the Indiana Administrative Adjudication Act, Ind.Code § 4-22-1-1 et seq., prescribes certain procedures which must be followed by the Parole Board. Without discussion, the district court concluded that the Indiana A.A.A. expressly exempted from its coverage the Indiana Parole Board.
Because no Indiana appellate court has specifically decided whether the A.A.A. is applicable to Parole Board proceedings, defendants argue that the district court should have abstained from deciding the question. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Amici correctly point out, however, that abstention is the exception rather than the rule and that Pullman -abstention "contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Harman v. Forssenius, 380 U.S. 528, 534, 85 S. Ct. 1177, 1182, 14 L. Ed. 2d 50 (1965). Amici further argue that it is quite clear under Indiana law that the A.A.A. applies to parole proceedings. While we agree with amici that abstention is not required in this case, we disagree with their interpretation of Indiana law. We hold that the Indiana A.A.A. does not apply to Parole Board proceedings.
The A.A.A. was enacted in 1947 and since that time, has expressly excluded from its coverage reformatory or penal institutions. Ind.Code § 4-22-1-2. Because each penal institution had a separate parole board until 1961, defendants argue that parole proceedings were expressly excluded from A.A.A. coverage. We agree.
In 1961, however, the state-wide Indiana Parole Board was created to replace the individual boards within each penal institution. Amici strongly contend that the State Parole Board no longer falls under the reformatory or penal institution exception in the A.A.A., particularly in light of the Indiana Supreme Court decision in Indiana State Personnel Board v. Parkman, 252 Ind. 44, 245 N.E.2d 153 (1969).
The relevant facts of Parkman are as follows. The Hospital Administrator at the Indiana State Prison was suspended and ultimately fired. He appealed to the Indiana State Personnel Board, which upheld his dismissal; he then appealed the decision of the Personnel Board by filing suit in state court. The Indiana Supreme Court held that the suit should have been dismissed because the former administrator had not followed the proper appellate procedures set out in the A.A.A. Amici in the case at bar rely heavily on the following language in Parkman :
That the person affected by a decision of the Personnel Board is an employee of an exempt agency does not mean that the Personnel Board or its decision is thereby exempted from the provisions of the Administrative Adjudication Act.
245 N.E.2d at 156. Because we can readily distinguish the Indiana Parole Board from the State Personnel Board, we do not find Parkman controlling.
In reaching its decision, the Parkman court relied on a section of the A.A.A. which provided:
All general or special laws or parts of laws in conflict herewith are hereby specifically repealed . . . .
Ind.Code § 4-22-1-28. Since Parkman had relied on procedures outlined in a statute in force before the enactment of the A.A.A., and since those procedures were not "uniform" with A.A.A. procedures, the court concluded that the express intent of the A.A.A. was to supersede the old conflicting statute. 245 N.E.2d at 155. The Parole Board procedures in this case present an entirely different situation.
As discussed above, at the time the A.A.A. was passed, parole boards were expressly excluded from its coverage because they were departments within exempt reformatories and penal institutions. Therefore, unlike the superseded procedures considered in Parkman, the procedures of the individual parole boards were specifically exempted, not "specifically repealed," by the passage of the A.A.A.
The question remains, however, whether the replacement of the individual prison parole boards with the state-wide Parole Board in 1961 brought the parole procedures within the coverage of the A.A.A. We think not. In creating the Indiana State Parole Board, the Legislature outlined certain procedures to be followed in making parole determinations. From its inception, the Parole Board has followed only the procedures in the parole statute, assuming that it was exempt from the A.A.A. For nearly twenty years, the Indiana Legislature has acquiesced in the Board's procedures. Legislative silence should not by itself be determinative, nor should it always be significant; in this case, however, and in light of the history of the Parole Board and the A.A.A., we find it strong support for holding the Parole Board exempt from the A.A.A. See State ex rel. O'Neal v. Cros, 177 Ind. App. 68, 378 N.E.2d 10, 13 (1978).
Plaintiff also argues that the Double Jeopardy Clause of the Fifth Amendment prohibits the Board from relying on the seriousness of his offense as a reason for denying him parole. This argument clearly must fail.
The Double Jeopardy Clause protects a defendant in a criminal proceeding against multiple punishment or repeated prosecutions for the same offense, U. S. v. Dinitz, 424 U.S. 600, 606, 96 S. Ct. 1075, 1079, 47 L. Ed. 2d 267 (1976); its protections are not triggered by the denial of parole. Rather than constituting another punishment for the same offense, the denial of parole merely perpetuates the status quo: the prisoner remains incarcerated under a validly imposed sentence. Roach v. Board of Pardons and Paroles, 503 F.2d 1367, 1368 (8th Cir. 1974); Carlisle v. Bensinger, 355 F. Supp. 1359, 1362 (N.D.Ill.1973). Indeed, in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the Supreme Court recognized that parole determinations must necessarily include the seriousness of the offense. Id. at 15, 99 S. Ct. at 2107.
We affirm the result reached by the district court with the modifications discussed above.