Appeal from Circuit Court of Sangamon County No. 98MR26 Honorable Thomas R. Appleton, Judge Presiding.
The opinion of the court was delivered by: Justice GARMAN*fn1
Plaintiff Joseph Ganci is a prisoner at the Logan Correctional Center in the Illinois Department of Corrections (DOC). Based on events of June 8, 1974, he was convicted in April 1976 and is serving concurrent sentences of 33 to 100 years for murder and 11 to 33 years for attempt (murder). On June 20, 1996, Ganci filed a complaint in Cook County circuit court against defendants, Odie Washington, then Director of DOC, the Illinois Prisoner Review Board (Board), and its individual members alleging that the Board had unconstitutionally increased his sentence in violation of the ex post facto clauses contained in the United States Constitution (U.S. Const., art. I, §10, cl. 1) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §16). The case was transferred to the circuit court of Sangamon County in January 1998. The original complaint was dismissed on defendants' motion, and Ganci filed an amended complaint. Defendants filed a motion directed to this complaint, ostensibly requesting summary judgment, which the trial court granted. Ganci appeals, and we now vacate and remand.
Ganci's original complaint was styled as a complaint for declaratory judgment and alleged that (1) under the law in effect at the time of Ganci's offense, he would have been considered for parole by the Parole and Pardon Board (now Board) beginning in 1983 or 1984; (2) in 1978, parole was abolished and all persons serving sentences under the old laws were given the option of receiving recalculated determinate sentences, with the exception of prisoners serving sentences longer than 20 years, including Ganci; (3) those prisoners continued to be eligible for parole; (4) the Board denied Ganci's parole every year from 1993 to and including 1998; (5) the Board unconstitutionally increased the length of Ganci's sentence by denying him parole, using criteria not in effect when Ganci committed the crime for which he was serving sentence; (6) those criteria were unconstitutionally imposed, not by the legislature, but by the executive branch of government; (7) were the Board to consider Ganci's case under the criteria in effect on June 8, 1974, it would have found him eligible for parole and ordered him released; and (8) Ganci's continued confinement is therefore unconstitutional.
The complaint also alleged that (1) Ganci was convicted of aggravated battery while incarcerated at Pontiac Correctional Center and was sentenced to four years in prison; (2) Ganci's disciplinary record contains 12 violations in his first 10 years in prison; (3) in 1989, he was "written up" for two assaults on guards but was acquitted of one of those charges in a criminal trial; (4) Ganci received a disciplinary violation in 1992 but has had no discipline problems since; (5) every year, at least three witnesses have appeared at Ganci's parole hearing to urge his release; (6) no witness has ever appeared to testify against his release; (7) two letters, one from the Cook County State's Attorney and the other from the Livingston County State's Attorney, were received, stating that Ganci remained a danger to the community; (8) he has maintained close ties with his family; (9) the record is "replete with specific, uncontradicted evidence" demonstrating that Ganci poses no threat should he be paroled; (10) four offers of employment, if Ganci should be paroled, have been renewed each year that he has appeared before the Board; and (11) certain people in Chicago, where Ganci would live, have written letters to the Board supporting his parole.
The complaint also alleged that every year in which parole was denied, the Board cited only one statutory criterion as the basis for denying parole, i.e., that parole would deprecate the "very serious nature" of Ganci's offense and promote disrespect for the law.
Ganci further alleged that (1) based on evidence in the record, his age, background, institutional record, and his support system, there was "very little chance" that he would commit another crime or violate the conditions of his parole; (2) no evidence suggested that his release would have any adverse impact on institutional discipline; (3) on information and belief, prior to 1974, when Ganci committed the murder, the average length of time actually served by prisoners sentenced for murder was less than 20 years and an "extremely small" percentage of such prisoners served over 20 years; (4) from 1978 when the Board began considering parole cases, through 1981, the Board granted parole to 47% of the 13,591 prisoners whose parole cases it heard; (5) in 1982 alone, the percentage was 57%; (6) in 1983, the percentage dropped to 28% of cases heard; (7) between 1984 and 1992 (the last year for which statistics were available), the Board released between 2% and 5% of prisoners whose cases it considered; (8) on information and belief, virtually all prisoners who appeared before the Board from 1978 to the present were serving sentences for murder; (9) no change occurred in either the applicable statutes or administrative regulations that would account for the dramatic decrease in the number of prisoners approved for parole; (10) the Board effected the reduction in parolees by reinterpreting the third statutory criterion, i.e., the seriousness of the offense; (11) prior to 1983, the Board interpreted this criterion to require prisoners to serve about one-half of their minimum sentences, while after 1983, the Board's new interpretation barred parole for almost all prisoners serving sentences for murder; (12) on information and belief, the Board's reinterpretation was politically motivated, based on directives received from then Governor James R. Thompson and then Cook County State's Attorney Richard M. Daley, who complained about the short length of time that the average person convicted of murder served in prison; (13) in essence, Thompson and Daley "direct[ed]" the Board to increase the punishment given to prisoners convicted of murder; and (14) on information and belief, the Board denied Ganci parole in each of the years he appeared before it, based on its reinterpretation of the applicable statutory criteria. On defendants' motion, Ganci's complaint was dismissed with leave to amend.
On July 22, 1998, Ganci filed an amended complaint of two counts, the first for declaratory judgment and the second for a writ of mandamus. In count I, Ganci alleged the same factual matters as in his original complaint. He alleged that the actions of the Board in denying him parole each year were arbitrary, capricious, and against the manifest weight of the evidence. He also alleged that the actions were unconstitutional, based on an ex post facto change in the parole standards that had the effect of retroactively increasing his sentence in violation of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and section 16 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §16). Ganci also alleged that the Board's decision to change its interpretation was based on a decision by the executive branch of government, rather than the legislative branch, in violation of the doctrine of separation of powers contained in section 1 of article II of the Illinois Constitution (Ill. Const. 1970, art. II, §1). He requested an order declaring that the Board had increased his punishment in violation of his constitutional rights and requiring the Board to consider his parole case under the criteria in effect on June 8, 1974.
In count II of the amended complaint, seeking a writ of mandamus, Ganci alleged that, in denying his application for parole every year, the Board failed to perform its legally mandated duty under Illinois law and administrative regulations, thus violating Ganci's legal rights. Ganci further alleged that, since he filed his original complaint in 1996, the Board was on notice of his demands and failed to follow proper procedures in 1997 and 1998. He asked for a writ of mandamus commanding the Board to hold a new parole hearing in which all the procedures he identified be followed.
On August 24, 1998, defendants filed a "MOTION FOR SUMMARY JUDGMENT," alleging that the trial court had previously found, pursuant to defendants' motion to dismiss Ganci's original complaint, that count I failed to state a cause of action on which relief can be granted. As to count II, defendants alleged that the hearings were conducted pursuant to the applicable law and attached affidavits of Board members Barbara Hubbard and Anne Taylor. In conclusion, the motion alleged that no genuine issues of material fact were raised that would preclude entry of judgment in favor of defendants and requested that summary judgment be entered.
In a supporting legal memorandum, defendants noted, as to count I, that Ganci had presented the same arguments in his original complaint and that his amended complaint added nothing to suggest that the trial court was incorrect in dismissing it. Defendants argued that parole is a matter of grace and executive discretion and not subject to the ex post facto prohibition. The facts, as pleaded in the complaint, show that no new parole rule or regulation was in effect. Defendants also argued that no separation of powers violation occurred, because the Board did not change Ganci's sentence. The decision to release him prior to completion of his sentence is an executive function. In conclusion, defendants stated that "[a]s this [c]court has previously found, [c]ount I fails to state a cause of action upon which relief may be granted. Plaintiff is not entitled to the relief sought on [c]ount II. Judgment should be entered in favor of defendants and against [Ganci]."
Ganci's counsel requested that he be allowed to delay his response to defendants' motion to engage in discovery on procedures used by the Board in Ganci's case. The record does not show that any order was entered on this motion. However, the process of discovery began. At a hearing on Ganci's motion to compel discovery as to his mandamus cause of action, the trial court ordered defendants to supply the requested materials and answer interrogatories. Defendants refused to produce certain notes of members of the Board. While Ganci's discovery requests were pending, the notes in question were destroyed. In a written order entered on September 29, 1999, the trial court found that the notes were relevant to Ganci's allegations that meetings of the Board did not comply with the law. The trial court awarded ...