Bryan P. HALL, Appellant v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee.
Supreme Court of Pennsylvania.
Submitted July 9, 2003. Decided June 22, 2004.
851 A.2d 859 | 578 Pa. 245
Bryan P. Hall, pro se.
Robert Campolongo, Arthur R. Thomas, Calvin Royer Koons, Harrisburg, for PA Bd. of Probation and Parole.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Justice NEWMAN.
Bryan P. Hall (Hall) appeals from an Order of the Commonwealth Court, which dismissed his pro se Petition for Review in the Nature of Mandamus, brought in the original jurisdiction of the Commonwealth Court. Hall contends that the Pennsylvania Board of Probation and Parole (Board) improperly denied his numerous requests for parole by judging his applications pursuant to standards enacted in 1996, five years after his date of sentence. For the reasons discussed herein, we affirm the Order of the Commonwealth Court.
FACTS AND PROCEDURAL HISTORY
Hall is currently serving a prison sentence of four to twenty years at the State Correctional Institution in Dallas, Pennsylvania, for convictions of aggravated assault,1 aggravated inde- cent assault,2 and related charges stemming from his arrest on June 26, 1991. Hall, who has been incarcerated since his arrest, had a minimum sentence date of June 28, 1995, and a maximum sentence date of June 28, 2011. He appeared before the Board on May 24, 1995, in anticipation of the expiry of his minimum sentence term. In a decision dated June 13, 1995, the Board denied parole based on the following factors: (1) substance abuse; (2) habitual offender; (3) assaultive instant offense; (4) very high assaultive behavior potential; (5) the need for treatment; (6) failure to benefit from treatment programs for sex offenders or substance abuse; and (7) an unfavorable recommendation from the Department of Corrections. Reproduced Record (R.R.) at A-1. The Board informed Hall that to improve his parole candidacy he: (1) must participate in prescriptive programs; (2) maintain a clear conduct record; and (3) earn an institutional recommendation from the Department of Corrections. Id.
From 1996 through 1998, on an annual basis, Hall appeared before the Board, which rejected his parole requests, citing itemized reasons and indicators that it would review at his next parole hearing. Id. at A-2, A-3, A-4. Hall again appeared before the Board on March 11, 1999. Again, the Board denied parole, this time explaining that “[f]ollowing an interview and review of your file, the Pennsylvania Board of Probation and Parole has determined that the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through your release on parole.” Id. at A-5. The Board used the same language in a decision denying parole filed in 2000. Id. at A-6. The Board supported its parole denials on April 10, 2001, and June 13, 2002, with the following language “[f]ollowing an interview and review of your file, the Pennsylvania Board of Probation and Parole has determined that the fair administration of justice cannot be achieved through your release on parole.” Id. at A-7, A-8.
On July 9, 2002, Hall filed a pro se Petition for Review in the nature of a request for mandamus in the original jurisdic- tion of the Commonwealth Court. Hall contended that the 1996 amendments to the Parole Act3 materially changed the criteria for granting and denying parole, and that application of the amended Parole
On October 28, 2002, while the Commonwealth Court proceedings were stayed, the Board modified its June 13, 2002 decision to deny parole to read as follows:
Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act of 1941, as amended,
61 P.S. § 331.1 et seq. , the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time. The reasons for the Board‘s decision include the following:The recommendation made by the prosecuting attorney.
Reports, evaluations and assessments concerning your physical, mental and behavior condition and history.
Other factors deemed pertinent in determining that you should not be paroled: your prior criminal history.
R.R. at A-9. On November 26, 2002, relying on Reynolds, the Commonwealth Court denied the Petition for Review filed by Hall. Hall now appeals to this Court, contending that application of the 1996 amendments to the Parole Act to his parole requests operated in contravention of the prohibition of the ex post facto clause contained in the United States Constitution.
DISCUSSION
Though the claims herein presented by Hall concern application of the Parole Act, the resolution of this matter turns on the principles of separation of powers and stare decisis, rather than the substantive arguments raised by Hall.
Just last year, in Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002), this Court was faced, inter alia, with the exact question Hall presents today: does application of the newly-amended Parole Act to an inmate sentenced prior to the promulgation of those amendments violate the ex post facto clause of the United States Constitution?4 Although we filed Winklespecht as a fractured Opinion Announcing the Judgment of the Court, at least three Justices agreed that there was no ex post facto violation. See id. at 691-692 (“[t]he rewording of
Seven weeks after Winklespecht, on February 21, 2003, the United States Court of Appeals for the Third Circuit, faced with an identical substantive contention, decided Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003). The Third Circuit rejected the determination of this Court in Winklespecht, finding instead that applying the 1996 amendments to Mickens-Thomas, who had been sentenced in 1969, violated the ex post facto prohibition. The Third Circuit found that parole policy in the Commonwealth shifted after 1996, which calculably lessened the chances that an inmate would be paroled. The Third Circuit reasoned as follows:
[P]rior to 1996, the Board‘s concern for potential risks to public safety could not be the sole or dominant basis for parole denial under the existing Guidelines. Considerations of public safety were already incorporated into its Guidelines analysis; the Board had to point to “unique” factors as a basis for its rejection of the Guidelines. Moreover, the Board had to weigh all factors, militating for and against parole, and make its decision on the totality of the factors pertinent to parole, and give appropriate weight to the interests of the inmate. Heavy foot application on one factor could not have been the basis of granting or rejecting parole. Policy declarations in and after 1996 demonstrate that Board stance shifted and that, indeed, post-1996 considerations of public safety
became the dominant concern of the Board
Id. at 386. The Third Circuit has reaffirmed its position on at least two subsequent occasions: Hollawell v. Gillis, 65 Fed. Appx. 809 (3d Cir.2003) (memorandum), cert. denied, -- U.S. --, 124 S.Ct. 229, 157 L.Ed.2d 136 (October 6, 2003), and McLaurin v. Larkins, 76 Fed.Appx. 415 (3d Cir.2003) (memorandum).7 Hall recognized this divergence in legal authority when he asked us to consider his appeal in light of Mickens-Thomas. Accordingly, given our rejection of the ex post facto argument in Winklespecht, as clarified by Finnegan, at this juncture our concern is no longer a question of whether there is an ex post facto violation, but whether we are constrained by Mickens-Thomas.
It is beyond cavil that this Court is bound by the determinations of the United States Supreme Court on issues of federal law, including the construction and interpretation of the federal constitution. Purple Orchid, Inc. v. Pennsylvania State Police, 572 Pa. 171, 813 A.2d 801, 806 (2002) (citing Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Hospitality Investments of Philadelphia, Inc., 547 Pa. 142, 689 A.2d 213, 216 (1997)). However, whether or not this Court has a responsibility to adhere to the pronouncements of inferior federal courts on matters of federal law, where the United States Supreme Court has not spoken, is less certain. There appear to be four schools of thought on this question: (1) a decision of an inferior federal court should be treated as persuasive, but not binding, authority; (2) a decision of an inferior federal court should be followed, if reasonably possible, to avoid a conflict between state and federal resolutions of the same question; (3) a decision of an inferior federal court binds the state court; and (4) if the decisions of the inferior federal courts are “numerous and consistent,” the state court must follow their dictates.
A vast majority of state supreme courts that have addressed this issue have adopted the first approach. See, e.g., Totemoff v. State, 905 P.2d 954 (Alaska 1995), cert. denied, 517 U.S. 1244, 116 S.Ct. 2499, 135 L.Ed.2d 190 (1996); Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001); Hill v. Thomas, 973 P.2d 1246 (Colo.1999), affirmed, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Macon-Bibb County Hospital Authority v. National Treasury Employees Union, 265 Ga. 557, 458 S.E.2d 95 (1995); Indiana Department of Public Welfare v. Payne, 622 N.E.2d 461 (Ind.1993); Shell Oil Company v. Secretary, Revenue and Taxation, 683 So.2d 1204 (La.1996); ACE Property Casualty and Insurance Co. v. Commissioner of Revenue, 437 Mass. 241, 770 N.E.2d 980 (2002);8 In Re 3628 v. Street, 262 Neb. 77, 628 N.W.2d 272 (2001); Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 577 A.2d 1239 (1990); Custom Cabinet Factory of New York, Inc. v. Eighth Judicial District Court ex rel. County of Clark, 119 Nev. 51, 62 P.3d 741 (2003); Bogart v. CapRock Communications Corp., 69 P.3d 266 (Okla.2003); State v. Austin, 165 Vt. 389, 685 A.2d 1076 (1996); Election Board of State of Wisconsin v. Wisconsin Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), cert. denied, 528 U.S. 969, 120 S.Ct. 408, 145 L.Ed.2d 318 (1999).
At least two jurisdictions give slightly more deference to the federal appeals court of the circuit where the state is located. Red Maple Properties v. Zoning Commission, 222 Conn. 730, 610 A.2d 1238, 1242 n. 7 (1992) (“It would be a bizarre result if this court [adopted one analysis] when in another courthouse, a few blocks away, the federal court, being bound by the Second Circuit rule, required [a different result]“); Littlefield v. State, Department of Human Services, 480 A.2d 731, 737 (Me.1984) (“even though only a decision of the Supreme Court of the United States is the supreme law of the land on a federal issue ... nevertheless, in the interests of existing harmonious federal-state relationships, it is a wise policy that a state court of last resort accept, so far as reasonably possible, a decision of its federal circuit court on such a federal question“).
Mississippi and New Hampshire hold that they are constrained by the interpretations of federal law forwarded by the Fifth and First Circuits, respectively. Columbus Paper and Chemical, Inc. v. Chamberlin, 687 So.2d 1143 (Miss.1996); Desmarais v. Joy Manufacturing Co., 130 N.H. 299, 538 A.2d 1218 (1988). Finally, Alabama, California, and Illinois will consider themselves bound by interpretations of inferior federal courts, but only where the decisions of those courts are “numerous and consistent.” Etcheverry v. Tri-Ag Service, Inc., 22 Cal.4th 316, 93 Cal.Rptr.2d 36, 993 P.2d 366, 368 (2000).9 See also Ex Parte Bozeman, 781 So.2d 165 (Ala.2000), affirmed, 533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001), and Bishop v. Burgard, 198 Ill.2d 495, 261 Ill.Dec. 733, 764 N.E.2d 24 (2002).
Almost forty years ago, we were faced with the same question of whether and how to consider the interpretations of inferior federal courts on matters of federal law when we decided Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965). In Negri, the question we intended to answer was whether we should adhere to our interpretation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) (predecessor to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), or the conflicting analysis followed by the Third Circuit Court of Appeals. We recognized the problem inherent in interpreting federal law in a manner inconsistent with the reasoning advanced by the Third Circuit Court of Appeals, explaining that:
If the Pennsylvania courts refuse to abide by [the Third Circuits] conclusions, then the individual to whom we deny relief need only to “walk across the street” to gain a different result. Such an unfortunate situation would cause disrespect for the law. It would also result in adding to the already burdensome problems of the Commonwealths trial courts, which look to us for guidance. Finality of judgments would become illusory, disposition of litigation prolonged for years, the business of the courts unnecessarily clogged, and justice intolerably delayed and frequently denied.
Negri, 213 A.2d at 672. Ultimately, however, this rationale for applying Third Circuit precedent was rendered mere dictum because we determined that Escobedo was not retroactive and, therefore, avoided choosing between the two alternatives. Id. at 676.10
More recently, in a number of decisions, this Court has clearly indicated that we are not obligated to follow the decisions of the Third Circuit on issues of federal law. See, e.g., Commonwealth v. Cross, 555 Pa. 603, 726 A.2d 333 (1999) (this Court not bound by a Third Circuit decision interpreting United States Supreme Court jurisprudence); Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390 (1999) (this Court is not constrained by a Third Circuit decision interpreting federal law); Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999) (same); Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999) (same). Similarly, as early as 1962, we held that we are not bound by the decisions of other federal Circuit Courts of Appeal. Breckline v. Metropolitan Life Insurance Co., 406 Pa. 573, 178 A.2d 748 (1962) (Ninth Circuit ruling on federal question does not bind this Court).
While we recognize the concerns articulated in Negri regarding conflicting interpretations of federal law by this Court and the Third Circuit, we must reaffirm our Winklespecht/Finnegan analysis. As a foundational matter, the cited portion of Negri was dicta, and in the intervening period, this Court, as well as most other state courts, have determined that they are not bound by the decisions of inferior federal courts. Further, if we were to relent from our newly announced positions merely because the Third Circuit, or any other inferior federal court, has reached a conflicting resolution, we would breed the same disrespect for the law, the concern over which we articulated in Negri. To follow this path, would render illusory the finality of judgments within our Commonwealth. Therefore, rather than reversing the position we took one year ago; we believe that it is more jurisprudentially sound to confirm our prior decision.
Within our federal system of governance, there is only one judicial body vested with the authority to overrule a decision that this Court reaches on a matter of federal law: the United States Supreme Court. Absent a contrary ruling from that tribunal, it is the law of this Commonwealth that application of the 1996 amendments to the Parole Act to persons sentenced prior to their adoption does not violate the ex post facto clause of the United States Constitution.
CONCLUSION
For the reasons discussed above, we affirm the Order of the Commonwealth Court.
Justice BAER concurs in the result.
Chief Justice CAPPY files a dissenting opinion in which Justices NIGRO and Saylor join.
Chief Justice CAPPY dissenting.
Like the majority, I agree that a decision of an inferior federal court should be treated by this court as persuasive, but not binding, authority, where that decision interprets federal law. I, however, recognize that the decisions of the United States
At issue here is the retroactive application of the 1996 amendments to the Parole Act1 and whether applying those provisions to a person sentenced prior to 1996 violates the ex post facto clause of the United States Constitution. Appellant has been in prison since 1991. The heart of Appellant‘s argument is that in all probability under the parole system as it existed at the time he committed his offense, was convicted, and sentenced, he would have been paroled, while under the current system he is ineligible for parole. Appellant points to the amendments to the 1996 Parole Act that he asserts altered the focus of the parole policy in Pennsylvania from one that centered on the rehabilitation of the offender to one that now emphasizes public safety, deterrence, and the incapacitation of criminals. Appellant asserts that the retroactive application of the policy created through the 1996 amendments to his application for parole causes him to suffer a longer period of incarceration than if his parole application were considered under the pre-1996 policy, thereby creating an ex post facto violation.
This exact argument was presented, and rejected by our court in two recent decisions, Winklespecht v. Pa. Bd. of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002) and Finnegan v. Pa. Bd. Probation and Parole, 576 Pa. 59, 838 A.2d 684 (2003). Before discussing the specifics of those two cases, however, I believe a brief review of the United States Supreme Court decisions in California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) and Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) is warranted. In each of those cases, the Court was faced with an argument that a decrease in the frequency of scheduled parole hearings constituted an ex post facto violation as to the prisoners sentenced under the prior scheme. In Morales, the changes occurred via statutory enactment; while in Garner, the change in frequency of parole hearings was accomplished through the exercise of the parole board‘s legitimate discretion. In each case, based on the specific facts presented, the Court found no ex post facto violations. However, the critical points made in those cases are first, that retroactive changes in the laws governing parole may violate the ex post facto clause; and second, that the test for determining if such a violation has occurred is “whether retroactive application of the change in law created a significant risk of increased punishment.” Garner, at 256, 120 S.Ct. 1362. With these important points in mind, we return to a consideration of the case law as it developed in our court.
Winklespecht was a plurality opinion. The Appellant had presented his ex post facto challenge to the denial of his parole application by bringing a petition for the writ of habeas corpus. The court was presented with two questions, whether a writ of habeas corpus was the correct means to challenge the denial of parole, and whether Appellant had suffered an ex post facto violation. Three of the justices agreed that the 1996 amendments to the Parole Act did not violate the ex post facto clause. The opinion announcing the judgment of the court (OAJC) reasoned that although the 1996 amendments added new
Following this court‘s decision in Winklespecht, the Third Circuit Court of Appeals addressed the identical issue in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.2003) and reached the opposite conclusion than did the plurality on the ex post facto question. The Mickens-Thomas court did not view the 1996 amendment to the Parole Act as simply reordering policy considerations that had always been reviewed by the parole board, but rather, found the change in language in the 1996 amendments to signal a change in the weight to be afforded those policy concerns within the deliberative process of considering an application for parole. Id. at 385. Although the Circuit Court did have the benefit of the recent pronouncement of this court in Winklespecht, the court did not consider that case dispositive in its analysis of Mr. Mickens-Thomas’ ex post facto claim. Focusing on the critical points established by the United States Supreme Court in the Morales and Garner decisions, the court concluded that the change in emphasis in the parole process could create a significant risk of prolonged incarceration. Accepting the premise that an ex post facto violation may occur through application of the amended parole policy guidelines to a prisoner sentenced before the adoption of the 1996 amendments, the court then turned to the specific circumstances in Mr. Mickens-Thomas’ case. Specifically the court looked at the emphasis by the parole board on public safety as a paramount consideration in denying the application for parole. In the court‘s view, the concern for public safety eclipses other factors in weight after the 1996 amendment. Thus, if the application for parole had been reviewed prior to the amendment, when public safety was not so heavily emphasized, it was more likely than not that parole would have been granted on the facts of this case. Accordingly, the court concluded that Mr. Mickens-Thomas had established a substantial likelihood of an increase in the period of his incarceration because of the policy changes. The case was then remanded to the parole board to reconsider the application for parole in light of the Circuit
A short time after the decision in Mickens-Thomas, this court again visited the question of ex post facto challenges to the denial of parole in the case of Finnegan. The appellant in that case presented his claim through a writ of mandamus. A majority of the court agreed that mandamus was the proper vehicle to bring a constitutional challenge to the denial of parole. Id. at 687. Then, reaching the merits of the constitutional ex post facto claim the majority found that the amendments did not alter the criteria the parole board used in exercising its discretion on parole applications. Id. at 688. The majority firmly stated that a change in policy guiding the discretion of the parole board can never support a claim of an ex post facto violation in the denial of parole. Id. at 690. As for the decision in Mickens-Thomas, the Finnegan court distinguished that case on the basis of the distinctive factual assertions made by the litigants to support their claims of an ex post facto violation in the two cases:
Mickens-Thomas concerned the issue of greater emphasis being given to the public safety factor in the parole decision, whereas public safety was not even a factor mentioned as a basis for the denial of parole in appellant‘s case. Thus, we are not bound by the Third Circuit‘s decision.
Justice Saylor authored a dissent in Finnegan, joined by myself, and Justice Nigro. The primary point of dissonance between the dissent and majority was on the question of whether an ex post facto claim may arise from a change in parole guidelines. The majority definitively stated that “the ex post facto clause does not apply to the parole guidelines ...” Id. at 690. The dissent disputed that holding, pointing out that the underlying issue was one controlled by federal law, and reminding the majority that in Garner, the United States Supreme Court unmistakably recognized that the ex post facto clause bars retroactive changes in parole policies that create a substantial risk of prolonging a prisoner‘s incarceration. The dissenting Justices favored a remand to allow for a hearing to consider Finnegan‘s statistical evidence that a systematic change in parole policies following implementation of the 1996 amendments created a significant risk of prolonged incarceration, in support of his ex post facto claim.
In the case at bar, the majority recognizes that tension exists between the decisions of this court in the recent opinions of Winklespecht and Finnegan, and the concurrent pronouncement of the Third Circuit Court of Appeals in Mickens-Thomas. The majority summarily rejects the decision in Mickens-Thomas. It is the kernel of reasoning upon which the federal and state opinions on this question diverge that causes me to reject the analysis of the majority. The ultimate question of whether a change in parole policy that creates a substantial risk of prolonging incarceration may constitute an ex post facto violation has been answered in the affirmative by the United States Supreme Court. Garner; Morales.
By rejecting the Third Circuit‘s opinion in Mickens-Thomas, the majority in this instance repeats the original error committed by our court in Winklespecht and Finnegan.3 Further the majority reaches its conclusion by blindly applying the policy statement as to the impact of inferior federal
I must dissent from the majority‘s refusal to consider the reasoning of an inferior federal court on a question of federal law. Furthermore, I dissent as I believe the decisions in Winklespecht and Finnegan are in error as they ignore the holdings of the United States Supreme Court in Garner and Morales.
Justices NIGRO and SAYLOR join this dissenting opinion.