Winters v. Solem
444 N.W.2d 722
S.D.
1989
Check Treatment

*1 case, that Home Feder- parties in this procure insurance for Harold failure to

al’s to a of that con-

Heinert amounted breach

tract. Home Federal’s

Finally, address we procure credit life failing to

liability for its Lindsay Pettigrew, v. 5 S.D.

insurance. (1894), this court stated

500, 59 N.W. 726 agrees procure “to expressly

that one who

insurance, unjustifiably fails to secure an effort in that di or make

the same

rection, thereby the risk and be assumes loss, pay liable, as much in case

comes covered same as would have been policy provided ... the same

the insurance procured as directed.” Id. at

had been Accordingly, Home Feder

59 N.W. at 727. Margo for the amount of

al is liable Harold’s death.

mortgage as of the date of reasons, judgment foregoing

For the is affirmed.

of the trial court

All the Justices concur. Carlsen, Carter, WINTERS, Eirinberg James A. Petitioner

Charles A. Falls, Appellant, Hoy, Eirinberg, petition- & Sioux appellant. er and Gen., Roger Tellinghuisen, Atty. A. Warden, SOLEM, Herman Pierre, respondent appellee; John Penitentiary, Dakota State Bastían, Deputy Pierre, Atty. W. Gen. Appellee. Respondent and brief. No. 16412. MILLER, Justice. Dakota. Supreme of South Court appeal, In this we hold that a convicted May Briefs 1989. Considered on person protected liberty has no Aug. Decided parole and that he is not entitled to a due process hearing prior to rescission of an FACTS appellant Petitioner and A. Charles Win- appeals ters the circuit court’s denial of his petition corpus. amended for habeas Win- ters claims that the court erred when it *2 liberty held that he had no ingness interest his and desire to upon reoffend his parole granted by release once his had been release and because he displayed an atti- the South Dakota Board of Pardons and tude inconsistent goals with the parole. of (Board) Paroles and that the court erred in Board further found society that would not any that he was not entitled to due protected be if Winters was released. process prior summary to a rescission of Board concluded as a matter of law that grant parole by his Board. greater Winters had no right to an unexe- grant parole cuted than he had to re- September Winters was convict- parole lease on generally, and that it had ed of the crime of sexual contact with a the same discretion to rescind an unexecut- years age. child under sixteen He was grant parole ed as it would deny to years sentenced to ten in the South Dakota parole application. Finally, Board noted Penitentiary years State with four of his that an grant parole does suspended. applied sentence Winters later prisoner not vest a any protected with lib- parole application and his was heard erty interest and that unlike a revocation of in March 1988. Board On March Win- parole, parole rescission require does not ters was the condition process hearing. Board then found Kentucky. that he relocate to He was not parole Winters’ was unexecuted and released, however, immediately because his parole determined that his should be re- parole subject approval by was to Ken- scinded. authorities, tucky pursuant Compact Supervision. on Interstate Parolee See petitioned Winters the circuit court for a SDCL 24-16-1 to 24-16-5. One week after corpus. writ of habeas The court issued parole approved, but while still hearing writ and a was held. The custody, expelled Winters was from the sex circuit court denied corpus Winters’ habeas therapy group offenders’ at the Human relief, holding that he did not have a Services Center’s trustee unit due to his parole and that the rescission of participation. lack of interest and lack of hearing without a did not violate his reported It was also that he had told a process. to due appeals. Winters prison employee he guilty was not of We affirm. convicted, the crime of which he was planned engage to in sexual contact DECISION

with a child once he was released and that nothing wrong planning he saw to do so. He also parole agent told an institutional WHETHER THE CIRCUIT COURT that, inmates, unlike other he did not have ERRED IN HOLDING THAT WIN- urge drink, go to urge but rather had an HAD TERS NO LIBERTY INTEREST go “peep to a show.” IN HIS UNEXECUTED GRANT OF PAROLE.

In April, prior receiving approval from authorities, the Kentucky Winters was first claims that the circuit called back before Board to reassess the court erred when it determined that he did granting parole. meeting, of his At the not have a interest in his unexecut- Winters was not allowed to cross-examine grant parole. pro ed SDCL 24-15-1.1 against confront the witnesses him nor vides: was he on his allowed to call witnesses discretionary Parole is the condition- given opportunity behalf. He was not al release an inmate actual present any documentary evidence expira- penitentiary custody request to retain counsel or have coun- imprisonment. tion of his term of appointed sel was denied. prisoner remains an under the inmate department specifically legal custody

Board determined that Win- of chari- misrepresen- expiration ters’ rehabilitation had been ties and corrections until the improvi- imprisonment. prisoner A ted and that his had been of his term of expressed required accept dently because he a will- is not a conditional disagree. The never entitled to role. We United States Su- A However, may grant- clearly preme Court has held that even judgment of the board though prisoner

ed if has been notified that he *3 parole paroles granting a pardons and expectation paroled, is to be such is not a society and the interests of would be best requires a protected interest which prisoner. the hearing prior process due to its rescission. applica- its Curen, this section nor Neither 102 Jago v. 454 U.S. S.Ct. Van establishing a may tion be the basis 70 L.Ed.2d 13 for liberty, constitutionally protected inter- Jago, penitentiary a inmate was any in process or due interest property Authority by the Adult Parole viewed Ohio added.) (Emphasis prisoner. (OAPA) parole for to determine fitness prison- that a the statute It is clear from An parole” under Ohio’s “shock statute. actually paroled he is released er is when panel OAPA recommended that the inmate custody expi- the before inmate so notified. paroled was imprisonment. term of That ration of his prison completed pre-re- He attended and waiting period apply not to the term does had measured lease classes and even been grant the and the execution of between days pan- after the for civilian clothes. Six here, apply It also would not parole. inmate, el’s interview with the OAPA was parole release on was ex- where Winters’ inmate had not been truth- notified that the acceptance by plicitly conditioned on concerning gravity ful in his interview Kentucky. in parole authorities he had committed or in his of the offenses Supreme result, The United States Court parole plan. As a OAPA rescinded specifically per held that a convicted has pa- grant its earlier decision to the inmate has no constitutional or inherent son role and continued his case to a later parole. Greenholtz v. Inmates Ne meeting, parole time his OAPA at which Complex, Penal and braska Correctional formally denied. At no time was the was 99 60 L.Ed.2d 668 U.S. S.Ct. opportunity explain inmate Mickelson, (1979).* In the case of Dace v. made in his initial the statements had (8th Cir.1987), F.2d 1277 the court in parole parole plan. or in his interview examining analyz our statutes and ultimately petition inmate filed a ing holding, specifically the Greenholtz corpus claiming that writ of habeas pris Dakota a held that convicted hearing without a violated his rescission protected liberty interest oner has no process under United States agree adopt their The district court denied the Constitution. and rationale. writ. After that decision was remanded Court, Supreme the dis- United States II process trict court determined that no due hearing necessary early re- because THE COURT WHETHER CIRCUIT grace, lease in Ohio was a matter of that WIN- ERRED IN THAT HOLDING unambiguous, pro- ATO its law was and that no NOT ENTITLED TERS WAS PRIOR early HEARING release arises until DUE PROCESS tectible interest HIS OF Supreme TO THE RESCISSION actual release. The United States GRANT OF PAROLE. affirmed, holding parole for Court prisoners wholly lied within OAPA’s Ohio cir that the next contends discretion, parole statutes and that Ohio’s that he cuit erred when it determined court protected liberty interest did not process hearing create to a due was not entitled process purposes. grant for due of his prior to the rescission * 24-15-8, did, however, specifically provide disclaims 24-15-1.1 and court The Greenholtz protected liberty, property expectancy intent to create a an of release a statute which instills any prisoner. These or due may We note create a interest respond regarding parole, provisions caveat. legislation SDCL Greenholtz that certain Following in Jago, the rationale set forth law, SDCL 24-15-1.1 is a state cited reviewing statutes, unambiguous our the majority. Said statute expresses that early application an we likewise release under believe cannot establish grace constitutionally protected our is a matter of and that liberty, law SDCL proper ty gives or due 24-15-1.1 Board the to rescind interest. grace Parole is upon bestowed grant without because of his good conduct. necessity process hearing. of a due Statutes should try not express what is and what is not constitu Affirmed. See, tional. Vellinga v. Vellinga, *4 472, N.W.2d (S.D.1989)(Henderson, 475-77 WUEST, C.J., MORGAN, J., J., dissenting), for dissertation on constitu concur. powers tional respective the branches SABERS, J., specially concurs. background and historical thereof. There fore, the paragraph last of the statute is in HENDERSON, J., dissents. absolute violation of Art. II of the South SABERS, (specially concurring). Justice Dakota prescribes Constitution which DI VISION OF THE POWERS OF GOVERN Although agree posi- with the dissent’s MENT; paragraph said last also violates courts, legislatures, tion that not determine V, Art. 1 and 5 of the South Dakota § § constitutionality, legislature the does deter- Only Constitution. say courts can 24-15-1.1, “parole.” pa- mine Under SDCL what is and what is not constitutional. The discretionary role is defined as “the condi- legislature legislature cannot. Our state tional release of an inmate actual from penchant assuming has a the role of the expiration penitentiary custody before the courts of this sought, state and has imprisonment.” (emphasis of his term of past, nullify powers. this Court’s My added). emphasized language makes expression ideological most recent on this it clear that does not occur until phenomenon may be found in City Finck v. penitentiary actual release from custody. Tea, 632, (S.D.1989) 443 N.W.2d 636-637 Defining parole proper as “release” is a (Henderson, J., specially concurring). legislative function. Article Pursuant XIV, sections 1 and 2 of the Dakota But SDCL 24-15-1.1 simply appli- is not gov- the state is cable for another reason. is Winters not by legislature erned such rules as the shall using Liberty the Great Writ of to obtain inmate, incarcerated, provide, and an screaming high when He is heav- custody “is under the granted parole exclusive control and ens that he was and that it penitentiary.” Huftile, of the away v. 367 him State was then taken without due Therefore, (S.D.1985). N.W.2d 196 process, right to wit: No to cross-examine witnesses; granted “parole,” right Winters was not but was no to call witnesses on his behalf; process applying present documentary still no evidence; properly produce negative a represented by could and no to be hearing. determination without a counsel.1 Essentially, we face a broader issue than

HENDERSON, (dissenting). Justice majority would have us believe. We do not us an instance of have before us this issue: As an incarcerat have before prisoner claiming prisoner, deprived he is entitled to ed has he of basic been having Having granted parole, rights, is constitutional been been hearing, deprived claiming that he is entitled to a of the aforementioned rights? I because of its rescission. would hold that he has. Satter Board, by Agent Timothy p. 1. Institution Parole Cortan filed was used 8-9) see Settled Record Board; 2, 1988; parole May report permit- with the Parole he was his on and "Order and also, Board; testify, Findings Fact and Conclusions on Parole ted to permitted caption (ex-parte) was never to confront his accuser or Rescission” was the written sealing legal granting allegations against to refute him. fate. Exhibits 1 and (this unilaterally parole, appended hereby. him are The Board "rescinded” word 726 (S.D.1988); conviction, Solem, My true. 422 N.W.2d 425 remain this factual

v. (S.D. Solem, scenario, 406 141 N.W.2d respectable v. shared three Goodroad Erickson, 80 1987); McCall, Burns v. ex rel. State authorities: v. 822 F.2d 284 Green (2nd Cir.1987); S.D. N.W.2d Christopher v. U.S. Board Parole, (7th Cir.1978); 589 F.2d suspected parolees, process for Due Benson, (10th Robinson 570 F.2d 920 terms and conditions having violated the Cir.1978). essentially These cases hold guaranteed conceivably SDCL parole, is granted pa- that inmates who have been pa- Having granted Winters a 24-15-23.2 release, role, waiting enti- and who are are role, statutory and constitutional can tled to before their thesis, my the ma- triggered. Under were However, be rescinded. I must note that attempts apply it when jority errs these three cases fall ambit within wrong upon a academic and law statute corpus regulations. the federal habeas i.e., applying now basis, Winters is overruled, not mod- These cases have been point He was role. The is: It me ified or reversed. strikes to the state of Ken- March *5 liberty; deprivation that a of and tucky. through via a rescission constitution- quarrel absolutely I no with Green- have transgression, deprivation al and a of liber- Dace, majority opinion. in the or cited holtz is, ty qualitatively, in a revocation set of facts before us. a different have cannot, therefore, good the same. I in Moreover, reading the dicta the ma- conscience, accept the and dicta of decision, conclusion that jority I draw a majority opinion. state have prisoners our rights protected liberty at all. virtually no For dissertation the inculcation ethic, if wrong, that this is I would hazard Judeo-Christian as it relates to fami- And are, they 689, they life, but ly ofS.L., not medieval. Prisoners see Matter N.W.2d J., wholly stripped (S.D.1988) (Henderson, of their constitu- are not dissent- 694-98 imprisoned for a protections when tional for its influence on the for- ing); historical important They variety retain Indepen- crime. of the Declaration mulation to the courts must be alert see the dence U.S. McDonnell, protect. U.S. dissent, same Wolff infra. (1974). 41 L.Ed.2d 935 S.Ct. Deeply within the American imbedded suppose let us that a Hypothetically, your right is the to confront accuser. law guard penitentiary official has an an- or a spring? did I refer to Acts Whence this great against an inmate that tipathy so Apostles, twenty-fifth chapter, eleventh hearsay prevarication estops total and Of verse and also the sixteenth verse. pris- implementation. role Is it course, Holy Scripture and the I refer to oner would then have Paul, then against St. Paul accusations left parole rescinded or revoked before he Festus, brought before Tarsus. Paul was upon hostility pre- the institution based governor. was accused of a Roman Paul process is a varication? Procedural due steadfastly charges serious but maintained to be used friend of the masses should severely punished he should not be tyranny. These are prevent administrative Later, charges proven. unless the were compare favorably my they with words but (thir- brought King Agrippa before Prewitt, 8 spiritual holding of In re chapter twenty-five) teenth verse of where- 470,105 Cal.Rptr. 503 P.2d 1326 Cal.3d Fes- upon due was immortalized. King Agrippa case before tus laid Paul’s alia, expressing, verse sixteen: to inter

I always have believed that Romans are not every “But told them that right of be heard is a fundamental belief, up give man I must accustomed to To that American citizen. property of law." obviously guaranteed without due South Dako- is also It VI, provides, mine). (emphasis supplied § which ta Constitution Art. life, deprived person “No alia: shall inter met his face to accused has accusers face given

and has a chance defend been Later, charges.”3 against

himself we gover-

find in 27 wherein the Roman verse expressed:

nor “For it seems me unrea- stating, without

sonable to send against charges him.” my justice, hope my quest unfairly

shelter whose liberties are those

withheld, my enduring great in the faith liberty,

writ I would the habeas reverse

corpus court remand this case so that prisoner could accuser

this face his opportunity reply these

have “Star charges. For, end,

Chamber” isn’t

justice really about fairness? Tonner,

H.I. King King, Tobin & Ab- *6 erdeen, petitioner appellant. and Riter, Riter, Mayer, Robert C. Jr. of Hof- Riter, Pierre, er and respondent BOYLES, Fred Petitioner and appellee; Roger Tellinghuisen, Atty. Gen., Appellant, Pierre, on the brief. PER SOUTH DAKOTA OF CRIMI- CURIAM. DIVISION INVESTIGATION, NAL OFFICE OF Boyles Fred appeals from an order of the GENERAL, Respondent ATTORNEY circuit affirmed court which the decision of Appellee. the Law Enforcement Civil Com- Service (commission) jurisdic- mission that it had no No. 16499. grievance. Boyles’ tion to hear affirm. Supreme Court of Dakota. attorney gener- In October of then May Considered on Briefs 1989. Meierhenry Boyles appointed Mark al attorney special gener- as a assistant serve Aug. Decided drug onal the state enforcement unit. The attorney general Boyles rep- authorized “to investiga- resent said all matters of Unit in tion, detection, crime, prevention of apprehension criminals, per- fugitives, drugs charged sons with violations of at the controlled substances laws to serve (emphasis Attorney General.” will of added) Boyles reappointed, later un- terms, general by attorney the same der Roger Boyles is not an at- Tellinghuisen. torney. nally process", "due United States evolve?

3. Where was origi- did it born? From whence