ILNews

Court orders mandate for full parole hearing

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals reversed the dismissal of a prisoner's pro se action for a mandate requiring all five parole board members to vote on his parole eligibility, ruling the prisoner's case was supported by Indiana statute.

In Kevin S. Varner v. Indiana Parole Board, No. 45A04-0812-CR-693, the Court of Appeals first had to determine whether the trial court had subject matter jurisdiction over Kevin Varner's mandate action, and then it had to decide whether the mandate action stated a claim upon which relief could be granted.

Only four out of five parole board members voted on whether Varner should be granted parole and the vote resulted in a tie. Because three or more members didn't vote to grant him parole, his parole was denied. Wanting the fifth board member to cast his vote, Varner filed a mandate action in Lake Superior Court alleging the board had a duty under Indiana Code Section 11-13-3-3(b) to determine his eligibility based on a five-person vote. The trial court dismissed the action claiming it had no jurisdiction over the parole board.

The Court of Appeals reviewed the dismissal of the action under the standards of lack of subject matter jurisdiction and pursuant to prescreening statutes because it was unclear why the trial court dismissed the action. In its subject matter jurisdiction review, the appellate court ruled Varner's mandate action fell within the general scope of authority conferred upon the trial court by the constitution or statute, wrote Judge Margret Robb. Because I.C. Section 4-21.5-2-5(6) precludes judicial review of an agency action related to an offender within the jurisdiction of the Department of Correction, a mandate action would provide Varner an adequate remedy at law. Varner doesn't challenge the board's decision to grant or deny his parole; he challenges that the decision is to be made by the full, five-member board.

Under the prescreening statutes, the appellate court ruled based on previous caselaw that his mandate action states a claim upon which relief can be granted. His action is based on a clear, statutory requirement and his relief can be granted by having the full, five-member board vote on his eligibility for parole.

Instead of remanding the case for the trial court to determine whether Indiana Code requires a five-member vote, the appellate court addressed the issue on the merits to promote judicial economy.

The term in the statute "final decision" isn't statutorily defined, but the appellate court agreed with Varner that it means the decision to grant or deny parole, wrote the judge. The term "full parole board" also isn't statutorily defined, but other sections of Indiana code establish that the parole board consists of five members appointed by the governor. The Court of Appeals ruled Varner clearly and unquestionably demonstrated that he is entitled to a mandate, wrote Judge Robb.

The appellate court remanded the case to the trial court to enter judgment in Varner's favor and issue the mandate requiring that all five board members cast their vote on his parole eligibility.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT