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Court orders mandate for full parole hearing

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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.

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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