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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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