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.


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues