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NO. 2015-CA-01045
_________________________________
IN THE COURT OF APPEALS OF THE STATE MISSISSIPPI _________________________________
MARSHALL FISHER,
Appellant,
vs.
MICHAEL DRANKUS,
Appellee.
_______________________________________________________
On Appeal from the Circuit Court of Sunflower County, Mississippi
BRIEF OF THE APPELLEE ________________________________________________________
Oral Argument Requested
JACOB W. HOWARD, MSB #103256 J. CLIFTON JOHNSON, MSB #9383 MACARTHUR JUSTICE CENTER 767 North Congress Street Jackson, Mississippi 39202 Tele: (601) 969-0802 Fax: (601) 969-0804 [email protected] [email protected]
Counsel for Appellee
E-Filed Document Mar 11 2016 14:23:07 2015-CA-01045 Pages: 38
CERTIFICATE OF INTERESTED PERSONS NO. 2015-CA-01045-COA
MARSHALL FISHER APPELLANT vs. MICHAEL DRANKUS APPELLEE The undersigned counsel of record certifies that the following listed persons have
an interest in the outcome of this case. These representations are made in order that the
justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate
possible disqualification or recusal:
(1) Honorable Carol White-Richard, Sunflower County Circuit Court Judge (2) Jim Hood, Attorney General for the State of Mississippi, Counsel for
Appellant (3) Anthony L. Schmidt, Special Assistant Attorney General for the State of
Mississippi, Counsel for Appellant
(4) Marshall Fisher, Commissioner of the Mississippi Department of Corrections, Appellant
(5) J. Clifton Johnson, MacArthur Justice Center, Counsel for Appellee (6) Jacob W. Howard, MacArthur Justice Center, Counsel for Appellee (7) Michael Drankus, Appellee
This the 11th day of March, 2016,
s/ Jacob W. Howard Jacob W. Howard
Counsel for Appellee
i
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................... i
TABLE OF AUTHORITIES ............................................................................................ ii
STATEMENT REGARDING ORAL ARGUMENT ..................................................... 1
STATEMENT OF THE ISSUE ....................................................................................... 1
STATEMENT OF THE CASE ........................................................................................ 1
Relevant Facts and Procedural History ....................................................................... 3
SUMMARY OF THE ARGUMENT ............................................................................... 6
STANDARD OF REVIEW ............................................................................................... 8
ARGUMENT ..................................................................................................................... 9
I. The Circuit Court Correctly Concluded that the Plain and Unambiguous Language of Miss. Code Ann. § 47-7-3.1(1) Requires the MDOC to Develop a Case Plan for All Parole Eligible Inmates, Including Appellee Michael Drankus………………………..9
II. The Only Question Before this Court is Whether Miss. Code Ann. § 47-7-3.1(1) Requires the MDOC to Develop a Case Plan for All Parole Eligible Inmates, Including Appellee Michael Drankus………………………………………………………………...24
CONCLUSION ................................................................................................................ 28
ii
TABLE OF AUTHORITIES
CASES
Asanov v. Hunt, 914 So.2d 769 (Miss. Ct. App. 2005) ..................................................... 25
Atwood v. State, ---So.3d---, 2016 WL 159398 (Miss. Jan. 14, 2016) ........................ 16, 18
Conway v. Mississippi State Bd. of Health, 173 So.2d 412 (Miss. 1965) ......................... 10
Court of Oakland v. Federal Housing Finance Agency, 716 F.3d 935 (6th Cir. 2013) .... 11
Culberson v. State, 612 So.2d 342 (Miss. 1992) ............................................................... 17
Delgado v. U.S. Atty. Gen., 487 F.3d 855 (11th Cir. 2007) .............................................. 15
Foster v. State, 148 So.3d 1012 (Miss. 2014) ................................................................... 12
Jackson v. State, 67 So.3d 725 (Miss. 2011) ..................................................................... 21
Lawson v. Honeywell Intern., Inc., 75 So.3d 1024 (Miss. 2011) ...................................... 14
Lewis v. Hinds County Circuit Court, 158 So.3d 1117 (Miss. 2015) ............................... 14
Marbury v. Madison, 5 U.S. 137 (1803) ............................................................................. 8
Marx v. Broom, 632 So.2d 1315 (Miss. 1994) .................................................................. 10
McBroom v. Jackson County, 154 So.3d 827 (Miss. 2014) .............................................. 11
McGovern v. MDOC, 89 So.3d 69 (Miss. Ct. App. 2011) .................................................. 9
Mississippi Methodist Hosp. and Rehabilitation Center, Inc. v. Mississippi Div. of Medicaid, 21 So.3d 600 (Miss. 2009) ....................................................................... 8, 10
Mississippi State and School Employees’ Life and Health Plan v. KCC, Inc., 108 So.3d 932 (Miss. 2013) ................................................................................................ 8
Odom v. State, 483 So.2d 343 (Miss. 1986) ...................................................................... 21
Ray v. State, 104 So.3d 171 (Miss. Ct. App. 2012) ............................................................. 9
Scoggins v. Baptist Memorial Hospital-Desoto, 967 So.2d 646 (Miss. 2007) ................. 25
iii
Sierra Club v. Johnson, 444 F.Supp.2d 46 (D.D.C. 2006) ................................................ 21
Sierra Club v. Thomas, 658 F.Supp. 165 (N.D. Cal. 1987) .............................................. 21
Smith v. Wesley, 157 So.3d 860 (Miss. Ct. App. 2015) .................................................. 8, 9
State v. Cummings, 35 So.2d 636 (Miss. 1949)................................................................. 12
Swaney v. Swaney, 962 So.2d 105 (Miss. Ct. App. 2007) ................................................ 26
Tallahatchie General Hosp. v. Howe, 49 So.3d 86 (Miss. 2010) ..................................... 25
Tipton v. State, 150 So.3d 82 (Miss. 2014). ........................................................................ 8
Trustees of Iron Workers Local 473 Pension Trust v. Allied Products Corp., 872 F.2d 208 (7th Cir. 1989) ............................................................................................. 11
Turner v. State, 169 So.3d 945 (Miss. Ct. App. 2014) ........................................................ 9
Turner v. Williams, 257 So.2d 525 (Miss. 1972) .............................................................. 25
Wallace v. Town of Raleigh, 815 So.2d 1203 (Miss. 2002) .............................................. 14
STATUTES Miss. Code Ann. § 1-3-65 ................................................................................................. 11
Miss. Code Ann. § 47-5-807 ............................................................................................... 5
Miss. Code Ann. § 47-7-3 ............................................................................... 15, 18, 19, 22
Miss. Code Ann. § 47-7-3.1 ....................................................................................... passim
Miss. Code Ann. § 47-7-3.2 .............................................................................................. 14
Miss. Code Ann. § 47-7-17 ........................................................................................ passim
Miss. Code Ann. § 47-7-18 ........................................................................................ passim
Miss. Code Ann. § 47-7-37 ......................................................................................... 16, 17
Miss. Code Ann. § 47-7-43 ......................................................................................... 16, 19
iv
Miss. Code Ann. § 99-39-3 ............................................................................................... 20
Miss. Code Ann. § 99-39-5 ............................................................................................... 20
OTHER AUTHORITIES
Atwood v. State, 2015-CA-00190-SCT, Appellee's Ltr. (Dec. 4, 2015) ........................... 17 H.B. 585, 2014 Leg. Reg. Sess. (Miss. 2014). ........................................................... passim
H.B. 1231, 2013 Leg. Reg. Sess. (Miss. 2013). .................................................................. 2
H.B. 1267, 2015 Leg. Reg. Sess. (Miss. 2015) ................................................................. 18 Sinko v. State, 2015-CA-00107, Br. of Appellee (Aug. 20, 2015) .................................... 18 State of Mississippi Judiciary, Archived Oral Arguments, Atwood v. State, 2015-CA-00190-SCT (Dec. 1, 2015). ............................................................................... 17 State v. Colon, 2015-CA-01295, Br. of Appellant (Feb. 5, 2016) .................................... 18
1
STATEMENT REGARDING ORAL ARGUMENT This case concerns the Legislature’s effort to improve public safety by directing
the Mississippi Department of Corrections (“MDOC”) to “develop a case plan for all
parole eligible inmates to guide an inmate’s rehabilitation while in the department’s
custody and to reduce the likelihood of recidivism.” Miss. Code Ann. § 47-7-3.1(1) (eff.
2014). This Court’s interpretation of the scope of the legislative mandate will determine
whether the MDOC develops rehabilitative plans to reduce recidivism for “all parole
eligible inmates” in the department’s custody, Miss. Code Ann. § 47-7-3.1(1) (emphasis
added), or just those parole eligible inmates who were convicted after the law went into
effect on July 1, 2014.
Given the substantial impact that this Court’s ruling may have on the rehabilitation
of parole eligible inmates – and the related impact on recidivism and public safety – oral
argument is warranted in this case.
STATEMENT OF THE ISSUE When the Legislature directed the Mississippi Department of Corrections to
“develop a case plan for all parole eligible inmates,” Miss. Code Ann. § 47-7-3.1(1), did
it really mean all parole eligible inmates or, as the MDOC contends, just some parole
eligible inmates?
STATEMENT OF THE CASE Based on the recommendation of its bipartisan, inter-branch corrections and
criminal justice task force, the Legislature in 2014 directed the MDOC to “develop a case
plan for all parole eligible inmates to guide an inmate’s rehabilitation while in the
2
department’s custody and to reduce the likelihood of recidivism after release,” Miss.
Code Ann. § 47-7-3.1(1) (eff. 2014).1 Although Section 47-7-3.1(1) states that “the
department shall develop a case plan for all parole eligible inmates” (emphasis added),
the Appellant Commissioner of the MDOC2 maintains that his department is only
required to develop case plans for some parole eligible inmates. Specifically, the MDOC
claims that it is only required to develop rehabilitative case plans for those parole eligible
inmates who were convicted on or after July 1, 2014, which is the date that Section 47-7-
3.1 went into effect. See, e.g., Appellant’s Br. at 4-7.
Appellee Michael Drankus – a parole eligible inmate who was convicted before
July 1, 2014, see R. 19-20 – requested a case plan through the MDOC’s Administrative
Remedy Program and then challenged the MDOC’s denial of that request in the Circuit
Court of Sunflower County. See generally R. 2-56.3 The circuit court held that “Miss.
Code Ann. § 47-7-3.1 is plain and unambiguous in stating that, ‘the department shall
develop a case plan for all parole eligible inmates to guide an inmate’s rehabilitation
while in the department’s custody and to reduce the likelihood of recidivism after
1 The task force was created to make “recommendations for changes in oversight, policies, practices and laws designed to prevent, deter and reduce crime and violence, reduce recidivism, improve cost-effectiveness and ensure the interests of justice at every step of the criminal justice system.” H.B. 1231(3)(c), 2013 Leg. Reg. Sess. (Miss. 2013) (emphasis added). 2 The Appellant in this case is Marshall Fisher, in his official capacity as the Commissioner of the Mississippi Department of Corrections. For the sake of convenience – and because the Commissioner in his official capacity represents the MDOC – the remainder of this brief will refer to the Appellant as “the MDOC” or “the department.” 3 In this brief, citations to the record will be to “R.” followed by the page number(s) (e.g. R. 19-20). Citations to the Appellant’s Record Excerpts will be to “R.E.” followed by the record excerpt number (e.g. R.E. 4). Citations to the Appellant’s Record Excerpts will be followed by a corresponding citation to the record page number (e.g. R.E. 4, R. 54).
3
release,’” R.E. 4, R. 54 (emphasis in original), and thus that “[Mr.] Drankus, whom the
[MDOC] admits … is a parole eligible inmate, is entitled to a case plan pursuant to the
statutory mandate,” R.E. 4, R. 56.
This Court should affirm the circuit court’s reading of the plain and unambiguous
language of Miss. Code Ann. § 47-7-3.1(1), and thus affirm the circuit court’s order that
the MDOC must develop a case plan to guide Mr. Drankus’ rehabilitation while he is in
the department’s custody. Although the MDOC also invites this Court to address
whether “Mr. Drankus is … eligible for ‘presumptive parole’ pursuant to Miss. Code
Ann. § 47-7-18,” and whether the amended “Mississippi Parole statutes confer [a] liberty
interest in parole,” Appellant’s Br. 7-13, those questions were not raised or addressed in
the circuit court and are not properly before this Court.
Relevant Facts and Procedural History On August 25, 2014, Mr. Drankus filed a request for administrative remedy
pursuant to the MDOC’s Administrative Remedy Program. In the request, Mr. Drankus
noted that, “pursuant to Section 43 of [House Bill] 585 (2014) … all inmates who are
eligible for parole are to be issued a case plan to guide in their rehabilitation while in the
custody of the MDOC.” R. 13.4 Thus, Mr. Drankus “request[ed] that [he] be issued a
case plan[.]” R. 13. Mr. Drankus further stated: “If the MDOC is not developing and
issuing offender case plans, when it is now state law to do so, I would like to know why.”
4 Section 43 of House Bill 585 is codified at Miss. Code Ann. § 47-7-3.1. As this Court knows, House Bill 585 is a comprehensive criminal justice and corrections reform bill that amended (and added) numerous provisions of state law. See H.B. 585 § 42, 2014 Leg. Reg. Sess. (Miss. 2014). The complete text of House Bill 585 is available at http://billstatus.ls.state.ms.us/documents/2014/pdf/HB/0500-0599/HB0585SG.pdf.
4
R. 13. Contrary to the MDOC’s assertion in its brief to this Court, Mr. Drankus did not
also claim that “he should … be eligible for ‘presumptive parole’ [pursuant to Miss. Code
Ann. § 47-7-18 (eff. 2014)].” Appellant’s Br. at 2. Compare R. at 13 (requesting only
“that I be issued a case plan” and that “[i]f the MDOC is not developing and issuing
offender case plans, when it is now state law to do so, I would like to know why”).
On October 20, 2014, the MDOC issued its “first step response” to Mr. Drankus’
request for administrative remedy. R.E. 2, R. 14. The response states:
I am in receipt of your correspondence regarding your request to be issued a Case Plan per House Bill 585. House Bill 585 states that all offenders who are Parole eligible are to be issued a Case Plan at Admission effective 7-1-2014. However, this Bill does not apply to you, due to [the fact that] you were sentenced in 1987. The Bill only affect[s] offenders who [were] sentenced on or after 7-1-2014 and the Bill is not retroactive.
R.E. 2, R. 14. On November 3, 2014, Mr. Drankus proceeded to “step two” of the
Administrative Remedy Program. In his “step two” appeal, Mr. Drankus again explained
that “Section 43 of H.B. 585 (which was codified as Miss. Code Ann. Section 47-7-3.1)
was created so that all parole-eligible inmates would be issued ‘case plans’ to guide in
their rehabilitation during incarceration.” R. 15 (emphasis in original). He asserted that
“[b]y law, I am entitled to have a case plan,” and repeated his “request[] that the MDOC
develop one for me and provide me with a written copy.” R. 17.
On December 11, 2014, the MDOC issued its “second step response.” R.E. 3, R.
18. The response states:
5
An investigation has been conducted into your complaint, which was received in our office on November 10, 2014, concerning your request to be issued a Case Plan per House Bill 585. It is true that an offender who is eligible for parole is to be issued a Case Plan at admission effective July 1, 2014. This House Bill does not apply to you, due to [the fact that] you [were] sentenced in 1987. Only offenders who were sentenced on or after July 1, 2014 are [a]ffected. This Bill is not retroactive.
R.E. 3, R. 18.
Pursuant to Miss. Code Ann. § 47-5-807, Mr. Drankus subsequently sought
judicial review of the MDOC’s administrative decision to deny his request for a case
plan. See R. 2-18. In his pro se pleading, Mr. Drankus asked the Circuit Court of
Sunflower County for:
[A] declaratory judgment that House Bill 585, Section 43, eff[ective] July 1, 2014 (codified at Miss. Code Ann. § 47-7-3.1) is a mandate to the Mississippi Department of Corrections (MDOC) that requires it to develop a ‘case plan’ for all parole-eligible inmates and that the MDOC is in violation of the provisions thereunder, and to enter an order reversing an adverse decision of the MDOC through its Administrative Remedy Program (ARP) declaring that Drankus is ineligible to receive a case plan[.]
R. 2. See also R. 9 (same).5 After reviewing Mr. Drankus’ request for relief and the MDOC’s response, the
circuit court held that “Miss. Code Ann. § 47-7-3.1 is plain and unambiguous in stating
that, ‘the department shall develop a case plan for all parole eligible inmates to guide an
inmate’s rehabilitation while in the department’s custody and to reduce the likelihood of
recidivism after release.’” R.E. 4, R. 54 (emphasis in original). Thus, the circuit court 5 As grounds for relief, Mr. Drankus contended that “[t]he MDOC’s decision that Drankus is ineligible to receive a case plan is contrary to Miss. Code Ann. § 47-7-3.1 (2014)” and that “[t]he MDOC’s failure to promulgate policy directives and procedures for the development of case plans for all parole-eligible inmates is a violation of the mandates prescribed under Miss. Code Ann. § 47-7-3.1 (2014).” R. at 3-4.
6
ordered that “[Mr.] Drankus, whom the [MDOC] admits in its response is a parole
eligible inmate, is entitled to a case plan pursuant to the statutory mandate.” R.E. 4, R.
56. The MDOC subsequently filed notice of appeal. R. 57.
SUMMARY OF THE ARGUMENT
As the Circuit Court of Sunflower County correctly concluded, the language of
Miss. Code Ann. § 47-7-3.1(1) is “plain and unambiguous.” See R.E. 4, R.54. The
statute clearly mandates that the MDOC “shall develop a case plan for all parole eligible
inmates.” Miss. Code Ann. § 47-7-3.1(1) (emphasis added). The MDOC’s claim that it
is only obligated to develop a case plan for some parole eligible inmates is contrary to the
Legislature’s unequivocal mandate.
The MDOC’s interpretation is also inconsistent with the new parole scheme
developed by the Legislature. The MDOC acknowledges that an inmate must have a case
plan before he is eligible for presumptive parole pursuant to Miss. Code Ann. § 47-7-18
(eff. 2014). See Appellant’s Br. at 8. The MDOC also recognizes that the only other
avenue to release on parole is a traditional parole hearing pursuant to Miss. Code Ann. §
47-7-17 (rev. 2014). See id. What the MDOC has failed to mention, however, is that
Section 47-7-17 – as amended by the Legislature through House Bill 585 – also now
requires consideration of “the case plan created to prepare the offender for parole” Miss.
Code Ann. § 47-7-17 (emphasis added). Thus – just as Section 47-7-3.1 plainly states –
“all parole eligible inmates” must have a case plan “to guide [their] rehabilitation while
in the department’s custody and to reduce the likelihood of recidivism after release,”
before they are released on parole. (Emphasis added.)
7
Despite the MDOC’s assertions to the contrary, the Legislature’s further
instructions to develop case plans “[w]ithin ninety (90) days” of an inmate’s “admission”
to the department’s custody, Miss. Code Ann. § 47-7-3.1(2), and to “ensure that the case
plan is achievable prior to [the] inmate’s parole eligibility date,” Miss. Code Ann. § 47-7-
3.1(4), do not render the language of Section 47-7-3.1(1) ambiguous. The word “all” is
not an ambiguous term. Put simply “all” means all. If anything, sections 47-7-3.1(2) and
(4) must be interpreted and applied in light of the Legislature’s unequivocal mandate that
“the department shall develop a case plan for all parole eligible inmates.” Miss. Code
Ann. § 47-7-3.1(1) (emphasis added).
The MDOC also invites this Court to hold that “[Mr.] Drankus is not eligible for
‘presumptive parole’ pursuant to Miss. Code Ann. § 47-7-18,” and that the “Mississippi
Parole statutes confer no liberty interest in parole.” Appellant’s Br. 7-13. But these
issues are not properly before this Court. When Mr. Drankus sought judicial review of
the MDOC’s denial of his administrative complaint, the circuit court correctly noted that
“the only issue subject to [that] court’s review [was] the [MDOC’s] adverse ARP
decision, which was a determination that [Mr.] Drankus was not eligible for a case plan
pursuant to Miss. Code Ann. § 47-7-3.1.” R.E. 4, R. 53. Likewise, the only issue subject
to this Court’s review is the circuit court’s ruling that Miss. Code Ann. § 47-7-3.1(1)
plainly and unambiguously requires the MDOC to “‘develop a case plan for all parole
eligible inmates,’” R.E. 4, R. 54 (emphasis in original), and thus that “[Mr.] Drankus,
whom the [MDOC] admits … is a parole eligible inmate, is entitled to a case plan
pursuant to the statutory mandate,” R.E. 4, R. 56.
8
STANDARD OF REVIEW
“Statutory interpretation is a question of law subject to de novo review.” Tipton v.
State, 150 So.3d 82, 84 (Miss. 2014). “An agency’s interpretation of its governing
statutes is [also] reviewed de novo, but with deference to the agency’s interpretation.”
Mississippi State and School Employees’ Life and Health Plan v. KCC, Inc., 108 So.3d
932, 939 (Miss. 2013) (citation omitted). However, according deference to an agency’s
interpretation “‘does not mean that [this Court] ‘yield[s] judgment or opinion’ to [the]
agency’s statutory interpretation.’” Id. (citation omitted). Rather, “‘[t]he ultimate
authority and responsibility to interpret the law, including statutes, rests with [the judicial
branch].’” Id. “While [an] agency’s interpretation is ‘an important factor that usually
warrants strong consideration,’ [a court should] give no weight to an agency
interpretation that ‘is so plainly erroneous or so inconsistent with either the underlying
regulation or statute as to be arbitrary, capricious, or contrary to the unambiguous
language or best reading of a statute.’” Id. (citation omitted, emphasis added). See also
Mississippi Methodist Hosp. and Rehabilitation Center, Inc. v. Mississippi Div. of
Medicaid, 21 So.3d 600, 607 (Miss. 2009) (“[I]f an agency’s interpretation is contrary to
the unambiguous terms or best reading of a statute, no deference is due.”).
Despite this well-established standard of review – and the fact that “[i]t is
emphatically the province and duty of the judicial department to say what the law is,”
Marbury v. Madison, 5 U.S. 137, 177 (1803) – the Appellant makes the extraordinary
claim that “if the MDOC erroneously interprets a statute, the error should be corrected by
the legislature [rather than by this Court].” Appellant’s Br. at 4 (citing Smith v. Wesley,
9
157 So.3d 860, 861 (Miss. Ct. App. 2015)) (emphasis added). But the MDOC’s
interpretation of a statute is not uniquely immune from judicial review, and there is not a
word in Smith v. Wesley (or any other decision by this Court or the Mississippi Supreme
Court) that suggests otherwise. See generally Smith, 157 So.3d at 861.6 Indeed, this
Court has never hesitated to hold that the MDOC has misinterpreted a statute. See, e.g.,
Turner v. State, 169 So.3d 945, 947 (Miss. Ct. App. 2014) (holding that “the MDOC’s
basis for determining [an inmate’s] parole ineligibility was erroneous”); Ray v. State, 104
So.3d 171, 171 (Miss. Ct. App. 2012) (holding that the MDOC misinterpreted Miss.
Code Ann. § 47-7-3(1)(h) in determining an inmate’s parole eligibility); McGovern v.
MDOC, 89 So.3d 69, 71, n.2 (Miss. Ct. App. 2011) (“[T]he MDOC incorrectly
determined that McGovern was not eligible for parole as a consequence of his burglary
conviction.”). See also McGovern, 89 So.3d at 71 (rejecting the MDOC’s argument that
an inmate “should not be allowed to assert a retroactive analysis of his parole eligibility
based on 2008 amendments to section 47-7-3”).
ARGUMENT
I. The Circuit Court Correctly Concluded that the Plain and Unambiguous Language of Miss. Code Ann. § 47-7-3.1(1) Requires the MDOC to Develop a Case Plan for All Parole Eligible Inmates, Including Appellee Michael Drankus.
The provision of law at issue in this case is Miss. Code Ann. § 47-7-3.1(1) (eff.
2014).7 It states, in unequivocal terms, that:
6 The word “legislature” does not even appear in the Smith decision. 7 Pursuant to M.R.A.P. 28(g), a copy of Miss. Code Ann. § 47-7-3.1 is attached to this brief as Appendix A.
10
In consultation with the Parole Board, the department shall develop a case plan for all parole eligible inmates to guide an inmate’s rehabilitation while in the department’s custody and to reduce the likelihood of recidivism.
Miss. Code Ann. § 47-7-3.1(1) (emphasis added). As the circuit court recognized, the
language of the statute is “plain and unambiguous.” See R.E. 4, R. 54. It clearly
mandates that “‘the department shall develop a case plan for all parole eligible
inmates[.]’” R.E. 4, R. 54 (quoting Miss. Code Ann. § 47-7-3.1(1)) (emphasis in
original). Thus, the MDOC’s claim that it need only develop case plans for some parole
eligible inmates “is contrary to the unambiguous terms or best reading of [the] statute”
and “no deference is due.” Mississippi Methodist Hosp. and Rehabilitation Center, 21
So.3d at 607. Because the MDOC concedes that Appellee Michael Drankus is a parole
eligible inmate, see, e.g. Appellant’s Br. at 2, this Court should affirm the circuit court’s
order that Mr. Drankus – like all parole eligible inmates – “is entitled to receive a case
plan pursuant to Miss. Code Ann. § 47-7-3.1,” R.E. 4, R. 54.
“When the language used by the legislature is plain and unambiguous, such as the
language here, and where the statute conveys a clear and definite meaning, as here, [a]
[c]ourt will have no occasion to resort to the rules of statutory interpretation.” Marx v.
Broom, 632 So.2d 1315, 1318 (Miss. 1994). Indeed, “‘[n]o principle is more firmly
established, or rests on more secure foundations, than the rule which declares when a law
is plain and unambiguous, whether it be expressed in general or limited terms, that the
Legislature shall be deemed to have intended to mean what they have plainly expressed,
and, consequently, no room is left for construction in the application of such a law.”
Conway v. Mississippi State Bd. of Health, 173 So.2d 412, 415 (Miss. 1965) (citation
11
omitted). In this case, the Legislature plainly expressed that “the department shall
develop a case plan for all parole eligible inmates,” and thus this Court must conclude
that the Legislature meant that “the department shall develop a case plan for all parole
eligible inmates.” Miss. Code Ann. § 47-7-3.1(1) (emphasis added). See, e.g., Miss.
Code Ann. § 1-3-65 (“All words and phrases contained in the statutes are used according
to their common and ordinary acceptation and meaning; but technical words and phrases
according to their technical meaning.”); Court of Oakland v. Federal Housing Finance
Agency, 716 F.3d 935, 940 (6th Cir. 2013) (quoting Oxford English Dictionary 324, Vol.
I (2d. ed. 1989)) (“‘all’ is an adjective describing ‘[t]he entire or unabated amount or
quantity of; the whole extent, substance, or compass of; the whole”); Trustees of Iron
Workers Local 473 Pension Trust v. Allied Products Corp., 872 F.2d 208, 213 (7th Cir.
1989) (“The common meaning of ‘all’ is 100 percent.”). See also Court of Oakland, 716
F.3d at 940 (emphasis in original) (“[A] straightforward reading of the statute leads to the
unremarkable conclusion that when Congress said ‘all taxation,’ it meant all taxation.”).8
Section 47-7-3.1(1) also plainly and unambiguously states the Legislature’s
primary purposes in directing the MDOC to develop case plans for parole eligible
inmates. According to the statute itself, case plans are intended “to guide an inmate’s
rehabilitation while in the department’s custody and to reduce the likelihood of
recidivism after release.” Miss. Code Ann. § 47-7-3.1(1). Given these purposes, the
plain reading of the statute – i.e. that it applies to all parole eligible inmates – is also the
8 See also McBroom v. Jackson County, 154 So.3d 827, 832-33 (Miss. 2014) (citation omitted) (“[A] basic tenet of statutory construction is that ‘shall’ is mandatory[.]’”).
12
most reasonable. Obviously, the Legislature and the people of Mississippi have a strong
interest in rehabilitating and reducing the likelihood of recidivism by all inmates who are
released on parole. Thus, it would make little sense to conclude that – despite its use of
the phrase “all parole eligible inmates,” Miss. Code Ann. § 47-7-3.1(1) (emphasis added)
– the Legislature only intended for the MDOC to take steps to reduce the recidivism of
some parole eligible inmates.9
Significantly, the Legislature also made case plans a central part of determining
whether any inmate should be released on parole. The MDOC claims that:
[After House Bill 585] there are now two procedural avenues for an offender to be released on parole supervision. The first option is through a standard parole hearing pursuant to Miss. Code Ann. § 47-7-17. The second option is for ‘presumptive parole’ pursuant to Miss. Code Ann. § 47-7-18.
Appellant’s Br. at 8. The MDOC acknowledges that case plans are essential to the
“second option.” See id. Pursuant to Section 47-7-18(1), “[e]ach inmate eligible for
parole pursuant to Section 47-7-3, shall be released from incarceration to parole
supervision on the inmate’s parole eligibility date, without a hearing before the board, if:
[among other things] [t]he inmate has met the requirements of the parole case plan
9 The MDOC goes to great pains to emphasize that Mr. Drankus has twice previously been released on parole and that his parole has twice previously been revoked. See Appellant’s Br. at 2 (citing Appellant’s exhibits A, B & C). Of course, the exhibits relied upon by the MDOC to establish Mr. Drankus’ parole history are not part of the record in this case and thus may not be considered by this Court. See, e.g., Foster v. State, 148 So.3d 1012, 1015 (Miss. 2014) (citation omitted) (“‘This Court has long held that it cannot consider that which is not in the record.’”); State v. Cummings, 35 So.2d 636, 639 (Miss. 1949) (“Being an appellate court, we take the record as it comes to us, and receive no new evidence here.”). It is worth noting, however, that the MDOC’s allegations regarding Mr. Drankus’ parole history demonstrates why the Legislature directed the MDOC to develop “a case plan for all parole eligible inmates.” Miss. Code Ann. § 47-7-3(1) (emphasis added). Those inmates who have previously failed to succeed on parole will be among the inmates likely to derive the most benefit from a case plan “to guide … [their] rehabilitation while in the department’s custody and to reduce the likelihood of recidivism after release.” Id.
13
established pursuant to Section 47-7-3.1.” (Emphasis added.). The MDOC maintains,
however, that the new “presumptive parole” scheme implemented through Section 47-7-
18 does not apply to inmates – like Mr. Drankus – who reached their initial parole
eligibility dates before Section 47-7-18 went into effect on July 1, 2014. See, e.g.
Appellant’s Br. at 9.
As discussed in Section II of this brief, the question of whether Section 47-7-18
applies to Mr. Drankus is not before this Court. Yet even if the MDOC were correct in its
restrictive interpretation of the new presumptive parole scheme, the fact remains that the
Legislature also integrated case plans into what the MDOC refers to as the “first option[,]
… a standard parole hearing pursuant to Miss. Code Ann. § 47-7-17.” Appellant’s Br. at
8. As amended by House Bill 585, Section 47-7-17 now requires the Parole Board to
“secure and consider all pertinent information regarding each offender, ... including …
the case plan created to prepare the offender for parole,” before determining whether to
release an inmate on parole. (Emphasis added.). Thus, case plans play a central role in
determining whether any inmate will be released on parole, regardless of whether he is
automatically released pursuant to Section 47-7-18 or after a hearing pursuant to Section
47-7-17. In other words, Sections 47-7-18 and -17 assume that all parole eligible inmates
will have a case plan before they are released on parole.
Despite the plain and unambiguous language of Miss. Code Ann. § 47-7-3.1(1) –
and the role that case plans now play in determining whether any inmate will be released
on parole – the MDOC urges this Court to conclude that when the Legislature said “all
parole eligible inmates,” it actually meant “all parole eligible inmates convicted after
14
July 1, 2014.” See, e.g., Appellant’s Br. at 6 & 14.10 The primary flaw in the MDOC’s
argument, of course, is that the statute does not include the words “convicted after July 1,
2014,” or any other limitations on the phrase “all parole eligible inmates,” and the
Mississippi Supreme Court has made clear that “it is not within the province of th[e]
[c]ourt[s] to add to the law as the Legislature has written it.” Lewis v. Hinds County
Circuit Court, 158 So.3d 1117, 1122 (Miss. 2015) (citation omitted, alteration in
original). See also Lawson v. Honeywell Intern., Inc., 75 So.3d 1024, 1027 (Miss. 2011)
(emphasis added) (“The Court must not broaden or restrict a legislative act.”); Wallace v.
Town of Raleigh, 815 So.2d 1203, 1208 (Miss. 2002) (citation omitted) (“The courts have
no right to add anything to or take anything from a statute, where the language is plain
and unambiguous.”).
Moreover, the case plan requirement in Section 47-7-3.1(1) is just one of
numerous amendments and additions that were made to the Probation and Parole Law
(Miss. Code Ann. § 47-7-1, et seq.) through House Bill 585. When the authors of House
Bill 585 intended that an amendment to, or provision of, the Probation and Parole Law
apply only to inmates convicted before or after July 1, 2014, they stated this intention
explicitly. See, e.g., Miss. Code Ann. § 47-7-3.2(1) (eff. 2014); H.B. 585 § 42, 2014 Leg.
10 The MDOC has apparently changed its interpretation of the statute and its policy for developing case plans since it responded to Mr. Drankus’ request for administrative remedy. While its position in this Court is that the case plan requirement applies only to those convicted after July 1, 2014, the Department’s “first step” response insisted that Section 47-7-3.1(1) only “affect[s] offenders who [were] sentenced on or after 7-1-2014.” R.E. 2, R. 14 (emphasis added). Likewise, the MDOC claimed in its “second step” response that “[o]nly offenders who were sentenced on or after July 1, 2014 are [a]ffected.” R.E. 3, R. 18 (emphasis added). In the circuit court the MDOC also claimed that its policy was based on the date of sentencing, rather than the date of conviction. See, e.g., R. 20 (emphasis added) (claiming that the “case plan provision … only applies to offenders sentenced on or after July 1, 2014”).
15
Reg. Sess. (Miss. 2014) (emphasis added) (“… no person convicted of a criminal offense
on or after July 1, 2014, shall be released by the department until he or she has served no
less than fifty percent (50%) of a sentence for a crime of violence…”); Miss. Code Ann.
§ 47-7-3(1)(g)(i) (eff. 2014), H.B. 585 § 40 (emphasis added) (“No person who, on or
after July 1, 2014, is convicted of a crime of violence pursuant to Section 97-3-2, a sex
crime or an offense that specifically prohibits parole release, shall be eligible for parole.
All persons convicted of any other offense on or after July 1, 2014, are eligible for
parole after they have served one-fourth (1/4) of the sentence or sentences imposed by the
trial court.”); Miss. Code Ann. § 47-7-3(1)(f) (rev. 2014), H.B. 585 § 40 (emphasis
added) (“This paragraph (f) shall not apply to persons convicted on or after July 1,
2014.”); Miss. Code Ann. § 47-7-3(1)(c)(ii) (rev. 2014), H.B. 585 § 40 (emphasis added)
(“This paragraph (c)(ii) shall not apply to persons convicted after July 1, 2014.”). Again,
there is no similar reference to July 1, 2014 – or any other date – in Section 47-7-3.1(1).
See, e.g., Delgado v. U.S. Atty. Gen., 487 F.3d 855, 862 (11th Cir. 2007) (“[W]here
Congress knows how to say something but chooses not to, its silence is controlling.”).
Instead, the requirement to “develop a case plan” explicitly applies to “all parole eligible
inmates.” Miss. Code Ann. § 47-7-3.1(1) (emphasis added).
The MDOC nonetheless insists that the Legislature’s mandate that “the department
shall develop a case plan for all parole eligible inmates,” Miss. Code Ann. § 47-7-3.1(1)
(emphasis added), should not be interpreted to apply “retroactively” to inmates who were
convicted before the statute went effect on July 1, 2014. Appellant’s Br. at 6. The
16
primary flaw in this argument, however, is that another provision of the Probation and
Parole Law makes clear that:
The provisions of this chapter are hereby extended to all persons who, at the effective date thereof, may be on parole, or eligible to be placed on parole under existing laws, with the same force and effect as if this chapter had been in operation at the time such persons were placed on parole or become eligible to be placed thereon as the case may be.
Miss. Code Ann. § 47-7-43. Thus, although Section 47-7-3.1 – a provision of Chapter 7
(“Probation and Parole”) of Title 47 – did not go into effect until July 1, 2014, it clearly
applies “to all persons” who were “eligible to be placed on parole” before that date “with
the same force and effect as if [it] had been in operation at the time such persons …
become eligible to be placed [on parole].” Miss. Code Ann. § 47-7-43.11
This is not the first time that a department of the Executive Branch has argued that
one of House Bill 585’s amendments to the Probation and Parole Law (Miss. Code Ann.
§ 47-7-1, et seq.) does not apply “retroactively.” For example, Section 58 of House Bill
585 amended the probation and post-release supervision revocation statute, Miss. Code
Ann. § 47-7-37, and implemented a system of graduated sanctions for violations of
probation and post-release supervision. During oral argument in Atwood v. State, 2015-
CA-00190-SCT, the State argued (for the first time in that case) that the amended version
11 It is unclear whether the concept of “retroactivity” is even applicable to a law – like Section 47-7-3.1(1) – that directs an agency to start performing an act. Mr. Drankus does not claim that Section 47-7-3.1(1) is intended to change something that happened in the past. For example, he does not contend that Section 47-7-3.1(1) changed the sentence that was previously imposed on him, or that it established a procedural rule should have been applied at his trial. Rather, his position is that Section 47-7-3.1(1) is a legislative directive to the MDOC to develop case plans for parole eligible inmates. To be sure, the MDOC had no obligation to develop case plans before July 1, 2014. However, as of that date, the MDOC clearly became obligated to “develop a case plan for all parole eligible inmates.” Miss. Code Ann. § 47-7-3.1(1) (emphasis added).
17
of Section 47-7-37 did not apply to a revocation hearing that took place after the
amendments went into effect because the Appellant had been sentenced to the term of
post-release supervision (and had violated a condition of that supervision) before the
amendments went into effect. After counsel for the State raised the issue of retroactivity
– which would have permitted the Court to avoid reaching the circuit court’s ruling that
the amendments were unconstitutional12 – Justice Dickinson invited the parties to submit
additional authorities on “the retroactive application of a parole statute, or a post-release
supervision statute, some statute other than a sentencing statute that deals with the
sentence for the crime.” State of Mississippi Judiciary, Archived Oral Arguments,
Atwood v. State, 2015-CA-00190-SCT (Dec. 1, 2015) at 53:49-54:00.13 In its
supplemental letter to the Court on this issue, the State continued to insist that the new
graduated sanctions scheme did not apply “retroactively” to people who were sentenced
to probation or post-release supervision before July 1, 2014, but also acknowledged that
it “was unable to find a Mississippi Supreme Court case that specifically prohibits the
retrospective application of the 2014 amendment to the revocation [statute].” Atwood v.
State, 2015-CA-01090-SCT, Appellee’s Ltr. at 2 (Dec. 4, 2015).14 The Court implicitly
rejected the State’s arguments regarding the retroactivity of the amended statute when it
12 See Culberson v. State, 612 So.2d 342, 349 (Miss. 1992) (“Our usual course is to dispose of cases without reaching constitutional questions if that is at all possible.”). 13 Available at https://courts.ms.gov/appellate_courts/sc/oawebcasts.php?vid=FqeFa3HwDww 14 Available at https://courts.ms.gov/Images/Orders/dc00001_live.SCT.15.CA.190.48468.0.pdf
18
unanimously15 held that the amended statute applied to the Appellant and reversed the
circuit court’s ruling that the amended statute was unconstitutional. See Atwood v. State,
---So.3d---, 2016 WL 159398 (Miss. Jan. 14, 2016) (subject to revision or withdrawal).
Ironically (and arbitrarily), the MDOC has recognized that another recent change
to the Probation and Parole Law does apply “retroactively” to inmates convicted before
July 1, 2014. House Bill 585 (eff. July 1, 2014) added, and House Bill 1267 (eff. July 1,
2015) amended,16 the following provision of Section 47-7-3(1).
Notwithstanding the provisions of paragraph (1)(a) of this section, any offender who has not committed a crime of violence under Section 97-3-2 and has served twenty-five percent (25%) or more of his sentence may be paroled by the parole board if, after the sentencing judge or if the sentencing judge is retired, disabled or incapacitated, the senior circuit judge authorizes the offender to be eligible for parole consideration.
Miss. Code Ann. § 47-7-3(1)(g)(iii) (emphasis added). In at least two cases currently
pending before this Court, the MDOC’s attorneys have explicitly acknowledged that
Section 47-7-3(1)(g)(iii) “carve[s] out a means by which non-violent offenders [can]
retroactively seek parole eligibility.” Sinko v. State, 2015-CA-00107, Br. of Appellee at
9 (Aug. 20, 2015) (emphasis added). 17 See also State v. Colon, 2015-CA-01295, Br. of
Appellant at (Feb. 5, 2016) (italics in original, boldface added) (“[T]he Legislature did
specifically carve out a means by which non-violent offenders could retroactively seek
15 Justice Maxwell did not participate in the decision. 16 See H.B. 1267, 2015 Leg. Reg. Sess. (Miss. 2015). The complete text of House Bill 1267 is available at http://billstatus.ls.state.ms.us/documents/2015/pdf/HB/1200-1299/HB1267SG.pdf. 17 Available at https://courts.ms.gov/Images/Orders/dc00001_live.COA.15.CA.107.40470.0.pdf
19
parole eligibility. See Miss. Code Ann. § 47-7-3(1)(g)(iii).”).18 Presumably, the MDOC
reached the conclusion that Section 47-7-3(1)(g)(iii) applies “retroactively” to inmates
convicted before July 1, 2014 either by applying Section 47-7-43’s general rule that
changes to the Probation and Parole Law apply to all inmates, or by recognizing that the
phrase “any offender” in Section 47-7-3(1)(g)(iii) really means “any offender.” Either
way, the same reasoning applies to Section 47-7-3.1(1)’s mandate to “develop a case plan
for all parole eligible inmates.” (Emphasis added).
The MDOC also attempts to create ambiguity where there is none by relying upon
other provisions of Miss. Code Ann. § 47-7-3.1. For example, the MDOC insists that the
Legislature could not really have meant what it said when it directed “the department [to]
develop a case plan for all parole eligible inmates,” Miss. Code Ann. § 47-7-3.1(1)
(emphasis added), because another provision of the statute requires the department to
complete case plans “[w]ithin ninety (90) days” of an inmate’s “admission” to the
MDOC’s custody, Miss. Code Ann. § 47-7-3.1(2). See Appellant’s Br. at 6-7.
Obviously, some parole eligible inmates – including Mr. Drankus – were admitted to the
MDOC’s custody years before the Legislature mandated the creation of case plans. See
id.
However, the fact that the MDOC cannot create a case plan for every parole
eligible inmate “[w]ithin ninety (90) days of admission” as required by Section 47-7-
3.1(2), does not absolve the department of the plain and unambiguous obligation to
18 Available at https://courts.ms.gov/Images/Orders/dc00001_live..15.CA.1295.52545.0.pdf
20
“develop a case plan for all parole eligible inmates” pursuant to Section 47-7-3.1(1).
(Emphasis added.) Nor does it somehow create ambiguity in Section 47-7-3.1(1)’s clear
and unequivocal mandate to “develop a case plan for all parole eligible inmates.”
(Emphasis added). If any question is raised by the 90-day deadline in Section 47-7-
3.1(2), that question is how (or if) to apply the deadline to those inmates who were
admitted to the MDOC’s custody before the mandate to develop case plans was enacted.
The Mississippi Supreme Court addressed a similar issue when the Legislature
enacted the Mississippi Uniform Post-Conviction Collateral Relief Act (“UPCCRA”),
Miss. Code Ann. § 99-39-1, et seq., in 1984. The UPCCRA created “an exclusive and
uniform procedure for the collateral review of convictions and sentences.” Miss. Code
Ann. § 99-39-3 (emphasis added). The UPCCRA also created a new deadline for filing
motions for post-conviction relief, requiring that all such claims “shall be made within
three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the
Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after
the time for taking an appeal from the judgment of conviction or sentence has expired, or
in case of a guilty plea, within three (3) years after entry of the judgment of conviction.”
Miss. Code Ann. § 99-39-5(2) (emphasis added). At the time the UPCCRA went into
effect, it would have been impossible for some inmates with viable post-conviction
claims to file before the three-year deadline. For example, an inmate who pled guilty
more than three years before the UPCCRA was enacted would be unable to comply with
the new deadline. If the Supreme Court had applied the same logic to its interpretation of
the UPCCRA that the MDOC now urges this Court to apply to Section 47-7-3.1, it would
21
have concluded that the statutory language creating an “exclusive and uniform
procedure” was somehow ambiguous, and that the new “exclusive and uniform
procedure” (and three-year filing deadline) did not apply to those inmates who, for
example, pled guilty more than three years before the effective date of the UPCCRA.
Instead, the Court has enforced the Legislature’s plain and unambiguous creation of an
“exclusive and uniform procedure” and the three-year filing deadline by holding that
“[i]ndividuals convicted prior to [the UPCCRA’s enactment on] April 17, 1984, have
three (3) years from April 17, 1984, to file their petition for post conviction relief.”
Odom v. State, 483 So.2d 343, 344 (Miss. 1986) (emphasis added). See also Jackson v.
State, 67 So.3d 725, 727 (Miss. 2011) (“[T]he three-year limitation period of the
UPCCRA operates prospectively.”). Likewise – if this Court finds it necessary to
interpret Section 47-7-3.1(2)’s 90-day deadline for developing case plans – it should
conclude that, with respect to those inmates admitted to the department before the case
plan requirement was enacted on July 1, 2014, MDOC had 90 days from July 1, 2014 to
develop a case plan.19 But there is no need for this Court to interpret the 90-day deadline
in Section 47-7-3.1(2) in order to conclude that the plain and unambiguous language of
19 Furthermore, if this Court finds it necessary to interpret the 90-day deadline in Section 47-7-3.1(2), it should order the MDOC to develop a case plan for Mr. Drankus within 90 days of this Court’s order. See, e.g., Sierra Club v. Thomas, 658 F.Supp. 165, 171 (N.D. Cal. 1987) (“[I]f the statutory deadline has passed by the time the court issues its decree, the EPA remains obligated to issue regulations within the time frame mandated by Congress. If, for example, the Act requires EPA to adopt regulations within 180 days of a particular date and that deadline passes without EPA taking any action, the court, in the absence of a showing of impossibility, will order EPA to issue regulations in 180 days.”). See also Sierra Club v. Johnson, 444 F.Supp.2d 46, 57 (D.D.C. 2006) (“The Court will not second-guess Congress’s determination that it would be (or would have been) possible to regulate these sources within the time frame set by the statute.”).
22
Section 47-7-3.1(1) unequivocally directs the MDOC to “develop a case plan for all
parole eligible inmates.” (Emphasis added.)
The MDOC also attempts to create ambiguity in Section 47-7-3.1(1) by
referencing Section 47-7-3.1(4), which provides that “[t]he department shall ensure that
the case plan is achievable prior to [an] inmate’s parole eligibility date.” Some parole-
eligible inmates – like Mr. Drankus – reached their initial parole eligibility date before
the Legislature mandated the creation of case plans. But again, the fact that the MDOC
cannot ensure that every inmate can meet the goals of their case plans before they reach
their initial parole eligibility date does not release the department from the separate
obligation to “develop a case plan for all parole eligible inmates” pursuant to Section 47-
7-3.1(1). Nor does it somehow create ambiguity in Section 47-7-3.1(1)’s clear mandate
to “develop a case plan for all parole eligible inmates.” (Emphasis added).
Significantly, Section 47-7-3.1(4)’s requirement that a case plan be “achievable
prior to an inmate’s parole eligibility date” provides no support for the MDOC’s claim
that Section 47-7-3.1(1)’s case plan requirement applies only to inmates convicted after
July 1, 2014. Consider the following hypothetical inmates:
Inmate #1 is a parole eligible inmate convicted on July 1, 2014 and sentenced to ten (10) years in prison. He will reach his initial parole eligibility date on or about January 1, 2017.20
Inmate #2 is a parole eligible inmate convicted on July 1, 2012 and sentenced to twenty (20) years in prison. He will reach his initial parole
20 See Appellant’s Br. at 6 (“Parole eligibility dates are not arbitrary and are determined by statute when a parole eligible inmate has served 25% of their total term.”). See also Miss. Code Ann. §§ 47-7-3(1) & (1)(g)(i).
23
eligibility date on or about July 1, 2017 (approximately six months after Inmate #1). Inmate #3 is a parole eligible inmate convicted on July 1, 2010 and sentenced to thirty (30) years in prison. He will reach his initial parole eligibility date on or about January 1, 2018 (approximately 1 year after Inmate #1). Inmate #4 is a parole eligible inmate convicted on July 1, 2010 and sentenced to forty (40) years in prison. He will reach his initial parole eligibility date on or about on or about July 1, 2020 (approximately 3 ½ years after Inmate #1). Inmate #5 is a parole eligible inmate convicted on July 1, 2010 and sentenced to sixty (60) years in prison. He will reach his initial parole eligibility date on or about July 1, 2025 (approximately 8 ½ years after Inmate #1).
Obviously, it is possible for the MDOC to create case plans for all of the above-listed
hypothetical inmates before those inmates reach their initial parole eligibility dates.
Indeed, Inmate #2, Inmate #3, Inmate #4, and Inmate #5 will reach their initial parole
eligibility dates a year or more after Inmate #1. It is also clear – as discussed above –
that the Legislature and the people of Mississippi have an interest in rehabilitating each of
these hypothetical inmates and reducing the likelihood that each of the inmates will
recidivate. Yet under the MDOC’s reading of the legislative mandate to “develop a case
plan for all parole eligible inmates,” only Inmate #1 will receive a plan designed “to
guide [his] rehabilitation while in the department’s custody and to reduce the likelihood
of recidivism after release.” Miss. Code Ann. § 47-7-3.1(1) (emphasis added).
Moreover, the Legislature clearly believed that case plans were an important tool
for determining whether an inmate should be released on parole regardless of whether an
inmate was able to achieve the goals of his case plan prior to his initial parole eligibility
24
date. As discussed above, Section 45 of House Bill 585 amended Miss. Code Ann. § 47-
7-17 to require the Parole Board to “secure and consider all pertinent information
regarding each offender, … including the case plan created to prepare the offender for
parole,” before determining whether any inmate should be released on parole. (Emphasis
added.) If the MDOC does not develop a case plan for Mr. Drankus, and other inmates
convicted before July 1, 2014, it would be impossible for the Board to “secure and
consider” that plan as required by Miss. Code Ann. § 47-7-17.
In short, the circuit court correctly determined that “Miss. Code Ann. § 47-7-3.1 is
plain and unambiguous in stating that, ‘the department shall develop a case plan for all
parole eligible inmates to guide an inmate’s rehabilitation while in the department’s
custody and to reduce the likelihood of recidivism after release.’” R.E. 4, R. 54
(emphasis in original). Thus, the circuit court was also correct in ruling that “[Mr.]
Drankus, whom the [MDOC] admits … is a parole eligible inmate is entitled to a case
plan pursuant to the statutory mandate.” R.E. 4, R. 56.
II. The Only Question Before this Court is Whether Miss. Code Ann. § 47-7-3.1(1) Requires the MDOC to Develop a Case Plan for All Parole Eligible Inmates, Including Appellee Michael Drankus.
The MDOC also invites this Court to conclude that “[Mr.] Drankus is not eligible
for ‘presumptive parole’ pursuant to Miss. Code Ann. § 47-7-18,” and that the amended
“Mississippi Parole statutes confer no liberty interest in parole.” Appellant’s Br. 7-13.
However, these questions are not properly before this Court. The only request that Mr.
Drankus made in the administrative complaint he filed through the MDOC’s
Administrative Remedy Program (“ARP”) was that he “be issued a case plan [pursuant to
25
Miss. Code Ann. § 47-7-3.1].” R. 13.21 When Mr. Drankus appealed the MDOC’s denial
of his administrative complaint to the Circuit Court of Sunflower County, the circuit
court correctly noted that “the only issue subject to this court’s review is the [MDOC’s]
adverse ARP decision, which was a determination that [Mr.] Drankus was not eligible for
a case plan pursuant to Miss. Code Ann. § 47-7-3.1.” R.E. 4, R. 53.22 Likewise, the only
issue subject to this Court’s review is the circuit court’s ruling that Miss. Code Ann. § 47-
7-3.1(1) plainly and unambiguously requires the MDOC to “‘develop a case plan for all
parole eligible inmates,’” R.E. 4, R. 54 (emphasis in original), and thus that “[Mr.]
Drankus, whom the [MDOC] admits … is a parole eligible inmate, is entitled to a case
plan pursuant to the statutory mandate,” R.E. 4, R. 56.23 See, e.g., Tallahatchie General
Hosp. v. Howe, 49 So.3d 86, 93 (Miss. 2010) (“We will not hold [a circuit court] in error
on a matter upon which it has not yet ruled.”); Turner v. Williams, 257 So.2d 525, 526
(Miss. 1972) (“It is appears that the trial court was not called upon to rule upon this issue
and therefore it is not properly before this Court.”); Asanov v. Hunt, 914 So.2d 769, 774
(Miss. Ct. App. 2005) (“Because there is no final judgment regarding this issue, it is not
properly before this Court, and, therefore, is not ripe for our consideration.”). See also
Scoggins v. Baptist Memorial Hospital-Desoto, 967 So.2d 646, 649 n.1 (Miss. 2007)
21 Mr. Drankus also requested that, “[i]f the MDOC is not developing and issuing offender case plans, when it is now state law to do so, I would like to know why.” R. 13. However, this request is intertwined with his request that he be issued a case plan. 22 The circuit court noted that Mr. Drankus also “sought an injunction directing MDOC to promulgate policies and procedures that comply with Miss. Code Ann. 47-7-3.1.” R.E. 4, R. 53. The circuit court declined to address that claim. R.E. 4, R. 53. 23 See also R.E. 4, R. 56 (“IT IS, THEREFORE, ORDERED AND ADJUDGED that … Petitioner Drankus is entitled to receive a case plan pursuant to Miss. Code Ann. § 47-7-3.1.”).
26
(“The purpose of … appellate review is not to settle questions in the abstract or to issue
advisory opinions.”).
The questions of whether Mr. Drankus is “eligible for ‘presumptive parole’
pursuant to Miss. Code Ann. § 47-7-18,” and whether Mr. Drankus has “a liberty interest
in parole,” Appellant’s Br. at 7, 10, could not possibly be before this Court because Mr.
Drankus has not claimed that MDOC or the Parole Board improperly refused to release
him on parole. In fact, Mr. Drankus could not have raised these issues in his
administrative complaint (filed August 25, 2014, see R. 13) or his request for judicial
review (filed January 14, 2015, see R. 2) because Section 47-7-18 went into effect on
July 1, 2014 and Mr. Drankus acknowledged in his initial pleading in the circuit court
that his “parole was revoked on June 6, 2012,” and “[h]is next parole eligibility date
[was] June 6, 2015.” R. 2 n.1. See also R. 11 (“Next Hearing Date: 6/6/2015.”). In
short, because Mr. Drankus had not been denied parole pursuant to Section 47-7-18 (or
any other statute) at the time he requested judicial review of his administrative complaint,
any claim that he was improperly denied parole, or a related claim that he has a liberty
interest in parole, would not have been ripe for review. See, e.g., Swaney v. Swaney, 962
So.2d 105, 108 (Miss. Ct. App. 2007) (“One component of a justiciable claim is
ripeness.”).
To be sure, the circuit court noted that Mr. Drankus relied upon Section 47-7-18
“for support of his argument that the Legislature intended to create a statutory scheme
which must be read collectively in order to understand their intent to address parole
eligibility and release of each parole eligible inmate[.]” R.E. 4, R. 55 (emphasis added).
27
And the MDOC concedes “[Mr.] Drankus is correct … [that] “the ‘presumptive parole’
statute [(Section 47-7-18)] interacts directly with the case plan statute [(Section 47-7-
3.1)], in that it is a requirement for ‘presumptive parole’ that an inmate meet the
requirements of their parole case plan.” Appellant’s Br. at 8 (emphasis added).
However, this Court need not look beyond the plain and unambiguous language of
Section 47-7-3.1(1) to affirm the circuit court’s ruling that the statute directs the MDOC
to “develop a case plan for all parole eligible inmates,” R.E. 4, R. 54 (quoting Miss. Code
Ann. 47-7-3.1(1)) (emphasis in original), and thus that “[Mr.] Drankus, whom the
[MDOC] admits … is a parole eligible inmate, is entitled to a case plan pursuant to the
statutory mandate,” R.E. 4, R. 56.
Moreover, this Court should conclude that Mr. Drankus is entitled to a case plan
even if it looks beyond the plain and unambiguous language of Section 47-7-3.1 to the
greater statutory scheme regarding case plans and an inmate’s release on parole. As
previously noted, it is irrelevant whether the new presumptive parole statute, Section 47-
7-18, applies to Mr. Drankus or whether, as the MDOC insists, his release on parole is
governed entirely by Section 47-7-17. This is because – as discussed in the prior section
of this brief – case plans play a central role in determining whether an inmate is released
on parole pursuant Section 47-7-18 or Section 47-7-17. Again: As amended by Section
45 of House Bill 585, Miss. Code Ann. § 47-7-17 now requires the Parole Board to
“secure and consider all pertinent information regarding each offender, … including the
case plan created to prepare the offender for parole,” before determining whether any
inmate should be released on parole. (Emphasis added.)
28
In short, the questions of whether Mr. Drankus is “eligible for ‘presumptive
parole’ pursuant to Miss. Code Ann. § 47-7-18,” and whether Mr. Drankus has “a liberty
interest in parole,” Appellant’s Br. at 7, 10, are not (and could not be) before this Court
because they were not raised (and were not ripe to be raised) in the administrative or
circuit court proceedings below. What’s more, it is not necessary for this Court to
address these issues in order to affirm the circuit court’s ruling regarding the plain and
unambiguous language of Section 47-7-3.1(1).
CONCLUSION
For the foregoing reasons, and those reasons provided in the circuit court’s order,
see R.E. 4, R. 53-56, Appellee Michael Drankus respectfully requests that this Court
affirm the circuit court’s reading of the plain and unambiguous language of Miss. Code
Ann. § 47-7-3.1(1), and thus affirm the circuit court’s order that the MDOC must develop
a case plan to guide Mr. Drankus’ rehabilitation while he is in the department’s custody.
Respectfully submitted,
s/ Jacob W. Howard JACOB W. HOWARD, MSB #103256
J. CLIFTON JOHNSON, II, MSB #9383 MACARTHUR JUSTICE CENTER
767 North Congress St. Jackson, MS 39202 Telephone: (601) 969-0802 Fax: (601) 969-0804
[email protected] [email protected] Counsel for the Appellee
Appendix A Miss. Code Ann.§ 47-7-3.1 (eff. 2014)
§ 47-7-3.1. Case plan for parole eligible inmates, MS ST§ 47-7-3.1
p.i KeyCite Yellow Flag- Negative Treatment
Proposed Legis lation
West's.Annotated Mississippi 'Code· · . ',.,. Title 47:iPrison;s .and :i;:i'ris~ner$;Probatiori anp. Parole . · Chapth.7. Piobatlo~; a~d . .Paroi'e , . ·. .· . · · · ·
. Probation arid:Par~'1e -L~w . .
Miss. Code Ann.§ 47-7-3.1
§ 4707-3.1. Case plan for parole eligible inmates
Currentness
(]) In consultation with the Parole Board, the department shall deve lop a case plan for all parole e ligible inmates to guide an
inmate's rehabilitation while in the department's custody and to reduce the likelihood of recidivism after release.
(2) Within ninety (90) days of admission, the department shal l comp lete a case plan on all inmates which shall include, but
not limited to:
(a) Programming and treatment requirements based on the results of a risk and needs assessment;
(b) Any programming or treatment requirements contained in the sentencing order; and
(c) General behavior requirements in accordance with the rules and policies of the department.
(3) The department shall provide the inmate with a written copy of the case plan and the inmate's caseworker shall explain the
conditions set forth in the case plan.
(a) Within ninety (90) days of admission, the caseworker shall notify the inmate of their parole eligibility date as calculated
in accordance with Section 47-7-3(3);
(b) At the time a parole-eligible inmate receives the case plan, the department shall send the case plan to the Parole Board
for approval.
(4) The department shall ensure that the case plan is achievable prior to inmate's parole eligibili ty date.
(5) The caseworker shall meet \Vith the inmate every eight (8) weeks from the date the offender received the case plan to review
the inmate's case plan progress .
WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works.
§ 47-7-3.1. Case plan for parole eligible inmates, MS ST§ 47-7-3.1
(6) Every four (4) months the department shall electronically submit a progress report on each parole-eligible inmate's case
plan to the Parole Board. The board may meet to review an inmate's case plan and may provide written input to the caseworker
on the inmate's progress toward completion of the case plan.
(7) The Parole Board shall provide semiannually to the Oversight Task Force the number of parole hearings held, the number
of prisoners released to parole without a hearing and the number of parolees released after a hearing.
Credits
Added by Laws 2014, Ch. 457 (H.B. No. 585), § 43, eff. July l, 2014.
Miss. Code Ann. § 47-7-3.1, MS ST § 47-7-3.1
The Statutes and Constih1tion are current through the End of the 2015 Regular Session .
End or nocun1t·nt (('.• 2016 Thomsl'Jl Reuters. No claim 10 original U.S. Government Works.
WESTLAW © 20'16 Thomson Reuters. No claim to orig inal U.S . Government Works . 2
CERTIFICATE OF SERVICE
I hereby certify that on this day I electronically filed the foregoing Brief of the
Appellee with the Clerk of the Court using the MEC system. I further certify that I
mailed copies of the foregoing by United States Mail to the following:
Anthony L. Schmidt, Jr. Special Assistant Attorney General 633 North State Street, Suite 522 Jackson, MS 39202 Hon. Carol White-Richard Circuit Court Judge P.O. Box 686 Indianola, MS 38751 This 11th day of March, 2016.
s/Jacob W. Howard Jacob W. Howard
