Shockey v. Wilkinson , 96 Ohio App. 3d 91 ( 1994 )

I respectfully dissent.

In reviewing a complaint upon a motion to dismiss pursuant to Civ.R. 12(B)(6), a court must presume that all of the factual allegations in the complaint are true, and all reasonable inferences to be drawn from those facts must be made in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190,192, 532 N.E.2d 753, 756. "In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. UniversityCommunity Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus.

In Haines v. Kerner (1972), 404 U.S. 519, 92 S. Ct. 594,30 L. Ed. 2d 652, in a Section 1983, Title 42, U.S. Code action by a prisoner, the court applied this test to a motion to dismiss for failure to state a claim upon which relief could be granted under the counterpart federal rule. The question is not whether constitutional rights of prisoners can be reasonably regulated, but the focus is upon whether any set of facts could be proven to warrant relief when viewed in light of the familiar rule that incarceration necessarily brings about a limitation of certain constitutional rights. A prisoner retains those rights which are not inconsistent with his status as a prisoner or with the legitimate objectives of the correctional system. Pell v.Procunier (1974), 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495.

Appellees argue that a prisoner has no liberty interest in parole, citing State ex rel. Blake v. Shoemaker (1983), 4 Ohio St. 3d 42, 4 OBR 86, 446 N.E.2d 169, and while that case is good law, it misses the whole point of the allegations in appellant's complaint. While no prisoner has a liberty interest in parole, the state may not adopt a parole procedure which violates equal protection of the law. While parole may be at the grace of the Parole Board, such grace cannot be extended or withheld on discriminatory or unconstitutional grounds.

The rationale of the majority, that there is no constitutional infringement because the program is voluntary, does not hold water. If a parole board decided to grant parole only to those sex offenders who voluntarily entered a program to become good Christians, this court and the courts in Russell andHenderson, supra, would surely find that such a program was clearly an infringement on the First Amendment right of freedom of religion. The state may not demand that a prisoner give up a constitutional right not related to and a necessary part of his incarceration. If the state makes parole conditional upon acceding to this demand, the program is not voluntary.

In his complaint, Shockey states that he is being discriminated against by the Parole Board because he refuses to participate in the Polaris Program. He states that participation in the Polaris Program requires that the participant give up his right against self-incrimination because, to participate in the program, a volunteer must agree to acknowledge his deeds and to accept responsibility for them. He further argues that participants in the Polaris Program are treated differently from nonparticipants, and are, thus, denied equal protection.

Participants in the Polaris Program must agree to certain conditions such as set out in parts (B)(2)(b) and (c) of the contract for participants as follows:

"b. Agree to become completely honest and assume full responsibility for your offenses and your behavior.

"c. Sign consent to be videotaped FOR THE PURPOSE OF SUPERVISION AND EVALUATION OF SESSIONS."

The contract adds the following disclaimer at the end:

"Information given treatment team members in individual or group sessions will not be given to individuals who are not on the Sex Offender Treatment Staff without the participant's written consent, unless state or federal law mandates release of that information or there is a clear indication that the participant is in danger of physically harming himself or someone else. Identities of victims of sexual offenses — prosecuted or unprosecuted — will be reported."

It would appear then that in the Polaris Program, the participant must be willing to openly admit all sex offenses which he has committed, and that these admissions will be reported. These admissions would be admissible into evidence against the person making them since they are made in the presence of not only the staff but also the other program participants and are recorded on videotape.

The state cites California v. Byers (1971), 402 U.S. 424,91 S. Ct. 1535, 29 L. Ed. 2d 9, and Marchetti v. United States (1968),390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889, and argues that to invoke the Fifth Amendment right against self-incrimination a party must be faced with a real and appreciable hazard of self-incrimination.

R.C. 2921.22(A) requires the reporting of felonies generally. For sex offenses against children, R.C. 2151.421 requires that social workers and licensed professional counselors shall report such information to the proper authorities. The staff of the Polaris Program utilizes both social workers and a licensed professional counselor. To participate in the Polaris Program, a prisoner must admit culpability for all crimes, prosecuted and unprosecuted. These admissions must be made before treatment professionals who, once they have knowledge of the offenses, must, by statute, reveal that knowledge to the proper authorities regardless of any program guarantees of confidentiality. The Polaris contract states that the identities of victims of sex crimes, both reported and unreported, will be reported. The possibility of prosecution arising out of statements made as a participant in the Polaris Program is real and appreciable.

I am not unaware of the difficulty the professional staff may have in trying to treat sex offenders, since the first step is for the offender to recognize and admit his problem. The current state of the law of Ohio, however, is directed toward punishment and not treatment. It might be better to allow confidentiality and inadmissibility for admissions made in a treatment setting so that these offenders will not be a danger when they are, invariably, released. This is, however, a policy choice to be made by the legislature, not the courts.

The averments of the complaint, inartfully drawn as they are, state facts which if proven would establish constitutional violations. Shockey has alleged that he is not a sex offender, that he is being compelled to participate in the Polaris Program, that as a participant he must give up his right against self-incrimination, that he is being denied consideration for parole by asserting that right, that the Polaris Program denies equal protection to those who assert their Fifth Amendment rights. Each of these allegations is unanswered and is, for Civ.R. 12(B)(6) purposes, presumed to be true.

Presuming the factual allegations of the complaint to be true and making all reasonable inferences in favor of Shockey, there is a set of facts upon which relief can be granted. By so holding, I am not expressing any view on the merits of appellant's claim, but only that the summary disposition by the sustaining of the Civ.R. 12(B)(6) motion was improper.

Thus, I dissent.