Hennessey v. Pennsylvania Board of Pardons

COLINS, President Judge.

Petitioner Joseph Hennessey (Hennessey) brings this motion for summary relief¹ under Pa.R.A.P. 1532(b) against the Pennsylvania Board of Pardons (Board) on the basis of his pleading that the Board denied him a full, public hearing on his application for elemen-cy in violation of his rights under Article IV, Section 9 of the Pennsylvania Constitution. Hennessey seeks a declaration of his rights and an order compelling the Board to hold a hearing on his application. Relief is denied.

Since 1975, Hennessey has been serving a life sentence on a conviction of first-degree murder. In November 1992, after serving seventeen years, Hennessey applied to the Board for commutation of his sentence. The Board voted on Hennessey’s application in open session on May 24, 1992. The votes were posted outside the hearing room and outside the Board’s office. Because no affirmative votes were cast in favor of Hennes-sey’s application, the Board did not proceed to a hearing. On June 23, 1993, Hennessey filed a petition for review in the nature of a complaint in equity addressed to this Court’s original jurisdiction.

In its answer to Hennessey’s amended petition, the Board admitted the facts surrounding the May 24 vote and denial of a hearing and asserted as new matter that the Board is not amenable to suit under 42 U.S.C. § 1983; that clemency is a discretionary prerogative of the governor; that the Board is immune from suit; and that Hen-nessey failed to state a cause of action. On June 30, 1994, Hennessey filed the application for summary relief currently at issue.

In ruling on an application for summary relief, the court must view the evidence of record in the light most favorable to the nonmoving party and enter judgment only if there are no genuine issues as to any material facts and the right to judgment is clear as a matter of law. Central Dauphin School District v. Commonwealth, 143 Pa.Commonwealth Ct. 374, 598 A.2d 1364 (1991), petition for allowance of appeal granted on other grounds sub nom. Central Dauphin School District v. Pa. Manufacturers’ Association Insurance Co., 537 Pa. 628, 642 A.2d 482 (1994).

The issue before this Court is whether Article IV, Section 9 of the Pennsylvania Constitution requires a public hearing on all applications for clemency. Hennessey asserts that the Constitution’s language clearly requires a hearing in all cases and that the Board’s present practice of voting initially to determine whether to hold a hearing violates that mandate. The Board urges dismissal of this petition.because, it asserts, Hennessey has no right to a hearing if the Board is not recommending his application for commutation to the governor. The Board also asserts that because clemency is a wholly discretionary power of the executive, Hennessey has no right to a hearing and the matter of his petition is nonjusticiable.²

Under the Pennsylvania Constitution, the power to pardon rests exclusively with the governor. Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). The constitutionally created Board of Pardons reviews all applications for clemency, and no pardon or commutation can be granted without the Board’s recommendation after a full hearing in open session with public notice. Pa. Const, art. IV, § 9(a). This provision does not guarantee a hearing to all applicants; it guarantees a full, public hearing only when the Board recommends clemency and before the governor acts on that recommendation.

Hennessey has no state or federal right to a hearing on his application for clemency. The executive power to pardon confers no constitutional or inherent right in a prisoner beyond the right to seek a pardon or commutation. Greenholtz v. Inmates of Nebraska Penal and Correctional Institution, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). A prisoner has no liberty interest in the possibility of commutation of his sentence. McCrery v. Mark, 823 F.Supp. 288 (E.D.Pa.1993).

In Greenholtz and Dumschat, the U.S. Supreme Court recognized that a state could grant prisoners a liberty interest in the prospect of release. In both cases the Court emphasized that a constitutional entitlement is not created merely because a wholly discretionary state privilege has been granted generously in the past. “The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligation of the authority charged with exercising clemency.” Dumschat, 452 U.S. at 465, 101 S.Ct. at 2465. In Greenholtz the Court found a liberty interest because the Nebraska statutory procedures expressly mandated that its Board of Pardons “shall” order the prisoner’s release “unless” one of the specified reasons for denial applied. The Connecticut statute at issue in Dumschat created no constitutional entitlement because it gave the Board of Pardons absolute discretion, “having no definitions, no criteria, and no mandated ‘shalls.’ ” Id. at 466, 101 S.Ct. at 2465.

Article IV, Section 9 of the Pennsylvania Constitution creates no entitlement to a pardon or commutation and no interest in the prospect of release. The Pennsylvania statute grants the pardon power exclusively to the governor upon recommendation of the Board after a public hearing. The Board is under no statutory mandate except that it vote in public, that it make its records available for public inspection, and when it does recommend in favor of the applicant, that it do so only after a public hearing.

Provisions in Article IV, Section 9 that require the Board to conduct public hearings and votes are designed to protect the public; they do not confer any rights on prisoners. In The Morning Call, Inc. v. Commonwealth, 135 Pa.Commonwealth Ct. 384, 580 A.2d 1183 (1990), this Court examined the history of those provisions.

The amendments to Article 4, Section 9 of the Constitution were made to ensure public access to the proceedings and records of the Board. The 1874 amendment required that the action of the Board be accomplished in open session including voting on matters that came before the Board. The 1967 amendment was added to rectify ... a shortcoming in the process by requiring that the Board make its records open to the public.

135 Pa.Commonwealth Ct. at 389, 580 A.2d at 1185 (emphasis in original). The amendments created rights in members of the public, both those who attend the hearing and those who do not attend. The amendments created no rights in favor of prisoners.

Section 909 of The Administrative Code of 1929³ authorizes the Board to adopt rules and regulations for its operation. In 1986 the Board began its current procedure of voting on applications prior to a public hearing. “[All applications filed, except for those in capital — death—cases, are subject to review by the Board. An affirmative vote of two members ... is required before a hearing is granted.” 37 Pa.Code § 81.31. Since we have concluded that Hennessey is not entitled to a hearing, the Board’s adoption of procedures that reduce the likelihood of an applicant getting a hearing does not impinge on any right or entitlement to a hearing.

In view of the foregoing, we conclude that Hennessey’s right to judgment is not clear, and his petition for summary relief is denied.

ORDER

AND NOW, this 22nd day of February, 1995, petitioner’s application for summary relief in the above-captioned matter is denied.

1 . The Board has not filed a cross-motion for summaiy relief.

2 . This argument is without merit. Action by the Board in no way comes under the aegis of the courts, and courts cannot impinge upon the exclusive jurisdiction of the executive branch in showing clemency. Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 194 A.2d 185 (1963), certiorari denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964). We note, however, that what Hennessey asks is that we determine what the Constitution requires, and

[i]t is the province of the Judiciary to determine whether the Constitution or laws of the Commonwealth require or prohibit the performance of certain acts. That our role may not extend to the ultimate carrying out of those acts does not reflect upon our capacity to determine the requirements of the law.

Thornburgh v. Lewis, 504 Pa. 206, 212, 470 A.2d 952, 955 (1983).

3 . Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 299.