
    Hamilton v. Keiter, Sheriff.
    
      (No. 132340
    Decided October 14, 1968.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Goldman, Cole & Putnick, and Mr. Bay Clay-man, for petitioner.
    
      Mr. William B. Saxbe, attorney general, and Mr. Stephen M. Miller, for respondents.
   HreNtoN, J.

Petitioner in habeas corpus proceedings seeks his discharge from incarceration. He is confined to the Montgomery County jail pursuant to action by the Ohio Adult Parole Authority.

While on parole he was convicted for a federal offense and sentenced to a federal institution which constituted a violation of his parole. Upon his release from the federal institution he returned to Dayton and Montgomery County, Ohio, where for sixteen months he has lived with his mother, became employed, and married, took up his own residence, obtained his own listed phone and at no time did he attempt in any manner to hide his whereabouts. After the said sixteen months, his former Ohio Adult Parole Officer saw him shopping in the Arcade in downtown Dayton after which he was imprisoned as a parole violator.

The issues presented are:

1. Has the liberty of the petitioner been deprived without due process of law?

2. Has the court jurisdiction in a habeas corpus proceeding?

3. Does the failure of the Adult Parole Authority to take any action whatsoever from October 16, 1964, the date petitioner was declared a parole violator to May 1968, when he was discovered by the agency and thereafter detained in the Montgomery County jail constitute a violation of the constitutional due process clause?

It would appear that the very fact that issues one and three have been presented disposes the jurisdictional question. In re Varner, 166 Ohio St. 340, simply holds that since a convict has no right to parole he therefore cannot have a revocation thereof reviewed in a habeas corpus proceeding.

The lapse of time, the negligence of the Parole Authority and the complete and utter failure of said authority to take any action for almost four years does, in this court’s judgment, present a question of constitutional due process of law. It must be confessed that the constitutional meaning or value of the phrase “due process of law” remains without that satisfactory precision of definition which judicial decisions have given to nearly all the other guaranties of personal rights found in the constitutions of the several states and of the United States. A general definition of the phrase which would cover every case would be most desirable, nevertheless, apart from the risk of failure to make the definition perspicuous and comprehensive, there is a wisdom in ascertaining the extent and application of the phrase by the judicial process of exclusion and inclusion as the cases arise.

After volumes spoken and written with a view to the exposition of the phrase, it would appear that mankind has settled upon the proposition that it was intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.

Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights; but not necessarily judicial proceedings; it may include summary proceedings if not arbitrary or unequal.

Due process of law in the XIY Amendment refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state exerted within the limits of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions. It implies conformity with the natural and inherent principles of justice and requires that no one shall be condemned in person or property without opportunity to be heard. Holden v. Hardy, 169 U. S. 366. The proceedings must be appropriate to the case and just to the parties affected, and pursued in the ordinary manner and adapted to the end to be attained, with opportunity to be heard, when necessary, for the just protection of rights. Turpin v. Lemon, 187 U. S. 51.

In Varner, supra, it would appear that on the same date the parolee was arrested for grand larceny, the Parole Authority filed a detainer with the sheriff and that at-no time thereafter was the parolee at liberty. In the instant case the parolee was at liberty for sixteen months. The state of Ohio would have this court hold that in the area under consideration the agency of the state is supreme, that to a convict no wrong may be done because he has been stripped of his citizenship and has no rights. If this be so then the convict whether paroled or not is virtually a slave. Undoubtedly competent legal scholars may cite In re Varner, supra, and Cline v. Haskins, 175 Ohio St. 480, as standing for such propositions of law. This court is not prepared to adopt such views and is confident the Supreme Court made no such intendments in those cases.

The XIV Amendment states “* * *; nor shall any state deprive any person of life, liberty or property, without due process of law; * *

A person is any human being considered as a distinct entity or personality; an individual; the body of a human being.

Therefore, simple logic dictates that petitioner, a convicted parolee, is a person regardless of his status, as a citizen and is entitled to ihe protection of the due process clause. The remedy of habeas corpus is safeguarded by constitutional provisions and a parolee is entitled to such-a writ for the purpose of inquiring into whether or not the Adult Parole Authority has lost jurisdiction on constitutional grounds.

Obviously the Legislature has granted broad powers to the parole agency but no such powers so granted are unlimited and all inclusive. Surely the dependence of personal liberty upon the whim, sufferance or caprice of any other person or body of persons cannot be condoned or justified as being in conformity with due process of law.

In this case petitioner was permitted to remain at liberty for a considerable period of time because the parole authority neglected and failed to activate their records and files in a proper manner. The agents knew the whereabouts of petitioner at the time he was declared a parole violator and by the simple expediency of some communication could have notified the federal authorities thereof. From the facts adduced at the hearing the parole authority did absolutely nothing after its declaration of parole violator on October 16, 1964, until May 1968, when petitioner was arrested and incarcerated in the jail as such. If petitioner has been prejudiced thereby, it may only be considered with respect to the time he was released from the federal institution on January 26, 1967, until the present, inasmuch as his availability to be returned to the state institutions began on January 26, 1967.

The federal courts indicate that the due process clause imposes an affirmative duty upon the parole authority to proceed with reasonable diligence to issue and execute a warrant for the arrest of the parolee where there has been a violaton of the conditions of parole. Failure to do so may result in a waiver of the violation and loss of jurisdiction. Hamilton v. Hunter, 65 F. Supp. 319; Welch v. Hillis, 53 F. Supp. 456; Howard v. Ragen, 59 F. Supp. 374; Greene v. Michigan Department of Corrections, 315 F. 2d 546.

Thus the focal point of the inquiry has to do with whether or not the individual petitioner has been unduly prejudiced by the delay.

Obviously, a violator who has succeeded in evading the authorities is in no position to complain of a delay. Furthermore delay will not in and' of itself suffice to show prejudice, except in an extreme case where actual prejudice has been shown. Shelton v. U. S. Board of Parole, 388 F. 2d 567; Howard v. Ragen, supra. Legislative enactments may furnish guidelines for the conduct of parole authorities in the area under consideration altering the tempo of judicial application of the law.

It appears that presently Howard v. Hagen, supra, is the strongest case in favor of the petitioner’s proposition of law. In that case it was a situation involving a knowledgeable refusal to take action by the parole authorities at one or more times and a reversal of that decision at a much later time. The decision to act came almost fifteen years after the parolee was declared a violator and eight years after elapse of original sentence. Also the parole authorities knew the whereabouts of its parolee at all times that it refused to take action.

There is no evidence in this ease that the Adult Parole Authority passively refused to take action or that it had a policy of refusing to take action as long as a parolee remained out of state.

The delay here is the result of mistake, negligence or inadvertence as opposed to a knowledgeable volitional action and petitioner has not been unduly prejudiced because of any justifiable reliance. Petitioner always knew that he had violated the conditions of his parole, that he had not been released, and that he had not completed the serving of his sentence. The authority had done nothing affirmatively upon which he could rely to his actual prejudice. Cline v. Haskins, 175 Ohio St. 480.

Petitioner was declared a parole violator at a time when Section 2965.21, Revised Code, was in effect. On March 18, 1965, this section was repealed and Section 2967.15, Revised Code, was enacted. Thus the conduct of the authority since March 18, 1965, has been controlled by Section 2967.15, Revised Code. This section does spell out some guide lines. Here we have a situation where a parole officer apparently had reasonable cause to believe that the parolee had violated the conditions of his parole and such officer arrested him and placed him in jail in May 1968, There is no evidence that the officer h&s made any effort to notify the Superintendent of Parole Supervision as provided by such section for action thereon as directed by the section. Obviously the superintendent may not exercise his responsibility thereunder without such notice. Accordingly it develops that petitioner was legally declared a parole violator under the prior applicable section and by the time he is arrested and jailed on account thereof, new and different directives have been prescribed by the Legislature, all of which mean that the conduct of the authority must be as soon as practicable and within a reasonable time. The petition for the writ herein was filed on September 20, 1968, and heard of September 26, 1968. We may safely say that petitioner has been confined to jail for at least four months with no action being taken by the parole authority in any way whatsoever. This is contrary to the plain and unambiguous provisions of the fourth paragraph, Section 2967.15, Bevised Code, to wit: “In the event such parolee is declared to be a parole violator the superintendent 'sliall, within a reasonable time, order his return to the institution from which he was paroled.” Therefore, the parolee having been legally declared a parole violator under the old section, there was nothing further for the authority to'do after arrest and incarceration in the jail but to return ’him to the proper institution within a reasonable time. Such do-nothing attitude is not only contrary to the legislative mandates, it is far and away from this court’s conception of due process of law.

Wherefore it is the judgment of the court that petitioner be forthwith discharged and released from the custody of the jail of Montgomery County, Ohio, under the ’same terms and conditions of his original parole.

Counsel for petitioner shall draft and present for approval the appropriate judgment entry.  