F L= JUL CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. Case No.:

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1 WILLIAM A. CLUMM, IN THE SUPREME COURT OF OHIO Relator, Case No.: V. OHIO DEPT. OF REHABILITATION AND CORRECTION, et al., Respondents. MOTION TO DISMISS OF RESPONDENT OHIO DEPARTMENT OF REHABILITATION AND CORRECTION F L= JUL CLERK OF COURT SUPREME COURT OF OHIO MARC DANN Attorney General of Ohio MARY ANNE REESE ( ) Assistant Attorney General Corrections Litigation Section 1600 Carew Tower 441 Vine Street Cincinnati, Ohio (513) (513) Fax mreese@ag.state.oh.us Attorney for Respondent Ohio Department of Rehabilitation and Correction, Ohio Adult Parole Authority and Office of Victim Services William A. Clunun Inmate # A Chillicothe Correctional Institution State Route 104 North P. O. Box 5500 Chillicothe, Ohio Relator, pro se Mark R. Weaver J. Eric Holloway Jeffrey A. Stankunas Isaac, Brant, Ledman & Teetor, LLP 250 East Broad Street, Suite 900 Columbus, Ohio (614) / Fax: (614) Attorneys for Respondent Manes 1

2 WILLIAM A. CLUMM, V. IN THE SUPREME COURT OF OHIO Relator, Case No.: OHIO DEPT. OF REHABILITATION AND CORRECTION, et al., Respondents. MOTION TO DISMISS OF RESPONDENT OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Respondent Ohio Department of Rehabilitation and Correction ("ODRC")(which encompasses among its divisions the Ohio Adult Parole Authority and the Office of Victim Services), by and through counsel, moves to dismiss Relator's Petition for a Writ of Prohibition. Civ. R.12(B)(6). The attached Memorandum supports this Motion. Respectfully submitted, MARC DANN Attorney General of Ohio MARY ANNE REESE ( ) Assistant Attorney General Corrections Litigation Section 1600 Carew Tower 441 Vine Street Cincinnati, Ohio (513) (513) Fax mreese(7a,ag.state.oh.us Attorney for Respondent Ohio Department of Rehabilitation and Correction, Ohio Adult Parole Authority and Office of Victim Services ' The ODRC Office of Victim Services was referenced incorrectly in the Petition as "Victim Advocacy Board." 2

3 MEMORANDUM IN SUPPORT 1. Statement of the Case Petitioner William Clumm is a prisoner in the custody of the Ohio Department of Rehabilitation and Correction ("ODRC"). He is serving a life sentence for the aggravated murder of his wife and, pursuant to statute, he became eligible for parole after serving fifteen years. On June 25, 2007, Clumm filed the instant Petition. Essentially, Inmate Clunun seeks to deny the Ohio Adult Parole Authority its opportunity to conduct a parole release hearing by the full parole board, and to preclude the board from hearing one of his victims, Janna Manes, daughter of the murdered woman. Because Clunun has failed to meet the legal requirements for obtaining the relief sought, the instant Petition for a Writ of Prohibition should be denied. II. Law and Argument A. Standard of Review for Motion to Dismiss A motion to dismiss pursuant to Civ. R. 12(B)(6) tests the sufficiency of the complaint. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 95, 647 N.E.2d 788, citing State ex rel. Hanson v. Guernsey Cry. Bd of Commrs. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378. In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the petitioner can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus. For purposes of the motion, the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 3

4 532 N.E.2d 753. The movant may not rely on allegations or evidence outside the complaint. State ex rel. Boggs (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788. Matters outside the pleading are permissible only if the court treats the motion to dismiss as a motion for summary judgment. Civ. R. 12(B); State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 377, 544 N.E.2d 680. B. Petitioner Has Failed to Comply with the Requirements of R.C (A) Inmate Clumm, as a prison inmate, must fulfill a procedural requirement in order to file any lawsuit in the state court system. Particularly, he must comply with R.C (A) when filing this action. That Revised Code provision requires him to submit with his Petition an affidavit which lists the lawsuits to which he has been a litigant within the past five years. State ex rel. Washington v. Ohio Adult Parole Auth. (1999), 87 Ohio St.3d 258, 259, 719 N.E.2d 544. Failure to comply with that provision requires dismissal of any state lawsuit the inmate may bring. Id. Inmate Clumm has not submitted an affidavit that complies with R.C (A). (Record, passim.) A review of the actions filed by Inmate Clunun shows that he has filed approximately sixteen lawsuits since Of particular note for the instant case, Inmate Clumm was a party litigant to the action Clumm v. Randall (6`h Cir., Oct. 17, 2002), Case No.: (appeal of habeas corpus action in the Southern District of Ohio, Case No.: 2:00-CV-1406). He failed to report that case. (Record, passim.) For his failure to comply with R.C , this case should be dismissed. 4

5 C. The Petition Does Not Meet the Requirements for a Writ of Prohibition A writ of prohibition is a form of extraordinary relief which should only be granted with caution and restraint. It is designed to stop a lower court or other tribunal from exceeding its authority to resolve issues before it. State ex rel. Tubbs Jones v. Suter (1998), 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (citations omitted). In order for a writ of prohibition to lie, three requirements must be satisfied: (1) the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it will result in an injury for which no other adequate remedy exists. Hemphill v. Ohio Adult Parole Authority (1991), 61 Ohio St.3d 385, 575 N.E.2d 148. Clumm is unable to meet these three requirements, and so his petition for writ of prohibition must be dismissed. 1. Clumm Cannot Show That the Parole Board Is Exercising Judicial or Quasi-Judicial Power First of all, Clumm cannot show that the Parole Board is about to exercise judicial or quasi-judicial power. Once an offender has been convicted, the court shall impose sentence or probation. See Crim R. 32 and Crim. R If sentence is imposed, the offender is remanded to the custody of the ODRC and shall remain obligated to serve his entire sentence until the expiration of his valid sentence. Therefore, the power to impose sentence or to grant probation in lieu of confinement is an exercise of judicial power. See Crim R. 32 and Crim. R Once sentence has been imposed, however the grant or denial of a parole prior to the expiration of a prisoner's valid sentence-and by extension the hearing procedures associated with that determination-is not an exercise of judicial power. 5

6 Ohio cases that have addressed the issue have repeatedly found that the actions of the Ohio Adult Parole Authority State are those of an executive agency and inot judicial or quasi-judicial in nature. See, e.g., State ex rel. McGrath v. Ohio Adult Parole Auth (2003), 100 Ohio St.3d 72, 796 N.E.2d 526; State ex rel. Ward v. Ohio Adult Parole Auth., 2005 Ohio 469 (Tenth Appellate District). Except in dicta from an old case [State ex rel. McKee v. Copper (1974), 40 Ohio St.2d 65, 68, 320 N.E.2d 286], Respondent has found no caselaw holding otherwise. Without this critical element of showing that the parole board exercises judicial or quasi-judicial authority, Clumm can prove no set of facts entitling him to relief. 2. The Parole Board's Decisions and Processes Are Authorized by Law The act of the parole board in holding a full board hearing at which the crime victim may be heard, and the act of the board in determining whether to grant or deny parole, are acts authorized by law. Clumm therefore cannot meet the second requirement for a writ of prohibition. It is beyond dispute that there is no constitutional or inherent right to be conditionally released before the expiration of a valid indefinite sentence imposed by the court. Hogan v. Ghee (1999), 85 Ohio St.3d 150, 707 N.E.2d 494 (citations omitted); Inmates of Orient Correctional Institute v. Ohio Adult Parole Auth. (6" Cir. 1991), 929 F.2d 233; Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. There is no Ohio statute which requires the release of an inmate who has served less than the full term of his indefinite sentence. Though R.C states that "[t]he power to end terms of imprisonment granted by section of the revised code shall apply to any prisoner who has served the 6

7 minimum or definite term provided for the felony,"2 R.C merely states, "all prison terms may be ended in the manner provided by law..." (Emphasis added.) Thus, a prisoner should have no expectation of being conditionally or unconditionally released after serving less than the entire term of an indefinite sentence. Upon completing his minimum sentence, an inmate shall be considered for a parole, but the decision whether to grant a parole to an Ohio prisoner lies wholly within the discretion of the Ohio Adult Parole Authority. Jago v. Van Curen (1981), 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13; R.C Prior to the expiration of his sentence, an offender remains obligated to serve the entire term of his sentence, unless he is granted a final release on parole. See R.C The Parole Board's decision to grant or to deny Clumm a parole prior to the expiration of his valid sentence is a valid exercise of the board's legal authority. Furthermore, Ohio law specifically vests in the board the authority to determine Clumm's eligibility for parole. R.C specifically authorizes the Adult Parole Authority to determine a prisoner's eligibility for conditional release prior to the expiration of his valid sentence. By statute, if the Parole Board decides to deny Clumm a parole, this will simply result in the continuation of his valid sentence. Not surprisingly, an Ohio appellate court has held that a denial of a parole until a later date, regardless of the grounds on which it is based, is not an imposition of an additional sentence. State ex. rel. Thompson v. Clark (Tenth App. District, 1982), 7 Ohio App.3d 191, 455 N.E.2d 6. Finally, R.C specifically authorizes the full parole board to hold hearings, and this authorization was in place in 1977 when Clumm was convicted. R.C (A)(2) specifically authorizes the victim of a crime such as that committed by 2 R.C as quoted herein is as it appeared while it was still effective at the time in question. However, Senate Bill 2 effectively repealed this section on July 1,

8 Clunun to present information to the Parole Board. Therefore, the Parole Board's decision to hold a hearing before the full board, and its ultimate decision whether to grant or to deny Clumm parole, are actions authorized by law. 3. Clumm Has Other Adequate Remedies at Law Finally, Clumm claims that he has no other adequate remedy besides seeking a writ of prohibition to address the injuries suffered as the result of the Parole Board conducting its parole hearings. In the event that Clumm desires this Court to declare R.C , which authorizes the Parole Board to conduct parole hearings, unconstitutional, then declaratory judgment is a more appropriate remedy. See Wise v. Ohio Dept. of Rehab. & Corr. (1992), 84 Ohio App.3d 11, 616 N.E.2d 251. The same would be true if Clumm seeks to challenge R.C ](A)(2), the provision allowing the crime victim to be heard. To extent that Clumm prays for this Court to compel Respondents to cease and desist certain actions and to perform other actions, his action must be dismissed. State ex rel. Lanham v. Ohio Adult Parole Auth. (1997), 80 Ohio St.3d 425, 687 N.E.2d 283. And if Clumm is seeking to compel his release from confinement, then habeas corpus is the proper vehicle for his claim. State ex rel. Alford v. Winters (1997), 80 Ohio St.3d 285, 685 N.E.2d Clunun invokes the Randolph/Layne line of cases in support of his contention that he has a contract right to receive parole. Those cases addressed the issue of whether inmates who were convicted under plea agreements had to be classified for their parole release considerations under either their crime of conviction or their crime of indictment. This Court concluded that the crime of conviction must be used. Layne v. Ohio Adult Parole Auth., 97 Ohio St. 3d 456 (2002). Although these cases are inapplicable to 8

9 Clumm because his claims are not based on any plea agreement, it is noteworthy that the irnnates in Randolph/Layne sought and obtained their relief through declaratory judgment available under Ohio law. See Layne v. Ohio Adult Parole Auth., 97 Ohio St. 3d 456 (2002). Since Clumm has presented the same contract theory of recovery herein, it follows that he has available the same legal remedy, namely declaratory judgment. Clumm therefore cannot meet the third requirement for a writ of prohibition. Finally, it bears mention that at least one other reason exists to deny the instant Petition. Petitioner refers to statutory provisions that simply do not support his position. For example, he cites to R. C for the proposition that the underlying parole hearing being challenged and set for July 12, 2007, is without authorization to be held. However, a review of that statute shows that it empowers the assistant director of the ODRC to act on behalf of the director, in the absence of the director. It offers no support whatsoever for Clumm's contentions. 1. Conclusion WHEREFORE, for the reasons set forth above, the instant Petition for Writ of Prohibition should be denied. All costs of this action should be taxed to the Relator. Respectfully submitted, MARC DANN Attorney General of Ohio MARY APNE REESE ( ) Assistant Attomey General Corrections Litigation Section 1600 Carew Tower 441 Vine Street Cincinnati, Ohio (513)

10 (513) Fax mreese a.state.oh.us Attorney for Respondent Ohio Department of Rehabilitation and Correction, Ohio Adult Parole Authority and Office of Victim Services 10

11 CERTIFICATE OF SERVICE I certify that on July 12th, 2007, a copy of the foregoing was served upon the parties by regular U.S. mail, postage prepaid. William A. Clumm Inmate # A Chillicothe Correctional Institution State Route 104 North P. O. Box 5500 Chillicothe, Ohio Relator, pro se Mark R. Weaver J. Eric Holloway Jeffrey A. Stankunas Isaac, Brant, Ledman & Teetor, LLP 250 East Broad Street, Suite 900 Columbus, Ohio (614) / Fax: (614) Attorneys for Respondent Manes Mary An7E: Reese Assistant Attorney General 11