Haney v. Hamilton

768 P.2d 832, 13 Kan. App. 2d 269, 1989 Kan. App. LEXIS 85
Court of Appeals of Kansas·Decided February 10, 1989·No. No. 62,091·Published

Opinion

Handy, J.:

The State of Kansas has appealed the trial court’s decision reversing the Kansas Parole Board (the Board) and directing that Kenneth Haney be placed on parole. The facts surrounding Haney’s conviction on two Class B felonies for second-degree murder, K.S.A. 21-3402, his concurrent ten years to life sentences, and his initial parole board hearing are essentially not in dispute.

The thrust of this case on appeal began with the Board’s later review of Haney’s eligibility for parole in June 1987. The Board, subsequent to a hearing, voted two-to-one (Board member Joan Hamilton dissenting) to grant Haney parole. However, commensurate with its unwritten policy requiring a unanimous vote for an A or B felon to be paroled, the Board entered its decision denying parole and ordering the matter passed to September 1989 for review.

In September 1987, Haney filed a petition in the district court seeking civil rights relief under 42 U.S.C. § 1983 (1982), habeas corpus relief pursuant to K.S.A. 60-1501 et seq., and injunctive relief pursuant to K.S.A. 60-901 et seq.

[270]*270The trial court, following an evidentiary hearing, determined that the Board’s unanimous vote rule violated the provisions of K.S.A. 1987 Supp. 77-201 Fourth, and was, therefore, an illegal act. The court additionally concluded that the findings of Hamilton and the Board were not substantially supported by the evidence and that, accordingly, the Board had acted in an arbitrary and capricious fashion. The Board was thereafter ordered, in a journal entry filed January 21, 1988, to release Haney on immediate parole.

The State, on behalf of the Board and Hamilton, filed its notice of appeal from the trial court’s decision on February 3, 1988. Prior to the State’s appeal, however, Haney had filed a motion for attorney fees, which was pending. A hearing on Haney’s motion was held on February 23, 1988, and fees were granted. The journal entry of this proceeding was not filed, however, until March 7, 1988. No other appeal was taken by the State.

In light of the filing date of the notice of appeal and the trial court’s subsequent action, an issue arises concerning this court’s jurisdiction to review all issues presented by the record.

The parties agree, and we concur, that we have jurisdiction over those issues raised and emanating from the trial court’s decision as journalized and filed on January 21, 1988. K.S.A. 1987 Supp. 60-2102(a). However, as to the issue of attorney fees, we conclude that the State’s notice of appeal was premature, that the issue is jurisdictionally defective, and that it is, therefore, not properly before us for review. Miller v. Safeco Ins. Co. of America, 11 Kan. App. 2d 91, 93-94, 712 P.2d 1282, rev. denied 238 Kan. 878 (1986); see Rule 2.03 (1988 Kan. Ct. R. Annot. 6).

Turning then to the other issues on appeal, the State first contends the trial court erred in holding that Hamilton and the Board acted arbitrarily and capriciously in denying Haney’s parole. In support of its argument, the State urges that the trial court, in entertaining an evidentiary hearing, ignored the judicial scope of review as mandated by K.S.A. 22-3710, and essentially substituted its discretion and judgment for that of the Board.

K.S.A. 22-3710 provides, in pertinent part, that “[t]he orders of the authority shall not be reviewable except as to compliance with the term of this act or other applicable laws of this state.” In citing the foregoing statutory authority, we have previously discussed the appropriate scope of review for the district court in [271]*271reviewing parole board decisions. In Swisher v. Hamilton, 12 Kan. App. 2d 183, 185, 740 P.2d 95, rev. denied 242 Kan. 905 (1987), we held:

“[T]he [district] court’s inquiry is limited to whether the authority complied with applicable statutes and whether its action was arbitrary and capricious. [Citations omitted.] The district court has no authority to substitute its discretion for that of the authority in granting parole. If there is a serious due process violation or if the authority abuses its discretion, the district court can only remand the case to the Kansas Adult Authority [now Kansas Parole Board] with instructions to grant the proper hearing and make the proper findings.”

See In re Uphoff, 7 Kan. App. 2d 301, 306, 641 P.2d 406 (1982).

In reviewing the district court’s judgment, we must first determine whether the district court observed the requirements and restrictions placed on it, and then make the same review of the administrative agency’s action as does the district court. Shawnee Mission Med. Center v. Kansas Dept. of Health & Environment, 235 Kan. 983, 989, 685 P.2d 880 (1984).

Initially, consideration should be given to whether the Board complied with applicable statutes in entertaining the eligibility of Haney for parole.

K.S.A. 1987 Supp. 22-3717(g) itemizes, without limiting, certain factors which the parole board should consider in a parole hearing:

“[T]he Kansas parole board shall consider all pertinent information regarding each inmate, including, but not limited to, the circumstances of the offense of the inmate; the presentence report; the previous social history and criminal record of the inmate; the conduct, employment, and attitude of the inmate in prison; and the reports of such physical and mental examinations as have been made.”

From the record before the district court, it is difficult, at best, to determine whether the Board made any specific findings relative to the factors set forth in K.S.A. 1987 Supp. 22-3717(g). As noted by Haney’s counsel, the record from a parole board hearing is quite unlike that of an evidentiary hearing. The record for review by the district court from the parole board consists principally of reports, statements submitted to the Board, Board notes, and a short memorandum decision. As a matter of practice, the district court is presented with a conglomeration of reports and documents from which it must glean whether the Board complied with the law in considering an inmate’s parole eligibility. Judicial review should not be reduced to speculation.

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Haney v. Hamilton, 768 P.2d 832, 13 Kan. App. 2d 269, 1989 Kan. App. LEXIS 85 (kanctapp 1989).

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Miller v. Safeco Ins. Co. of America
712 P.2d 1282 (Court of Appeals of Kansas, 1989)
In Re Uphoff
641 P.2d 406 (Court of Appeals of Kansas, 1982)
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Swisher v. Hamilton
740 P.2d 95 (Court of Appeals of Kansas, 1987)
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671 P.2d 502 (Supreme Court of Kansas, 1983)