NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 78357--Agenda 15--January 1996.
HOMER E. HANRAHAN, Appellee, v. JAMES K. WILLIAMS et al.,
Appellants.
Opinion filed September 19, 1996.
JUSTICE MILLER delivered the opinion of the court:
Plaintiff, Homer E. Hanrahan, filed a second-amended
complaint in the circuit court of Lee County against defendants,
the Illinois Prisoner Review Board and its individual members
(collectively, the Board), challenging the denial of his parole. In
count III, Hanrahan sought the issuance of a common law writ of
certiorari to obtain review of the Board's June 1993 decision to
deny him parole. The circuit court dismissed count III as
"insufficient in law," and found no just reason for delaying appeal
of the order (155 Ill. 2d R. 304(a)). The appellate court reversed
the dismissal. 267 Ill. App. 3d 735. We granted the Board's
petition for leave to appeal (155 Ill. 2d R. 315), and allowed
amici curiae to join in filing a brief (155 Ill. 2d R. 345).
BACKGROUND
In 1976, a jury found Hanrahan guilty of murder,
aggravated kidnapping, aggravated battery, and conspiracy. He was
sentenced to serve concurrent indeterminate prison terms of 50 to
100 years for murder, 20 to 40 years for aggravated kidnapping, and
3 to 10 years for aggravated battery. His convictions and sentences
were affirmed on direct review. People v. Hanrahan, 64 Ill. App. 3d
207 (1978). Hanrahan is currently incarcerated at the Dixon
Correctional Center, having served approximately 20 years of his
sentences. He has been eligible for parole since 1983.
In June 1993, the Board conducted parole hearings, and
ultimately denied Hanrahan parole. Thereafter, Hanrahan filed a
second amended complaint consisting of three counts. In count III,
Hanrahan requested that the circuit court issue a common law writ
of certiorari to review the Board's June 1993 decision to deny him
parole. Hanrahan alleged in part that the decision to deny him
parole was "arbitrary and capricious, an abuse of discretion,
contrary to law and against the manifest weight of the evidence."
In his prayer for relief, Hanrahan requested that the circuit court
reverse the Board's decision.
After granting Hanrahan leave to file his second-amended
complaint, the circuit court granted the Board's oral motion to
dismiss count III of the complaint. The circuit court ruled that
count III was "insufficient in law," and found no just reason for
delaying appeal of the order. 155 Ill. 2d R. 304(a). Hanrahan
appealed the dismissal.
The appellate court reversed. 267 Ill. App. 3d 735. The
appellate court first stated that the Administrative Review Law is
not applicable to review of the Board's parole-release decisions.
The appellate court next noted that a writ of mandamus would not
afford Hanrahan the type of relief he sought. The appellate court
further found unpersuasive the Board's argument that, because of
its discretionary nature and the minimal record resulting from the
action, the parole-release decision is not reviewable by issuance
of a common law writ of certiorari. To illustrate the feasibility
of judicial review of parole-release decisions, the appellate court
pointed to federal habeas corpus proceedings in which federal
courts have reviewed the merits of parole-release decisions. See
Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976) (federal prisoner
challenged federal parole board's decision to deny parole and
sought relief under 28 U.S.C. §2241); United States ex rel.
O'Connor v. MacDonald, 449 F. Supp. 291 (N.D. Ill. 1978) (state
prisoner challenged Illinois parole board's decision to deny parole
and sought relief under 28 U.S.C. §2254). Noting that the extent of
review conducted by a federal court in habeas corpus proceedings is
similar to that under a common law writ of certiorari, the
appellate court found that common law writs of certiorari may issue
to review parole-release decisions in Illinois.
We granted the Board's petition for leave to appeal (155
Ill. 2d R. 315), and have allowed the American Civil Liberties
Union of Illinois, Chicago Conference of Black Lawyers, Illinois
Attorneys for Criminal Justice, Illinois Public Defender
Association, National Association of Criminal Defense Lawyers,
Northwestern University Legal Clinic, and the office of the State
Appellate Defender to file a brief, collectively, as friends of the
court (155 Ill. 2d R. 345).
DISCUSSION
Illinois inmates who are denied parole may seek several
remedies, including a writ of mandamus in state court and a writ of
habeas corpus in federal court. In the parole context, a writ of
mandamus may be used to compel the Board to exercise its
discretion, but may not be used to compel the Board to exercise its
discretion in a certain manner. See, e.g., People ex rel. Abner v.
Kinney, 30 Ill. 2d 201 (1964) (mandamus used to compel Board to
provide parole-eligible inmate with a parole hearing). In addition,
federal courts will grant a writ of habeas corpus if a petitioner
demonstrates that his custody is in violation of the Constitution
or laws of the United States. Lilly v. Gilmore, 988 F.2d 783, 789
(7th Cir. 1993); Escobar v. O'Leary, 943 F.2d 711, 720 (7th Cir.
1991); see also United States ex rel. Arnold v. Illinois Prisoner
Review Board, 803 F. Supp. 222 (N.D. Ill. 1992) (Illinois inmate
petitioned for writ of habeas corpus pursuant to 28 U.S.C. §2254
because of claimed equal protection violation). Hanrahan did not
request either mandamus or habeas corpus relief in count III of his
second-amended complaint. Instead, Hanrahan sought the issuance of
a common law writ of certiorari.
A common law writ of certiorari is a general method for
obtaining circuit court review of administrative actions when the
act conferring power on the agency does not expressly adopt the
Administrative Review Law and provides for no other form of review.
Smith v. Department of Public Aid, 67 Ill. 2d 529, 541 (1977). The
standards of review under a common law writ of certiorari are
essentially the same as those under the Administrative Review Law.
Smith, 67 Ill. 2d at 541-42. Under the Administrative Review Law,
courts generally do not interfere with an agency's discretionary
authority unless the exercise of that discretion is arbitrary and
capricious (Dorfman v. Gerber, 29 Ill. 2d 191, 196 (1963)) or the
agency action is against the manifest weight of the evidence (Murdy
v. Edgar, 103 Ill. 2d 384, 391 (1984)). In the instant case, the
parole-release statutory scheme fails to adopt the Administrative
Review Law or provide for another form of review. Hanrahan thus
contends that circuit courts may issue common law writs of
certiorari to review the merits of the Board's parole-release
decisions.
Whether, and to what extent, action by an administrative
agency is reviewable is a question of statutory interpretation.
Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,
497 (1988) (whether IHDA action is reviewable is a question of
statutory interpretation). In this case, we must determine whether
the legislature intended for the merits of the Board's parole-
release decision to be reviewable by courts, an issue of first
impression in Illinois.
While most agency actions are presumed reviewable, no
presumption arises if there is a statutory bar to review or if
statutory language commits the agency decision to unreviewable
agency discretion. Greer, 122 Ill. 2d at 497. Factors to consider
in determining whether statutory language precludes judicial review
include the statute's "express language, the structure of the
statutory scheme, its objectives, its legislative history, and the
nature of the administrative action involved." Greer, 122 Ill. 2d
at 497-98. "Of particular importance is whether the statute
contains standards, goals, or criteria by which a court may
evaluate agency action." Greer, 122 Ill. 2d at 498, citing Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 28 L.
Ed. 2d 136, 150, 91 S. Ct. 814, 820 (1971). Accordingly, judicial
review is precluded if "the statute is drawn so that a court would
have no meaningful standard against which to judge the agency's
exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 84
L. Ed. 2d 714, 723, 105 S. Ct. 1649, 1655 (1985).
The Illinois Prisoner Review Board is an administrative
agency created by the legislature. See People ex rel. Abner v.
Kinney, 30 Ill. 2d 201, 205 (1964) (Parole and Pardon Board "sits
as an administrative body with the power to make final decisions in
parole matters"). The members of the Board are appointed by the
Governor with the advice and consent of the Senate. 730 ILCS 5/3--
3--1(b) (West 1992). To be eligible for appointment, a person must
have five years' experience in the field of penology, corrections
work, law enforcement, sociology, law, education, social work,
medicine, psychology, other behavioral sciences, or a combination
of these fields. 730 ILCS 5/3--3--1(b) (West 1992).
One of the Board's duties is to determine whether an
eligible inmate should be granted or denied parole. 730 ILCS 5/3--
3--2(a)(1), (a)(2) (West 1992); see also 730 ILCS 5/3--3--1(a)(1)
(West 1992) (Board is "paroling authority" for persons sentenced
under law in effect prior to effective date of the determinate
sentencing act of 1977). "Parole" is defined as "the conditional
and revocable release of a committed person under the supervision
of a parole officer." 730 ILCS 5/3--1--2(k) (West 1992). In making
parole-release decisions, the Board must consider certain material
and reports, including statements from the inmate, the State's
Attorney and the victim. 730 ILCS 5/3--3--4(d) (West 1992). The
Board must render the parole-release decision within a reasonable
time after hearing and must state the basis for its decision. 730
ILCS 5/3--3--5(f) (West 1992).
The legislature has also authorized the Board to
promulgate its own rules regarding the conduct of its work and the
exercise of its discretion. 730 ILCS 5/3--3--2(d), 3--3--5(h) (West
1992). The rules adopted by the Board (20 Ill. Adm. Code §§1610.10
through 1610.180 (1992-93)) provide that "[t]he Board grants parole
as an exercise of grace and executive discretion as limited or
defined by the Illinois General Assembly in duly adopted
legislation" and that "[t]he parole release decision is a
subjective determination based on available relevant information."
20 Ill. Adm. Code §§1610.50(a), (b) (1992-93). The rules provide
lists of factors that may be considered by the Board in determining
whether to grant or deny parole. 20 Ill. Adm. Code §1610.50(b)
(1992-93) (listing factors relevant to inmate's prior history,
committing offense, institutional adjustment, and release plans).
The rules, however, specifically state that the parole-release
decision is not limited to the consideration of only those factors
listed. 20 Ill. Adm. Code §1610.50(b) (1992-93).
The legislature has set forth criteria under which the
Board must deny parole in section 3--3--5(c) of the Unified Code of
Corrections, which reads:
"The Board shall not parole a person eligible
for parole if it determines that:
(1) there is a substantial risk that he will
not conform to reasonable conditions of parole; or
(2) his release at that time would deprecate
the seriousness of his offense or promote
disrespect for the law; or
(3) his release would have a substantially
adverse effect on institutional discipline." 730
ILCS 5/3--3--5(c) (West 1992).
The rules set forth the same criteria for determining when the
Board must deny parole. 20 Ill. Adm. Code §1610.50(a) (1992-93). We
note that the council commentary of section 3--3--5(c) states that
"[t]he Board should state one or more of the reasons listed in
[section 3--3--5(c)] as the basis for its decision denying parole
***. Additional reasons may also be stated." 730 ILCS Ann. 5/3--3--
5, Council Commentary, at 56 (Smith-Hurd 1992).
Hanrahan contends that the Board's discretion is guided
by statutory criteria, and that the rules set forth well-defined
limits to the Board's discretion. Hanrahan concludes that, because
the parole-release statutory scheme "contains standards, goals, or
criteria by which a court may evaluate agency action" (Greer, 122
Ill. 2d at 498), judicial review by the issuance of a common law
writ of certiorari should be available.
We disagree. The statutory provisions provide criteria
under which the Board must deny parole. The statutory provisions do
not, however, state when the Board must grant parole. Heirens v.
Mizell, 729 F.2d 449, 465 (7th Cir. 1984) (neither statutory scheme
nor rules provide for circumstances under which the Board would be
required to grant parole). The Board is free to consider any
available relevant information to make its determination to grant
or deny parole. 20 Ill. Adm. Code §1610.50(b) (1992-93). Further,
the rules expressly provide that parole is granted "as an exercise
of grace and executive discretion" (20 Ill. Adm. Code §1610.50(a)
(1992-93)), and Illinois courts have consistently held that parole
is not a right (People v. Hawkins, 54 Ill. 2d 247, 252 (1973);
People ex rel. Jones v. Brantley, 45 Ill. 2d 335, 337-38 (1970);
People ex rel. Castle v. Spivey, 10 Ill. 2d 586, 594-95 (1957);
People ex rel. Richardson v. Ragen, 400 Ill. 191, 201 (1948);
People v. Nowak, 387 Ill. 11, 14 (1944)).
We believe that Illinois' statutory criteria and the
Board's rules do not provide standards for release on parole
sufficiently objective to allow a court to evaluate the Board's
decision to deny parole. We thus conclude that the legislature, in
drafting the statutory language, intended the Board to have
complete discretion in determining whether to grant parole when the
denial of parole is not mandated by statute.
We recognize that our interpretation of section 3--3--
5(c) of the Unified Code of Corrections differs from the United
States Court of Appeals for the Seventh Circuit's interpretation of
the same statutory language in United States ex rel. Scott v.
Illinois Parole & Pardon Board, 669 F.2d 1185 (7th Cir. 1982).
While the issue presented in Scott differed from the issue
presented here, the Scott court, in its analysis, concluded that
section 3--3--5(c) of the Unified Code of Corrections (Ill. Rev.
Stat. 1979, ch. 38, par. 1003--3--5(c) (Board "shall not" grant
parole "if" one of three statutory criteria are found)) requires
"the Board to release an inmate who is eligible for parole unless
one of the specified reasons for denial are found to exist." Scott,
669 F.2d at 1189. As to its interpretation, however, the Scott
court further observed:
"[B]y stating its rule in the negative
Illinois has left open the possibility that its
statute can also be reasonably read as not creating
an expectancy of release on parole. It can be read
as merely a statement by the Illinois legislature
as to when the Board must deny parole, leaving the
Board free in the absence of those conditions to
exercise its own discretion in deciding whether or
not parole should be granted. Under this
construction, the statute would not create a
legitimate expectation of release and due process
considerations would not apply." Scott, 669 F.2d at
1189.
Our construction of section 3--3--5(c) is consistent with this
latter construction mentioned but rejected by the Seventh Circuit
in Scott. This court is not bound by the Seventh Circuit's
interpretation of our statutes. People v. Kokoraleis, 132 Ill. 2d
235, 293-94 (1989) ("decisions of lower Federal courts are not
conclusive on State courts, except insofar as the decision of the
lower Federal court may become the law of the case"); see also
Averhart v. Tutsie, 618 F.2d 479 (7th Cir. 1980) (where Indiana
Supreme Court expressly held that state's parole-release statute
created no expectancy of release, the federal court was bound by
that interpretation).
Our finding is supported by the general nature of parole-
release decisions, which are often based on subjective factors and
predictions rather than objective factors. In Greenholtz v. Inmates
of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 60 L. Ed.
2d 668, 99 S. Ct. 2100 (1979), the Supreme Court characterized the
nature of parole-release determinations as follows:
"The parole-release decision *** depends on an
amalgam of elements, some of which are factual but
many of which are purely subjective appraisals by
the Board members based upon their experience with
the difficult and sensitive task of evaluating the
advisability of parole release. Unlike the
revocation decision, there is no set of facts
which, if shown, mandate a decision favorable to
the individual. The parole determination, like a
prisoner-transfer decision, may be made
`for a variety of reasons and often involve[s]
no more than informed predictions as to what
would best serve [correctional purposes] or
the safety and welfare of the inmate.' "
Greenholtz, 442 U.S. at 9-10, 60 L. Ed. 2d at
677, 99 S. Ct. at 2105, quoting Meachum v.
Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451,
459, 96 S. Ct. 2532, 2538 (1976).
The Greenholtz court also stated:
"In parole releases, *** few certainties exist. In
each case, the decision differs from the
traditional mold of judicial decisionmaking in that
the choice involves a synthesis of record facts and
personal observation filtered through the
experience of the decisionmaker and leading to a
predictive judgment as to what is best both for the
individual inmate and for the community. *** The
entire inquiry is, in a sense, an `equity' type
judgment that cannot always be articulated in
traditional findings." Greenholtz, 442 U.S. at 8,
60 L. Ed. 2d at 676, 99 S. Ct. at 2104.
We believe that the discussion in Greenholtz concerning the general
nature of parole is instructive.
Hanrahan argues that the parole-release decision is no
different from other administrative agency decisions, reviewable
upon the issuance of a common law writ of certiorari, where the
agency exercised wide discretion subject to legislative limits.
See, e.g., Stratton v. Wenona Community Unit District No. 1, 133
Ill. 2d 413 (1990) (school board's decision to expel student for
misconduct); Smith v. Department of Public Aid, 67 Ill. 2d 529
(1977) (Illinois Department of Public Aid's decision as to
entitlement of benefits under food stamp program); Nowicki v.
Evanston Fair Housing Review Board, 62 Ill. 2d 11 (1975) (Fair
Housing Review Board's decision to impose fine after finding
violation of ordinance). We believe, however, that the highly
subjective and predictive nature of the parole-release decision,
along with the fact that there are no standards sufficiently
objective to allow a court to evaluate the Board's decision to deny
parole other than the statutory criteria mandating denial, sets the
parole-release decision apart from other cases.
We further believe that the Board's parole-release
decisions more closely resemble those decisions found to be
unreviewable in the federal courts pursuant to the Administrative
Procedure Act (5 U.S.C. §701(a)(2) (1994) (precludes judicial
review of agency action when "action is committed to agency
discretion by law")). See Lincoln v. Vigil, 508 U.S. 182, 124 L.
Ed. 2d 101, 113 S. Ct. 2024 (1993) (Indian Health Service's
decision to discontinue clinical program for Indian children was
committed to agency discretion by law and thus not subject to
judicial review under APA); Webster v. Doe, 486 U.S. 592, 100 L.
Ed. 2d 632, 108 S. Ct. 2047 (1988) (CIA Director's decision to
discharge employee for national security reasons was committed to
agency discretion by law and thus not subject to judicial review
under APA); Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105
S. Ct. 1649 (1985) (Food and Drug Administration's decision not to
take enforcement action was committed to agency discretion by law
and thus not subject to judicial review under APA); Singh v. Moyer,
867 F.2d 1035 (7th Cir. 1989) (United States Information Agency's
recommendation to deny waiver of two-year foreign residency
requirement was committed to agency discretion by law and thus not
subject to judicial review under APA).
Hanrahan recognizes the predictive nature of the parole-
release decision but contends that it does not shield the merits of
the decision from judicial review. Hanrahan compares the predictive
nature of the parole-release decision to the predictive nature of
the Illinois Secretary of State's decision to restore driving
privileges to persons whose licenses have been revoked. Hanrahan
points out that the Secretary of State's actions are reviewable in
the circuit court. Murdy v. Edgar, 103 Ill. 2d 384 (1984). As the
Board observes, however, unlike the parole-release statutory
scheme, the Illinois Vehicle Code expressly provides for review of
the Secretary of State actions under the Administrative Review Law.
625 ILCS 5/6--212 (West 1994).
Hanrahan next points out that some states provide for
judicial review of the merits of parole-release decisions. See
State v. Goulette, 65 Wis. 2d 207, 222 N.W.2d 622 (1974) (Wisconsin
affords judicial review of parole-release decisions by issuance of
a common law writ of certiorari); Wayne County Prosecutor v. Parole
Board, 210 Mich. App. 148, 532 N.W.2d 899 (1995) (Michigan statute
provides for judicial review of parole-release decisions). Other
states, however, have found that the merits of parole-release
decisions are not subject to judicial review. See Carrion v. New
York State Board of Parole, 620 N.Y.S.2d 420, 210 A.D.2d 403
(1994); In re Question Concerning State Judicial Review of Parole
Denial, 199 Colo. 463, 610 P.2d 1340 (1980). It is apparent that
each state must decide, based on its own statutory scheme, whether
the merits of parole-release decisions are reviewable.
Finally, amici curiae contend that certain constitutional
rights of inmates subject to parole have been violated. Neither
party, however, has raised these issues. We therefore do not
address them. See People v. P.H., 145 Ill. 2d 209, 234 (1991).
CONCLUSION
For the reasons set forth above, we find that a common
law writ of certiorari may not be issued to review the merits of
the Board's decision to deny Hanrahan's parole. Because no set of
facts could be proved which would entitle Hanrahan to a common law
writ of certiorari, count III of his second-amended complaint was
properly dismissed.
The judgment of the appellate court is reversed, the
judgment of the circuit court of Lee County is affirmed, and the
cause is remanded for further proceedings.
Appellate court judgment reversed;
circuit court judgment affirmed;
cause remanded.