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Swihart v. Chairman/Chairperson of the Ohio Adult Parole Authority

December 9, 2008

MICHAEL SWIHART, PLAINTIFF-APPELLANT,
v.
CHAIRMAN/CHAIRPERSON OF THE OHIO ADULT PAROLE AUTHORITY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 07CVH-02-2229).

The opinion of the court was delivered by: Bryant, J.

(REGULAR CALENDAR)

OPINION

{¶1} Plaintiff-appellant, Michael Swihart, appeals from a judgment of the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss of defendants-appellees, Chairman/Chairperson of the Ohio Adult Parole Authority ("OAPA"), Current Director of the Ohio Department of Rehabilitation and Correction, Dr. Sandra Mack, Member of the OAPA, William Oberdier, Hearing Officer for the OAPA, Richard E. Fitzpatrick, Hearing Officer for the OAPA, and all former and current members of the OAPA (collectively "defendants"). Because the trial court improperly concluded (1) res judicata bars plaintiff's complaint, and (2) plaintiff's complaint fails to state a claim for relief due to the discretionary nature of parole, we reverse.

{¶2} On February 15, 2007, plaintiff filed a verified complaint for declaratory judgment, injunctive relief, monetary damages and special damages against defendants. He requested a jury trial on his claims for damages.

{¶3} According to plaintiff's complaint, plaintiff was indicted in 1977 for one count of aggravated murder, three counts of murder, and one count of aggravated arson. In 1977, a three-judge panel convicted him of the aggravated murder of his brother Russell, the murder of his mother Susan and his other brother Brian, and aggravated arson; the panel of judges acquitted him of the murder of his father, Donald. Plaintiff was sentenced on April 10, 1978 to death for the aggravated murder conviction, 15 years to life for the two counts of murder, and 7 to 25 years on the aggravated arson charge. On December 20, 1978, the Medina County Court of Appeals, in response to the United States Supreme Court's opinion in Lockett v. Ohio (1978), 438 U.S. 586, modified plaintiff's death sentence to life in prison.

{¶4} Plaintiff's complaint asserts that, pursuant to R.C. 2967.13, his parole eligibility is set at 15 years to life. According to plaintiff's complaint, members of the OAPA nonetheless told plaintiff in a June 2, 1992 interview that "you got the break of your life when the Court of Appeals modified your Death Sentence" and that his sentence should be "Life without possibility of Parole." (Complaint, ¶10.) Plaintiff asserts "Defendants began to provide deliberate and intentional sham/meaningless parole eligibility to Plaintiff," continuing plaintiff's sentence for ten more years. (Complaint, ¶11.) When plaintiff was interviewed again on September 6, 2002, plaintiff alleges OAPA applied its new guidelines, modified his 15 year to life sentence to 300 months to life, and reassigned the next hearing to October 2007.

{¶5} Plaintiff asserts that defendants, in conducting themselves as set forth in plaintiff's complaint, have (1) unilaterally increased plaintiff's modified sentence of 15 years to life to life without parole through deliberate "sham" parole eligibility hearings, (2) deliberately and intentionally usurped judicial and legislative authority, violating the separation of powers doctrine and unilaterally modifying plaintiff's sentence, and (3) maliciously sought to obstruct and undermine the court's decision by modifying plaintiff's sentence to life without the possibility of parole.

{¶6} Relying on R.C. 2967.26 for educational or vocational furlough and R.C. 2967.27 for non-vocational furlough, plaintiff's complaint also alleges he is eligible to be considered for furlough and honor status, but defendants have denied plaintiff the right to furlough or honor status by refusing to consider his eligibility. In effect, plaintiff asserts, defendants are wrongfully using the override provisions of the Ohio Department of Rehabilitation and Correction's policy to repeal former R.C. 2967.26 and 2967.27.

{¶7} On March 30, 2007, defendants filed a motion to dismiss pursuant to Civ.R. 12(B)(6). Defendants initially asserted the case should be dismissed based on the doctrine of res judicata. According to defendants, plaintiff already litigated, through a complaint filed on September 16, 2004 in federal court alleging violations of the United States Constitution, the same issues he is attempting to litigate in the common pleas court under the Ohio Constitution. Defendants noted the federal district court granted defendants' motion to dismiss and the Sixth Circuit Court of Appeals affirmed the decision of the district court. Defendants asserted that, to the extent plaintiff's complaint raises claims not asserted in the federal court litigation, plaintiff could have raised them and res judicata thus bars those claims as well.

{¶8} Defendants next contended the complaint should be dismissed because plaintiff has no liberty interest in parole. In support, defendants noted plaintiff was granted several parole hearings but simply was denied relief based on severity of the crimes for which he was convicted. Finally, defendants maintained plaintiff's complaint for money damages was outside the jurisdiction of the common pleas court, as the court of claims has exclusive original jurisdiction over all civil actions against the state seeking money damages.

{¶9} Attached to defendants' motion to dismiss was a copy of plaintiff's complaint filed in the United States District Court for the Southern District of Ohio, along with an order of the federal district judge overruling plaintiff's objections to the magistrate's decision and entering judgment for defendants. Defendants also attached the slip decision of the United States Court of Appeals for the Sixth Circuit affirming the district court's decision.

{¶10} Although plaintiff filed his complaint pro se, he obtained counsel and, through counsel, responded to defendants' motion to dismiss. Plaintiff asserted that defendants' granting plaintiff a parole hearing, but employing a sentence not in accord with the court's sentence, demonstrated the viability of plaintiff's claim. As plaintiff stated, "Defendants, simply considered the crime, ignored his record, adjustment or psychological defense and treated the sentence as life without parole. This is contrary to the holding in Layne." (Memorandum Contra, 7.) Plaintiff further asserted that, apart from the arbitrariness of changing his sentence, defendants denied him a meaningful parole hearing pursuant to Ankrom v. Hageman, Franklin App. No. 04AP-984, 2005-Ohio-1546, at ¶1. Finally, plaintiff asserted that his right to furlough and honor status, including whether defendants could alter his right under the statute, presented a viable claim.

{ΒΆ11} As to defendants' claim of res judicata, plaintiff contended "[n]either Magistrate Abel, District Judge George Smith, nor the Sixth Circuit dealt with any of the State issues since they lacked jurisdiction." (Memorandum Contra, 5.)Moreover, plaintiff asserted, "the doctrine of collateral estoppel does not apply since the Federal Court cannot determine facts relating to State law claims. * * * All the Federal system could do was, as they did, find no violation of the Federal Constitution." Id. at 6. ...


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