Facts
The Ohio Parole Board has an unwritten policy or practice of refusing to allow people who are under parole consideration to have access to statements submitted to the parole board by victims or victims’ representatives (“victims’ statements”). Despite statutory authority giving the Department of Rehabilitation and Correction discretion to release such statements, the Department and the Parole Board uniformly keep them strictly secret. In many cases, these statements contain mistaken or false information that the Board might then rely on in denying parole. Without the opportunity to read the statements or be informed or their contents, people under consideration for parole have no meaningful opportunity to respond to or dispute statements that may doom their parole application.
Our clients were both impacted by this policy. Shawn Brust has served over 23 years of a 15 year-to-life sentence, and was found suitable for parole at an initial stage of the process in 2020, by a unanimous vote. After receipt of victims’ statements and a hearing, a majority of the parole board reversed itself and voted to deny him parole. Melissa Grasa has served over 25 years of a 20 year-to-life sentence. Similarly to Mr. Brust, she was initially found suitable, but the Board reversed itself and ultimately denied her parole. In Ms. Grasa’s case, the victim’s family conducted a petition opposition campaign and submitted unknown information to the board.
Legal Theory
The Ohio Supreme Court has held that although parole is discretionary and no one is entitled to it, having set up a parole system, the state has created a “minimal due process expectation,” by which it is obligated to provide “meaningful consideration” for parole. The Board’s policy of denying access to victim statements precludes meaningful consideration because it prevents individuals seeking parole from knowing about, rebutting, or responding to information that is being considered by the Board.
Status
On May 13, 2021 we filed this case in the Franklin County Court of Common Pleas on behalf of Plaintiffs Shawn Brust and Melissa Grasa, seeking a declaratory judgment finding the Parole Board’s procedure unlawful. Defendants filed a Motion to Dismiss on June 16, we opposed on June 30, and they filed their Reply on July 9. On July 12 we filed a Sur-Reply, correcting a factual inaccuracy in Defendants’ Reply brief regarding the contents of Plaintiff Grasa’s parole decision. On September 28, Defendants moved to consolidate this case with Wernert v. Ohio Parole Board. We did not oppose their motion. A pro se Motion to Intervene was filed by an Ohio inmate on September 16, which both parties opposed. On November 23, Defendants’ motion was granted, and this case was consolidated with Wernert.
On March 3, we filed a Motion to Intervene and Amend Complaint, adding Bobby A. Johnson and Vincent Price as Plaintiffs. Defendants opposed the Motion on March 17, and we filed a Reply on April 1, 2022. The Court held a virtual status conference on June 14.
On August 24, 2022, the Court entered an order granting the Defendants’ Motion to Dismiss.
On September 22, we filed a Notice of Appeal to the Tenth District, where we will argue that the trial court was wrong to dismiss this case on the merits. Although we had filed this appeal on a different calendar from Wernert, the two cases were consolidated by the court on its own initiative. On September 30, we filed a motion requesting the cases be de-consolidated. That motion was granted on October 3. We also asked for an extension to file our brief, which was granted.
We filed our appellant brief on December 19, 2022. On the same day, a group of non-profits with a due process interest, including the MacArthur Justice Center, filed an amicus brief in support of our clients. Defendant-Appellees requested a further extension to file their brief. Their brief was filed on March 10, and we filed our reply on March 20. Oral argument was held on August 22, 2023.
On October 4, Appellees filed a Notice of Supplemental Authority alerting this Court to a decision by the Ohio Supreme Court declining to take up an appeal in another case involving the availability of Parole Board records to prisoners eligible for parole. Subsequently, on October 6, the Court ordered simultaneous briefing on the impact, if any, of that ruling on this case. Briefs were submitted on October 16.
On November 14, the 10th District Court rendered a decision in Appellants’ favor, reversing the lower court's dismissal. It found that the Parole Board’s policy was not required by statute, and violated constitutional due process rights. Appellees did not file a notice of appeal to the Supreme Court of Ohio by the deadline of January 2, 2024. The case returned to the Franklin County Court of Common Pleas.
Defendants filed an Answer on March 13. A status conference on this case and Wernert was held that same day, establishing deadlines for each case.
The parties completed discovery, and on August 20 we filed a Motion for Summary Judgment. That same day, parties filed a joint scheduling motion. Defendants filed a response and Cross Motion for Summary Judgment on September 10. Briefing on both-motions for summary judgment was complete on October 17. We now await a decision.
