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Illinois Governor’s Failure to Act on Clemency Petitions Not Actionable
In March 2008, U.S. District Judge Joan B. Gottschal held that persons seeking executive clemency in Illinois have a protected liberty interest in having their petitions decided within a reasonable time by the governor. However, that ruling was reversed by the Seventh Circuit Court of Appeals just over a year later, in April 2009.
Stephanie Bowens and other individuals sought executive clemency under the Illinois Constitution, Illinois Compiled Statutes (Ill.Comp.Stat.) and Illinois Administrative Code from then-Governor Rod Blagojevich. After Blagojevich failed to take action on their clemency petitions following recommendations from the Illinois Prisoner Review Board, Bowens and eight other clemency applicants filed suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, seeking an injunction requiring the governor to make a decision on their petitions, for good or bad, within a reasonable period of time.
Bowens and the other plaintiffs alleged a protected liberty interest under the due process clause in receiving such a decision, based on the mandatory language of 730 Ill.Comp.Stat. § 5/3-3-13(d) – which provides that “[t]he Governor shall decide each application” for clemency. Blagojevich moved to dismiss the suit for failure to state a claim.
Before a state-created liberty interest may be recognized under a theory of procedural due process, two prerequisites must be met: (1) the statute or regulation at issue must employ “language of an unmistakably mandatory character, requiring that certain procedures ‘shall’, ‘will’ or ‘must’ be employed,” and (2) the statute must “contain substantive standards or criteria for decision-making as opposed to vague standards that leave the decision-maker with unfettered discretion.”
Applying these standards to the plaintiffs’ claim, the district court found that § 5/3-3-13 created a liberty interest protected by the due process clause based on the statute’s unambiguous requirement that “some decision shall be made.” And while § 5/3-3-13 does not specify a time period in which the governor must make a decision, the necessary implication of the statute’s imperative language, the court held, “is that the decision be made within a reasonable period of time.”
Accordingly, the district court denied Blagojevich’s motion to dismiss. See: Bowens v. Blagojevich, 2008 U.S. Dist. LEXIS 21383 (N.D. Ill. 2008).
The state filed an interlocutory appeal, and the Seventh Circuit reversed on April 2, 2009. The appellate court noted that during the pendency of the case, Blagojevich had granted one of the plaintiff’s requests for clemency and had denied the petitions of the other eight. The plaintiffs had filed an amended complaint to add three more individuals whose petitions for clemency had not yet been decided by the governor. The Court of Appeals found the case was not moot as to the original plaintiffs whose petitions were denied, as their claim was “capable of repetition ... yet evading review.”
The appellate court then held that “[t]here is no Fourteenth Amendment property or liberty interest in obtaining a par-don in Illinois – no substantive entitlement, in other words – and so no ground for a claim of denial of due process.”
The Court further stated that it did “not even think that the Illinois statute creates a requirement of prompt, or indeed of any, action by the governor on a clemency petition. The statute merely describes steps in the sequence of procedures in clemency matters.” As for determining a “reasonable” time for deciding clemency petitions, the Seventh Circuit stated it had “no idea what a ‘reasonable’ time for deciding a clemency petition would be,” noting that it would depend on the number of petitions filed, which would “vary from year to year.” The appellate court also questioned what sanctions could be imposed on the governor for failing to decide petitions in a timely manner.
The Court of Appeals concluded that executive clemency “is a classic example of unreviewable executive discretion,” and reversed the district court with instructions to dismiss the case with prejudice. See: Bowens v. Quinn, 561 F.3d 671 (7th Cir. 2009).
Stephanie Bowens and other individuals sought executive clemency under the Illinois Constitution, Illinois Compiled Statutes (Ill.Comp.Stat.) and Illinois Administrative Code from then-Governor Rod Blagojevich. After Blagojevich failed to take action on their clemency petitions following recommendations from the Illinois Prisoner Review Board, Bowens and eight other clemency applicants filed suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, seeking an injunction requiring the governor to make a decision on their petitions, for good or bad, within a reasonable period of time.
Bowens and the other plaintiffs alleged a protected liberty interest under the due process clause in receiving such a decision, based on the mandatory language of 730 Ill.Comp.Stat. § 5/3-3-13(d) – which provides that “[t]he Governor shall decide each application” for clemency. Blagojevich moved to dismiss the suit for failure to state a claim.
Before a state-created liberty interest may be recognized under a theory of procedural due process, two prerequisites must be met: (1) the statute or regulation at issue must employ “language of an unmistakably mandatory character, requiring that certain procedures ‘shall’, ‘will’ or ‘must’ be employed,” and (2) the statute must “contain substantive standards or criteria for decision-making as opposed to vague standards that leave the decision-maker with unfettered discretion.”
Applying these standards to the plaintiffs’ claim, the district court found that § 5/3-3-13 created a liberty interest protected by the due process clause based on the statute’s unambiguous requirement that “some decision shall be made.” And while § 5/3-3-13 does not specify a time period in which the governor must make a decision, the necessary implication of the statute’s imperative language, the court held, “is that the decision be made within a reasonable period of time.”
Accordingly, the district court denied Blagojevich’s motion to dismiss. See: Bowens v. Blagojevich, 2008 U.S. Dist. LEXIS 21383 (N.D. Ill. 2008).
The state filed an interlocutory appeal, and the Seventh Circuit reversed on April 2, 2009. The appellate court noted that during the pendency of the case, Blagojevich had granted one of the plaintiff’s requests for clemency and had denied the petitions of the other eight. The plaintiffs had filed an amended complaint to add three more individuals whose petitions for clemency had not yet been decided by the governor. The Court of Appeals found the case was not moot as to the original plaintiffs whose petitions were denied, as their claim was “capable of repetition ... yet evading review.”
The appellate court then held that “[t]here is no Fourteenth Amendment property or liberty interest in obtaining a par-don in Illinois – no substantive entitlement, in other words – and so no ground for a claim of denial of due process.”
The Court further stated that it did “not even think that the Illinois statute creates a requirement of prompt, or indeed of any, action by the governor on a clemency petition. The statute merely describes steps in the sequence of procedures in clemency matters.” As for determining a “reasonable” time for deciding clemency petitions, the Seventh Circuit stated it had “no idea what a ‘reasonable’ time for deciding a clemency petition would be,” noting that it would depend on the number of petitions filed, which would “vary from year to year.” The appellate court also questioned what sanctions could be imposed on the governor for failing to decide petitions in a timely manner.
The Court of Appeals concluded that executive clemency “is a classic example of unreviewable executive discretion,” and reversed the district court with instructions to dismiss the case with prejudice. See: Bowens v. Quinn, 561 F.3d 671 (7th Cir. 2009).
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Related legal case
Bowens v. Quinn
| Cite | 561 F.3d 671 (7th Cir. 2009) |
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