Opinion
No. 89-712
Submitted August 29, 1989 —
Decided November 15, 1989.
Mandamus to compel parole hearing — Writ denied when declaratory judgment action is proper remedy in determining constitutionality or constitutional application of parole guidelines.
APPEAL from the Court of Appeals for Franklin County, No. 88AP-492.
Appellant, James Adkins, an inmate at the Chillicothe Correctional Institute, filed a complaint for a writ of mandamus in the Court of Appeals for Franklin County. Appellant contended that he was convicted of a felony and received an indeterminate sentence of two to ten years; that he was paroled in 1981 and reincarcerated for a parole violation in 1984; and that he had been considered for parole on subsequent occasions, most recently in November 1987, when the Adult Parole Authority "applied the new ohio [ sic] parole guidelines * * *, and pursuant to such guidelines, relator's case was continued for eighteen months." Appellant contended that the guidelines violated his constitutional rights to due process and equal protection of the laws, and that the guidelines' use by the authority was therefore an abuse of discretion. He requested the court to compel the authority to grant him a new parole hearing under constitutional guidelines.
Appellee, Chairman of the Adult Parole Authority, filed a motion to dismiss for failure to state a claim on which relief can be granted under Civ. R. 12(B)(6), alleging that appellant could show neither clear legal right to relief sought nor a clear legal duty of appellee to grant him that relief. The court of appeals granted the motion to dismiss, upholding the decision of its referee who concluded that appellant could prove no set of facts entitling him to relief in mandamus.
The cause is before the court upon an appeal as a matter of right.
James Adkins, pro se. Anthony J. Celebrezze, Jr., attorney general, and Allen P. Adler, for appellee.
We agree with the court of appeals that appellant can establish no clear right to relief requested nor any clear duty of appellee to provide that relief. Since the issue was considered on a motion to dismiss under Civ. R. 12(B)(6), we necessarily construe the facts in appellant's complaint as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. Therefore, appellee concedes using the guidelines to review appellant's case, but does not concede that the guidelines are unconstitutional or an abuse of discretion, since legal conclusions are not admitted by a motion to dismiss. Id. at 193, 532 N.E.2d at 756.
In State, ex rel. Blake, v. Shoemaker (1983), 4 Ohio St.3d 42, 4 OBR 86, 446 N.E.2d 169, we held that R.C. 2967.03, the parole statute, provides no expectancy of parole. Therefore, at most, appellant could have proved that the guidelines were unconstitutional or unconstitutionally applied, but such a showing would not have entitled him to a rehearing at any specific time or under any specific guidelines. Moreover, we hold that declaratory judgment is an adequate remedy at law in this case, as it would have afforded a complete remedy in determining the constitutionality or constitutional application of the guidelines. See State, ex rel. Fenske, v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525, paragraph two of the syllabus.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.