first case on our docket today january eighteenth two thousand and eleven is john the number seven builders walker case number one one zero two one  erred in affirming that dismissal but to strict erred because mr heller alleged the illinois prisoner review board changed the standard by which parole was granted in violation of the ex post facto clause these allegations must be taken as true the fourth district in cancer washington decided the exact same issue and correctly held that allegations that the board's change standards violate the ex post facto cla are sufficient to state a claim upon which relief can be granted mr cole is not seeking parole here he only requests the opportunity to prove his allegations mr hill alleges three things in his complaint first that the board's adoption of a new standard created a significant risk of increasing mr hill's punishment in violation of the ex post facto clause how does that increase the sentence or does it own art at this point we don't know if there the sentence is actually going to be increased however not affected and you would his sentence isn't a factor however the united states supreme court in lindsay v washington stated that there still can be a violation of the ex post facto clause even if the maximum and minimum sentences do not change mr hill second he argues that the statutory change in the timing of parole hearings created a significant risk of increasing his punishment also in violation of the ex post facto clause and finally mr hill argues that the board's unfair hearing procedure procedures violated the due process clause remember that although parole is discretionary a prisoner can state a claim although parole is discretionary prisoners do still have rights against ex post facto laws the united states against an ex post facto being applied to them united states supreme court in garner v jones stated that the presence of discretion does not displace the protections of the ex post facto clause so therefore even in a discretionary system a completely discretionary system there is still the danger that a legislature can disfavor certain persons after the fact and the united states supreme court held as such words the law here the constitution what is happening in this case that mr mr heller alleges in this case that the board was influenced by directives from governor top former governor thompson and former cook county state's attorney daily that what the board the directives are essentially creating an unwritten law that the legislature is not permitted to to do and they're still in violation of the ex post facto clause even if the law is not written down and that mr gansey did in gansey washington mr hill states that the board changed its standards to the standards it used under terminating parole and madison actually rejected prisoners convicted of serious offenses for parole and what the fourth district held against of you washington is that is sufficient to state a claim that mr gansey should be able to conduct discovery to prove his allegations and that is exactly what mr hill asks for in this case review garner distinguishes between two types of acts post facto claims related to parole claims that a state retroactively enact parole procedures that might have the effect of preventing or delaying the poor board from exercising any discretion and claims that the pro board changed the way it exercises discretion mr hill alleges here the the former that the pool board is the new standard is in  preventing the parole board from exercising discretion or delaying from exercising its discretion the fifth district mr mischaracterized mr hill's allegations there's allegations only alleging change and discretion but readi hill only asks the opportunity to conduct discovery in this case he has stated a claim as was held and as was holding in c v washington mr hill second mistrial second argument is that the statutory change in the timing between parole hearings from one year to three years affectively violated it caused a significant cause a significant risk of increasing his punishment in violation of the ex post facto clause mystery of sufficiently allege that this change created a significant risk of increasing his own punishment united states supreme court in law in california and determined that a statute that whether a statute changing the timing between parole hearings violates the ex post facto clause can be determined examining several ameliorating characteristics in the statue one of those characteristics that the morale is quite examined was whether the statute was broad in scope and determined because the statute only applied to a very narrow class  prisoners that that the statute would probably would not violate the ex post facto clause this court in fletcher bill williams based its decision on morality and determined that the statute at issue here did not violate the ex post facto clause based on several ameliorating characteristics in the statute however this court found that the scope of the statute in this case was not constitutionally determinative the fact in this case is that the scope applies to all illinois prisoners unlike in law alice where the statute only invite applied to a prisoner to a certain a narrow class of prisoners we ask this court today to re we consider fracture in light of a later united states supreme court decision and garner v jones and going to the jones the court held that the scope of the statute was actually an important factor in determining that although the prisoner was unlikely to prove that he that there was a significant risk of increased increased punishment the fact that the statute had such a broad scope was cause the court to remand the case to the eleventh circuit for further findings about whether the statue actually had it was causing a significant risk of increased punishment for the prisoner and we asked this court to do that today to to reconsider fle williams in light of garner v jones and consider the scope of the statute in in this case as it didn't consider in fletcher view williams process clause would like to stand on briefs at this time on that argument any further questions is guarded the key focus as far as the analysis in this case how to sort out the discretion issue and when garner didn't determine it garners determining a statutory change in in criteria the one year to three year so while grammar is instructive and does make a lot of statements about discretion in dicta it's not the key case to rely on because it's not actually it it's instructive but it is and the fact is a goner isn't determining a change in a standard one on written policy it's to terming an actual statutory change the case that should be examined very closely is can see the washington in that case the fourth district how that unwritten rule exactly what mr hill edges here it please the court counsel to me through mcpike assistant attorney general on behalf of lisa madigan attorney general of illinois representing the apple e's roger walker director of the department corrections and george mont chairman of the prisoner review board mr hill's argument that the nihil of parole violated ex post facto prohibitions fails because he failed to state a claim and he failed to state a claim because he did not allege a change in any law a law for ex post facto purposes means a binding regulation or a statute and under centuries of american jurisprudence that applies only to written laws as this court held in fletcher the purpose of the ex post facto prohibition is to prevent the legislature or punishing someone after the crime has been committed for an increase sentence and the second reason for the next was facto prohibition is to give fair  the meaning of a statute so that a person can rely on that statute and unless the statute is subsequently amended so subject to expose facto prohibitions and it is not he nevertheless we this court would not reach the issue because even assuming there had been a change mr hill could not show that he would be more likely to receive parole under the prior standard than under the current standard he committed to murders for hire and as the seventh circuit said in glasgow you can't even reach the constitutional issue until the prisoner can first show that he was more likely to get parole under the current standard than under the prior standard so for those reasons mr hill alleged no claim failed to state a claim as to his denial of parole violating expose facto seconds mr hill's argument that this court should reconsider fletcher fails in this court need not reconsider fletcher they argue that garner requires in each case an individual consideration of the prisoner's sentence and whether the change in the statute would be more likely to affect the prisoner sentence by giving him a longer sentence now garner the distinction between garner and this case and between garner and fletcher is that this court held in was convicted until his parole came up that section was changed to provide that the board could set the next hearing date up to three years in advance if it found that there was no likelihood that he was the prisoner is going to receive parole sooner than that so that was a statutory change however this court held in fletcher that considering the amelia neely rating  aspects of that statute and also considering the board's binding regulation which is section twenty illinois administrative code sixteen dash me dot one hundred that regulation is binding and that regulation provides that the prisoner may seek an earlier hearing if you can changed to searching circumstances now the difference between garner the illinois u s supreme court case and fletcher this court's case where it held that there is no significant ex post facto a fact is that in garner there was only a non binding policy statement by the georgia board that set a prisoner could seek reconsideration sooner in garner it was a change so the board could go eight years much longer without a hearing and it was only a written but non binding policy of the board in georgia that a prisoner grass for reconsideration so if you read the governor case the governor case says there's a fact question the actual change of law and garner was a binding regulation of the georgia board that change the length of time counsel for the appellant misspoke it was in the statute it was a regular regulation and governor and a non binding policy that said the prisoner could ask for reconsideration sooner under illinois law and the law at the time that this court decided as much or it's a binding change in statute section three three five  stop the hearing date three years in advance and a binding regulation and that's the distinction between illinois law and garner a binding regulation that says the prisoner can ask for reconsideration sooner so unlike garner where there is a fact weston is the board following its non binding policy that fact question had to be answered to be done to determine whether the change in law the binding regulation that it made a longer period of time that was a fact how is the change in the law operating is it actually in fact increasing the time that the prisoner may be the may be a significant risk that the prisoner sentences length there can be no fact question under illinois law because there is a binding regulation that says yes the prisoner can come back and ask for reconsideration sooner if he can show change circumstances so because it was so the fletcher decision said there can be really under this law no prisoner who can show a significant risk of their term ration being increased because there is a binding law here that says yes the board can increase the length of time between your hearing but you also have the right to come in and show a hearing  ask for a hearing sooner and governor that was a fact question could you in fact come in and ask for a hearing sooner or not doesn't and does the board follow its nonbinding policy in illinois the board would be violating its regulation and hence be violating the law if it refused to allow a prisoner to make a showing that he deserved an a scenario and then again even assuming that the court should reconsider fleischer which we do not believe it needs to do again here mr hill as i argued earlier could not make a showing that he's entitled to a senior hearing because he committed to murders for h this court's supreme court decision until or and in the seven circuits decision in walker vs personal review board those courts held that the length of the sentence and the seriousness of the offense are signals are sufficient is all you need under due process due process no longer applies but even when it did apply to parole all those are all you needed to show for the prisoner review board deny for all indefinitely so under the facts of this case the prisoner review board could not only deny parole indefinitely but could did not i assume the reconsideration sooner than three years indefinitely merely on the fact that a mere fraction but the significant fact that mr hill committed to murders for hire and was sentenced to an extremely long sentence so mr hill cannot make a showing and therefore fail to state  claim as to the ex post facto effect of something of excuse me of section three three five f of the criminal code and third mr hill's arguments that the board violated due process by considering is overturned the sentence and i is allegations that there was bias in the process  simple answer is under this course decision in hand her hand as confirmed by the seven circuits decision and heidelberg there's simply no due process right involved here and even if there were a d process right mr hill's allegations were mere speculation the prisoner review boards decision is in our appendix section of page five and six or  and it's very clear that the does sentence was only mentioned as the appellate court correctly held only mentioned in the introductory sentence of paragraph of their decision reciting the procedural history of the case the board clearly went through every aggravating and mitigating factor in considering his request for parole in two thousand and six and they very explicitly base their decision on the fact that the seriousness of mr hill's offense would result in depreciating the seriousness of his offense if parole were granted so under illinois statu could not grant parole if there are no further questions thank you and we request that the court affirmed the decision of the  like to just make a couple quick points in response to the pallies first argument police argue that the ex post facto clause does not apply it applies only to written laws however the fourth district's determination in gansey and the united states supreme court stated that the presence of discretion in a system can trigger the x post facto clause and that demonstrates that the x was practical it does not apply only to written laws and it can apply to secret or unwritten rules that have these same effect a written law second mr hell did sufficiently allege that he would be likely that there is a significant risk of increased punishment by this change standard the fact that mr hall was convicted this is  question of fact and mr heller although he was convicted of two of two murders there are several other indicators are there several other things in his record that could demonstrate that he was subject to a significant risk of increased punishment the fourth district mr gansey in gansey view washington was convicted of murder and attempted murder and that's very similar to what mr hill was convicted of in this case and that case mr gansey did show that there is  sufficient a sufficient risk of increase punishment a significant risk of increased punishment mr hill in has received numerous commendations from his employers within the department and several others that he's come in contact with he intervened in one nine hundred seventy five during a resident takeover and discouraged several residents from killing three other inmates he's got letters from the cook county department of corrections stating that he's a model inmate and actually recovered a pistol that had been smuggled in by other inmates mr hill has letters from the internal investigation unit commending him for volunteer time he spent remodelling a unit office and in the prison he's recognized several times for assistance in the health care unit he also trained the inmate popular he helped train the tac to tactical unit at state fell and he has several letters from people stating that he has been rehabilitated and and he also has parole plans he has plans and has plans for parole that are good that show that he can be useful on the outside and at the end of the day these are all discretionary things that the board should take into account however mr hill sufficiently alleged that that that just because he was convicted of two murders there are other things in the record that show that he could be subject to a significant risk of increased punishment by this