cornell cars one one seven one five five john accord reversi on my prisoner review board really see prison people for poverty in this case after twenty one years in prison johnny cordray was said to be released from the maximum security prison in menard at that time under illinois law he was to begin serving a three year process of mandatory supervised release m s r also known as parole now parole comes with certain conditions in this case for mr cordra like other sex offenders that meant suitable housing where he could be electronically monitored and also receive their a p for anger management and as a sex offender these three years were to be a crucial bridge of rehabilitation in transition from life in prison the life outside of prison and this bridge of rehabilitation and transition is not only important to the inmate it's important to society it is the means by which we encourage and support a prisoner to reenter society as a law abiding citizen now in this case the state did not have adequate or sufficient housing for mr cordray as it does does not for most sex and because mr cordray was indigent and did not have the funds for one of housing of his own before he ever stepped foot out of prison he was deemed to have violated his parole and set back to the same maximum security prison not because of anything that he did but because he was too poor to have a place to live i have two questions first of all do we really have difference if the defendant had assets but was unable to find a place to live and was in was really cursory with this not apply them to him that's correct if if if you had if you had a a prisoner  who for reasons outside the village she was unable to find a place that would be a different issue our focus here is really stems from morsi and bearden that that is that if  ns are placed upon parole they can only be satisfied based upon what you have in your bank account and cannot be satisfied based upon what someone may not have in their because he was a sex offender is it only because he was a sex offender and indigent or did they treat other prisoners for other crimes the same way today of housing for other offenders that are not sex offenders and are they returned that the general principle would apply to anyone who cannot of who has a condition of housing placed upon their on their property but in answer to the question your honor the the housing for sex offenders is far more limited than it is for those who are not so in this case the reason given for his violations of his feet was that he did not have suitable housing and the reason he did remedy because it isn't in the midst ministerial act on the list and there's discussion with this particular decision of where to send him well in this case what we are asking for  declares that this is violating at the door procedure is unconstitutional and we're not suggesting for a moment at this court has to define the particulars of how to correct that procedure make it constitutional we're just in this classic is the classic mandamus is to mandate the obedience to the law and in this case it would be obey have a procedure test right that's correct ok and the you indicate that the issue here presents a question of law right and whether the practice of violating at the denies those offenders and guarantees of due process and equal protection that's basically or argument right that's correct ok but now to chief justice kerman we have no information concerning how many  years and it has affected prisoners throughout the state of illinois in the hundreds and we don't have an exact number but we do know that it's a widespread practice that's how the federal court chicago's able to there's a legitimate legislative purpose for the practice of violation of the door in front of history and yes you do have a you have this is that there is there is no rational basis given here other condition of his role so it's when you're denying a prisoner role before he ever walks out of prison and the only reason given is lack of suitable housing and it's undisputed that he's indigent if there is no suitable host location now we do that can do in the function of the yes yes i think you can make that work for a situation but in terms of the overall relief and in as we've mentioned he's his potential release date now or a release date is that october october fourteenth what the court's function is to declare the law and declare that this practice unconstitutional and having done that and it's really up to the experts in corrections that is the prison review board or the department of corrections to correct this unconstitutional practice and they will then need to do what they say they did was experts and bigger out how do we make this how do we make our whole system in a way that is not violate the rights of indigenous but that you know that gets back to whether it's proper mandamus right i mean under what you're saying typically we see a declaration from a lower court  unconstitutional and then we would be determining the constitutionality here we're being asked to mandate something greg in this is that this is a more unusual original jurisdiction case and you know the state is argued i don't know how fair it is for us to take it and then ask you how can we granted but i hear yes but maybe i should do this how can we take th jurisdiction here and the reason is the state is argued that well the circuit court could have taken this up and i agree the circuit court could have taken this up but the mere fact of the circuit court could have doesn't mean that th cannot because original jurisdiction or this court is independent and separate from the jurisdiction of the circuit court and when there is no dispute by the state that this practice has been ongoing and is widespread and i don't know that anybody can really the nih that is it is affected hundreds of prisoners hundreds of prisoners have lost the role were nothing more for no more reason than they have been indigent and not ha the role to that in that case those basic facts are not going to change if this was taken up in the circuit court the only thing that would happen if this was taken up in a circuit court would mean years more litigation the basic facts are not going to change that this is a widespread practice that's not disputed by the state and we're going to have hundreds more prisoners lose parole lose this critical three years of rehabilitation and transition that will all be lost to hundreds more as this would wind its way through a circuit court over the next who knows how many years one of the concerns of think we all have is him we we said he must be released we're going to go well that's i might suggest that if this case were coming through the court system that answer could be to develop but i think we're here today where we go this afternoon we in and it's no different then it's no different from when we mandate that indigence have to have counsel or that certain other constitutional provisions have to be but here to this is it's never been an excuse that lack of funds by the state is an invitation to violate the constitution and that goes back issues from prison overcrowding or or whatever i mean that's that's here is that the mere fact that this might cost more money that's that's not a reason to violate the constitution so so hadn't the question just styles so it's more than these these prisoners have served their time and they should get the the bridge of rehabilitation and transition in suitable housing rather than being put back in a maximum security prison  that's that's the essence of what we're talking about and to deny them that opportunity and to deny hundreds of that because they they can't afford a place to crawl to that goes back to  one of the most fundamental propositions when we look at the supreme court's landmark case and morsi there the supreme court's warsi decision it establishes that her role differs from prison in important ways it is a liberty interest it's a liberty interest its condition is in this case on suitable housing or other conditions is limited but it's a liberty liberty interest and it's a liberty interest that is protected by due process and then the supreme court in the building case teaches us that the poll place conditions on parole they can be satisfied based upon what someone has in their bank account and that cannot be satisfied by someone who is indigent that violates due process and that's the essence of this case here and there's no need for factual development of those basic facts those basic facts will not change if this goes back to  said we're not asking this court to do anything more then declare that this practice as applied to indigent prisoners is unconstitutional and it's up to the state to figure out the the the adams decision by the alabama court of appeals is a is a is a good in is a good parallel to what we're requesting here and in that case the state of alabama had a statute which says sa almost people could not have parole less they had an address so of course they the average homeless person  lost parole because they do not have an address and they the alabama court of appeals found that in analyzing the morsi and beard of mind of cases that this was unconstitutional violation of equal protection we're talking about due process but i think the the the ideas converge so they declare that to be unconstitutional they did not tell the state of alabama how to implement that but they they did what a court does is judicial function declare the law and that's that's the essence of what we're talking about here but not you or i take and based on your argument on the idea that this perot period is to bridge the gap and to help individuals we're not arguing that the law is not rational requiring parole and requiring a whole marwa requiring monitoring and all of that your and you're asking for something else you're saying the law is rational but we have to order the state and paid isn't that what you're doing exactly just as kind of we're not saying for a moment that the law itself is unconstitutional but there you go on its face we're saying as it has been applied as it has been applied to indigenous if i allays fundamental principles of due process is the supreme court has announced in morsi bearden illustration elec alabama court of appeals that's what we're saying we're  in the remaining time that i was in an action filed in the circuit court in this particular there's no you know justice thomas this came up through a handwritten petition to this court and so  and the attorney general then responded and made some of the same arguments about there being fact issues that the court and appointed me and it proceeded then his original action it is your request that if if we disagree with your circuit that that we'd be allowed to do that that's not part of our request here where we believe that as i said going back to the circuit court i'm just saying if we don't believe  if we if we go the other way if you have an opportunity to file something in the circuit court or not well at that point my client mr cordray will have been released from menard by october fourteen he will have none of the benefit he will have he will have service this crucial time of rehabilitation and transition he will never have the the therapy he will have never had any of the transitional treatment that's not only thousand and thirteen he has simply been hopes you know in effect that this this m s r has been in a maximum security cell and and it really defeats the entire purpose of this rehabilitation and he rehabilitation and bridge but it's a violation of due process we do not incarcerate people were poverty thank you  indigent that is a superficial mis characterization of the actual facts of the process that goes on generally and of this case and is far too vague to grant the kind of cada of the murdoch ways is that there was an adequate representation in behalf of the client that question which may be raised certainly in a defense to raise you to cut a claim when there's been a final judgment and  ephedra case that has been litigated as a class first had been certified pursuant to federal rule of civil procedure twenty three b that is if back issue that requires factual exploration the adequacy of the representation  there's no reason to come straight here without the benefit of factual development the benefit of discovery and a benefit of working out a remedial plan if that is what it is necessary s as your honour's indicated factual issues predominate original mandamus actions before this court or only to resolve issues of law they are not to resolve stoli the legal question of the legal authority of the prisoner review board to impose electronic monitoring as a condition of mandatory supervisory these for non sex offenders that is simply a question of statutory construction that type of here legal issue may be something that could be the subject of an original mandamus action before this court that is a far cry from the issues here here we have require an analysis of the nature of corby's rights as well as the reasonableness of the state's conduct there is a rational basis terminations that needs to be take place and if you play every page thirteen court he claims that the only with that would be an approved post site and that probably happens and that probably happens a lot we don't know because we don't have the facts and we haven't been able to find those facts but that probably happened additionally there are people there are sex offenders who are not indigent who nonetheless do not have a suitable host site or there might be again those are facts we don't know but when you're trying to state a claim for equal protection that certain classes are being treated differently we should have some kind of special development as to what those classes actually are what is the composition of those classes additional additionally we don't know what steps toward truck to find a home so there's no dispute or well there wouldn't be any dispute if we had any factual development but we don't but there should be no dispute about the fact that when somebody is about to be released on parole they need to come up with a parole plan that they show that a partner for options as to how they're going to comply there are the requirements that the prison review board has imposed on them for their mandatory supervised he stated earlier that no one is  you can disregard that statement if you disregard every statement they make that people who are poor have been denied i myself my statement is equally as of record simply says that he was doing i because he did not have an approved oversight to which deal see the profession's is legally obligated only to release him when he does have an approved site and we don't know what the problem suitable how does he how does he go about getting housing and you see the answer to your question is not a record because we have no factual development have discovering so why should they have any any play in this should be any kind of a consideration in reality saying you know services do they not get help that how to make a plan when they do exit  should have had in prison that is true and as a matter if you process equal protection that's relevant that's a very good question it should be addressed to the legislature but that is not just simply does not impact the constitutional inquiry but is that part of the discretionary decision of the review board because this is a bit of mandamus and a bit of mandamus can only live when it's at the non discretionary order some of it is in terms of what conditions of them as are but the prisoner review board is free to impose other conditions including for instance for some sex offenders electronic monitoring for some sex offenders it is required as a condition of them a and so yes you are right that there is absolutely an element of discretion in all in determining determining what what what what are the requirements for and i start and in this particular case it was a matter of discretion of the prisoner review board to impose the electronic monitoring requirement again making it not not suitable for for for many of the other facts that we do not know that murdoch a lot that is a definite case in point that that's what development of the specific issues is important to the resolution corby argues or counsel argues today that state versus of what the circumstances were that is how the court was able to make a constitutional claim and to come up with a remedy a remedial scheme the actual development that included court read against defendants think lewd apartment defendants and originally prison review board defendants to final judgment in the federal court order certainly argues that there was inadequate class representation which is a fact question but he bases it on a fifth circuit case and he bases his decision so we on the fact that there was a just note there was a decision made by class counsel there not to appeal the district court's judgment but the eleventh circuit in two thousand and twelve and a case called jurist versus intimate court at sixty five f third at thirteen twenty seven specific week distinguished ones alison said the fact of a failure to appeal in the abstract does not create in adequacy of class finding inadequacy there was the fact that there was an apparent conflict because the named plaintiff took the better deal for himself at the expense of all the other team players there's no such conflict issues here similar to before you get started you know some very good things to talk about i mean the fact that going back to prison he wouldn't get the type of treatment he would get if he was out  a thing we're always faced with and the thing that i personally i'm grappling with and i think the court is is every decision we make we have to make sure it doesn't do violence to her law in the area very specifically here i want to read you a quote from meghan versus nighter and then ask your question it said men damus is an extraordinary remedy traditionally used to compel a public official to perform a ministerial duty generally the writ of mandamus will be awarded only if a establishes a clear right to relief a clear duty of the public official to act in a clear authority in the public official to comply with the writ there also must be no other adequate remedy however this court will consider a petition for a presents a novel issue that is of crucial importance to the administration of justice even when all the normal requirements for the ritz award are not met initial ok that's from the case even if this case this is a question even if this case presents a novel issue that is of crucial importance to the administration of justice how can we decide the case on the record before us you can just hear just you can't follow the established mandamus law in this case by claiming that the procedure of violating at the door is unconstitutional and that that is a mandate to the executive branch to follow the constitution when applying roll revocation you know that this is the remedy how can we what facts would allow us to do  likeness first remark here was no one's ever been denied parole because of indigency well that would be news to hundreds of prisoners throughout the state of illinois over the last ten years because why are they being denied they're being denied because ot and this is almost a stock statement in these violation reports in this record raise and it's in and it's in probably hundreds others lack of it adequate housing well why and why does it why does an indigent person not have adequate housing because he's too and besides the the concept of due process as it relates to indigence is never put that kind of a burden on the indigent when we appoint counsel for indigence we don't require the couple the indigent to come up and say  you have any friends or relatives who would lend you money so you can afford counsel in the same principle applies here is that that is this is what we know in the record this is a widespread practice it affects hundreds and it is done because there's lack of suitable housing and when it's and when a person does not have funds or that adequate housing they are denied the the bridge that is so crucial not only for them but for society that in another cell that's the novel situation and that's that's a sufficient basis here and this notion of that you have to go back to the circuit court to develop more records more facts i've yet to hear anything from the state about you know what what are these facts what are you going to you're not going to if you haven't denied that this is widespread you haven't denied that is a fact hundreds haven't denied that people are being denied because of lack of housing him deny that that the vast majority who are the night are are indigent what more would have a circuit court proceeding do other than prolong this for years and what it means is that hundreds more are going to lose parole because they're indigent that's what that's what happens when this goes back to the circuit court is there there isn't any legislative legitimate legislative purpose to requiring that there be adequate housing there's every as we as we do or is still basis as the no absolutely just is not there is absolutely there is there is a rational basis like all of these cases like in britain there's a rational basis to impose a fine but in bearden the court said if you make a fine a conditional of probation or parole and that some can afford it and some cannot that's a violation of due process so even though the concept of a fine or in this case adequate housing is rational if it is denied to those who are too poor to meet that condition for parole and those who have money in the bank can satisfy it that's a denial of due process and that's what we're asking the court to declare here that this practice as it is applied indigence is unconstitutional and that's up to the executive branch to correct that in a way doesn't even mentions the illinois due process claim we have brought this under both illinois and federal could not have been brought in the federal court of chicago in chicago under the eleventh amendment that's the pen hearst case that's that's basic law you cannot bring a state claim in a federal court under the eleventh amendment period and because of that and that's not we weren't even and that was not even addressed his remarks of due process and there are special scrutiny when you tell and an absent class member you're going to be bound by some haste you know you don't even know about you have to show that there's adequate representation and so when there was no appeal as the case pointed out that in and of itself is an adequate representation and second and this gets lost sight of murdoch was completely about procedural due process he had nothing to do with substantive due process and the right  are simply different issues there's no question there's little question that they didn't appeal in murdoch and overall when we have an illinois due process that could not have been run in the federal court was the offering judge and bearded and she brought all of these cases about imprisoning people for poverty you know and i synthesis and she says something just like that just as how was she says that the analysis of due process and determination that there's equal protection violations well i would i would come back to this i would i would equal protection to the side i would that would go back to if there's any constitutional violation it's due process and that's that's the essence of but it is is it's fundamentally contrary to due process to put conditions on parole that some can afford and those who are indigent cannot afford that that is the fundamental violation of due process here so you don't really have to even the equal protection is really sort of a secondary argument i think beard is that the case that brings that all together and says this is due process and we don't imprison people because of poverty and that's really what's what's happening here she replies i see your time is expired but i have one additional question on typically we do not reach constitutional issues if there's any other way to decide a case this seems an unusual case in that you are not asking us to hold any statute or any prove anything is unconstitutional other than of the prisoner review board  it is that correct that's correct your honor this is not it a facial challenge to the statute in any way what we're what we're seeking here is it's an as applied challenge to this practice which no one disputes well there's no dispute that he is he is indigent there's no dispute that he was before he walked out of prison he was violated because he had no suitable housing and there's no dispute that this is a this is a practice that's gone on for ten years we can only we can look at it countless cases where this is come up so that to answer your question this is an as applied challenge the essence of which is or we thank you for your arguments one you're excuse