(dissenting).
We do not have before us an instance of a prisoner claiming he is entitled to parole. Having been granted parole, the prisoner is claiming that he is entitled to a hearing, because of its rescission.
SDCL 24-15-1.1 is a state law, cited by the majority. Said statute expresses that an application for parole cannot establish a constitutionally protected liberty, property or due process interest. Parole is grace bestowed upon a prisoner because of his good conduct. Statutes should not try to express what is and what is not constitutional. See, Vellinga v. Vellinga, 442 N.W.2d 472, 475-77 (S.D.1989) (Henderson, J., dissenting), for dissertation on constitutional powers of the respective branches and historical background thereof. Therefore, the last paragraph of the statute is in absolute violation of Art. II of the South Dakota Constitution which prescribes DIVISION OF THE POWERS OF GOVERNMENT; said last paragraph also violates Art. V, § 1 and § 5 of the South Dakota Constitution. Only the courts can say what is and what is not constitutional. The legislature cannot. Our state legislature has a penchant for assuming the role of the courts of this state and has sought, in the past, to nullify this Court’s powers. My most recent expression on this ideological phenomenon may be found in Finck v. City of Tea, 443 N.W.2d 632, 636-637 (S.D.1989) (Henderson, J., specially concurring).
But SDCL 24-15-1.1 is simply not applicable for another reason. Winters is not using the Great Writ of Liberty to obtain parole. He is screaming to the high heavens that he was granted parole and that it was then taken away from him without due process, to wit: No right to cross-examine witnesses; no right to call witnesses on his behalf; no right to present documentary evidence; and no right to be represented by counsel.1
Essentially, we face a broader issue than the majority would have us believe. We have before us this issue: As an incarcerated prisoner, has he been deprived of basic constitutional rights, having been granted parole and deprived of the aforementioned rights? I would hold that he has. Satter *726v. Solem, 422 N.W.2d 425 (S.D.1988); Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964).
Due process for parolees, suspected of having violated the terms and conditions of parole, is conceivably guaranteed by SDCL 24-15-23.2 Having granted Winters a parole, his statutory and constitutional rights were triggered. Under my thesis, the majority errs when it attempts to apply a statute and law upon a wrong academic basis, i.e., Winters is now applying for parole. The point is: He was granted parole on March 24, 1988 to the state of Kentucky.
I have absolutely no quarrel with Green-holtz or Dace, cited in the majority opinion. We have a different set of facts before us. Moreover, by reading the dicta of the majority decision, I draw a conclusion that prisoners in our state penitentiary have virtually no protected liberty rights at all. And I would hazard that this is wrong, if not medieval. Prisoners they are, but they are not wholly stripped of their constitutional protections when imprisoned for a crime. They retain a variety of important rights that the courts must be alert to protect. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Hypothetically, let us suppose that a guard or a penitentiary official has an antipathy so great against an inmate that total hearsay and prevarication estops parole implementation. Is it right that a prisoner granted parole would then have his parole rescinded or revoked before he left the institution based upon hostility and prevarication? Procedural due process is a friend of the masses and should be used to prevent administrative tyranny. These are my words but they compare favorably with the spiritual holding of In re Prewitt, 8 Cal.3d 470,105 Cal.Rptr. 318, 503 P.2d 1326 (1972).
I have always believed that the right to be heard is a fundamental right of every American citizen. To that belief, I must remain true. My conviction, in this factual scenario, is shared by three respectable authorities: Green v. McCall, 822 F.2d 284 (2nd Cir.1987); Christopher v. U.S. Board of Parole, 589 F.2d 924 (7th Cir.1978); and Robinson v. Benson, 570 F.2d 920 (10th Cir.1978). These cases essentially hold that inmates who have been granted parole, and who are waiting release, are entitled to due process before their parole can be rescinded. However, I must note that these three cases fall within the ambit of the federal habeas corpus regulations. These cases have not been overruled, modified or reversed. It strikes me that liberty is liberty; and that a deprivation of liberty via a parole rescission through constitutional transgression, and a deprivation of liberty in a parole revocation is, qualitatively, the same. I cannot, therefore, in good conscience, accept the holding and dicta of the majority opinion.
For dissertation on the inculcation of the Judeo-Christian ethic, as it relates to family life, see Matter ofS.L., 419 N.W.2d 689, 694-98 (S.D.1988) (Henderson, J., dissenting); for its historical influence on the formulation of the Declaration of Independence and the U.S. Constitution, see the same dissent, infra.
Deeply imbedded within the American law is the right to confront your accuser. Whence did this spring? I refer to Acts of the Apostles, twenty-fifth chapter, eleventh verse and also the sixteenth verse. Of course, I refer to Holy Scripture and the accusations against St. Paul, then Paul of Tarsus. Paul was brought before Festus, a Roman governor. Paul was accused of serious charges but steadfastly maintained that he should not be severely punished unless the charges were proven. Later, he was brought before King Agrippa (thirteenth verse of chapter twenty-five) whereupon due process was immortalized. Fes-tus laid Paul’s case before King Agrippa expressing, inter alia, in verse sixteen: “But I told them that Romans are not accustomed to give any man up before the *727accused has met his accusers face to face and has been given a chance to defend himself against the charges.”3 Later, we find in verse 27 wherein the Roman governor expressed: “For it seems to me unreasonable to send a prisoner without stating, the charges against him.”
In my quest for justice, in my hope to shelter those whose liberties are unfairly withheld, in my enduring faith in the great writ of liberty, I would reverse the habeas corpus court and remand this case so that this prisoner could face his accuser and have an opportunity reply to these “Star Chamber” charges. For, in the end, isn’t justice really about fairness?
. Institution Parole Agent Timothy Cortan filed a report with the Parole Board; he was permitted to testify, also, before the Board; Winters was never permitted to confront his accuser or to refute any of the allegations against him. The Board unilaterally "rescinded” (this word was used by the Board, see Settled Record p. 8-9) his parole on May 2, 1988; and "Order and Findings of Fact and Conclusions on Parole Rescission” was the written caption (ex-parte) sealing his legal fate. Exhibits 1 and 2, granting him parole, are appended hereby.
. It is also obviously guaranteed by South Dakota Constitution Art. VI, § 2, which provides, inter alia: “No person shall be deprived of life, liberty or property without due process of law." (emphasis supplied mine).
. Where was "due process", in the United States Constitution, born? From whence did it originally evolve?