*1
al
Company
Automobile Insurance
v. Bo-
No chosen matter interpreted must so as to insurers be required by reach the result the statute. Any would mandate a con- exclusion which May- v. void. See Jenkins
trary
result
Exchange, Insurance
flower
HOLOHAN, C.J., dissents. vexing prob- to this explicitly er insurance" clauses. As 2. The statute does cover situations lem, Bogart, supra. primary one Farm there be more than see State which carrier, conflicting equal or “oth- or excess *2 parole applications. granted pur-
P.2d 906 Review was 17A Ariz.R.Civ.App.Proc., suant to Rule case, Seniceros, is be- The second A.R.S. challenging Action denial by Special fore us Rule parole by the Board of Pardons. Actions, Special Rules of Procedure 17A A.R.S.
FACTS undisputed. cases are
The facts both case, Eugene Cooper, Wesley In first Lehman, Rasmussen, Ray- William they denied mond Allen1 claim “statutory outside the criteri- for reasons on” that an will not remain the law. A.R.S. complaint, they request- In 31-412. declaratory judgment, injunction and ed a Also, they filed a claim under mandamus. 1983, alleging a violation of 42 U.S.C. § to re- process by due the Board’s failure law, as mandated lease the inmates requested that the court allow further proceed as a class action. action to rejected all these claims and trial court by summary ruled in favor of the Board appealed only on judgment. The inmates the Board had failed the issue of whether set forth apply “statutory criterion” Corbin, Atty. K. Aileen Robert Gen. Manuel Danato Senice- in A.R.S. 31-412. Slasor, Gen., Attys. A. Lee and Susan Asst. claim based on ros makes a similar Phoenix, defendants/appellees. Appeals ruling Cooper. Court of Ma- Eugene Cooper, Raymond Allen and at the plaintiffs All are or were inmates Seniceros, pro. per. nuel Danato Wesley Rasmussen Arizona State Prison. released from appears to have been HAYS, Justice. of William facility and the status Florence from the record before for de- Lehman is.unclear We have consolidated these cases except Rasmussen issues us.2 All inmates they present cision since the same the. Code” offenders. and Seniceros are “Old concerning of Board of Pardons record that Rasmussen (“Board”) alleged In It is in the decisions. the first Parole oc- an offense which case, Appeals sentenced for Cooper, the Arizona Court of Code). (New 1, 1978 relief curred after October the trial court’s denial of reversed allegation as to the date Senice- There is no instructions to and remanded case with The record committed his offense. the inmate’s ros order the Board to rehear Comm’n, F.2d original v. U.S. Parole complaint, Grubbs was rel. Graham Robert 1. In the Cir.1984). ruling (11th pursue ap our plaintiff an but he failed to also release peal. today affected Rasmussen’s is not apply all. issues since the same Generally, inmate will render the release of an appeal States ex the issues on moot. See United void as information about the almost JURISDICTION offenses for which the inmates were incar- party challenges No jurisdic our cerated.3 tion; however, emphasize we want to the courts of this state cannot act as a parole. applied
Each inmate superparole process requires board. Due application, notifying denied each *3 that review be to judicial available insure applicants writing. in rea- the latest requirements process that the due in of have appear for record sons denial that the parole been met and that the board following were stated letters: scope powers. acted within the of its See (Cooper): 185, 187, Eyman, 110 Ariz. Foggy v. 516 your It was decision Board at 321, P.2d 323 The courts com hearing 7, on November 1983 to held act, pel Board the Parole to but the courts parole,-based your deny you history on compel the in any cannot Board to act offenses; your of assaultive institutional “particular manner.” rel. State ex Arizo adjustment less has been than satisfac- na State Board Pardons & Parole v. of tory, as of evidenced number Court, 77, 80, Superior Ariz.App. write-ups. 917, believe, We there (Allen): fore, jurisdiction have since we that we are your It was the decision of the Board at considering only whether the Board has 7, hearing November 1983 to held on process required by due followed the our deny you parole, on based the serious- parole Sheppard statutes. offense, your committing ness of of con- Paroles, 111 Pardons & Board of victim; age your cern was the of 587, 588, 196, see also history, nu- criminal as evidenced Foggy v. Arizona Board Pardon & Pa of your prison; history merous times in 942, roles, behavior; you assaultive were on (1972); Eyman, Foggy supra. We parole Deadly Weap- a Assault With jurisdiction pursuant therefore have to committing on at the time offense. 12-120.24 and Ariz. Const. art. A.R.S. § (Rasmussen): 5.§ your It was the decision of Board at Allen, Cooper and in their re- Inmates hearing November 1983 to held on Review, sponse to the Petition for state: deny you parole, serious- based Procedurally it is that the state's noted offense, committing your and of ness rehearing only filed was to motion ages concern was the the victims. appellees. No motion for three of Further, you probation for the received rehearing appellee made Leh- as to subsequently first violated petition timely for review was man. No offense. with a new similar court Lehman either. filed in this as to (Lehman): only the Board These inmates contend that your It was the decision of argued inmates who to reconsider those hearing held on November good reasons had and bad a mixture parole, deny you based on the serious- are un- parole denial. we offense, your committing ness of not include persuaded that the Board did age was the of the victim. concern in its for Review Lehman Petition inmate (Seniceros): Lehman and Motion for Reconsideration. both, did and the Board your of the Board at named It was decision unable right appeal. We are deny its hearing 1985 to waive held on would bar procedural flaw that find parole on the serious nature you based Fur- offense; of inmate Lehman. our consideration committing of concern was ther, filed a re- Lehman has not inmate age of the victim. shot record, having police Cooper acknowledges a officer. In the sponse to the Petition for Review and has persuaded We are not the Board not raised individually this issue before us. process violated due by articulating the
reasons set forth in these letters. The
Supreme Court,
United States
PAROLE DENIAL
Green-
holtz v. Inmates
the Nebraska Penal &
Former A.R.S. 31-412
provided in
Complex,
Correctional
stated that the de-
part:
is,
cision to
sense,
release an inmate
“in a
appears
pardons
board of
If
an ‘equity’ type judgment that cannot al-
paroles,
from report by
depart-
ways be articulated in
findings.”
traditional
corrections,
ment of
upon
or
applica-
442 U.S.
99 S.Ct.
prisoner
tion
for a release on
Further,
very
“the
institution of
parole,
proba-
there is reasonable
experimental stage.”
still in an
Id. The
bility
will live and
parole-release decision “turns on a ‘discre-
remain at
*4
law,
tionary assessment of multiplicity
then the
a
of im-
may
board
authorize the
applicant
ponderables,
release of the
upon parole
entailing primarily
a
[em-
phasis
man is
may
and what he
added].
become rather
”
simply
11,
than
what he has done.’
Id. at
provision
The new
of A.R.S. 31-412 now
§
(quoting Kadish,
Board’s failure to a follow the criterion in weapon may denying parole them be an individualizedcharacter- a violation of due process. complaint Their istic of an alleged offense which gravi- that cer- indicates its ty.4 tain legislature reasons were not given indicative of recidi- The has the Board only vism and were “historical” factors “sole discretion” in determining whether an punish that were used to the inmates applicant is parole. suitable for A.R.S. delaying parole. Appeals The Court of 31-412(A). The criterion set forth ruled “age that certain reasons such as legislature making such a determina- victim, offense, the seriousness of the tion is so hardly broad that it curtails the weapon clearly the use of a do not [and] Board’s discretion at all. The criterion that upon bear the issue of whether the inmate an will not liberty remain at with- ‘not violating will remain at out the law is not restrictive. ” 229, 908). (At the law.’ 717 P.2d at Since However, this criterion also includes the Appeals could not decide what the Court good of society since the Board will be “impermissible factors” impact these if capriciously liable negligently re- for a played denying parole, it remanded society leases into an individual who exhib- hearing parole board. Id. at new before ited violent or criminal past. behavior in the 229-230, P.2d at 908-909. 717 v. Grimm Arizona Board Pardons & 4. The legislature provided may that the Board be relevant for the Board information victim, opinion A.R.S. can consider consider. 31-411(G). logically implies that victim This
186 260,
Paroles, 267, own acts or those of 1227, the instrumentalities 564 P.2d (1977).5 they Jordan, have created. v. Giss 82 779, Ariz. 309 P.2d The inmates that any have not claimed 557, Puterbaugh v. Ariz. County, Gila procedures provided parole for by Judicial statutes have been violated. In each in- powers legisla cannot be assumed they given hearing stance and re- govern tive or executive branches setting ceived written notification forth the 3; ment. Ariz. Const. art v. Ahearn Bail specific pa- individualized reasons for their 250,252, Ariz. ey, 104 31-411(F). role denial. In- See A.R.S. § stead, they disagree given reasons inmates claim that we that, giving for denial we believe statutory compliance. I agree. “Any Board, legisla- “sole discretion” , agency excursion an administrative be- reviewing foreclosed from ture has us legislative guidelines yond the treated See, e.g., Foggy these reasons. powers.” usurpation an of constitutional Paroles, Pardons & 108 Ariz. at Company Tax State Com- Swift 943; 31-402, -412 501 P.2d at A.R.S. § mission, (exclusive power pass upon paroles rests I concur with parole granted in with the Board and by majority result reached issue discretion). their sole because each of the concerns or reasons Appeals Court opinion (behavioral expressed by board vacated, the dis- therefore, Cooper, *5 history, adjustment, institutional demon- affirmed. is Superior Court by missal strated recidivism nature of of- of that the Court decided have Since we committed) fense for which are factors rel- age of the stating that in Appeals erred statutory evant to the standard—whether the seriousness victim probability parole appli- that the there parole, deny grounds to valid cant will be able to remain with- us must before petition inmate Seniceros' the law. out further violations of See relief re- It ordered fail. also A.R.S. 31-412. § Action Special his by Seniceros quested important emphasize Finally, I think it to is denied. legislature powerless also C.J., CAMERON, J., HOLOHAN, jurisdiction to consider deprive this court of concur. ex- traditionally cognizable under issues Justice, FELDMAN, concurring. Frye, Peters v. traordinary writs. See agree process
I that due was not violated (1950); 223 P.2d Col- concur before us and therefore 13-14, cases Krucker, lins I majority. in the result reached (1940). The are available to writs my fear that separately because of write to exercise require officers administrative majority might language used some manner, proper in a even discretion misinterpreted. be exercised though order it courts cannot Cagle any particular result. toward First, emphasize important to I think it Trucking Service Brothers legislature authority no Commission, 96 Ariz. Corporation pow- constitutional deprive court its this also, (1964). See power and re- judicial review. er Ap- Lesher, Extraordinary inWrits to the is reserved sponsibility Courts, 7 Ariz.L.Rev. pellate Nei- department government. judicial Davis, Manda- Administrative Arizona may executive legislature nor the ther the mus, 9 Ariz.L.Rev. of their propriety on the judgment sit See, e.g., jurisdictions. 18 U.S.C. incorrectly forth in other Appeals decision Court criteria). 4206(a)(1) (2) (listing federal & legislative concern criterion states that separately set other criteria recidivism excludes regard authority This court’s to is- against common state
suance of law writs agencies expressly officers and con- Constitution, firmed the Arizona art. 5(1) grant Even under §§ however, jurisdiction, decisions board’s inmates reasonably to these “can be application attributed to an valid factors is, therefore, of choice” and the dis- within Davis, supra, citing cretion of the board. JAFFE, to L. JUDICIAL CONTROL OF ACTION, ADMINISTRATIVE summary, In I believe that the term “sole discretion” as used in A.R.S. 31- just 412 means says. The discre- given board, tion to exercised is be Although not the courts. court retains power require obey board to
Constitution, comply with the statutes and fact, base its decisions not substi- tute its view facts for that of the board.
I concur in the result reached majority.
GORDON, V.C.J., agrees with Justice FELDMAN’s concurrence.