George v. Montana Board of Pardons
30 P.3d 1065
Mont.
2001
Check Treatment

*1 115 GEORGE, RAY DONNY Petitioner, v. al., PARDONS, et BOARD OF MONTANA Respondents. 01-288. No. August 2001. Decided 163. 2001 MT 306 Mont. 30 P.3d 1065. ORDER AND OPINION herein, of habeas seeks a writ Donny Ray George, petitioner intercourse of sexual pled guilty to two counts corpus. Petitioner Court, County. Lake Judicial District consent in the Twentieth without years him to ten 22,1999, Court sentenced the District September On years, ten all and to No. DC-99-10 years suspended Cause with two the sentences ordered DC-99-18. court suspended, in Cause No. consecutively. run petition his writ of relief in range seeks a wide George corpus. petitioner habeas based validity attacks the his conviction ineffective assistance counsel lack jurisdiction. He further he contends that was not able mentally to assist his own claims, Such they defense. bemay proper allegations in a although post-conviction relief, proper subject not the matter proceeding. Day habeas Rudolph 311, consider 1007, 1008. juncture, however, P.2d petitioner’s At this even if we were *2 relief, pleading post-conviction a such claims 46-21-102, would be time-barred. Section MCA. petitioner variety The ¶3 also seeks relief for a of problems related confinement, assistance, to the conditions including legal ofhis inmate legal work, legal confiscation his alleged receiving sending and and mail. He further claims to been victim have of an assault from they true, allegations, another inmate. These even if were do not affect the petitioner’s legal only incarceration. purpose The of a habeas proceeding is to “inquire imprisonment into the cause or restraint and, illegal, if to imprisonment be delivered from the or restraint.” 46-22-101, Section Commissioners ¶4 County See also Gates v. Missoula 261, 766 P.2d 884. The Board of Pardons and Parole petitioner’s conducted initial parole 29, hearing on November parole, 2000. The Board denied scheduling petitioner for a in progress review November The 2002. petitioners remaining allegations hearing. concern his recent parole 1) petitioner The not process contends he was denied did due because he 2) parole hearing; an his adequate receive advance notice of 3) decision; Board the to adequately issuing failed “deliberate” before its by majority Board’s decision was made a two the member of the and member not 4) Board; “full” Board who is and he was to entitled have a knowledgeable in in authority participate Indian issues his parole decision. He that further contends the Board to lacked impose sex offender treatment as a to parole. condition petitioner 1989, Since ¶5 committed his offenses after he no liberty in MacDonald, 89, 8, interest McDermott v. MT parole. 2001 ¶ 166, 8, 200, 305 24 Mont. P.3d Due an process ¶ ¶8. the context of seeking parole inmate includes a minimum “an be opportunity to heard a explaining why and written statement he parole.” was denied McDermott, (citing 11 ¶ Greenhottz (1979), Inmates the Nebraska Penal 1, 16, 2100, 2108, 442 Complex and Correction U.S. 60 S.Ct. 668). petitioner provided L.Ed.2d We conclude that the was both an opportunity to and be heard a written statement with reasons for his parole denial. petitioner complains adequate The that he did not receive notice ¶6 note, however, hearing. petitioner his We that received advance 2000, notice his on hearing physically October and he was present during hearing. He contends that the fact he that received a slip was denial before he even left the room hearing establishes that advance, decision made in to prior hearing. We conclude that neither of these have merit. of any claims We are aware due requirement to requires that Board deliberate for a time It issuing firocessof before its decision. also is that ength apparent petitioner upcoming parole hearing was made aware of his and did attend in person. complains appear he before “full petitioner also that did The ¶7 a Board hearing conducted before We note that was board.” composed member is regular Board of three members. Whenever regular meeting, sits in the unable to attend a an 2-15-2302(3), hearing in MCA. At the place. Board member’s question auxiliary member. regular members and one were two by majority that was made vote We further note the decision Board. nothing he more than a ‘boiler petitioner argues that received ¶8 Disposition Form used denial. Here we conclude the Case process. and with due y adequate comports Elate” Board was contends that the Parole Board was without petitioner It is true Program him to attend Sex Offender II. authority “may request he a reappearance that the Board remarked that completion of this to mean that the Board will interpret SOP.” We if George’s progress completes he SOP review November but date, may request progress prior he the Board review his before to November 2002. We have held that the Board has discretion broad authority seeking and to make such recommendations to inmates McDermott, improve parole. their chances for ¶ Finally, petitioner contends that he was entitled to have Wilson, a knowledgeable Roxanne board member in “Indian culture problems,” initially in his review. The State authority support cited simply responded George no argument. detailed 21, 2001, On State to file a June we ordered the more July 20, 2001, response to this contention. On the State filed supplemental response, pursuant observing *3 MCA, knowledge must particular at least one member of the Board have However, of “Indian and the State problems.” culture particular appointed maintains this Board can as an that member be and, such, auxiliary only meetings as those in which member attends 2-3-2302(3), regular a member is to See MCA. § board unable attend. that, reading a pursuant plain The State contends to of these have provisions, particular problems” applicants Native American are not entitled to the of “Indian and possessing knowledge Board member culture parole argues applications. hear and act on their The State that, stated of Native otherwise, directly legislature the intended it could had have so, required knowledge or at least that the Board member with regular American affairs as a board member. be appointed provisions composition statutory the of governing 11 The relevant the ¶ Board “The consists of three members and two follows: board auxiliary members, whom must have particular at least one of 2-15-2302(2), knowledge problems.” of Indian culture and auxiliary regular any meeting MCA. “An board member shall attend that attend, time, auxiliary member is to and that unable regular board rights responsibilities has all the and of a member 2-15-2302(3), member.” Section MCA. “simply of role to ascertain and declare We are mindful our ¶12 statute], [in in in not to insert what is terms or substance contained 1-2- omitted or to omit what has inserted.” Section what been been agree that the terms of the relevant MCA. We with State blush, require statutory appear at least at first do provisions, that the one participate knowledge Board member with ofNative American affairs in hearings and regarding parole applications decisions However, of Native Americans. we think the substance of the statute does can participation. We think of no plausible other reason for requiring knowledge Board of member have Native American affairs other than for member to hear and act on Americans, the applications any ofNative nor has the State offered us Furthermore, such reason. statute we prior note that to the amendment ofthis auxiliary to provide members, for did require board statute regular that one of the knowledge board members have of Native (“The (1978) 2-15-2302, Compare American affairs. § MCA board consists of least three members at one whom shall have knowledge (1979) problems.”), 2-15-2302, of Indian culture and with MCA § (“The auxiliary board consists of three members and an member, at one least of whom shall have particular knowledge added.)). Indian conclude problems.” (Emphasis only culture and canWe legislature provided auxiliary when the for board members, it to specify failed that the with knowledge in parole Native American affairs participate involving decisions Therefore, stated, applicants. Native American for the reasons above IT IS petition ¶13 HEREBY ORDERED that the for a ofwrit habeas corpus is and DENIED in part part. GRANTED George’s IT IS application ¶14 SPECIFICALLY ORDERED that for parole remanded to the Board de review full be for novo with the participation of the Board member with “particular knowledge problems.” respects, Indian culture and In other all corpus writ of habeas is DENIED. The Clerk Court to mail copy ¶15 is directed of this Order to General, Donny Ray George, Attorney personally, and the Department of Corrections. 14thday August, DATED ¶16 REGNIER, NELSON, JUSTICES LEAPHART and COTTER concur. JUSTICE RICE dissenting. I respectfully portion granting ¶17 dissent from the of Court’s order petition, concur in the remainder. By holding knowledgeable that the Parole Board member who is is all Native American culture to sit on Native American required parole applications, yielding temptation legislate the Court is to the an concept may amendment While be meritorious, clearly required by meaning it is plain statute. The Court’s can only “[w]e statement conclude that when the members, legislature provided specify board failed to knowledge the member with of Native American affairs involving American applicants,” decisions Native *4 First, is to Legislature flawed two reasons. the did not overlook or “fail members, specify” this when it requirement added because requirement no the law. the there was under former Like current statute, simply the earlier version did not mandate that the Native American-knowledgeable member sit on all Native American Further, 2-15-124(8), MCA, Board, applications. authorized the § its members. by any two of body, to make decisions quasi-judicial Board under the former and by any of its members rendered two have thus been decisions statute, any current versions of the without practice. The Court’s decision legislative change intervention to 2-15-124(8),MCA, general the of application herein will now restrict to the Board. erroneously Secondly, Legislature had “failed to even if the ¶20 specify” law, the it is not the requirement this when amended that there is an “[T]o of Court to fix the error. the extent province accurately reflect the to the extent that the statute does not error and intention, the clearly appropriate it is Legislature’s Legislature expressed Goebel, not problem, the the courts.” State correct ¶23, 53, 73,MT 305 Mont. plausible can think of no other reason “[w]e The Court states knowledge of American affairs for that Board member to have Native applications to hear and act on the other than for that Board member The here is that the Court need not of Native Americans...” error Legislature’s in order to determine enforce the statute’s is provision: reason for the action plausible meaning. language When the of the statute plain clear, history not of the purpose Court need consider or legislature ofthe must determined from the intention first be used, plain meaning and if of the interpretation words may determined, go apply not further and statute be so courts any statute is speaks construe...There of the interpretation. language other means Where...the certain, direct statute plain, unambiguous, left nothing for itself and there is court to legislative is no reason for the use of simply history language is clear and to construe statute where the unambiguous on its face. Goebel, 649 citing supra, at State v. Hubbard reading clearly A here reveals P.2d 1331. the statute issue ' did Legislature require that knowledgeable not the Native American- on all American sit Native then, applications. need, interpretation There no to render an is its history. plausible statute ¶22 rationale or based extrapolated composition public of a improperly The Court body Montana has into limitation on its authorization act. unique compositions boards and commissions whose numerous established ofthe Board of 2-15-1505, MCA, requires one member by statute. Section student, Regents university require but does to be a participate in all matters before the that the student member 2-15-1841, MCA, by that the generated provides students. Section composed representatives Board of Medical Examiners is medical the same require represents does not the member which professions, but profession participate as the before board party composed of members Commission is Transportation decision. state, one member “must have from districts ofthe and at least various needs.” specific knowledge transportation Indian tribal culture and Again, the Native the statute does Transportation Commission American-knowledgeable member of the Americans or the tribes. in decisions that involve Native *5 Other ¶23 examples abound. contrast, In Legislature when the wants a board’s composition to constrain that board’s making decision process, makes provision to See 2-15-1705, do so. MCA (requiring a substitute member with identical qualifications sit for an absent member on Board of Personnel Appeals). is, idea doubt, behind Court’s action today without a However, I imprudent believe it to entertain appealing. interpretations which the plain meaning overreach of the statute. I deny would petition. CHIEF joins JUSTICE GRAY in the dissent of Justice Rice.