*1 459 R. SAGE, DONALD Respondent, Petitioner v. Administration, GAMBLE, Director
MICKEY Secretary, Board THOMAS, Executive CRAIG OF PARDONS MONTANA BOARD Pardons, PRISON, MONTANA STATE PAROLE, AND Appellants. Respondents No. 95-533. September 19, 1996. on Briefs Submitted 25, 1996. Decided November St.Rep. 1234. P.2d 822. *2 Adams, Attorneys
For David L. Ohler and Lois at Appellant: Law, Corrections, Helena. Department of Sheehy, Jr., Respondent: Sheehy,
For Edmund F. Cannon and Helena. opinion TRIEWEILER delivered the of the Court.
JUSTICE September petition On Donald R. filed a for habeas corpus in the District Court for the Third Judicial District in Powell County alleged in which he the Montana Board of Pardons (Board) improperly had denied him Following hearing on Sage’s petition, the District Court issued an opinion and order in that, although which it concluded the Board had not abused its when it denied it Sage parole, Sage’s right discretion had violated when it denied him the parole hearing. at his court therefore ordered the Board to conduct another could personally present. be The Board appeals District Court’s conclusion that it violated *3 Sage’s right process. to due We affirm the order of the District Court. presented appeal
The issues are: Did the District Court subject jurisdiction, 1. have matter pursu- ant a of habeas corpus, Sage’s to writ to determine whether to right process due was violated when he was denied the opportunity to personally appear before the Montana Board of Pardons?
2. Did the District Court err when it that Sage’s right concluded to process opportunity due had been violated when he was denied the personally appear parole hearing? his
FACTS Sage by jury In Donald March was convicted a of the crime mitigated Sage forty years deliberate homicide. was sentenced to Prison, years the Montana State and an additional in five be served consecutively deadly weapon for the use of a in the commission of the offender designated dangerous purposes offense. He was for living at the Great Falls Pre-Release Center when he Sage was for in 1993. The Board of Pardons scheduled eligible became parole hearing initial for November 1993. Prior to the Sage’s hearing, appointed secretary the Board its executive to interview interview, Sage opportunity present At the had the Sage. oral testify testimony and have other witnesses on his behalf. He was also file, in including whether the information contained his asked sentence, and his were correct. his offense interview, Following secretary prepared the executive a recom- for the Board for regarding Sage’s application parole. Sage mendation advised of this recommendation. was Sage’s parole application
The Board of Pardons considered at its monthly parole hearing Lodge Sage in Deer on November hearing. at this The record does not disclose present was not whether Instead, was denied the to be requested opportunity present. he presented Sage’s parole application the information about was secretary. considering executive After all of the infor- it, Sage’s parole application. the Board denied mation 9, 1994, Sage petition writ September On filed a for of habeas the Third Judicial District Court in which he corpus alleged with him parole. had denied In improperly the Board of Pardons his had maintained that the Board denied to due petition, guaranteed by the Fourteenth Amendment to the United process opportunity personally it denied him the Constitution when States Following hearing, the Board. the District Court appear before although and order in which it concluded that opinion issued an parole, its discretion when it denied the Board Board had not abused process by failing to due to allow him to Sage’s right had violated the Board. The court therefore ordered that appear before be held at which could before the Board. another
ISSUE subject jurisdiction, pursu Court have matter Did the District corpus, Sage’s right habeas to determine whether ant to a writ of violated when he was denied the due was before the Montana Board of Pardons? Sage’s alleged the Board of Pardons asserts that appeal, On corpus of habeas relief parameters violations fall outside subject jurisdic- Court lacked matter that therefore the District 46-22-101, MCA, the issue. Section tion to consider *4 part: relevant liberty or otherwise restrained of
[E]very person imprisoned
corpus
inquire
a
of habeas
may prosecute writ
within this state
and, if
imprisonment
illegal,
into the cause of
or restraint
to be
imprisonment
from the
or restraint.
delivered
corpus
challenge
legal sufficiency
is available to
Habeas
held, however,
This
cause for incarceration.
Court has
that habeas
relief
is not available
to determine
corpus
whether
other
rights
County
constitutional
have been violated. Gates v. Missoula
(1988),
Comm’rs
235 Mont.
Sage maintains that the Board subject waived this issue of jurisdiction by matter it failing during raise the District Court and therefore should not now be proceedings permitted to raise it on principle law, however, It is a well-settled of appeal. lack of jurisdiction waived, subject may matter cannot be be raised judicial by a any stage proceeding party sponte by or sua the court. Ryans, (1987), 48, 49, O’Donnell v. Inc. 227 Mont. 966; P.2d (1984), State v. Davis 210 Mont. 681 P.2d further asserts the District Court did subject have jurisdiction matter to decide writ of habeas corpus whether his right process to due had been violated. maintains that he had a to due process, liberty based interest in parole pursuant which was violated Board when it did not allow him to appear before the Board at the parole ultimately denied his application. alleged We conclude that deprivation Sage’s right to due directly process is related to whether cause of his continued or illegal, incarceration is is not and therefore it falls within the parameters MCA. We therefore hold that the District subject jurisdiction Court did have matter to determine whether Sage’s right to due was violated.
ISSUE 2 Did the District Court err when it Sage’s right concluded that had to due been violated when he was denied the opportunity personally appear parole hearing? at his case, In this the District Court concluded that the Board of Sage’s right process by Pardons had violated to due denying him the during We review a district court’s conclusion of to determine hearing. law interpretation whether court’s law is correct. Carbon County 459, 469, 898 v. Union Reserve Coal P.2d Co. 680, 686. *5 1982, sentenced,
In was 46-23-201, convicted and § (1981), provided: MCA
(1) restrictions, Subject following the board shall release parole by appropriate any person on order confined in the Montana prison opinion state ... when in its there is probability reasonable prisoner that the can be released without detriment to himself or community .... (2) Aparóle only society shall be ordered for the best interests of clemency and not as an award of or a reduction of sentence or prisoner placed only A shall be pardon. parole when the board willing that he is able and to fulfill the obligations believes of a law-abiding citizen. (1987), 369, 381, 107 Pardons v.Allen 482 U.S.
In Board
S.Ct.
of
Supreme
96 L.Ed.2d
the United States
Court held that
mandatory
46-23-201, MCA,
of
a
language
liberty
creates
interest
§
that
the Due
parole
protected
in
release
Process Clause of the
Specifically,
Amendment.
the Court determined that “the
Fourteenth
(‘shall’)
mandatory language
‘creat[e]
statute ... uses
a
Montana
designated
release
parole
granted’when
will be
presumption
Allen,
377-78, 107
at
findings are made.”
It is well established
situation demands.’”
protections
particular
as the
procedural
for such
the Nebraska Penal and Correctional Com
v. Inmates
Greenholtz
2100, 2106,
Although
prisoner
subject to
eligibility hearing is not
that a
is well established
See,
adversary
e.g.,
proceeding.
of an
protections
the due
all
(4th
However,
1982), 698 F.2d
Cir.
v. Garrison
Fardella
that due
recognized
Court has
United States
although the
*6
adversary
require “repeated,
not
parole
of
does
in the context
process
minimum,
prisoner
that the
be
required,
has
at
hearings,” the Court
explain
and a written statement
to be heard
opportunity
an
provided
14, 16, 99
Greenholtz, 442 U.S. at
S.Ct.
parole.
why he was denied
ing
Greenholtz,
Court examined the
2107, 2108. In
at
that an inmate in
approval
and noted with
in Nebraska
procedure
Board at
appear
before the
system permitted
is
prison
Nebraska’s
on his own
letters and statements
present
and
yearly
15,
at 2107-08.
Greenholtz,
While requires opportunity an process of whether due address the issue Board,2 procedure of the approval its appear before exclusively in terms was couched almost in Nebraska provided example, For personally appear. opportunity parole applicant’s that: Court stated permitted is hearing, the inmate initial interview
At the Board’s
and statements on
letters
present
the Board and
appear
before
opportu-
an effective
thereby provided
is
with
He
his own behalf.
in fact
the Board are
the records before
first, to insure that
nity
second,
any special
case;
present
relating to his
the records
candidate
appropriate
an
demonstrating why he is
considerations
largely
made
that must be
the decision is one
Since
for
adequately safe-
files,
procedure
this
the inmate’s
basis
alaready
appearances
allowed Nebraska
personal
were
noted that
2. The Court
Greenholtz, 442
necessity
opportunity
not an issue.
was
that therefore
at
fn. 8.
99 S.Ct.
U.S. at 16. fn. 8.
guards against serious risks of error and thus
process.
satisfies due
Perales,
Cf. Richardson
v.
U.S.
[91 (1971).
1430-31, 28
842]
L.Ed.2d
... The Nebraska procedure affords an opportunity to be heard,
and when parole is denied it informs the inmate in
respects
what
he falls short of qualifying
parole;
for
this
affords the
due
is
under
these circumstances. The Constitution does not
require more.
(footnote
omitted).
15-16,
It therefore, to infer from the opinion Greenholtz parole applicant of a before those entrusted subjective responsibility with of passing judgment on his or her application is an important element of the to which the applicant is entitled.
Furthermore, was convicted and sentenced in 1982, (1981), provided:
(1) Within 2 months after his admission and at such intervals determines, thereafter as it the board shall pertinent consider all regarding information each prisoner, including the circumstances offense, of his previous history his social record, and criminal conduct, employment, and attitude in prison, reports and the any physical and mental examinations which have been made. (2) ordering any prisoner the board shall Before interview him. added.) (Emphasis implement statutory To this requirement, adopted 20.25.401, ARM, Rule provided: (1) An inmate will systematically come the parole board an by law, usually interview the time up to two months for fixed prior eligibility actual date .... *7 (2) All hearings interviews and the board shall be con-
ducted informally under the direction the chairman. The board may length limit the hearings interviews or in order to accommodate its schedule. added.)
(Emphasis plain language 46-23-202, Based on the of both MCA and 20.25.401, ARM, Rule an inmate eligible parole who is for is clearly provided right personally appear the to at an interview before the prior Parole Board to the Board’s decision grant deny to or the application statutory for The Board contends that Montana’s scheme, however, permits delegate personal it to its respon- interview cites 46-23- hearings to officer. Board sibility appointed an 104(4), (1981), which that: members, its one of staff may designate one of its
The board authority to any releasing other adult correctional members, or to: relative conduct interviews
(a) eligibility; parole
(b) parole; for or plans release (c) hearings. revocation 46-23-104(4) would create a interpretation
The Board’s
of §
language
statute and the
of §
contradiction between that
an informal
rule,
requires
MCA, and its own administrative
...
the
board” which must be “conducted
interview “before
20.25.401,
Rule
the
of the chairman” of
Board.
under
direction
46-23-104(4), MCA,
However,
suggests that the
nothing
ARM.
in §
is in
of other interviews
provided
required
for
lieu
staff interview
administrative
MCA,
the
rules. Further
and
Board’s
more,
interpretation which relieves the
we
that an
Board
conclude
duty
unconstitutionally
an
its
to
interview inmate would
personally
guaranteed by
deny
right
his
to
the Four
inmate
Constitution,
independently by
teenth Amendment
the U.S.
II,
Constitution, by
him
denying
Article
of the Montana
Section
will decide the
to be heard
those who
merits of
opportunity
an
See,
442 U.S. at
It
e.g.,
S.Ct. at 2108.
application.
statutes,
in a
possible,
construe
where
manner
duty
is our
scrutiny.
v. Martel
constitutional
State
withstands
P.2d
46-23-104(4),
(1981), permit
Therefore,
interpret §
we
members,
members,
one of its
one
its staff
or
designate
Board
authority
releasing
prehear-
correctional
to conduct
any other adult
parole eligibility
purpose
an inmate relative to
for the
ing interview of
However,
expediting
hearing process.
assisting
not,
interview does
and cannot substitute for
prehearing
before the Board.
applicant’s constitutional
of an inmate’s
ignore
importance
To
or
decide the merits ofhis
her
will
before those who
subjective nature of the decision and
ignore the
is to
application
responsibility
those
with such
statutory
vested
requirement
As
U.S.
Court noted
qualifications.
possess specific
U.S.
[T]he Parole Board’s decision as defined Nebraska’s statute is necessarily subjective in part predictive and in part. Like most statutes, vests parole very it broad discretion in the Board. No way ideal, parole-release error-free to make decisions has been developed ....
Furthermore, 2-15-2302(2), MCA, very sets forth specific educa- tional background requirements and vocational for those vested with the exercise of broad such discretion. To permit delegation of the personal paid a interview to staff member purpose would defeat the statutory requirements necessarily of those and render intelligent responsible and exercise of the Board’s broad discretion more diffi- cult.
We hold that compliance with
which
provides that the
must personally
Board
interview an inmate prior
parole,
necessary
satisfy
to his release on
the minimum due
process requirements
Greenholtz,
set forth in
99
U.S.
II,
as independently required
Article
Section
Montana
The
a
requirement
personal
Constitution.
interview
necessary
verify
for an inmate to
or refute
accuracy
of the Board’s accumulated
present any
records
special
might
why
considerations
demonstrate
she
he or
is an
for
appropriate
clearly
candidate
Such a procedure is
neces-
sary
minimizing
purpose
risk
error in a
eligibility
determination.
U.S.
We therefore affirm the District Court’s that it conclusion had jurisdiction to determine Sage’s right whether to due process was violated, and the court’s conclusion that the had Sage’s violated it to due denied him the opportunity personally parole hearing. at his We hold that requirements constitutions, state both the federal and and the clear mandate of compel Board of Pardons inmate, parole-eligible liberty who a interview has interest in parole, at time fixed law. NELSON, HUNT and LEAPHART
JUSTICES concur. LEAPHART, specially concurring. JUSTICE I concur the Court’s conclusion that a defendant has a due process right personal before the Board for a I addition, point public In would out that the well has interview. as in requiring interest that an inmate very compelling not be released a face to face interview undergoing without first with Board. dissenting. ERDMANN
JUSTICE dissent, I join majority’s opinion respectfully I on Issue 1. however, on Issue 2. only majority statutory right concludes that not has a *9 Board, the but also that his constitutional
personally appear before was violated when he was denied the to due personally appear upon parole application. to before the Board by applying reaches this conclusion first majority The narrow 46-23-202, statutory analysis (1981), effectively MCA § ignores remaining statutory by scheme as set forth the Montana majority The then Legislature. changes tack and undertakes an expansive analysis involving constitutional v. Greenholtz Inmates of (1979), 1, 99 Complex Nebraska Penal and Correctional 442 U.S. majority 668. The 60 L.Ed.2d relies on Greenholtz to resolve the United explicitly issues which States Court declined to address in that case. consistently have held that several apply
We
statutes
to a
situation,
if it is at all
given
possible,
adopted
a construction is to be
give
City
(1992),
as will
effect to all.
Bozeman v. Racicot
253 Mont.
204, 208-09, 832
767, 769;
(1985),
P.2d
Schuman v.Bestrom
536, 538; 1-2-101,
693 P.2d
MCA.
§
statutory
It
that
good
part
is
construction law
where one
subject
general
comprehensive terms,
law deals with a
part
way,
another
of it
in a
minute and
while
deals
more
definite
and,
harmonized,
if
parts
together
possible,
the two
should be read
giving
legislative policy.
with a view to
effect to a consistent
Schuman,
Contrary statutory by majority, I arguments presented secretary, Craig am not convinced that the Board’s use of its executive Thomas, interview, the parole eligibility Sage’s to conduct or failure Board, any statutory provi- violated designated by Sage’s parole sions. Thomas was the Board to conduct 46-23-104(4), MCA(1981), that: eligibility interview. Section may members, one of its designate The board one of its staff members, any releasing authority other adult correctional or conduct interviews relative to:
(a) parole eligibility;
(b) parole; for release on or plans
(c) hearings. revocation Thomas serves as the Montana Board of Pardon’s Executive Secretary, position which is a defined as a “staff member” Rule 20.25.101(2), 46-23-104(4), ARM. Thus (1981), MCA § allows delegate prisoner’s Board to interview, provided as for in 46-23-202, (1981), MCA to Thomas as a § “staff member.” The Board’s utilization of Thomas to conduct parole eligibility interview was clearly statutory therefore within constraints. majority glosses 46-23-104(4), (1981), by over MCA inferring § authority
that the Board’s designate an individual under this “pre-hearing section is limited to a plain interview.” The language of simply this section does not limit the interview which may be con- ducted a designated individual to a pre-hearing interview. Section 46-23-104(4), (1981), MCA refers to interviews relative to eligibility, exactly which is what issue in this case and includes (1981). is provided interview which for in MCA addition, majority
In interpreting 46-23-104(4), asserts apply creates a contra- diction between that statute and the language of the Board’s admin- requires istrative rule which an informal interview “before the board” shall be “conducted ... under the direction of the chairman” of 20.25.401, that Board. recognized Rule ARM. We have *10 Legislature, enacting law, presumed is to knowledge have America, existing Blythe (1993), law. v. Radiometer Inc. 262 Mont. 464, 866 P.2d The applied 218. same role can be to an administrative agency adopting rules, when as rules conflict statutory which with requirements 2-4-305(6), MCA; Taylor are invalid. Section Taylor v. 899 P.2d 20.25.401, When Rule ARM, Board, 46-23-104(4), was adopted MCA, was in effect and can presume provisions. we Board was aware of its The rule 46-23-104(4), must therefore be construed in light MCA, designated allows a individual to conduct parole interviews. There simply statutory is no contradiction between the scheme and the rule. administrative
Furthermore, statutory the 1981 eligibility scheme required that the Board shall be to hear oral statements from persons all desiring to provides: be heard. Section required
The board shall be to hear oral statements from all persons desiring board, any person may to be heard before the and by counsel, represented provided be that the board shall have the all power regulate procedure hearings. to added.) “all language, disputed that It cannot be (Emphasis parole applicants, particularly heard” includes desiring to be persons record does not by counsel. The represented to be given personally present to statutory right be exercised his Sage that reflect or by requesting under this section the Board hearing before at a Thus, the Board. before make an oral statement a desire to expressing at his interview appearance Sage’s personal that determine I would statutory requirements. to meet sufficient was right to due Sage’s constitutional next asserts majority The an was before appearance his personal was violated itself. not before the Board by the Board and designated individual from it reasonable to infer argues that majority The of a opportunity L.Ed.2d that the 99 S.Ct. 442 U.S. important is an the Board itself to before applicant is entitled. The applicant which the the due element of States Court however, that the United concedes majority, personal issue in Greenholtz since directly address this did not statutory requirement in Nebraska. the board is a appearance proposition misplaced. for this is thus on Greenholtz Its reliance process requires stated that due Supreme Court United States opportunity with an effective insure provided be the inmate relating to his are in fact the records the Board the records before any opportunity present provided that he be with case and why an can- demonstrating appropriate he is considerations special 15, 99 at 2107-08. Greenholtz, 442 U.S. at didate for eligibility case, provided personal parole with a In this was personal request provided opportunity and was interview provisions Parole Board under before the (1981). relating record to correct the He had the testimony and have other oral present He was allowed his case. pre-parole considered the on his behalf. The Board testify witnesses statements, Thomas’s recommen- written investigation report, pro- opportunities and was he afforded these Because was dation. the reasons for setting forth a written statement vided with as process, with due provided was parole, denials of Board’s Constitutions, and United States the Montana required both interest. constitutionally protected of a deprivation no there was *11 this issue. Court on the District I reverse would join in the GRAY and JUSTICE TURNAGE JUSTICE CHIEF dissenting opinion. foregoing