*1 WEST, RODNEY ALLEN Petitioner, MAHONEY, MIKE Warden; STATE PRISON, MONTANA Respondents. No. 01-130. 3,May Ordered 2001. 2001 MT 82. ORDER OPINION AND Petitioner, Rodney petitioned Allen has this Court for corpus pursuant a writ of 46-22-101 MCA. through habeas to §§ alleges found support petition, guilty of his West that he was (10) years theft ten for theft with 1988 of and sentenced 1989 to (30) thirty year sentence because of the determination additional dangerous He persistent designated that he was a offender. also parole eligibility. He continued purposes alleges offender for illegal hearing incarceration at his on December He contends that present. one member of the Board was 202(2), he had a *2 pursuant to 46-23-201 and §§ He that the appear in front of the full Parole Board. also contends required by by majority are to be made § Board's decisions 46-23-107 by by signed vote are rule to be two Board members. required and he liberty parole he that he had a which Finally, contends interest he and he was parole was denied because met the criteria for process. denied due Mahoney, the concedes that response, Respondent, In Mike

¶3 20,1989, "liberty to he had a prior because West was convicted March and the of 46-23- parole process provisions interest" that due and § prior interview him personally 201 that the Board of Pardons require v. Sage to a so held in making determination about his We 459, 929 However, the respondent Mont. P.2d 822. Gamble 279 Mahoney, v. contends that to our later order pursuant (1998), 290 977 all of the Board are P.2d not members inmate. required personal for the interview with the 46-23-104(4)(a), MCA, Furthermore, respondent contends that § for provides may delegate responsibility that Board the the one of parole eligibility interviews to its members. for of Finally, respondent contends that the bases denial the are by disposition his case form parole

West's as documented required the was to consider consistent with those factors Board therefore, 46-23-202, MCA, that, its of pursuant disposition to § illegal. his case was not a Sage prisoner's v. we were asked to whether Gamble parole eligibility his

right process to due was denied when by Board Pardons was a staff member the of by employed conducted the and he denied the to before from Greenholtz parole hearing. Relying language Board at his on (1979), 442 Complex the and Correctional Inmates Nebraska Penal of that: 668, we concluded 68 L.Ed.2d U.S. S.Ct. therefore, reasonable, opinion to infer from the Greenholtz isIt before those parole applicant to that the judgment passing subjective responsibility the entrusted with due important her is an element application bis or on applicant to which the is entitled. Mont. at 929 P.2d 822. 46-23-202(2), is also MCA which pointed out that § We ordering parole Board is that required before 2.25.401, ARM, Rule prisoner and that to interview required statutory obligation by implement preceding the Board to adopted brought the Board and that prisoner that be before the direction the chairman. We stated: hearing be conducted at 46-23-202, (1981), and plain language on the ofboth Based § 20.25.401, ARM, eligible for Rule an inmate who personally appear an interview clearly provided right at or prior grant the Parole Board to the Board's decision to application parole.... for 279 Mont. at MCA, 46-23-104(4), which is relied acknowledged again We case, by staff by respondents provided

on interviews that: members but concluded duty interpretation

[A]n which relieves the of its unconstitutionally deny an inmate personally interview would by the Fourteenth process guaranteed inmate to due Constitution, independently Amendment the U. S. *3 II, 17, Constitution, by denying Article of the Section Montana him be those who decide the an to heard will See, Greenholtz, 16, 442 at 99 application. e.g., merits of U.S. statutes, duty 2108. to possible, S.Ct. at It is our construe where scrutiny. in a manner State v. that withstands constitutional (1995), Martel 902 P.2d 273 Mont. at P.2d 822. 279 929 held particularly to the facts before us we language

that:

Therefore, 46-23-104(4), permit we MCA to interpret § members, members, of its one of its one staff designate any releasing authority other correctional to conduct or adult parole eligibility to for prehearing interview ofan inmate relative hearing assisting expediting purpose However, not, does and cannot prehearing process. right applicant's personally substitute for the constitutional to appear before the Board. of an inmate's ignore importance

To her the merits of his or before those will who parole application ignore subjective is to nature ofthe decision statutory and the requirement that those vested with such responsibility possess specific qualifications.... Mont, at 929 P.2d 822.

We hold that due requirements of both federal and constitutions, state and the clear 46-23-202, mandate of MCA (1981), compel the Board of Pardons to personally interview a inmate, parole-eligible liberty who has a parole, interest in at the time fixed by law. Mont, at Respondent contends that its action in this case permissible

because the full Board ultimately participated in the decision to (1998) West v.Mahoney, 290 Mont. Radford 977 P.2d held we that not all members of the Board are required be for the personal However, interview of the inmate. we note inconsistency copy between the of the disposition" "case attached to petition West's for corpus habeas and the copy of the same disposition" "case attached to the respondent's response to West's petition. copy attached petition to West's signed by only is one Board member and was presumably presented to him in that form. The copy attached to the respondent's response signed by is two Board members, however, it is undisputed that signator first interviewed West. We conclude that the respondent's arguments are

unpersuasive and that to the extent that our Order in inconsistent our reported with decision in Sage Gamble, it is unpersuasive. 46-23-107, Section requires that "decisions by majority Board shall be Sage vote...." We held in v. Gamble the subjective decision, because of nature of the Parole Board's deny an inmate the opportunity those who will personally decide the merits ofhis or her parole application implicates his or her right to due process. rights Those are no implicated less because an inmate has the to appear before one Board member when a vote aby majority of the Board members is for a decision. Therefore, petition West's for a corpus, writ habeas

granted to the limited extent that conclude adequate we it was not *4 provide an interview fewer members than were required reason, his application parole. For this IT IS HEREBY ORDERED that this ¶12 case remanded to as conducted proceedings for further Pardons Board of Rodney Allen petitioner, at which possible as expeditiously a sufficient opportunity with provided is to be who decide so that those of Pardons of the Board of members number interview. a personal so on have done based his case will this Order to copy a of to mail Court is directed The Clerk of ¶13 Center, County Correctional West, AO Dawson Rodney Allen Graham Glendive, and to Colleen Blvd., Montana 440 Colorado Helena, Montana Corrections, P.O. Box White, Department respondents. of the on behalf day May, DATED this 3rd NELSON, REGNIER, LEAPHART TRIEWEILER,

JUSTICES and COTTER concur. dissenting.

JUSTICE RICE herein. opinion the Court’s dissent from respectfully I for his appeared Petitioner West In October Wilson, opportunity him an providing before Board member interview At that regard parole. in to his and to be heard to review his record decision until he could time, Board not render its he that the requested the matter full then reviewed testimony. The present witness issued a continuance and, request, to the Petitioner’s responding before Board a second granted Petitioner presented Petitioner in at which time Wilson December member by Board was then issued testimony. disposition A final case tape video placement Petitioner’s recommending Fleming, members Wilson and program. community-based prerelease in a held that state Greenholtz, Supreme Court the United States an effective prisoners must with procedures provide

parole are, fact, board first, parole before a to, insure that records second, any special case, and, prisoner’s to the related candidate for appropriate is an why prisoner considerations Court, that the Board of Greenholtz, Sage, held Relying on delegated it rights when Sage’s due Parole violated 46-23-202, MCA interview, under prisoner’s pre-parole doing, the Court secretary. In so Board’s executive to the §46-23-104(4), which Sage interpreted or, as interview to its staff delegate parole authorizes the Board to Board, applying as here, to one of the members satisfy not interview” that does “pre-hearing ato §46-23-202, MCA. requirement located various Montana inmates realities of physical *5 state, inside

facilities and outside ofthe and a comprised Parole Board members, citizen the practical by illustrates need met the Legislature 46-23-104(4), MCA, when it enacted § authorizing the delegate interview to one of its Sage, again herein, members. The Court in by interpreting 46-§ 23-104(4), MCA, as to a applying “pre-hearing interview” that is different than statutory parole interview, has eliminated the purpose for which the provision was enacted by Legislature. Further, observes, as the Court practice delegating parole interview to a single by member of the Board was upheld Court in Mahoney. While I am uncomfortable in referencing Radford unpublished decision, the Court opinion, has done so its Radford and a response appropriate. Radford, the Court noted that the Sage holding required the Board to conduct its own personal interview inmate, parole-eligible of a but that it did not hold that all members of present Board needed to be personal for the interview. The Court concluded require that Montana law did not pre-parole interview to be conducted before the entire Board. The actions taken in by this matter the Board provided an

effective opportunity file, for the Petitioner to review the personally heard and to evidence regarding Board thus fulfilled the due process requirements established Greenholtz. “Due procedural flexible calls for such protections the particular Greenholz, as situation demands.” 442 U.S. 1, 12, 99 S.Ct. 60 L.Ed.2d I 668. would hold that process rights Petitioner’s due were not violated herein the Board Pardons, 46-23-104(4), MCA, properly delegation authorizes of the pre-parole single member, interview a and would petition.

* * * CHIEF JUSTICE GRAY:

joinI foregoing dissent of JUSTICE RICE.