135 P.3d 220 (Nev. 2006), 41529, Stockmeier v. Nevada Dept. of Corrections Psychological Review Panel

Docket Nº:41529.
Citation:135 P.3d 220
Opinion Judge:OPINION PER CURIAM.
Party Name:Robert Leslie STOCKMEIER, Appellant, v. NEVADA DEPARTMENT OF CORRECTIONS PSYCHOLOGICAL REVIEW PANEL, Respondent.
Attorney:Robert Leslie Stockmeier, Lovelock, in Proper Person., George Chanos, Attorney General, and Kelly S. Werth, Deputy Attorney General, Carson City, for Respondent.
Case Date:April 27, 2006
Court:Supreme Court of Nevada
 
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135 P.3d 220 (Nev. 2006)

Robert Leslie STOCKMEIER, Appellant,

v.

NEVADA DEPARTMENT OF CORRECTIONS PSYCHOLOGICAL REVIEW PANEL, Respondent.

No. 41529.

Supreme Court of Nevada

April 27, 2006

Page 221

Robert Leslie Stockmeier, Lovelock, in Proper Person.

George Chanos, Attorney General, and Kelly S. Werth, Deputy Attorney General, Carson City, for Respondent.

Before ROSE, C.J., DOUGLAS and PARRAGUIRRE, JJ.

OPINION

PER CURIAM.

In this proper person appeal, we decide whether prisoners have standing to file suit regarding violations of the open meeting law, NRS Chapter 241, that occur before and during Psychological Review Panel hearings under NRS 213.1214. Appellant Robert Stockmeier is an incarcerated sex offender. As a sex offender, before he can be released on parole he must receive certification from the Psychological Review Panel (the Psych Panel) that he does not represent a high risk to reoffend. The Psych Panel allegedly violated various open meeting law provisions at Stockmeier's Psych Panel hearing, including a lack of adequate notice before the hearing, a deficient agenda, and an improperly conducted closed meeting. The district court did not reach the merits of these allegations, finding that Stockmeier did not have standing to assert open meeting law rights and that, even if he did, the Psych Panel hearing was a judicial proceeding that was exempt from the open meeting law. This appeal followed.

We conclude that Psych Panel hearings do not qualify as judicial proceedings; thus, they are subject to the open meeting law. We also conclude that federal constitutional standing is inapplicable to the open meeting law and that prisoners do have standing under NRS 241.037(2) to assert certain open meeting law violations. In general, prisoners' open meeting law rights are limited. However, in the instant case, Stockmeier attended and was the subject of the Psych Panel hearing. Therefore, we conclude that Stockmeier can seek redress under the open meeting law for the Psych Panel's alleged failure to provide him with adequate notice and its failure to comply with the open meeting law's requirements for a closed meeting, the public notice, and the publicly posted hearing agenda. We further conclude that Stockmeier's complaint alleges sufficient facts, which, if true, may entitle him to relief on his claims that the Psych Panel violated the closed meeting provisions of the open meeting law. Therefore, we reverse the district

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court's order and remand this case to the district court for further proceedings.

FACTS

Appellant Robert Stockmeier is a sex offender currently incarcerated at the Lovelock Correctional Facility. As a sex offender, Stockmeier must receive certification from the Psych Panel before he can be released on parole. Stockmeier was the subject of a Psych Panel hearing in December 2002. Before the hearing, he received a copy of the hearing agenda. The agenda informed him of the time and place of his hearing; that the Psych Panel would meet in a closed session "to consider [his] character, mental health, and alleged misconduct" before opening up for public comment, deliberation, and decision; and that the Psych Panel would consider whether to certify Stockmeier for parole under NRS 213.1214. The agenda did not disclose that the Psych Panel would hear comment during the closed session from the victim and the victim's family regarding new abuse allegations or that the Psych Panel would consider that information when deciding whether to certify Stockmeier.

When the Psych Panel hearing began, the Psych Panel closed the hearing to the public under NRS 241.030 to consider Stockmeier's character, mental health, and alleged misconduct. During the closed session, the victim and the victim's family were admitted and allowed to speak. They commented to the Psych Panel about the impact of Stockmeier's offenses on their lives, stated their belief that they were in danger should Stockmeier be released, and asserted that the victim had recently remembered additional acts of physical abuse. Because the victim had never before alleged those acts, those alleged acts were not included in the presentence investigation report and they have never been adjudicated. The Psych Panel then dismissed the victim and the victim's family and interviewed Stockmeier, questioning him regarding his conviction and the victim's most recent allegations. Stockmeier admitted to the crimes for which he was convicted, but he denied committing the new, uncharged acts. The Psych Panel then dismissed Stockmeier and deliberated during the remainder of the closed session.

When the Psych Panel opened the meeting to the public, it did not permit additional public comment and did not further deliberate. It announced its decision declining to certify Stockmeier, noting, among other issues, that he denied accountability for the uncharged physical abuse. The Psych Panel provided the following explanation in its minutes:

Panel notes unsatisfactory performance in all Criteria. Panel notes inmates [sic] Accountability to crime, but denies some of the physical abuse to victim. Panel notes Antecedents and Victim/Crime Impact as needing more work. Panel also notes Actuarial/Risk factors and suggest inmate further program with Substance Abuse counseling and Sex Offender treatment.

By Consensus: Not Certified

In the district court, Stockmeier, proceeding in proper person, challenged as violations of the open meeting law the notice he received, the comments of the victim during the closed session, and the Psych Panel's consideration of the new physical abuse allegations. He sought "declaratory relief," declaring that the Psych Panel violated NRS Chapter 241 and that the meeting held in December 2002 was void; injunctive relief requiring the Psych Panel to comply with NRS Chapter 241; and costs.

The Psych Panel filed an NRCP 12(b)(5) motion to dismiss, which the district court granted. The district court first determined that Stockmeier did not have constitutional standing to assert open meeting law violations. It then held that prisoners cannot conduct the people's business and, therefore, cannot assert open meeting law violations. The district court finally held that Psych Panel hearings are exempt from the open meeting law as judicial proceedings. Stockmeier challenges these findings on appeal. 1

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DISCUSSION

An order granting a motion to dismiss under NRCP 12(b)(5) for failure to state a claim is subject to a rigorous standard of review on appeal. 2 We must regard all factual allegations in the complaint as true and must draw all inferences in favor of the nonmoving party. 3 "A complaint should only be dismissed if it appears beyond a reasonable doubt that the plaintiff could prove no set of facts, which, if true, would entitle him to relief. Dismissal is proper where the allegations are insufficient to establish the elements of a claim for relief." 4 "[T]he district court's conclusions of law are reviewed de novo." 5

Stockmeier alleges that the Psych Panel violated the open meeting law by providing deficient notice, not following its agenda, failing to follow the correct procedure to enter into a closed meeting, allowing the victim and the victim's family into the closed portion of the hearing and by considering their statements, deliberating behind closed doors, and considering the new allegations in its decision. Stockmeier's arguments require us to review several sections of the open meeting law, NRS Chapter 241.

In order for Stockmeier to assert that the Psych Panel violated the open meeting law, a Psych Panel hearing must be subject to the law. The Psych Panel argues that, under NRS 241.030(3)(a), 6 its hearings are exempt from the open meeting law as judicial proceedings. 7 However, as the Psych Panel is not part of the judiciary, a Psych Panel hearing is, at best, a quasi-judicial proceeding. A quasi-judicial proceeding is sufficiently akin to a judicial proceeding to render it exempt from the open meeting law. Therefore, we must first address whether the Psych Panel hearing is a quasi-judicial proceeding exempt under the statute.

The Psych Panel hearing was not a quasi-judicial proceeding

Quasi-judicial proceedings are those proceedings having a judicial character that are performed by administrative agencies. 8 This court has held that an administrative body acts in a quasi-judicial manner when it refers to a proceeding as a trial, takes evidence, weighs evidence, and makes findings of fact and conclusions of law. 9 We have also held that "the taking of evidence only upon oath or affirmation, the calling and examining of witnesses on any relevant matter, impeachment of any witness, and the opportunity to rebut evidence presented against the employee" was "consistent with quasi-judicial administrative proceedings." 10 Each administrative tribunal in these cases "act[ed] in a quasi-judicial capacity [because] it afford[ed] the parties substantially the same rights as

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those available in a court of law, such as the opportunity to present evidence, to assert legal claims and defenses, and to appeal from an adverse decision." 11

Other courts have also required similar protections for an administrative proceeding to be deemed quasi-judicial. In Arizona, the procedures followed by the Board of Tax Appeals included "hearing the parties in open forum, taking the matter under advisement, deliberating, writing a written decision, and making that decision available to the parties and to the public." 12 The Arizona Supreme Court concluded that these procedures created a judicial proceeding that fell within an open meeting law statute exception identical to NRS...

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