Bergee v. Bd. of Pardons and Paroles, 21058.

Decision Date08 March 2000
Docket NumberNo. 21058.,21058.
Citation608 N.W.2d 636,2000 SD 35
PartiesTimothy J. BERGEE, Nicholas A.Cote, Larry A. Eaton, Glen R. Gunnoe, Minh Hoang, Bryan S. Holm, Daniel W. Knight, Edward A. Newa, Robert L. Phillips, Tod H. Richards, Scott A. Schmidt, Clint R. Terry, and Mark Weaver, Appellants, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
CourtSouth Dakota Supreme Court

Michael D. Bornitz of James & Associates, Yankton, South Dakota, Attorneys for appellant Bryan S. Holm.

Paul R. Boschma, Springfield, South Dakota, Attorney for appellants.

Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.

KONENKAMP, Justice.

[¶ 1.] Is denial of parole an appealable decision for inmates sentenced to prison for crimes committed before July 1, 1996? The circuit court held that parole hearings are not contested cases subject to appeal under South Dakota's Administrative Procedure Act. We affirm. We also find no violation of equal protection when South Dakota's new parole laws were not applied retroactively.

Background

[¶ 2.] Plaintiffs are inmates at the Springfield State Prison who were denied parole by the South Dakota Board of Pardons and Paroles. They are serving sentences for crimes committed before July 1, 1996. In some cases, the Board did not explain its denial. In other instances, the Board ruled that, considering their offenses, the inmates had not been imprisoned long enough or that society would not be protected if they were paroled. No transcript or other verbatim record was kept of the Board's hearings.

[¶ 3.] These inmates each appealed to the circuit court under the Administrative Procedure Act, SDCL 1-26. After consolidating the cases, the circuit court granted the Board's motion to dismiss, ruling that a decision to award or deny parole is not appealable. Before this Court the inmates contend: (1) parole hearings are appealable contested cases; (2) parole hearings before a single member of the Board violate SDCL 24-13-4.3; (3) parole hearings must be recorded like other contested hearings; (4) written reasons are required for denial of parole; (5) the Board acted arbitrarily and capriciously in refusing to return inmate Holm's good time; and (6) their equal protection rights were violated as a result of the Board's refusal to apply the provisions of SDCL ch. 24-15A to them.

Standard of Review

[¶ 4.] Rulings on the constitutionality of laws and the construction of statutes are reviewed under the de novo standard. State v. Shadbolt, 1999 SD 15, ¶ 10, 590 N.W.2d 231, 233 (citing Engelhart v. Kramer, 1997 SD 124, ¶ 8, 570 N.W.2d 550, 552); Wegleitner v. Sattler, 1998 SD 88, ¶ 4, 582 N.W.2d 688, 689 (citation omitted). Statutes are presumed to be constitutional. Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D. 1995) (citing Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995)). To successfully challenge the constitutionality of a statute, it must be shown beyond a reasonable doubt that the Legislature exceeded its constitutionally mandated power. City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D.1994). Although "legislative acts are presumed to be constitutional, that presumption disappears when the unconstitutionality of the act is, `clearly and unmistakenly shown and there is no reasonable doubt that it violates constitutional principles.'" South Dakota Educ. Ass'n v. Barnett, 1998 SD 84, ¶ 22, 582 N.W.2d 386, 392 (quoting Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994) (citations omitted)). "If a statute can be construed so as not to violate the constitution, that construction must be adopted." Cary v. City of Rapid City, 1997 SD 18, ¶ 10, 559 N.W.2d 891, 893 (citations omitted).

Analysis and Decision
1. Parole Hearings Not Contested Proceedings

[¶ 5.] As the inmates became eligible for parole, each received a hearing under SDCL 24-15-8.1 Now they seek court review.2 They contend that a parole hearing is a "contested case" as that term is defined in SDCL 1-26-1(2).3 Relying on the statutory definition, the inmates first argue that a contested case is a proceeding concerning a privilege, and parole is a privilege. See Watkins v. Class, 1997 SD 76, ¶ 18, 566 N.W.2d 431, 435. Second, the inmates reason that because appealable contested cases include agency decisions, and because the Board is an agency required by SDCL 24-15-8 to conduct parole hearings, the Board's decisions are appealable. They assert that while some proceedings are exempted from the definition of contested cases, parole hearings are not among those excluded. Thus, the inmates conclude that the Legislature intended parole hearings to be included in the definition.

[¶ 6.] Parole hearings are not adversary in nature, a usual characteristic of contested cases. Witnesses are not ordinarily called, sworn, and subject to cross-examination. The rules of evidence are inapplicable, as the Board may consider any matter bearing on an inmate's fitness for release. "Parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of his term of imprisonment." SDCL 24-15-1.1. "A prisoner is never entitled to parole." Id. The Board may grant an inmate parole if, in the Board's judgment, it is in the best interest of both the prisoner and society. Id.

[¶ 7.] The inmates rely on Tibbetts v. State, 336 N.W.2d 658 (S.D.1983) to support their position that a parole hearing under SDCL 24-15-8 is appealable. In Tibbetts, we held that inmates have the right to judicial review of final decisions entered by the Board of Charities and Corrections. Tibbetts dealt with reduction of good time credit, however. A hearing before such action is required by SDCL 24-2-12.4 "[M]inimal due process procedures must be followed before good time may be revoked." Lewis v. Class, 1997 SD 67, ¶ 21, 565 N.W.2d 61, 64 (citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

[¶ 8.] South Dakota has no similar statutory hearing requirement when discretionary parole is denied. Parole, "an executive branch function" under SDCL 24-15-8, is a matter of grace, a conditional release. State v. Puthoff, 1997 SD 83, ¶ 10, 566 N.W.2d 439, 442; Watkins, 1997 SD 76, ¶ 18,566 N.W.2d at 435. "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675 (1979). "That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained." Greenholtz, 442 U.S. at 11,99 S.Ct. at 2105,60 L.Ed.2d at 677 (citation omitted); see also Puthoff, 1997 SD 83, ¶ 6,566 N.W.2d 439, 442. A "hope" is not a protected due process interest. Greenholtz, 442 U.S. at 11,99 S.Ct. at 2105,60 L.Ed.2d at 677-78. To have a protected right under due process, persons must possess more than a one-sided expectance. They must have a legal "entitlement." Id. at 7, 99 S.Ct. at 2103-04, 60 L.Ed.2d at 675 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)).

[¶ 9.] As there is no interest protected by due process when parole is denied under SDCL 24-15-8, and because parole is purely discretionary for these inmates, we conclude that parole hearings are not contested cases subject to appeal.

2. Single Board Member Parole Hearings Permissible

[¶ 10.] The inmates were each granted a parole hearing before a single member of the Board. They urge us to interpret the statutes governing parole to require a hearing before multiple Board members: the member designated as a hearing officer along with two or more other members. SDCL 24-13-4.2 provides:

The chairman of the board may designate individual parole board members as hearing officers who may conduct hearings, hear applications, take testimony and make recommendations to the board regarding the granting, denial, revocation, rescission or an administrative continuance of a parole. The recommendation shall be in writing and reviewed by the board or a panel of the board who may adopt, modify or reject the recommendations.

This statute must be read together with SDCL 24-13-4.3:

The chairman of the board may designate panels of two or more board members to conduct hearings, hear applications, take testimony and take final action regarding the granting, denial, revocation, rescission or an administrative continuance of a parole.

[¶ 11.] "We interpret statutes in accord with legislative intent." Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789 (citation omitted). Intent should be determined first from the plain and ordinary meaning of the statutory language. Id. When a statute's language is clear, certain, and unambiguous, our function confines us to declare its meaning as plainly expressed. US West Communications, Inc. v. Public Utilities Comm'n, 505 N.W.2d 115, 123 (S.D.1993).

[¶ 12.] A plain reading of these two statutes reveals that, while a panel of two or more is required for final action on parole, an individual Board member may conduct a hearing. Nothing in the record discloses that any member alone took final action. To the contrary, the entire Board acted on each inmate's case and approved the action recommended by the single Board member. Hearings before one Board member were, therefore, not illegal or invalid.

3. Recording of Parole Hearings Not Required

[¶ 13.] The inmates argue that even if parole hearings are not contested cases, a verbatim record should be kept so that a reviewing court may examine the decisions in the event improper criteria are used. We are not persuaded by this argument. In discussing review of parole procedures, the United States Supreme Court stated in Greenholtz:

[T]here simply is no
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