Bird v. Wyo. Bd. of Parole

• Decision Date: 18 October 2016
• Docket Number: S–16–0105
• Citation: Bird v. Wyo. Bd. of Parole, 2016 WY 100, 382 P.3d 56 (Wyo. 2016)
• Parties: Chester Loyde Bird, Appellant (Plaintiff), v. Wyoming Board of Parole, Daniel M. Fetsco, Executive Director, and Wyoming Department of Corrections, Robert O. Lampert, Director, Appellees (Defendants).
• Court: Wyoming Supreme Court

382 P.3d 56

2016 WY 100

Chester Loyde Bird, Appellant (Plaintiff),

v.Wyoming Board of Parole, Daniel M. Fetsco, Executive Director, and Wyoming Department of Corrections, Robert O. Lampert, Director, Appellees (Defendants).

S–16–0105

Supreme Court of Wyoming.

October 18, 2016

Representing Appellant: Chester L. Bird, pro se.

Representing Appellees: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; James M. Causey, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶1]Chester L. Bird is serving a sentence of life according to law for crimes he committed in the 1990s.Mr. Bird filed a pro se complaint pursuant to the Declaratory Judgment Act, alleging various constitutional violations.The district court dismissed Mr. Bird's claims, and he appealed.We affirm.

ISSUES

[¶2] Mr. Bird presents a number of issues for our review.Although the issues presented are not discretely listed, Mr. Bird discusses and presents argument on each issue listed below.While we will not frame the issues for the parties, we do make some allowances for pro se litigants.Kelley v. Watson , 2003 WY 127, ¶ 4, 77 P.3d 691, 692(Wyo.2003).

1.Does Wyo. Stat. Ann. § 7–16–205(a)(i) violate Mr. Bird's equal protection rights by treating similarly situated prisoners differently without a rational relationship to a legitimate state interest?

2.Does the Wyoming Department of Corrections' good time policy violate Mr. Bird's equal protection rights by treating similarly situated prisoners differently?

3.Did the enactment of Wyo. Stat. Ann. § 7–16–205(a)(i) impliedly repeal Wyo. Stat. Ann. § 7–13–402(a) ?

4.Did the Wyoming Board of Parole violate the doctrine of separation of powers by enacting policies governing the commutation application procedure?

5.Did the Wyoming Board of Parole violate Mr. Bird's due process rights by amending the commutation application procedure?

6.Did the Wyoming Board of Parole's amendment to the commutation application procedure violate Mr. Bird's constitutional protection against ex post facto laws?

FACTS

[¶3] In the mid-90s, Mr. Bird was sentenced to two life sentences according to law, to run concurrently.Bird v. State , 901 P.2d 1123, 1128(Wyo.1995).On September 1, 2015, Mr. Bird filed a complaint against the Wyoming Board of Parole(WBOP) and the Wyoming Department of Corrections(WDOC) pursuant to the Declaratory Judgment Act.Mr. Bird made a number of allegations, as set forth in the Issues section above.In response to Mr. Bird's complaint, the defendants filed a combined motion to dismiss, arguing that Mr. Bird failed to state a claim for relief.The district court granted the motion, and Mr. Bird timely filed his notice of appeal.

STANDARD OF REVIEW

[¶4]We sustain the dismissal of a complaint pursuant to W.R.C.P. 12(b)(6)“only if it shows on its face that the plaintiff[is] not entitled to relief under any set of facts.”Hochalter v. City of Gillette , 2005 WY 125, ¶ 9, 120 P.3d 674, 677(Wyo.2005)(quotingDarrar v. Bourke , 910 P.2d 572, 575(Wyo.1996) ).The facts alleged in the complaint are deemed admitted and the allegations are viewed in the light most favorable to the complaining party.Id.“Dismissal is a drastic remedy, and is sparingly granted.”Id.

DISCUSSION

I.Does Wyo. Stat. Ann. § 7–16–205(a)(i) violate Mr. Bird's equal protection rights by treating similarly situated prisoners differently without a rational relationship to a legitimate state interest?

[¶5] In 2010, the Wyoming legislature amended Wyo. Stat. Ann. § 7–16–205(a) by enacting a new paragraph which required that a portion of a prisoner's earnings be withheld and placed in a savings account, to be distributed to the prisoner upon release.The statute provides:

Unless the prisoner is serving a sentence of death or life without the possibility of parole or is subject to mandatory savings under W.S. 25–13–107(b)(i), ten percent (10%) shall be credited to the prisoner's personal savings account within the correctional facility's trust and agency account, until the prisoner's account has a balance of one thousand dollars ($1,000.00).Once the prisoner's personal savings account balance reaches one thousand dollars ($1,000.00), the income otherwise distributed to the prisoner's savings account under this paragraph shall be distributed to the prisoner as provided by paragraphs (ii) through (vi) of this subsection.Funds in the prisoner's personal savings account shall be paid to the prisoner upon parole or final discharge[.]

Wyo. Stat. Ann. § 7–16–205(a)(i)(LexisNexis2016 Supp.).In

Nicodemus v. Lampert , 2014 WY 135, 336 P.3d 671(Wyo.2014), we held that the mandatory savings requirement applied to prisoners serving a life according to law sentence, as the statutory language exempts only those serving life without parole or death sentences.Id. at ¶ 19, 336 P.3d at 675.The case did not present, and we did not consider, whether the mandatory inmate savings provision violated the constitutional right of equal protection.Mr. Bird argues that a life sentence according to law and a life sentence without parole are the same, and that Wyo. Stat. Ann. § 7–16–205(a)(i) violates equal protection because it treats similarly situated classes of prisoners differently.

[¶6] The United States Constitution provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.”U.S. Const. amend. XIV, § 1.Equal protection requires that “all persons similarly situated should be treated alike.”City of Cleburne v. Cleburne Living Center , 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313(1985).Unlike the United States Constitution, the Wyoming Constitution does not include a single, express equal protection clause.Hageman v. Goshen Cty. Sch. Dist. No. 1 , 2011 WY 91, ¶ 53, 256 P.3d 487, 503(Wyo.2011).Instead, it contains “a variety of equality provisions,”id. which we have said “offers more robust protection against legal discrimination than the federal constitution.”Allhusen v. State By & Through Wyo. Mental Health Professions Licensing Bd. , 898 P.2d 878, 884(Wyo.1995);see alsoWyo. Const. art. 1, §§ 2, 3, 34, art. 3, § 27.Despite the textual difference, “this Court uses the conventional federal equal protection analysis in the interpretation of the equality provisions of the Wyoming Constitution.”Hageman , 2011 WY 91, ¶ 53, 256 P.3d at 503(quotingNewport Int'l Univ., Inc. v. State Dep't of Educ. , 2008 WY 72, ¶ 15, 186 P.3d 382, 387(Wyo.2008) ).

[¶7] In an equal protection analysis, we begin by examining whether the classified groups alleged to be treated differently as a result of a governmental action are, in fact, similarly situated.Reiter v. State , 2001 WY 116, ¶ 26, 36 P.3d 586, 594(Wyo.2001).If not, there is no equal protection violation, and the claim must be dismissed.Id.However, if we find that two groups treated differently are similarly situated, then we must determine whether the challenged government action is rationally related to a legitimate state interest.¹City of Cleburne , 473 U.S. at 440, 105 S.Ct. at 3254.If so, we uphold the governmental action; however, if not, the governmental action must be invalidated as violating equal protection.

[¶8]The district court upheld the statute, finding that it “does not provide dissimilar treatment to similarly situated inmates.”Equal protection “does not require things which are different in fact or opinion to be treated in law as though they were the same.”Reiter , 2001 WY 116, ¶ 26, 36 P.3d at 594(quotingSkinner v. State of Okla. ex. rel. Williamson , 316 U.S. 535, 540, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655(1942) ).However, in the context of a motion to dismiss, there was an insufficient basis to conclude that prisoners sentenced to life without parole and prisoners sentenced to life according to law are not similarly situated.

[¶9] The United States Supreme Court has never precisely defined the meaning of the term “similarly situated,”Selsor v. Workman , 644 F.3d 984, 1016(10th Cir.2011), and the circuit courts of appeal that have grappled with this question have not presented a uniformly applicable test to resolve this thorny issue.²The Seventh Circuit has stated that the classified groups must be “identical in all relevant respects,”Srail v. Village of Lisle , 588 F.3d 940, 945(7th Cir.2009), while the Tenth Circuit has used a less rigid approach, asserting that “the degree to which others are viewed as similarly situated [for equal protection analysis purposes] depends substantially on the facts and context of the case.”Jennings v. City of Stillwater , 383 F.3d 1199, 1214(10th Cir.2004).The Eleventh Circuit has indicated that different groups must be “prima facie identical” to be similarly situated, Grider v. City of Auburn , 618 F.3d 1240, 1264(11th Cir.2010), and the Fourth Circuit has asserted that the “evidence must show an extremely high degree of similarity.”Willis v. Town of Marshall , 275 Fed.Appx. 227, 233(4th Cir.2008)(internal quotation marks and citation omitted).The First Circuit has taken a more colloquial approach insisting that “apples should be compared to apples.”Barrington Cove Ltd. P'ship v. Rhode Island. Hous. & Mortg. Fin. Corp. , 246 F.3d 1, 8(1st Cir.2001).While it is clear that the groups to be compared must be substantially similar “in relevant respects,”Bd. of Trustees of Univ. of Alabama v. Garrett , 531 U.S. 356, 366 n.4, 121 S.Ct. 955, 963 n.4, 148 L.Ed.2d 866(2001), we find that equal protection analysis must begin with determining the purpose of the challenged governmental action.Women Prisoners of District of Columbia Dep't of Corrections v. District of Columbia , 93 F.3d 910, 954–55(D.C. Cir.1996)(Rogers, J. concurring in part and dissenting in part)(“Whether two people(or classes of people) treated...