Kelch v. Director, Nevada Dept. of Prisons

• Decision Date: 06 December 1991
• Docket Number: No. 21078,21078
• Citation: 107 Nev. 827,822 P.2d 1094
• Parties: Robert Maxwell KELCH, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF PRISONS, George Sumner, Respondent.
• Court: Nevada Supreme Court

Page 1094

822 P.2d 1094

107 Nev. 827

Robert Maxwell KELCH, Appellant, v. DIRECTOR, NEVADA DEPARTMENT OF PRISONS, George Sumner, Respondent.

No. 21078.

Supreme Court of Nevada.

Dec. 6, 1991.

Stewart L. Bell, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Robert J. Gower and John E. Simmons, Deputy Attys. Gen., Las Vegas, for respondent.

OPINION

SPRINGER, Justice:

In this lawsuit, appellant Robert Kelch (Kelch) contests the revocation of a commutation that had previously been granted to him by the Nevada Board of Pardons Commissioners (the "Board" or "Pardons Board"). In 1985, Kelch pleaded guilty to a charge of second degree murder and was sentenced to twenty years in the Nevada State Prison. After Kelch had served two years of this sentence, he applied for a pardon/commutation from the Pardons Board. On May 12, 1987, the Board met and considered Kelch's petition. At this hearing, Kelch and his attorney testified before the Board; in addition, the Board received a letter from Judge Beko (the sentencing judge) stating that he neither supported nor objected to Kelch's petition. The district attorney from Nye County (the prosecuting attorney) had notice of the meeting, but did not appear or file an objection. Following the hearing, the Board issued an order commuting Kelch's sentence to five years.

Upon learning of the commutation, the Nye County District Attorney filed a motion for reconsideration. In response to the district attorney's motion, the Pardons Board placed the matter on its November 23, 1987, agenda. At this hearing, Kelch and his attorney presented testimony in support of the Board's original decision. Conversely, the Nye County District Attorney presented testimony in favor of rescinding the commutation and reinstating the original sentence. Following the hearing, the Board voted 6-1 to rescind the commutation and reinstate the original sentence.

Kelch then filed for a writ of habeas corpus in the United States District Court for the District of Nevada. On December 13, 1988, the federal court denied this petition, holding that Kelch had failed to exhaust his remedies in the Nevada courts. Thus, on March 9, 1989, Kelch filed an application for writ of habeas corpus in this court. This court denied the writ and instructed Kelch that he could not bring the matter directly before this court, but rather must file for a writ in the district court.

On March 31, 1989, Kelch filed for a writ of habeas corpus from the Fifth Judicial District Court. The parties then stipulated to have the matter heard in the Eighth Judicial District Court. On May 22, 1989, the matter came before Judge Thompson, and after listening to oral argument, he denied the writ. Kelch now appeals.

Kelch's sole contention in this appeal is that the Board, in rescinding its original commutation order, violated his due process rights. To address this argument, it is necessary to review several principles of due process jurisprudence. To begin, the due process clause only applies where the claimant has been deprived (or is in jeopardy of being deprived) of some type of liberty interest. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). ¹ Thus, if a liberty interest is not at stake, the claimant cannot assert the protections of due process. Id. If, however, the government is attempting to infringe on a protected liberty interest, then it (the government) may do so only if it follows the procedures mandated by the due process clause. Id. Consequently, in analyzing Kelch's due process claim, two questions must be asked: (1) Did the Board deprive Kelch of a protected liberty interest? (2) If so, did Kelch receive all the process that he was due? We will now address each of these issues in turn.

The initial question that must be addressed is whether the Board's action deprived Kelch of a protected liberty interest. In Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600, the Court stated that "whether any procedural protections are due depends on the extent to which an individual will be condemned to suffer grievous loss." In Morrissey, the Court observed that the liberty of a parolee "includes many of the core values of unqualified liberty and its termination inflicts a grievous loss on the parolee and often on others." Id. at 482, 92 S.Ct. at 2601. Accordingly, the Court held that before parole could be revoked, the parolee must receive some "orderly process, however informal." Id.

The procedural protections of due process are not invoked, however, every time an individual suffers a "grievous loss." In Jago v. Van Curen, 454 U.S. 14, 17, 102 S.Ct. 31, 34, 70 L.Ed.2d 13 (1981), the parole board informed the prisoner that he was to be granted parole, but then rescinded its decision prior to release of the prisoner. The Court conceded that this action by the parole board had caused a "grievous loss" in the mind of the prisoner. Nevertheless, the Court held that no protected liberty interest had been created, since the prisoner had never received the benefit promised, i.e., the prisoner was never actually paroled. Id. Because no liberty interest had been created, the Court reasoned, the parole board was not required to conform to the dictates of due process in reversing its original decision. Id.

In Ellard v. Alabama Board of Pardons and Paroles, 824 F.2d 937 (11th Cir.1987), cert. denied, 485 U.S. 981, 108 S.Ct. 1280, 99 L.Ed.2d 491 (1987), the court expanded on the principles discussed in Jago. In Ellard, the Alabama Parole Board granted parole to the prisoner; the prisoner was then released directly into the custody of the State of Georgia to serve a life sentence there. Id. at 940. Following a "burst of public outrage at the parole decision," however, the Alabama Parole Board revoked its original ruling and rescinded its grant of parole. Id. at 940-41. The question before the Eleventh Circuit was whether, by originally granting parole, the Alabama Board had given the prisoner a protected liberty interest.

The court in Ellard held that a such an interest had been created. In so holding, the court observed that: "The states, of course, may elect not to confer rights ... that are not inherent in the Constitution. But once a state does choose to confer such a right, the prisoner's interest has 'real substance' and can be revoked only under the limitations imposed by the due process clause." Id. at 943. The court then distinguished Jago, by pointing out that there, the benefit conferred by the parole board, i.e., parole, had never actually been received by the prisoner. Id. at 943 n. 4. By contrast, in Ellard, the prisoner had actually received parole, though not outright release. Id. Because the benefit received by Ellard thus had "real substance," the court reasoned, it could be revoked only under the limitations imposed by due process. ²

Applying these principles to the facts of this case, we conclude that the Pardons Board's original order created a protected liberty interest in favor of Kelch. Here, it is clear that Kelch actually received the benefit conferred by the Pardons Board. Following the May 12, 1987, hearing, the Board issued an "Order Commuting Sentence," which stated that "[i]t is hereby ordered that effective this date applicant's sentence be commuted from 20 years to five years of imprisonment...." (Emphasis ours.) Thus, by virtue of this order, Kelch received his commutation on May 12, 1987, and his case is therefore distinguishable from Jago, where the prisoner did not receive parole, but was simply informed that he would soon receive parole. For this reason, Kelch obtained an interest with "real substance" at the time the Pardons Board issued its order, and the deprivation of this interest caused Kelch to suffer a "grievous loss." Accordingly, Kelch's commutation could be revoked only under the limitations imposed by the due process clause.

Having concluded that Kelch received a protected liberty interest from the Pardons Board, we now turn to the question of whether the Board deprived him of that interest in a manner consistent with the due process clause. The United States Supreme Court has often dealt with the issue of what procedures are required by due process, and has noted that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600. In addition, the Court has explained that the most fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976).

In McLaughlin v. Bronson, 537 A.2d 1004 (Conn.1988), the court discussed the requirements of due process in a situation quite similar to this one. In McLaughlin, the Connecticut Board of Pardons commuted the sentence of the prisoner (McLaughlin) from twenty years to time served. Id. at 1005. Following the hearing, however, the Board learned that McLaughlin's wife had made several material misrepresentations during her testimony before the board. Id. For this reason, the Board reheard the matter and rescinded the commutation. Id. at 1005-6.

The prisoner then brought an action for habeas corpus, and alleged, among other things, that the Board of Pardons had violated his due process rights. The Connecticut Supreme Court disagreed. The court began its analysis by assuming that the prisoner had received a protected liberty interest when he obtained the commutation. Id. at 1008 n. 3. The court then held that because the Board of Pardons had afforded McLaughlin the following protections: "notice, hearing, representation by counsel, the right to confront and cross-examine witnesses, a neutral and detached hearing body and a written statement articulating the reasons for revocation," McLaughlin had received all the process that he was due under the fourteenth...