Pisano v. Shillinger

Citation835 P.2d 1136
Decision Date27 July 1992
Docket NumberNo. 91-138,91-138
PartiesGeorge PISANO, Appellant (Petitioner), v. Duane SHILLINGER, Appellee (Respondent).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, and Deborah A. Baumer, Appellate Counsel, Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., and Barbara L. Boyer, Sr. Asst. Atty. Gen., for appellee.


MACY, Chief Justice.

The Wyoming Board of Parole (Board) voted to revoke Appellant George Pisano's parole after determining that he had violated several parole conditions. Appellant petitioned the district court for a review of the Board's decision pursuant to the Wyoming Administrative Procedure Act (WAPA) and W.R.A.P. 12. The district court dismissed Appellant's petition for review, holding that the legislature specifically precluded parole revocation hearings from the WAPA's general grant of judicial review of administrative decisions.

We reverse and remand.

Appellant raises the following issues on appeal:


Was Appellant denied his constitutional right to procedural due process when the district court ruled that he had no right to judicial review of his parole revocation?


Was improper evidence used to revoke Appellant's parole?

Appellee Duane Shillinger states the issues as:

I. Whether there exists a right to judicial review of a parole revocation decision of the Wyoming Board of Parole.

II. Whether the decision of the Wyoming Board of Parole was appropriate: Whether it was supported by substantial evidence, was either arbitrary, capricious or an abuse of discretion, or was otherwise in accordance with law.

In 1983, Appellant was convicted of voluntary manslaughter in violation of Wyo.Stat. § 6-4-107 (1977) (currently Wyo.Stat. § 6-2-105 (1988)) and sentenced to serve not less than seven years nor more than fifteen years in the Wyoming State Penitentiary. Appellant was paroled from the penitentiary in September 1988, subject to certain conditions. Starting in June 1989 and continuing through the fall of 1990, Appellant engaged in a series of activities which ultimately caused his parole officer to file a petition for a preliminary hearing to determine probable cause and reasonable grounds of violations of Appellant's parole. The incidents which allegedly violated Appellant's parole conditions included consumption of intoxicating beverages, entering a place where intoxicating beverages were sold, vandalism, larceny, leaving the state of Wyoming without permission, and failure to participate in substance abuse and mental health counseling.

After holding a hearing on December 5, 1990, the Department of Probation and Parole found probable cause existed to support eight of the eleven alleged parole violations and recommended that Appellant be returned before the Board for a further hearing and disposition of the matter. Pending his final revocation hearing, Appellant filed a motion to have bail set and an emergency petition for a writ of habeas corpus. In Pisano v. Shillinger, 814 P.2d 274 (Wyo.1991), this Court denied Appellant's motion and emergency petition, holding that Appellant had no right to be admitted to bail pending revocation of his parole. After his final revocation hearing on January 8, 1991, the Board concluded that Appellant's parole should be revoked.

On January 25, 1991, Appellant filed a petition with the district court pursuant to Wyo.Stat. § 16-3-114 (1990) and W.R.A.P. 12, seeking judicial review of the Board's decision to revoke his parole. In his petition, Appellant claimed that, at the parole revocation hearing, the Board improperly received several exhibits into evidence and admitted evidence concerning Appellant's mental health counseling without proof of a sufficient waiver of confidentiality. The district court dismissed Appellant's petition, holding that Wyo.Stat. § 7-13-402(f) (Supp.1991) expressed the legislature's intent to preclude judicial review of the Board's hearings. Appellant filed a timely notice of appeal.

It is helpful to initially identify the precise issue raised by Appellant. The narrow question presented to the district court, and currently before this Court, was whether the legislature intended to preclude parole revocation proceedings from the WAPA's general grant of judicial review. Only if we first determine that the legislature did intend to preclude judicial review of parole revocation hearings must we then consider the constitutional issue of whether a parolee's constitutional due process rights mandate judicial review by appeal or by some other mechanism; e.g., a writ of habeas corpus. 1 This approach is consistent with the well established rule that we will not discuss constitutional questions if another appropriate ground exists for resolving the issue. Wheeler v. Parker Drilling Company, 803 P.2d 1379, 1383 n. 1 (Wyo.1991).

We have recognized that the right to judicial review of an administrative decision is entirely statutory. Sellers v. Employment Security Commission of Wyoming, 760 P.2d 394, 395 (Wyo.1988); Holding's Little America v. Board of County Commissioners of Laramie County, 670 P.2d 699, 702 (Wyo.1983), after remand, 712 P.2d 331 (Wyo.1985). In this case, the legislature has not provided a specific statute which authorizes judicial review of parole revocation decisions. Therefore, the applicable statute is § 16-3-114(a) which establishes, in general, the right to have review of final agency decisions. Section 16-3-114(a) provides in pertinent part:

(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review in the district court for the county in which the administrative action or inaction was taken....

(Emphasis added.) In his brief, Appellee does not contest the fact that the Board is an agency 2 or that a parole revocation proceeding constitutes a contested case. 3 See Frazee v. Iowa Board of Parole, 248 N.W.2d 80 (Iowa 1976) (interpreting parole revocation proceeding as being a contested case under Iowa Administrative Procedure Act's definition, which is identical to the contested case definition in the WAPA); and Airhart v. Iowa Department of Social Services, 248 N.W.2d 83 (Iowa 1976). Rather, Appellee contends that judicial review pursuant to § 16-3-114(a) is specifically precluded by § 7-13-402(f), which provides:

(f) The promulgation of substantive rules by the board and the conduct of its hearings are specifically exempt from all provisions of the Wyoming Administrative Procedure Act except the rules and regulations shall be filed in the office of the secretary of state.

(Emphasis added.)

We have adopted the view that when we are analyzing the availability of judicial review of administrative decisions the interests of Wyoming are best served by a policy which leads to reviewability in most instances. Holding's Little America, 670 P.2d at 702; Keslar v. Police Civil Service Commission, City of Rock Springs, 665 P.2d 937, 942 (Wyo.1983). Consistent with this "presumption of reviewability" is the concept that the right to review is not precluded unless legislative intent to preclude judicial review is clear and convincing. Holding's Little America, 670 P.2d at 702. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); and Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962). While courts frequently cite this test, what constitutes clear and convincing evidence of legislative intent to preclude judicial review is not always apparent. In Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the Supreme Court described clear and convincing evidence as not being a rigid evidentiary test but as being a useful reminder to courts that, where substantial doubt about legislative intent exists, the general presumption favoring judicial review of administrative action is controlling. 467 U.S. at 351, 104 S.Ct. at 2456. The Supreme Court explained: "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." 467 U.S. at 345, 104 S.Ct. at 2453. See also Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).

Unfortunately, our examination of whether the legislature intended to preclude judicial review in § 7-13-402(f) is necessarily less informed than federal statutory analysis due to a lack of available legislative history in Wyoming. Nevertheless, the statutory language itself provides valuable insight into legislative intent. In this case, Appellee asserts that the language of § 7-13-402(f) evidences the requisite legislative intent to preclude review. Appellee argues that, since "the conduct of its hearings are ... exempt from all provisions of the Wyoming Administrative Procedure Act," parole revocation decisions must be exempt from judicial review. Essentially, Appellee's contention is that the legislature could not have intended to allow review of the Board's decisions if the manner in which those decisions are made does not have to comply with the WAPA's procedural requirements. The court below agreed with Appellee's interpretation, concluding in its decision letter that:

An examination, ... of [Appellant's] Petition for Review, specifically sets forth objection to exhibits and evidence received by the Board of Probation and Parole at the parole...

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