Sage v. Gamble

• Decision Date: 25 November 1996
• Docket Number: No. 95-533,95-533
• Citation: 929 P.2d 822,279 Mont. 459
• Parties: Donald R. SAGE, Petitioner and Respondent, v. Mickey GAMBLE, Director of Administration, Craig Thomas, Executive Secretary, Board of Pardons, Montana Board of Pardons and Parole, Montana State Prison, Respondents and Appellants.
• Court: Montana Supreme Court

Page 822

929 P.2d 822

279 Mont. 459

Donald R. SAGE, Petitioner and Respondent, v. Mickey GAMBLE, Director of Administration, Craig Thomas,

Executive Secretary, Board of Pardons, Montana

Board of Pardons and Parole, Montana

State Prison, Respondents and

Appellants.

No. 95-533.

Supreme Court of Montana.

Submitted on Briefs Sept. 19, 1996.

Decided Nov. 25, 1996.

David L. Ohler and Lois Adams, Department of Corrections, Helena, for Respondents and Appellants.

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for Petitioner and Respondent.

TRIEWEILER, Justice.

On September 9, 1994, Donald R. Sage filed a petition for habeas corpus in the District Court for the Third Judicial District in Powell County in which he alleged that the Montana Board of Pardons (Board) had improperly denied him parole. Following a hearing on Sage's petition, the District Court issued an opinion and order in which it concluded that, although the Board had not abused its discretion when it denied Sage parole, it had violated Sage's right to due process when it denied him the opportunity to personally appear at his parole hearing. The court therefore ordered the Board to conduct another hearing at which Sage could be personally present. The Board appeals the District Court's conclusion that it violated Sage's right to due process. We affirm the order of the District Court.

The issues presented on appeal are:

1. Did the District Court have subject matter jurisdiction, pursuant to a writ of habeas corpus, to determine whether Sage's right to due process was violated when he was denied the opportunity to personally appear before the Montana Board of Pardons?

2. Did the District Court err when it concluded that Sage's right to due process had been violated when he was denied the opportunity to personally appear at his parole hearing?

FACTS

In March 1982, Donald Sage was convicted by a jury of the crime of mitigated deliberate homicide. Sage was sentenced to forty years in the Montana State Prison, and an additional five years to be served consecutively for the use of a deadly weapon in the commission of the offense. He was designated a dangerous offender for purposes of parole.

Sage was living at the Great Falls Pre-Release Center when he became eligible for parole in 1993. The Board of Pardons scheduled Sage's initial parole hearing for November 29, 1993. Prior to the hearing, the Board appointed its executive secretary to interview Sage. At the interview, Sage had the opportunity to present oral testimony and have other witnesses testify on his behalf. He was also asked whether the information contained in his parole file, including his offense and his sentence, was correct.

Following the interview, the executive secretary prepared a recommendation for the Board regarding Sage's application for parole. Sage was advised of this recommendation.

The Board of Pardons considered Sage's parole application at its monthly parole hearing in Deer Lodge on November 29, 1993. Sage was not present at this hearing. The record does not disclose whether he requested and was denied the opportunity to be present. Instead, the information about Sage's parole application was presented to the Board by the executive secretary. After considering all of the information before it, the Board denied Sage's parole application.

On September 9, 1994, Sage filed a petition for writ of habeas corpus with the Third Judicial District Court in which he alleged that the Board of Pardons had improperly denied him parole. In his petition, Sage maintained that the Board had denied his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution when it denied him the opportunity to personally appear before the Board. Following a hearing, the District Court issued an opinion and order in which it concluded that although the Board had not abused its discretion when it denied parole, the Board had violated Sage's right to due process by failing to allow him to personally appear before the Board. The court therefore ordered that another hearing be held at which Sage could appear before the Board.

ISSUE 1

Did the District Court have subject matter jurisdiction, pursuant to a writ of habeas corpus, to determine whether Sage's right to due process was violated when he was denied the opportunity to personally appear before the Montana Board of Pardons?

On appeal, the Board of Pardons asserts that Sage's alleged due process violations fall outside the parameters of habeas corpus relief and that therefore the District Court lacked subject matter jurisdiction to consider the issue. Section 46-22-101, MCA, provides in relevant part:

[E]very person imprisoned or otherwise restrained of liberty within this state may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint.

Habeas corpus is available to challenge the legal sufficiency of the cause for incarceration. This Court has held, however, that habeas corpus relief is not available to determine whether other constitutional rights have been violated. Gates v. Missoula County Comm'rs (1988), 235 Mont. 261, 766 P.2d 884.

Sage maintains that the Board waived this issue of subject matter jurisdiction by failing to raise it during the District Court proceedings and therefore should not now be permitted to raise it on appeal. It is a well-settled principle of law, however, that lack of subject matter jurisdiction cannot be waived, and may be raised at any stage of a judicial proceeding by a party or sua sponte by the court. O'Donnell v. Ryans, Inc. (1987), 227 Mont. 48, 49, 736 P.2d 965, 966; State v. Davis (1984), 210 Mont. 28, 30, 681 P.2d 42, 43.

Sage further asserts that the District Court did have subject matter jurisdiction to decide by writ of habeas corpus whether his right to due process had been violated. Sage maintains that he had a right to due process, based on a liberty interest in parole pursuant to § 46-23-201, MCA (1981), which was violated by the Board when it did not allow him to personally appear before the Board at the parole hearing and ultimately denied his parole application.

We conclude that the alleged deprivation of Sage's right to due process is directly related to whether the cause of his continued incarceration is or is not illegal, and therefore it falls within the parameters of § 46-22-101, MCA. We therefore hold that the District Court did have subject matter jurisdiction to determine whether Sage's right to due process was violated.

ISSUE 2

Did the District Court err when it concluded that Sage's right to due process had been violated when he was denied the opportunity to personally appear at his parole hearing?

In this case, the District Court concluded that the Board of Pardons had violated Sage's right to due process by denying him the opportunity to personally appear before the Board during his parole hearing. We review a district court's conclusion of law to determine whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In 1982, when Sage was convicted and sentenced, § 46-23-201, MCA (1981), provided:

(1) Subject to the following restrictions, the board shall release on parole by appropriate order any person confined in the Montana state prison ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to himself or to the community....

....

(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.

In Board of Pardons v. Allen (1987), 482 U.S. 369, 381, 107 S.Ct. 2415, 2422, 96 L.Ed.2d 303 the United States Supreme Court held that the mandatory language of § 46-23-201, MCA, creates a liberty interest in parole release that is protected by the Due Process Clause of the Fourteenth Amendment. Specifically, the Court determined that "the Montana statute ... uses mandatory language ('shall') to 'creat[e] a presumption that parole release will be granted' when the designated findings are made." Allen, 482 U.S. at 377-78, 107 S.Ct. at 2420 (footnote omitted) (interpreting § 46-23-201, MCA (1985), which is identical to the 1981 version of the statute under consideration here). ¹ In this case, although the Board does not contest that § 46-23-201, MCA (1981), creates a liberty interest in parole, the Board challenges the District Court's conclusion that Sage was not accorded the minimal due process required before denying that liberty interest. In particular, the Board maintains that the District Court erred when it concluded that due process requires that a parole applicant be afforded a personal appearance in front of the Parole Board. The Board contends that its practice of authorizing a hearings officer to conduct a parole eligibility interview satisfies minimal due process requirements.

It is well established that "due process 'is flexible and calls for such procedural protections as the particular situation demands.' " Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (quotingMorrissey v. Brewer (1972), 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484). Thus, "the process that is due in any given case varies according to the factual circumstances of the case and the nature of the interests involved." Benson v. Scott (7th Cir.1984), 734 F.2d 1181, 1185. The process provided, however, should "minimize the risk of erroneous decisions.... [T]he quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error." Greenholtz, 442 U.S....