State ex rel. Thomson v. State Bd. of Parole

• Decision Date: 31 July 1975
• Docket Number: No. 7003,7003
• Citation: 115 N.H. 414,342 A.2d 634
• Parties: The STATE of New Hampshire ex rel. Meldrim THOMSON, Jr., Governor v. STATE BOARD OF PAROLE.
• Court: New Hampshire Supreme Court

Page 634

342 A.2d 634

115 N.H. 414

The STATE of New Hampshire ex rel. Meldrim THOMSON, Jr., Governor v. STATE BOARD OF PAROLE.

No. 7003.

Supreme Court of New Hampshire.

July 31, 1975.

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State.

Devine, Millimet, Stahl & Branch and Silas Little III, Millimet, orally Joseph A. Manchester, for the State board of parole.

Stanley M. Brown, Manchester, by brief and orally, for Gerald R. Prunier.

Upton, Sanders & Smith and Robert Upton II and John F. Teague, Concord, for Frederick J. Martineau.

Maynard, Dunn & Phillips, Concord (Vincent P. Dunn, Concord, orally), for Russell Nelson.

PER CURIAM.

The State of New Hampshire ex rel Meldrim Thomson, Jr., Governor, filed a petition for a writ of certiorari in the Merrimack County Superior Court on August 14, 1973, challenging the paroles of Frederick J. Martineau and Russell Nelson for failure by the State board of parole to adhere to certain procedural standards requiring timely notice to the proper officials and disqualification of a board member who has a conflict of interest. Laws 1971, 419:1 (RSA 607:31 (Supp. 1972), repealed November 1, 1973); New Hampshire Board of Parole, Rules and Procedures, Parole of Lifers (September 30, 1971); id. Conflict of Interest; see RSA 651:37. Although neither Martineau nor Nelson was named by the State as defendant, both were served and permitted to participate due to their interest in the case.

Bois, J., reserved and transferred the exceptions to his findings that the paroles were void as the result of the appearance of a conflict of interest on the part of Gerald R. Prunier, a member of the board of parole, and to other findings and rulings. Martineau and Nelson were remanded to the custody of the State subject to its agreement not to incarcerate until a final determination by this court.

The issues presented by this appeal are whether under article 41 of the New Hampshire constitution, the governor has standing to challenge the legality of the board's decision to parole; whether a writ of certiorari is an appropriate means for challenging the legality of actions by a state administrative agency; and whether an alleged conflict of interest of one parole board member or a claimed failure by the board to provide timely notice of the parole hearing to the proper individuals rendered the board's decision to parole void.

On November 15, 1959, Martineau and Nelson were convicted of first degree murder 'with capital punishment'. See State v. Nelson, 103 N.H. 478, 479, 175 A.2d 814, 815-16 (1961). During the trial they were represented by out-of-state counsel and by Richard Leonard of the firm of Leonard & Leonard in Nashua, New Hampshire. Leonard acted in his capacity as court-appointed counsel through the course of various appeals in state and federal courts until the sentences were changed to life imprisonment on July 24, 1972. State v. Martineau, 112 N.H. 278, 280, 293 A.2d 766, 767 (1972); Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); see Hancock v. Nelson, 363 F.2d 249 (1st Cir. 1966); Nelson v. Hancock, 239 F.Supp. 857 (D.N.H.1965); State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963). During the thirteen years in which Leonard acted as an attorney for Martineau and Nelson, he received only the statutory maximum fee of $500 which was paid and exhausted at an early stage in the proceedings. See RSA 604-A:5.

Gerald R. Prunier first became associated with Leonard's law firm in July 1967, shortly after graduating from law school. Two and one-half years later on January 1, 1969, Prunier became Leonard's law partner. Although Prunier was aware that Leonard represented Martineau and Nelson, he never worked on the case, discussed it with Leonard, or received compensation in connection with it. Leonard testified that from the time the trial ended in November 1959 to the termination of his own involvement in July 1972, no one else in his law office did any work whatsoever on the Martineau-Nelson case.

In September 1971, Prunier was appointed to a three-year term on the then newly established State board of parole. See Laws 1971, 419:1 (RSA 607:31 (Supp.1972), repealed November 1, 1973); RSA 651:37. As a result of the change of their sentences from capital punishment to life imprisonment, Martineau and Nelson become immediately eligible to be considered for parole on July 24, 1972, under the statutes and rules applicable at that time. Laws 1971, 419:3 (RSA 607:41-a (Supp.1972), repealed November 1, 1973) (Eligibility for Release; Life Sentences), reenacted as RSA 651:45-a; Laws 1971, 419:6 (RSA 607:51-a to c, repealed November 1, 1973) (Credits Against Sentences), reenacted as RSA 651:55-a to c. New Hampshire Board of Parole, Rules and Procedures, Parole of Lifers (Eligibility) (September 30, 1971); Laws 1971, 419:1 (RSA 607:31 (Supp. 1972), repealed November 1, 1973); see RSA 651:37.

At a hearing on August 17, 1972, the board of parole considered the eligibility of Martineau and Nelson for parole and voted unanimously to place the two men on a 'work or study release in the community with close supervision for an indefinite period with monthly progress reports to the board.' No consideration of the actual decision to parole Martineau and Nelson was then made by the board. At that time Prunier disclosed his association with Leonard to the two other members of the board who determined that 'there was no possibility of a conflict of interest . . . because he (Prunier) was in high school when the bulk of the action took place.'

After the August 1972 meeting the board of parole, pursuant to its rules governing the parole of prisoners sentenced to life, instructed Robert Johnson, the State parole officer, to notify the judge, the attorney general, the county attorney and the arresting authority who were involved in the case in 1959 in order to solicit their opinions regarding the possibility of paroling Martineau and Nelson. New Hampshire Board of Parole, Rules and Procedures, Parole of Lifers (Eligibility) (September 30, 1971); Laws 1971, 419:1 (RSA 607:31 (Supp. 1972), repealed November 1, 1973); see RSA 651:37, 45-a. In letters directed to the board of parole dated December 19, 1972, William J. O'Neil and Conrad Danais, who were respectively an assistant attorney general and the county attorney involved in the trial, registered their opposition to paroling the two men. The judge who presided at the trial declined to comment on the question of parole. Although Louis Wyman, the attorney general at the time of the trial, could not be reached directly, his opposition to parole of the two men was made known to the board by Conrad Danais. The opposition of Elmer Bourque, another assistant attorney general who participated in the trial, and Joseph Regan, the arresting authority, was conveyed to the board by Johnson at its meeting on December 21, 1972.

On July 19, 1973, the State board of parole voted unanimously to parole Martineau and Nelson 'Subject to the receipt of updated psychiatric reports providing they are favorable.' Martineau and Nelson were paroled on August 5, 1973.

I. Standing of the Governor

Both Martineau and Nelson contend that the governor lacks standing to challenge the alleged failure by the State board of parole to follow constitutional and statutory mandates. Their contention is premised on the idea that since the governor has suffered no actual injury as a result of the board of parole's actions, he is not entitled to sue the board. See Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

The purpose of the law of standing is to protect against improper plaintiffs.' K. Davis, Administrative Law Text § 22.04, at 427 (1972); see L. Jaffe, Judicial Control of Administrative Action 459 (1965). Whether one is a proper plaintiff to bring an action against an administrative agency is ordinarily a judicial determination based upon a finding that he has sustained the requisite 'injury in fact'. New Hampshire Bankers Ass'n v. Nelson, 113 N.H. 127, 128-29, 302 A.2d 810, 811 (1973); K. Davis, supra § 22.05, at 429; see id. § 22.08, at 438.

In this case, however, the specific language and the history of the amendment to part II, article 41 of the New Hampshire constitution reveal that a prior determination has been made that the governor is a proper party to pursue court action against state agencies which fail to comply with the law. In 1964, part II, article 41 was amended to provide that the governor 'may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state.' N.H.Const. pt. II, art. 41; J. of Const. Con. 287 (1964). The purpose of the amendment was clearly to give the governor greater responsibility for the control of administrative action by entrusting him with the power 'to institute proceedings to make the departments behave and obey the law.' J. of Const. Con. 288 (1964); id. 290; Opinion of the Justices 113 N.H. 141, 148, 303 A.2d 752, 756 (1973).

The petition for writ of certiorari alleges that the State board of parole violated constitutional requirements and its own rules in paroling Martineau and Nelson. N.H.Const. pt. I, art. 35; Laws 1971, 419:1 (RSA 607: 31 (Supp.1972), repealed November 1, 1973); see Ferretti v. Jackson, 88 N.H. 296, 298, 188 A. 474, 476 (1936). Under these circumstances part II, article 41 of the New Hampshire constitution grants to the governor the capacity to insure by 'appropriate court action' that the board of parole action in accordance with the applicable rules of law in paroling Martineau and Nelson.

II. Appropriateness of the Writ of Certiorari

Nelson and the board of parole...