Turner v. Hawaii Paroling Authority

• Decision Date: 02 May 2000
• Docket Number: No. 22231.,22231.
• Citation: 1 P.3d 768,93 Haw. 298
• Parties: Terry M. TURNER, Appellant-Appellant, v. The HAWAI`I PAROLING AUTHORITY, Appellee-Appellee.
• Court: Hawaii Court of Appeals

1 P.3d 768

93 Haw. 298

Terry M. TURNER, Appellant-Appellant, v. The HAWAI`I PAROLING AUTHORITY, Appellee-Appellee.

No. 22231.

Intermediate Court of Appeals of Hawai`i.

May 2, 2000.

As Amended May 9, 2000.

Terry M. Turner, on the briefs, appellant-appellant pro se.

Heidi M. Rian and George K.K. Kaeo, Jr., Deputy Attorneys General, State of Hawai`i, on the briefs, for appellee-appellee.

BURNS, C.J., ACOBA, and LIM, JJ.

Opinion of the Court by ACOBA, J.

We hold that a prison parole hearing is not a contested case hearing subject to judicial review under the Hawai`i Administrative Procedures Act (the HAPA), chapter 91 of the Hawai`i Revised Statutes (HRS). Accordingly, Appellant-Appellant Terry M. Turner (Appellant), a prison inmate, was not entitled to appeal under HRS § 91-14 (1993)¹ from the denial by Appellee-Appellee Hawai`i Paroling Authority (HPA or the HPA) of his parole request. We therefore affirm the January 8, 1999 judgment of the first circuit court (the court) which dismissed his appeal on jurisdictional grounds.

However, we conclude that the requirement imposed as part of the Hawai`i Sex Offender Treatment Program (the HSOTP) that a "sex offender" inmate admit to commission of a sexual assault and complete a mandatory treatment program as a precondition to parole implicates a liberty interest under the due process clause in article I, section 5 of the Hawai`i Constitution. Appellant's contention that he has been subjected to such a requirement, but is not a sex offender, raises a colorable claim that his continued prison confinement is illegal. Such a claim is entitled to be heard under Hawai`i Rules of Penal Procedure (HRPP) Rule 40, which incorporates inter alia remedies afforded by the writ of habeas corpus.

I.

On August 13, 1996, Appellant appealed to the court pursuant to HRS § 91-14 of the HAPA,² from the August 8, 1996 HPA decision denying him parole. According to Appellant, the HPA's decision was based on his failure to admit to a sex crime. In his appeal to the court, Appellant argued that he was "not required to admit to a sex crime to be paroled" because he was "before the [HPA] only on a first degree [t]erroristic [t]hreatenting charge[.]"

On November 25, 1996, Appellant filed a Motion for Appointment of Counsel, in which he "request[ed the] court to appoint counsel for him . . . because he [could not] afford to pay for counsel." On March 6, 1997, an order was filed by the court denying this motion.³

On January 24, 1997, the HPA filed a non-hearing Motion to Dismiss for Lack of Jurisdiction in Lieu of Certification and Transmission of [Agency] Record. In its attached supporting memorandum, the HPA argued that Appellant's appeal should be dismissed because "this [c]ourt does not have jurisdiction to entertain an agency appeal from a decision of the [HPA.]" The HPA contended that "[f]or an agency appeal to be properly before this [c]ourt, a right to appeal the agency decision must be provided by statute" and "there is no statutory authority for an agency appeal" in the present case.⁴ On February 5, 1997, Appellant filed a motion for extension of time to respond to the HPA's motion arguing he had limited access to the law library. According to the court minutes of March 1, 1997, Appellant's motion was denied because the motion was "moot."⁵

On March 3, 1997, Appellant filed his answer to the HPA's motion, asserting that the motion to dismiss was without merit. Appellant contended that he had a right to appeal because (1) the HPA failed to follow its rules and prejudiced his substantial rights; (2) he was an aggrieved party in a contested case proceeding; (3) "the court has subject matter jurisdiction over appeals brought from actions of administrative agencies[;]" and (4) standing to appeal "is not conditioned upon formal intervention in the agency proceeding[,]" or "[l]ack of service of a certified copy of the notice of appeal on every other party to the proceedings[,]" or upon "agency approval before an interlocutory appeal may be taken from a ruling of such agency."

On August 17, 1998, the court filed an order granting the HPA's motion and dismissed the agency appeal with prejudice because "it lack[ed] jurisdiction to hear an appeal based on [HRS] chapter 91, . . . of a decision issued by the [HPA,]" such "[d]ecisions. . . are not contested cases as defined by section 91-1(5), . . . and hearings conducted by the [HPA] are not agency hearings as defined by section 91-1(6)[.]"

Thereafter, on August 28, 1998, Appellant filed a notice of appeal from the court's order. On November 5, 1998, the Hawai`i Supreme Court dismissed the appeal "for want of appellate jurisdiction" because inter alia, "judgment has not been entered on the circuit court's August 17, 1998 order[.]" On January 8, 1999, an appropriate judgment and a notice of judgment were entered in the court. On January 14, 1999, a subsequent notice of appeal was filed by Appellant "from the judgment entered on January 8, 1999."

II.

Whether the circuit court has subject matter jurisdiction under HRS chapter 91 to hear a prison inmate's appeal from the denial of parole by the HPA presents a question of law. Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 239, 842 P.2d 634, 637 (1992), aff'd, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) ("A trial court's dismissal for lack of subject matter jurisdiction is a question of law, reviewable de novo."). We must determine, then, whether HRS chapter 91 applies to HPA parole hearings.

III.

A.

The HPA is an administrative agency established under HRS chapter 353 (1993). Its members are appointed by the governor of the State of Hawai`i (the State), and for administrative purposes, the HPA is part of the Department of Public Safety. HRS §§ 353-61 and 26-14 (1993).

Parole may be defined as the "[c]onditional release from imprisonment which entitles a parolee to serve the remainder of his [or her] term outside the confines of an institution, if he [or she] satisfactorily complies with all terms and conditions provided in the parole order." Black's Law Dictionary 1116 (6th ed.1990) (citations omitted). HRS § 706-670.5 (1993) defines a "prisoner" or "parolee" as "a person who has been convicted of an offense[.]"

According to HRS § 706-670 (1993), a prisoner is entitled to a "parole hearing." HRS § 706-670(1) states that "[a] person sentenced to an indeterminate term of imprisonment shall receive an initial parole hearing at least one month before the expiration of the minimum term of imprisonment determined by the [HPA]. . . ." In the event parole is denied at the initial hearing, "additional hearings shall be held at twelve-month intervals or less until parole is granted or the maximum period of imprisonment expires." Id.

At the hearings, "[t]he State shall have the right to be represented . . . by the prosecuting attorney, who may present written testimony and make oral comments, and the [HPA] shall consider the testimony and comments in reaching its decision." Id. Testimony at these hearings may be given by victims, witnesses, and other interested parties. Barnett v. State, 91 Hawai`i 20, 33, 979 P.2d 1046, 1059 (1999) (stating that "the legislature intended to allow witnesses to make oral comments as part of the prosecution's oral presentation"). In addition to receiving "reasonable notice of the . . . parole hearing[,]" a prisoner shall receive "reasonable aid . . . in preparation of a parole plan[,]" including representation by counsel. HRS § 706-670(3).⁶ The parole hearing must be recorded and the reasons for denying parole must be in writing. HRS § 706-670(4). The HPA, "as a condition of parole, may impose reasonable conditions on the prisoner as provided under section 706-624."⁷ HRS § 706-670(2).

Under HRS § 353-65, the "[f]ull power. . . to grant, and to revoke paroles is conferred upon the [HPA]." Among its other responsibilities and duties, the HPA selects individuals for parole, establishes the conditions of parole, and supervises individuals on parole. HRS § 353-62. The HPA must consider all committed persons for parole except those sentenced to life without parole, HRS § 353-62(2); "[d]etermine the time at which parole shall be granted . . . as that time at which maximum benefits of the correctional institutions to the individual have been reached and the element of risk to the community is minimal[,]" HRS § 353-62(3); and "[e]stablish rules . . . to determine conditions of parole applicable to any individual granted parole." HRS § 353-62(4).

In granting or denying parole, the statutory standard to be applied by the HPA is that "[n]o parole shall be granted unless it appears to the [HPA] that there is a reasonable probability that the prisoner concerned will live and remain at liberty without violating the law and that the prisoner's release is not incompatible with the welfare and safety of society." HRS § 353-69. The HPA may suspend or revoke a prisoner's parole "in the event . . . the prisoner breaks the prisoner's parole or violates any law of the State or rule of the paroling authority or any of the terms or conditions of the prisoner's parole[;]" however, the prisoner is entitled to notice and an opportunity to be heard prior to such a suspension or revocation. HRS § 353-66.

Under the foregoing provisions, it is evident the HPA has broad statutory discretion in determining whether to grant or deny parole to inmates and to set conditions therefor.

B.

Pursuant to HRS § 353-65, the legislature also invested the HPA with the power to establish rules and regulations "under which any prisoner may be paroled but shall remain, while on parole, in the legal custody and under the control of the paroling authority[.]" Such rules and regulations must be established pursuant to HRS chapter 91 (1993) and if thus adopted, have the force and effect of law. HRS § 353-62(9)(b)(3).

The HPA has established such rules in Hawai`i Administrative Rules (HAR) §§...