Wigglesworth v. Mauldin

• Decision Date: 18 November 1999
• Docket Number: No. 1 CA-CV 99-0123.,1 CA-CV 99-0123.
• Citation: 195 Ariz. 432,990 P.2d 26
• Parties: John WIGGLESWORTH, Plaintiff-Appellant, v. Rick MAULDIN, Deputy Warden, Arizona Department of Corrections; Jane Hull, Governor of the State of Arizona, Defendants-Appellees.
• Court: Arizona Court of Appeals

990 P.2d 26

195 Ariz. 432

John WIGGLESWORTH, Plaintiff-Appellant, v. Rick MAULDIN, Deputy Warden, Arizona Department of Corrections; Jane Hull, Governor of the State of Arizona, Defendants-Appellees.

No. -0123.

Court of Appeals of Arizona, Division 1, Department D.

November 18, 1999.

John Wigglesworth, Douglas, In Propria Persona.

Janet A. Napolitano, Attorney General by S. Christopher Copple, Assistant Attorney General, Phoenix, Attorneys for Defendants-Appellees.

OPINION

GERBER, Judge.

¶ 1 John Wigglesworth filed a complaint against Governor Jane Hull and Deputy Warden Rick Mauldin of the Arizona Department of Corrections alleging violation of his constitutional rights when former Governor J. Fife Symington III declined to commute his sentences. He appeals from the trial court's dismissal of his complaint for failure to state a claim upon which relief could be granted.¹

FACTS AND PROCEDURAL HISTORY

¶ 2 In reviewing the trial court's dismissal, we take the material allegations of the complaint as true. See Aldabbagh v. Arizona Dep't of Liquor Licenses and Control, 162 Ariz. 415, 417, 783 P.2d 1207, 1209 (App. 1989). According to the complaint, Wigglesworth was sentenced in 1994 to three concurrent life sentences for two counts of possession of a narcotic drug for sale and one count of transportation of a narcotic drug for sale. These sentences were enhanced pursuant to Arizona Revised Statutes Annotated ("A.R.S.") section 13-604.02 (1989), which provides that felons who commit certain offenses during probation, parole or any other release from confinement for another felony shall be sentenced to life imprisonment without early release.² He was also sentenced to a five year concurrent term for money laundering.

¶ 3 Wigglesworth applied to the Arizona Board of Executive Clemency (the "Board") for a commutation of his sentences. At a hearing on March 7, 1995, the Board recommended that his sentences be reduced to eight years and submitted this recommendation to Governor Symington, who for unknown reasons declined to follow it.

¶ 4 Wigglesworth then filed this suit claiming that his constitutional rights had been violated. The trial court granted the defendants' motion to dismiss pursuant to Rule 12(b)(6), Arizona Rules of Civil Procedure ("Rule"), and dismissed the complaint with prejudice. Wigglesworth then filed a motion to vacate the judgment pursuant to Rule 59, which was also denied. This appeal followed.

DISCUSSION

Due Process Claim

¶ 5 Wigglesworth first argues that the trial court improperly dismissed his complaint because, in his view, it states a valid claim for violation of his due process rights. The Due Process Clause of the Fourteenth Amendment of the United States Constitution protects individuals against government actions that deprive them of liberty or property. See Banks v. Arizona State Bd. of Pardons & Paroles, 129 Ariz. 199, 200, 629 P.2d 1035, 1036 (App.1981). Liberty interests protected by the Due Process Clause may arise from the clause itself or state laws. See Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). In order for an interest to be protected by this clause, the concerned person "must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

¶ 6 An inmate's interest in commutation of his sentence does not by itself trigger due process protections because there is no entitlement to reduction of a valid sentence. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981); Banks, 129 Ariz. at 201, 629 P.2d at 1037. Once an inmate has been lawfully convicted and sentenced to imprisonment, his liberty interest in freedom from confinement ends and his petition for commutation becomes "simply a unilateral hope." Dumschat, 452 U.S. at 464-65, 101 S.Ct. 2460. However, if state statutes mandate commutation or parole via specified criteria, an interest protected by the Due Process Clause may arise. See, e.g., Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Wigglesworth claims that our legislature's adoption of a disproportionality review of sentencing by the Board creates a liberty interest in relief from his excessive sentence such that Governor Symington's denial of the Board's recommendation results in an unconstitutional deprivation of his liberty interest.

¶ 7 In 1994, our legislature created a procedure for disproportionality review to "equalize some of the disparity between sentences imposed under the former sentencing statutes and those imposed under the revised statutes." State v. Nguyen, 185 Ariz. 151, 152, 912 P.2d 1380, 1381 (App.1996); see 1994 Ariz. Sess. Laws, Ch. 365, § 1. For felony offenses prior to December 31, 1993, inmates with certain eligibility requirements could apply to have their disproportionate sentences reduced or commuted. See 1994 Ariz. Sess. Laws, Ch. 365 § 1(A). After a hearing, the Board could recommend to the governor that a "clearly excessive" sentence be commuted or reduced. See Nguyen at 152, 912 P.2d at 1381; 1994 Ariz. Sess. Laws, Ch. 365 §§ 1(B), (F).

¶ 8 Wigglesworth now argues that, once the Board determined that his sentences were excessive and recommended that Governor Symington reduce them to eight years, he had a justifiable expectation that his sentences would in fact be reduced and that this expectation was protected by the Due Process Clause. While equity might support that result, our present law of commutation does not. Although the disproportionality review procedure contains mandatory standards governing the Board's conduct and establishes defined criteria for its determinations, it establishes no corresponding criteria whatsoever for the governor's response to the Board's recommendation. The governor's discretion to grant or deny commutation remains totally unfettered.³See Woratzeck v. Arizona Bd. of Exec. Clemency, 117 F.3d 400, 403 (9th Cir.1997); A.R.S. § 31-443 (1996)("[t]he governor, subject to any limitations provided by law, may grant reprieves, commutations and pardons, after conviction, for all offenses, except impeachment, upon conditions, restrictions and limitations he deems proper").

¶ 9 Arizona's present unstructured gubernatorial commutation procedure thus exposes "the heart of executive clemency, which is to grant clemency as a matter of grace." Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 1250, 140 L.Ed.2d 387 (1998) (Rehnquist, C.J., plurality). Historically, commutation and clemency decisions have belonged wholly to the executive. Clemency in America "is rooted in the traditions of England." David S. Olson, Comment, Second Guessing the Quality of Mercy: Due Process in State Executive Clemency Proceedings, 22 Harv. J.L. & Pub. Pol'y 1009, 1021 (Summer 1999) ("Olson"). In colonial America, governors exercised unlimited clemency powers in their capacity as royal representatives. The framers of our federal Constitution, noting that the King's clemency power was practically absolute, adopted that model for clemency decisions. The states then accorded their elected governors the clemency power exercised by the colonial governors. See id.; see also Ariz. Const. art. 5, § 5.

¶ 10 Given this history, courts traditionally have taken the position that clemency lies outside the adjudicative process and generally escapes review by the courts.⁴ See, e.g., Dumschat, 452 U.S. at 464, 101 S.Ct. 2460 ("pardon and commutation decisions have not traditionally been the business of the courts"); Solesbee v. Balkcom, 339 U.S. 9, 12, 70 S.Ct. 457, 94 L.Ed. 604 (1950); Rosenberg v. United States, 346 U.S. 322, 73 S.Ct. 1178, 97 L.Ed. 1633 (1953) (Frankfurter, J. concurrence); United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir.1950) (L.Hand, J.); United States v. Soeder, 120 F.Supp. 594, 595-96 (N.D.Ill.1954). In fact, "[s]ome have argued that clemency operates as a check on the courts precisely because it is outside of the adjudicatory system." Olson, supra ¶ 9 at 1022.

¶ 11 Because the legislature's disproportionality review standards place no substantive limitations on an Arizona governor's discretion to grant or deny commutation via standards similar to the standards imposed on the Board, it places a governor's commutation decision outside the adjudicatory process. See id., at 1023. This procedure also fails to create a protected liberty interest regardless of the Board's recommendation of commutation. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (if the official need not base its decision on objective criteria but can deny the requested relief for any constitutionally permissible reason or no reason, "the State has not created a constitutionally protected liberty interest"). See also Woodard, 118 S.Ct. at 1250-51 (no expectation of clemency created where, despite parole authority's mandatory clemency procedures, the ultimate decisionmaker, the governor, retains broad discretion) (Rehnquist, C.J., plurality).

¶ 12 In reviewing a motion to dismiss, we determine whether the complaint, construed in a light most favorable to the plaintiff, sufficiently sets forth a valid claim. See Aldabbagh, 162 Ariz. at 417-18, 783 P.2d at 1209-10. Because Wigglesworth had no protected liberty interest in gubernatorial action consistent with the Board's recommendation, the trial court correctly held that his complaint failed to state a claim of violation of an established due process right.

Eighth Amendment Claim

¶ 13 Wigglesworth next argues that his complaint properly claimed a violation of the Eighth Amendment guarantee against cruel and unusual punishment. He claims that, because the current sentencing scheme would impose much lesser sentences on him,...