Witherow v. State Bd. of Parole Comm'Rs
| Decision Date | 20 September 2007 |
| Docket Number | No. 42387.,42387. |
| Citation | 167 P.3d 408 |
| Parties | John WITHEROW, Appellant, v. The STATE of Nevada BOARD OF PAROLE COMMISSIONERS; Dorla M. Salling; J. Allen; T. Goodson; Jon Morrow; and Susan McCurdy, Respondents. |
| Court | Nevada Supreme Court |
Donald York Evans, Reno, for Appellant.
Catherine Cortez Masto, Attorney General, Joseph L. Ward Jr., Chief Deputy Attorney General, and Kelly S. Werth, Deputy Attorney General, Carson City, for Respondents.
BEFORE THE COURT EN BANC.
Appellant John Witherow is an inmate in state prison. After he was denied parole, he filed a complaint against respondent, the State of Nevada Board of Parole Commissioners, alleging that the Board had violated the Nevada Open Meeting Law, NRS Chapter 241, in connection with his parole hearing. The district court concluded that the Board is not subject to the Open Meeting Law when conducting parole hearings.
On appeal, Witherow argues that the district court erred as a matter of law in its interpretation of the Open Meeting Law. We conclude that the Open Meeting Law does not apply to parole hearings because the hearings are quasi-judicial proceedings. As a result, we affirm the district court's order.
Witherow applied for parole before the Nevada Board of Parole Commissioners in 2002. The Board then sent notice to Witherow of his upcoming parole hearing; this notice also provided a general agenda for the hearing. The agenda, however, did not denote a period for public comment. Nevertheless, Witherow invited his mother and sister to attend his parole hearing. Although his mother and sister traveled to Nevada from out-of-state to attend, apparently at great inconvenience and expense, the Board did not allow public comment at the hearing, and Witherow's mother and sister allegedly were not allowed to speak in support of Witherow's application for parole. Subsequently, the Board denied Witherow's parole application.
Witherow consequently filed a proper person complaint against the Board, seeking declaratory and injunctive relief. In his complaint, Witherow primarily alleged that (1) the Board's notice and agenda for the parole hearing failed to specify a period for public comment and discussion of agenda items; (2) the Board refused to allow public comment at the parole hearing; and (3) as a result, the Board violated the Open Meeting Law, and thus, the actions taken by the Board on Witherow's parole application at the parole hearing were void, entitling Witherow to a new hearing on his parole application. The Board moved to dismiss Witherow's action.
The district court, after reviewing pertinent case law and analyzing the Open Meeting Law's legislative history, concluded that the Open Meeting Law did not apply to parole hearings because the hearings were quasi-judicial in nature. Accordingly, the court granted the Board's motion to dismiss Witherow's claims with prejudice, and subsequently, Witherow appealed.
Standard of review
NRCP 12(b)(5) provides that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." But, when the court considers matters outside the pleadings, the court must treat the motion as one for summary judgment.1 And, if the district court considers matters outside of the pleadings, this court reviews the dismissal order as though it were an order granting summary judgment.2 This court reviews an order granting summary judgment de novo.3
In granting the Board's motion to dismiss with prejudice, the district court considered matters outside of the pleadings. Therefore, we review the order dismissing Witherow's complaint de novo, as if it granted summary judgment.
A district court must grant summary judgment "when the pleadings and other evidence on file [when reviewed in a light most favorable to the nonmoving party,] demonstrate that no `genuine issue as to any material fact [remains] and that the moving party is entitled to a judgment as a matter of law.'"4 A genuine issue of material fact exists, precluding summary judgment, when a reasonable jury could return a verdict for the nonmoving party.5
The Legislature has specifically declared its intent in adopting the Open Meeting Law: 6 To ensure that public bodies take actions and deliberate openly,7 the Open Meeting Law requires that public bodies "give the public clear notice of the topics to be discussed at public meetings so that the public can attend a meeting when an issue of interest will be discussed."8 Public bodies must post public notices of their meetings9 and must also give notice of their meetings "to any person who has requested notice."10 The notice must include an agenda that denotes a period for public comment.11
However, the Legislature has specifically exempted judicial proceedings from the Open Meeting Law's requirements—NRS 241.030(4)(a) provides that NRS Chapter 241 does not "[a]pply to judicial proceedings." Further, this court recently held that "[a] quasi-judicial proceeding is sufficiently akin to a judicial proceeding to render it exempt from the open meeting law."12 The exemption extends to quasi-judicial proceedings to ensure that traditionally judicial and quasi-judicial functions are not burdened by the requirements of the Open Meeting Law.
The question presented here is whether parole hearings are quasi-judicial proceedings that are exempt from the Open Meeting Law.
Witherow argues that exceptions to the Open Meeting Law must be narrowly construed, and that unless the Legislature expressly exempts an agency from the Open Meeting Law or unless a judicial or quasi-judicial exception applies, the "rule of publicity" governs.13
In response, the Board argues that the Open Meeting Law does not apply to parole hearings because parole hearings are quasi-judicial proceedings that are subject to the judicial exception. Further, the Board points to a recent Nevada Attorney General opinion to support its position.14
NRS 213.130 specifically governs parole hearings. That statute currently provides, among other things, that parole hearings must be open to the public, that victims must receive written notice of upcoming hearings for relevant prisoners if they so request, and that victims must be allowed to submit documents and testify at the relevant prisoner's parole hearing. But, neither NRS 213.13015 nor any provisions in NRS Chapter 241 expressly exempts parole hearings from the Open Meeting Law. And, since parole hearings are held by a public body, such hearings fall within the Open Meeting Law's purview over public body meetings. Further, unless a statutory exception applies to the Open Meeting Law, the rule of publicity governs.16 Nevada's statutory provisions created a latent ambiguity as to whether (1) the Open Meeting Law was intended to govern parole hearings, (2) NRS 213.130 was intended to solely govern parole board hearings in place of the Open Meeting Law, or (3) the parole board must comply with both laws to the extent they can be harmonized. This ambiguity as to whether the Open Meeting Law applies to parole hearings, however, has been clarified in recent amendments to NRS 213.130.
During the 2007 legislative session, the Legislature passed S.B. 471, which amended the language in NRS 213.130.17 The amended language provides that parole release hearings "are quasi-judicial" yet open to the public and that "[n]o rights other than those conferred pursuant to this section or pursuant to specific statute concerning meetings to consider prisoners for parole are available to any person with respect to such meetings."18 Although this amendment is not effective until October 1, 2007, S.B. 471 is evidence of the Legislature's intent to treat parole hearings as quasi-judicial proceedings that are exempt from the Open Meeting Law.19
In answering the question before us, we address a potential conflict with recent precedent set by this court. In a 2006 case, Stockmeier v. State, Department of Corrections,20 we addressed whether the Open Meeting Law applied to the Nevada Department of Corrections' Psychological Review Panel's hearings. The purpose of a psychological review panel hearing is to certify a prisoner's eligibility for parole. The psychological review panel, like the Board, is governed by NRS Chapter 213.21
In Stockmeier, we concluded that quasi-judicial proceedings were exempt from the Open Meeting Law but that psychological review panel certification hearings are not quasi-judicial proceedings.22 We explained that "[a]t a minimum, a quasi-judicial proceeding must afford each party (1) the ability to present and object to evidence, (2) the ability to cross-examine witnesses, (3) a written decision from the public body, and (4) an opportunity to appeal to a higher authority."23 We noted that the administrative tribunals in Van Heukelom v. State Board24 and Knox v. Dick,25 "`act[ed] in a quasi-judicial capacity [because they] afford[ed] the parties substantially the same rights as those available in a court of law, such as the opportunity to present evidence, to assert legal claims and defenses, and to appeal from an adverse decision.'"26 In contrast, in Stockmeier, we concluded that psychological review panels did not afford inmates the basic protections available in a court of law during their hearings. Accordingly, we concluded that psychological review panel hearings were not quasi-judicial proceedings and, consequently, they were not exempt from the Open Meeting Law.27
However, Stockmeier is not applicable here. Unlike psychological review panel hearings, parole hearings are specifically governed...
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State v. Morrow, 53436.
...NRCP 12(b)(5), arguing that the Open Meeting Law did not apply to parole release hearings pursuant to Witherow v. State, Board of Parole Commissioners, 123 Nev. 305, 167 P.3d 408 (2007), and that the asserted procedural protections of former NRS 213.130 did not apply at the time of Kamedula......
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State vs. Morrow
...the Open Meeting Law did not apply to parole release hearings pursuant to Witherow v. State, Board of Parole Commissioners, 123 Nev. 305, 167 P.3d 408 (2007), and that the asserted procedural protections of former NRS 213.130 did not apply at the time of Kamedula’s parole hearing. The distr......