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Nevada Supreme Court: Parole Board Hearings Exempt From Open Meetings Law

by Matt Clarke

On September 20, 2007, the Supreme Court of Nevada held that parole release meetings were exempt from the requirements of the Nevada Open Meetings Law (OML), N.R.S. Chapter 241.

John Witherow, a Nevada state prisoner, filed a complaint in state court against the Nevada Board of Pardons and Paroles for failing to allow public commentary during his parole hearing to which his mother and sister had travelled from out-of-state to speak at. Witherow’s complaint sought declaratory and injunctive relief on the issues that the board’s notice of the hearing failed to specify a period for public comment as required by the OML and the board refused to allow public comment at the meeting in contravention of the OML. He requested a new parole hearing that comported with the OML.

The board filed a motion to dismiss which the district court granted, holding that the OML did not apply to board meetings because they were quasi-judicial. Witherow appealed.

The Supreme Court noted that the legislature specifically exempted judicial proceedings from the OML, N.R.S. 241.030(4)(a). The courts have extended this exemption to include quasi-judicial proceedings. To qualify as quasi-judicial, a proceeding must allow each party to present and object to evidence, to cross-examine witnesses and to received a written decision of the public body’s decision, Stockmeier v. State Department of Corrections, 122 Nev. 385, 135 P.3d 220 (2006). Board meetings qualified under this criteria.
Additionally, a recent Attorney General’s Opinion had determined that board meetings were quasi-judicial. Nev. Att’y Gen., Open Mtg. Law Op. 2004-18 (May 12, 2004).
Furthermore, the statute specifically governing board hearings had recently been amended to clarify that board meetings were quasi-judicial and exempt from the OML, N.R.S. 213.130 as amended by S.B. 471. The statute exclusively governs parole meetings to the exclusion of the OML and applies to all meetings held after October 1, 2007, which did not include Witherow’s.

Some media outlets reported that the Supreme Court overturned its 2006 Stockmeier decision applying the OML to hearings by the Nevada Department of Corrections’ Psychological Review Panel. This is incorrect. Stockmeier was upheld, by being differentiated from Witherow’s case in the majority opinion. A dissenting opinion suggested that Stockmeier be overturned.

The Supreme Court also issued a follow up order clarifying that Nevada state prisoners have no right to release on parole “and any parole standards set by the Legislature or the board cannot act as the basis for a suit against the board or its members.

“Parole is an act of grace of the state. While prisoners have a protectable due process right to apply for parole, they do not have a protectable due process right in being granted release on parole.”

The decision of the trial court in Witherow’s case was affirmed. The trial court was ordered’ to hold a hearing on Witherow’s request for board regulations and provide a copy for free if it has the funding (otherwise, Witherow must pay for the copy). It also ruled that Witherow had the right to “inspect, copy and correct any documents the board reviewed or relied upon when it revoked his parole,” and reversed the trial court’s designation of Witherow as a “vexatious litigant.” See: Witherow v. Nevada board of Parole Commissioners, 123 Nev. 33; P.3d (2007).

Additional Source: Associated Press.

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Related legal case

Witherow v. Nevada board of Parole Commissioners