Remarkable Utah Supreme Court opinions debating due process rights (and originalism) in parole decision-making
Via a colleague's tweet, I just learned about a remarkable sent of opinions handed down late last week by the Utah Supreme Court in Neese v. Utah Board of Pardons & Parole, 2017 UT 89 (Utah Dec. 14, 2017) (available here). The start of the majority opinion in Neese provides just a hint on the remarkable 40+ page discussion that follows:
Michael Neese, a Utah prison inmate, has never been convicted of a sex offense, subjected to prison discipline for sexual misconduct, or otherwise adjudicated a sexual offender. Yet the Board of Pardons and Parole (Parole Board) has denied him an original release date for parole largely based on its determination that he’s a sex offender and his refusal to participate in sex offender treatment. Applying the principles we articulated in Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993), we hold today that the district court erred in granting summary judgment to the Parole Board on the question of whether it violated Mr. Neese’s due process rights under article I, section 7 of the Utah Constitution. Before the Parole Board may take the refusal of inmates in Mr. Neese’s shoes to participate in sex offender treatment into consideration in deciding whether to grant them parole, it owes them (1) timely, particularized written notice that allegations they committed unconvicted sexual offenses will be decided; (2) the opportunity to call witnesses; and (3) a written decision adequately explaining its basis for determining that they’re sex offenders and asking them to participate in sex offender treatment.
Much of the discussion of the majority opinion is in response to the claims of the lone dissent authored by Associate Chief Justice Thomas Lee, which gets started this way:
I share some of the majority’s concerns about the fairness of the procedures afforded to Neese by the Parole Board. The Board’s refusal to allow Neese to call and question his accuser made it difficult for him to persuasively refute the sex-offense charge against him. And without a persuasive means of rebuttal, Neese is likely to face substantially more prison time than most other inmates serving time for his crime of conviction (obstruction of justice). He would also serve that time without a trial-like adjudication of the sex-offense charge in question.
For these and other reasons I might endorse the procedures set forth in the majority opinion if I were in a position to make policy in this field — to promulgate administrative rules governing the Parole Board. I hedge—saying only that I might—because I am certain that my understanding of the Board’s decisionmaking process is incomplete. And I frame this conclusion in the subjunctive — speaking of what I might do if I were in a position to promulgate rules for the Board — to underscore the limited scope of our authority in a case like this one. In deciding this case we are deciding only on the demands of the Utah constitution. We are not deciding what set of procedural rules strike us as ideal under these circumstances.
The line between those two concepts is too often blurred in modern judicial thinking. And the blurriness is perhaps at its height when we speak of the requirements of “due process.” Here, perhaps more than in other constitutional fields, it is tempting to think of the constitutional requirement of due process as a general charter for assuring a vague ideal of fairness — an ideal that will ebb and flow or evolve over time. But that is not what is enshrined in the due process clause. “[T]he Due Process Clause is not a free-wheeling constitutional license for courts to assure fairness on a case-by-case basis.” In re Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186. “[I]t is a constitutional standard” with a specific, if somewhat flexible, meaning. Id.
I hope to find some time to read and comment on these remarkable opinions in the days ahead, and in the meantime I welcome reader perspectives on the philosophies and particulars reflected in this case.
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