Board excluded from law

CARSON CITY -- The Nevada Supreme Court ruled Thursday that the state Parole Board is a quasi-judicial organization and does not have to follow the Nevada open meeting law.

All seven justices backed the decision as it pertains to the Parole Board. But in a partial dissent, Chief Justice Bill Maupin and Justice James Hardesty expressed concern that boards such as the Public Utilities Commission and county commissions could try to circumvent the open meeting law.

The decision Thursday, written by Justice Michael Douglas, reverses an October opinion by a three-justice panel of the Supreme Court that found the Parole Board must follow the open meeting law. The court withheld enforcement of that decision, pending a review by all seven members of the Supreme Court.

Douglas said in his decision that the Legislature earlier this year passed a law that deemed parole hearings as "quasi-judicial" and therefore not subject to every provision of the open meeting law.

"Looking to the (Parole) Board's function at parole hearings, its discretionary decision in granting or denying parole is akin to the trial court's decision to grant or deny probation," Douglas wrote. "Thus parole boards have traditionally performed quasi-judicial functions in this jurisdiction and in many others."

The open meeting law requires government bodies to allow members of the public to speak. The Parole Board has no such requirement. The public may attend parole hearings but is prohibited from speaking, and the decision on whether an inmate is granted parole is made privately behind closed doors days later.

The case was brought by prison inmate John Witherow, whose mother and sister were not allowed to speak when he had a parole hearing in 2002. Board members denied his parole request.

Witherow then filed a lawsuit against the board on the grounds that members violated the open meeting law by refusing to schedule public comment at parole hearings.

David Smith, the executive secretary of the Parole Board, said in a phone interview that the decision upholds what the Parole Board has been doing for years.

He emphasized parole hearings still may be attended by members of the public, but deliberations on whether to grant parole can be done privately.

"The decision is public, but it doesn't have to be done at a meeting," Smith said.

But he added that another new law stipulates inmates must be permitted to attend their parole hearings.

In the past, about one-third of hearings were conducted without the presence of the inmate.

Inmates now will be permitted to have a representative with them at parole hearings.

Nevada Press Association Executive Director Barry Smith said his organization did not take a position on the case.

The Parole Board "is distinct from what you usually consider as government boards" that must follow the open meeting law, Smith said.

In their partial dissent, Hardesty and Maupin said the court should have taken the opportunity Thursday to overrule its decision last year in a case brought against the Department of Corrections.

Robert Stockmeier, a convicted sex offender, sued the department and its psychological review panel for conducting a closed meeting in which he was not allowed to hear testimony from the victim and the victim's family.

Before being paroled, sex offenders must be evaluated by psychological review panels that determine their chances of reoffending.

In a decision last year, the Supreme Court decided the psychological review panels are not quasi-judicial in nature and not exempt from the open meeting law.

Hardesty said Thursday that in the Stockmeier decision, the court defined what constitutes a quasi-judicial body. Quasi-judicial bodies offer people due process rights such as the right to offer evidence and cross-examine witnesses, he said.

The Stockmeier decision "creates an absurd result by permitting public bodies to easily circumvent the open meeting law," Hardesty said.

Any public body "may implement modest due process protections to qualify as quasi-judicial and thereby exempt itself from requirements of the open meeting law," Hardesty said in the partial dissent.

"The court's holding today, coupled with our refusal to recognize hearings conducted by the psychological review panel as quasi-judicial proceedings, yield an incongruous result," he said. "The Parole Board is exempt from the open meeting law, yet the psychological review panel, which provides predicate recommendations to the Parole Board, is not."