Pisano v. Shillinger , 1992 Wyo. LEXIS 96 ( 1992 )

MACY, Chief Justice.

The Wyoming Board of Parole (Board) voted to revoke Appellant George Pisano’s parole after determining that he had violated several parole conditions. Appellant petitioned the district court for a review of the Board’s decision pursuant to the Wyoming Administrative Procedure Act (WAPA) and W.R.A.P. 12. The district court dismissed Appellant’s petition for review, holding that the legislature specifically precluded parole revocation hearings from the WAPA’s general grant of judicial review of administrative decisions.

We reverse and remand.

Appellant raises the following issues on appeal:

ISSUE I

Was Appellant denied his constitutional right to procedural due process when the district court ruled that he had no right to judicial review of his parole revocation?

ISSUE II

Was improper evidence used to revoke Appellant’s parole?

Appellee Duane Shillinger states the issues as:

I. Whether there exists a right to judicial review of a parole revocation decision of the Wyoming Board of Parole.

II. Whether the decision of the Wyoming Board of Parole was appropriate: Whether it was supported by substantial evidence, was either arbitrary, capricious or an abuse of discretion, or was otherwise in accordance with law.

In 1983, Appellant was convicted of voluntary manslaughter in violation of Wyo. Stat. § 6-4-107 (1977) (currently Wyo.Stat. § 6-2-105 (1988)) and sentenced to serve not less than seven years nor more than fifteen years in the Wyoming State Penitentiary. Appellant was paroled from the penitentiary in September 1988, subject to certain conditions. Starting in June 1989 and continuing through the fall of 1990, Appellant engaged in a series of activities which ultimately caused his parole officer to file a petition for a preliminary hearing to determine probable cause and reasonable grounds of violations of Appellant’s parole. The incidents which allegedly violated Appellant’s parole conditions included consumption of intoxicating beverages, entering a place where intoxicating beverages were sold, vandalism, larceny, leaving the state of Wyoming without permission, and failure to participate in substance abuse and mental health counseling.

After holding a hearing on December 5, 1990, the Department of Probation and Parole found probable cause existed to support eight of the eleven alleged parole violations and recommended that Appellant be returned before the Board for a further hearing and disposition of the matter. Pending his final revocation hearing, Appellant filed a motion to have bail set and an emergency petition for a writ of habeas corpus. In Pisano v. Shillinger, 814 P.2d 274 (Wyo.1991), this Court denied Appellant’s motion and emergency petition, holding that Appellant had no right to be admitted to bail pending revocation of his parole. After his final revocation hearing on January 8, 1991, the Board concluded that Appellant’s parole should be revoked.

On January 25, 1991, Appellant filed a petition with the district court pursuant to Wyo.Stat. § 16-3-114 (1990) and W.R.A.P. 12, seeking judicial review of the Board’s decision to revoke his parole. In his petition, Appellant claimed that, at the parole revocation hearing, the Board improperly received several exhibits into evidence and admitted evidence concerning Appellant’s mental health counseling without proof of a sufficient waiver of confidentiality. The district court dismissed Appellant’s petition, holding that Wyo.Stat. § 7 — 13—402(f) (Supp.1991) expressed the legislature’s intent to preclude judicial review of the Board’s hearings. Appellant filed a timely notice of appeal.

It is helpful to initially identify the precise issue raised by Appellant. The narrow question presented to the district court, and currently before this Court, was whether the legislature intended to preclude parole revocation proceedings from the WAPA’s general grant of judicial review. Only if we first determine that the legislature did intend to preclude judicial review of parole revocation hearings must we then consider the constitutional issue of whether a parolee’s constitutional due process rights mandate judicial review by appeal or by some other mechanism; e.g., a writ of habeas corpus.¹ This approach is consistent with the well established rule that we will not discuss constitutional questions if another appropriate ground exists for resolving the issue. Wheeler v. Parker Drilling Company, 803 P.2d 1379, 1383 n. 1 (Wyo.1991).

We have recognized that the right to judicial review of an administrative decision is entirely statutory. Sellers v. Employment Security Commission of Wyoming, 760 P.2d 394, 395 (Wyo.1988); Holding’s Little America v. Board of County Commissioners of Laramie County, 670 P.2d 699, 702 (Wyo.1983), after remand, 712 P.2d 331 (Wyo.1985). In this case, the legislature has not provided a specific statute which authorizes judicial review of parole revocation decisions. Therefore, the applicable statute is § 16-3-114(a) which establishes, in general, the right to have review of final agency decisions. Section 16-3-114(a) provides in pertinent part:

(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review in the district court for the county in which the administrative action or inaction was taken....

(Emphasis added.) In his brief, Appellee does not contest the fact that the Board is an agency² or that a parole revocation proceeding constitutes a contested case.³ See Frazee v. Iowa Board of Parole, 248 N.W.2d 80 (Iowa 1976) (interpreting parole revocation proceeding as being a contested case under Iowa Administrative Procedure Act’s definition, which is identical to the contested case definition in the WAPA); and Airhart v. Iowa Department of Social Services, 248 N.W.2d 83 (Iowa 1976). Rather, Appellee contends that judicial review pursuant to § 16-3-114(a) is specifically precluded by § 7 — 13—402(f), which provides:

(f) The promulgation of substantive rules by the board and the conduct of its hearings are specifically exempt from all provisions of the Wyoming Administrative Procedure Act except the rules and regulations shall be filed in the office of the secretary of state.

(Emphasis added.)

We have adopted the view that when we are analyzing the availability of judicial review of administrative decisions the interests of Wyoming are best served by a policy which leads to reviewability in most instances. Holding’s Little America, 670 P.2d at 702; Keslar v. Police Civil Service Commission, City of Rock Springs, 665 P.2d 937, 942 (Wyo.1983). Consistent with this “presumption of re-viewability” is the concept that the right to review is not precluded unless legislative intent to preclude judicial review is clear and convincing. Holding’s Little America, 670 P.2d at 702. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); and Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962). While courts frequently cite this test, what constitutes clear and convincing evidence of legislative intent to preclude judicial review is not always apparent. In Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the Supreme Court described clear and convincing evidence as not being a rigid evi-dentiary test but as being a useful reminder to courts that, where substantial doubt about legislative intent exists, the general presumption favoring judicial review of administrative action is controlling. 467 U.S. at 351, 104 S.Ct. at 2456. The Supreme Court explained: “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” 467 U.S. at 345, 104 S.Ct. at 2453. See also Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).

Unfortunately, our examination of whether the legislature intended to preclude judicial review in § 7-13-402(f) is necessarily less informed than federal statutory analysis due to a lack of available legislative history in Wyoming. Nevertheless, the statutory language itself provides valuable insight into legislative intent. In this case, Appellee asserts that the language of § 7 — 13—402(f) evidences the requisite legislative intent to preclude review. Appellee argues that, since “the conduct of its hearings are ... exempt from all provisions of the Wyoming Administrative Procedure Act,” parole revocation decisions must be exempt from judicial review. Essentially, Appellee’s contention is that the legislature could not have intended to allow review of the Board’s decisions if the manner in which those decisions are made does not have to comply with the WAPA’s procedural requirements. The court below agreed with Appellee’s interpretation, concluding in its decision letter that:

An examination, ... of [Appellant’s] Petition for Review, specifically sets forth objection to exhibits and evidence received by the Board of Probation and Parole at the parole revocation hearing. The court is unable to separate the exclusion of Board conduct at its hearings from the right of judicial review when the Petition for Review seeks reversal of Board action based upon its conduct at the hearing.

Appellee’s interpretation of the statute has merit when a parolee objects to the conduct of the Board’s hearing; however, his interpretation fails to distinguish between review of the Board’s hearing procedures and review of the Board’s decision. Section 7 — 13—402(f) allows the Board to conduct hearings using procedures which are not consistent with the contested case provisions of the WAPA, assuming, of course, that the Board’s procedures have no constitutional impediments. This freedom to conduct hearings in a manner other than that prescribed by the WAPA does not preclude judicial review of the ultimate decision. In our view, the Board’s right to adopt its own procedures simply means that, barring any constitutional limitations, a parolee cannot seek judicial review of the Board’s decision upon grounds relating to the conduct of the Board’s hearings. However, the fact that the conduct of the hearing is not subject to review does not mean that the decision itself is not subject to review. The conduct of a hearing merely provides the procedural process through which a decision is reached. The Board’s final decision is still reviewable by the district court pursuant to § 16-3-114(c), which requires, among other things, that the Board’s findings be supported by substantial evidence and that its actions not be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Accordingly, we hold that the exemption of the Board’s hearing procedures from the WAPA does not evidence an intent to preclude judicial review of the Board’s revocation decisions.

Our examination of § 7-13-402(f)’s language does not end with our conclusion that the legislature did not intend to preclude judicial review when it exempted the Board’s hearing procedures from the WAPA. We must still consider the significance, if any, of the legislature’s silence regarding judicial review in § 7-13-402(f). In United States Steel Corporation v. Wyoming Environmental Quality Council, 575 P.2d 749 (Wyo.1978), we said that the legislative intent to restrict review must be specifically manifested and that a persuasive reason must exist to believe that restriction was the legislature’s purpose. 575 P.2d at 750. It naturally follows that, if we require clear evidence of legislative intent to restrict review, “ ‘[t]he mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review.’ ” Keslar, 665 P.2d at 942 (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970)). Statutory silence regarding judicial review constitutes neither a persuasive reason nor a manifestation of legislative intent to prohibit review. Consequently, we do not interpret § 7-13-402(f)’s silence on judicial review as being an indication of legislative intent to preclude review.

As the Supreme Court pointed out in Block, evidence of the legislature’s intent to preclude judicial review may manifest itself not only in the statutory language but also in the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. None of these other factors indicate that the legislature intended to preclude judicial review of parole revocation proceedings. The structure of the statutory scheme gives no indication that the legislature meant to preclude judicial review. Cf. Block, 467 U.S. 340, 104 S.Ct. at 2451 (in complex and detailed statute, omission of provision of judicial review is sufficient reason to find congressional intent to preclude review). Nor can we discern how judicial review would frustrate the objectives of the statute or how review would be inconsistent with the nature of the parole revocation process.

Our determination that the WAPA affords Appellant a right to judicial review makes it unnecessary for us to consider whether Appellant’s due process rights in a parole revocation proceeding mandate judicial review by appeal. We also do not need to consider Appellant’s second issue, which is whether improper evidence was used to revoke his parole. The merits of Appellant’s claim are not properly before this Court. Because the district court concluded that it had no jurisdiction to review the Board’s decision, our task is merely to address the question of jurisdiction, not to decide the merits of this proceeding. See Keslar, 665 P.2d 937.

Reversed and remanded for further proceedings.

URBIGKIT, J., files a specially concurring opinion.

1 . As a result of the Supreme Court’s decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), no doubt exists that a parolee’s conditional liberty is subject to certain due process protections. See Mason v. State, 631 P.2d 1051, 1055 (Wyo.1981), and Wyo.Stat. § 7-13-408 (1987).

2 . "Agency” means any authority, bureau, board, commission, department, division, officer or employee of the state, a county, city or town or other political subdivision of the state, except the governing body of a city or town, the state legislature and the judiciary[.] Wyo.Stat. § 16 — 3—101(b)(i) (1990).

3 ."Contested case” means a proceeding including but not restricted to ratemaking, price fixing and licensing, in which legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing!.]

Wyo.Stat. § 16 — 3—101(b)(ii) (1990).