Blanke v. Board of Pardons , 2020 UT 16 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 16
IN THE
SUPREME COURT OF THE STATE OF UTAH
KEVIN BLANKE,
Petitioner,
v.
UTAH BOARD OF PARDONS AND PAROLE,
Respondent.
No. 20160766
Heard October 7, 2019
Filed April 16, 2020
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Ryan M. Harris
No. 150902967
Attorneys:
Cory A. Talbot, Christopher D. Mack, Salt Lake City, for petitioner
Sean D. Reyes, Att’y Gen., Brent A. Burnett, Asst. Solic. Gen.,
Amanda N. Montague, Asst. Att’y Gen., Salt Lake City, for
respondent
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUSTICE PETERSEN
joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 The Utah Board of Pardons and Parole declined to set a
parole date for Kevin Blanke, a Utah prison inmate, because he
refused to participate in the prison sex offender treatment
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Opinion of the Court
program. Blanke is serving a prison sentence for his convictions of
attempted child kidnapping and kidnapping. Because of the
attempted child kidnapping conviction, Blanke is considered a sex
offender under Utah’s sex offender registration statute. In
addition, at the time he was sentenced for kidnapping, Blanke
admitted in his presentence report to having sexual intercourse
with a fifteen-year-old, conduct that would also place him, if he
were convicted of it, on the sex offender registry. The question
presented is whether under these circumstances the Parole Board
must afford an inmate the due process protections required in
Neese v. Utah Board of Pardons and Parole, 2017 UT 89, 416 P.3d 663.
We hold that Neese does not require it to do so.
BACKGROUND
¶2 Blanke is currently incarcerated for two crimes. He
pleaded guilty in 2002 to attempted child kidnapping and
received a prison sentence of three years to life. At that time, any
person convicted of attempted child kidnapping had to register as
a sex offender. See infra ¶ 28 n.13. One year later, Blanke pleaded
guilty to kidnapping and received a prison sentence of one to
fifteen years for that crime. The two convictions arose from
separate incidents—one in 2002 and the other in 1997. The
presentence reports in the two cases reflect the following factual
bases for the charges. 1
¶3 The attempted child kidnapping charge arose from
events in 2002 involving a child, Elisabeth. 2 Blanke had come
across Elisabeth and her older sister one day while the two were
playing near a park. Elisabeth crossed the street to talk to Blanke
after he called her over, and then she returned to her older sister,
saying Blanke had offered to pay them if they would go with him.
Her sister declined the offer and returned home, but Elisabeth left
with Blanke. Blanke subsequently drove Elisabeth in his truck to
get ice cream. When she got scared and told him that she wanted
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1 This is an appeal from an order granting summary judgment
for the Parole Board and so we summarize the facts in the light
most favorable to Blanke. Neese v. Utah Bd. of Pardons & Parole,
2017 UT 89, ¶ 2 n.1, 416 P.3d 663.
2 For the attempted child kidnapping victim and the
kidnapping victim, we use fictional names to protect their privacy
and for ease of reference.
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Opinion of the Court
to go home, he dropped her off at the park. She had been gone for
about an hour and a half. Upon her return, Elisabeth was taken to
the hospital. An examination revealed no physical appearance of
abuse, and Elisabeth did not claim that she was physically
harmed.
¶4 The kidnapping charge sprang out of an incident in 1997
involving a fifteen-year-old, Michelle. The presentence report says
that Blanke—forty-three years old at the time—had given
Michelle and her friend a ride and smoked marijuana with them.
Soon after her friend left, Michelle decided to leave as well. But
Blanke followed her, handed her a threatening note, and
demanded that she get in his truck. He then pushed her inside,
telling her that he had a gun. Blanke subsequently drove Michelle
to another location and allegedly “raped and sodomized her.”3
Blanke described the incident in his statement in the presentence
report: “I got aroused and we had sex. I did not know that she
was underage until three days later when I talked to the police.”
¶5 At the sentencing hearing for his kidnapping conviction,
Blanke’s counsel objected to the presentence report’s statement
that Blanke had “raped and sodomized” Michelle. But counsel did
not object to anything else in the presentence report, including the
statement that Blanke had sex with a fifteen-year-old. After
Blanke’s counsel raised that objection, Michelle testified. She said
Blanke had “terrorized” and “raped” her. When she finished, the
court asked Blanke if he had anything to say. He simply replied,
“That’s all right, your Honor. I’ll just be sentenced and just do my
time.”
¶6 Blanke’s original parole-grant hearing took place in 2006.
There, the hearing officer asked Blanke whether he had had
“sexual intercourse with” and “basically raped” Michelle. Blanke
replied that yes, he had. 4 Then, Elisabeth’s father testified,
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3 Blanke was never charged with rape. Although Michelle
reported the rape and Blanke was identified as a suspect, the case
“fell through the cracks.” By the time Blanke was arrested in 2002,
the statute of limitations for rape had expired.
4Blanke later said this was a false confession. He claimed that
he admitted to raping Michelle only because he “was told by
every inmate [he] talked to before [his] 2006 Board Hearing, that a
(continued . . .)
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BLANKE v. BOARD OF PARDONS
Opinion of the Court
alleging that Blanke had kidnapped Elisabeth with the intent to
sexually abuse her, which Blanke denied.
¶7 After Blanke’s first hearing, the Parole Board did not set a
release date and instead scheduled a rehearing. That rehearing,
which is the most relevant hearing to this appeal, took place in
2012. The hearing officer first asked Blanke about the incident
with Elisabeth, noting her father’s 2006 testimony. Before moving
on, the hearing officer asked if Blanke wanted to convey any other
information to the Parole Board, and he said, “No sir.” And then,
just like at the first hearing, the hearing officer inquired about the
rape accusation. This time, however, Blanke responded that he
did not want to answer that question. He said that he was “never
charged” with and “never pled guilty” to rape and that he
“believe[d] that the board [had] all the information necessary
to . . . [m]ake a decision on that case.” He also said that he did not
believe he was a sex offender. Then, Blanke was allowed to say
anything else he wanted to about the kidnapping case; he said
that he had nothing to add.
¶8 Concluding the hearing, the hearing officer said that he
did not know what the Parole Board’s decision on Blanke’s parole
eligibility would be. He then said that he personally “wouldn’t
consider any kind of release” until Blanke had been through sex
offender treatment. He believed that Blanke “kidnapped
[Elisabeth] with the intent of sexually abusing her” and “brutally
raped [Michelle].”
¶9 After the 2012 hearing, Blanke was denied a release date
yet again. The Parole Board instead scheduled a rehearing for
2032 and ordered a sex offender treatment memorandum. In its
written decision, the Parole Board cited some aggravating and
mitigating factors but contained no other explanation for its
refusal to set a parole date.
¶10 Almost three years later, Blanke filed a petition for
extraordinary relief under rule 65B(d) of the Utah Rules of Civil
Procedure. Among other things, he alleged that the Parole Board
had violated due process by conditioning his parole on
completion of sex offender treatment even though he had not
committed a sex offense. The district court granted summary
negative answer to a Board question would result in a denile [sic]
of parole.”
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Opinion of the Court
judgment for the Parole Board on all claims, holding that the
Parole Board did not violate Blanke’s due process rights by
requiring a sex offender treatment memorandum to be filed
before the next hearing. The court of appeals affirmed, and Blanke
filed a petition for certiorari with this court.
¶11 We provisionally granted Blanke’s petition, pending our
decision in Neese v. Utah Board of Pardons and Parole, 2017 UT 89,
416 P.3d 663. After we issued our decision in Neese, 5 we lifted the
provisional qualifier and presented the following issue for review:
whether the Parole Board must comply with the due process
standards set out in Neese under the circumstances of this case. 6
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5 Blanke received another rehearing in 2018, after we issued
our decision in Neese. There, Blanke flatly denied raping Michelle.
He also said he could not participate in sex offender treatment
because of his pending lawsuit. The Parole Board again declined
to set a parole date. Instead, it set a rehearing for 2024 and
indicated it “may consider an earlier release if Mr. Blanke
completes Sex Offender Treatment Program.”
6 The concurrence would have us “repudiate Neese.” Infra
¶¶ 48, 52. The parties, however, have not asked us to do so, nor
have we ordered supplemental briefing on the matter, which is
our preferred practice if we are considering overturning or
reformulating precedent. See, e.g., Utah Dep’t of Transp. v. Target
Corp., 2020 UT 10, ¶ 18, --- P.3d ---; State v. Lujan, 2020 UT 5,
¶ 3, --- P.3d ---. And although we have the power to revisit
precedent at any time, we are extremely reluctant to do so without
invitation from the parties and without briefing. See Neese, 2017
UT 89, ¶ 59 (providing that we “ought not upend our precedents
absent argument from the parties that they be overruled”); State v.
Rowan, 2017 UT 88, ¶ 23, 416 P.3d 566 (Himonas, J., concurring)
(“But having discretion [to decide any issue] is not the same as
prudently exercising it.”). Of course, as the concurrence suggests,
we are free to order supplemental briefing at any time. But we
have declined to do so here because, unlike the concurrence, we
do not doubt the viability of Neese. And we are also free, as the
concurrence suggests, to “clarify, refine, or reconcile our past
precedent.” Infra ¶ 85; Rutherford v. Talisker Canyons Fin., Co., LLC,
2019 UT 27, ¶ 79 n.27, 445 P.3d 474 (“[W]e are always free to
clarif[y] ambiguities in past opinions without overruling their
holdings.” (second alteration in original) (citation omitted)
(continued . . .)
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BLANKE v. BOARD OF PARDONS
Opinion of the Court
¶12 We have jurisdiction under Utah Code section
78A-3-102(3)(a).
STANDARD OF REVIEW
¶13 On certiorari, we review the court of appeals’ decision
and not that of the district court. State v. Harker, 2010 UT 56, ¶ 8,
240 P.3d 780. And we review the decision of the court of appeals
for correctness, without any deference to its conclusions of law. Id.
Of course, in determining whether the court of appeals erred, we
must be cognizant of the procedural backdrop against which the
issue arose. Here, the district court granted the Parole Board’s
motion for summary judgment on Blanke’s due process claim.
The ultimate due process question is an issue of law to be
reviewed for correctness. Neese v. Utah Bd. of Pardons & Parole,
2017 UT 89, ¶ 21, 416 P.3d 663. Typically, “[w]hen a due process
question requires ‘application of facts in the record to the due
process standard, we incorporate a clearly erroneous standard for
the necessary subsidiary factual determinations.’” Id. (quoting Salt
Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84,
¶ 47, 299 P.3d 990). On summary judgment, however, “all factual
inferences must be drawn in favor of the nonmoving party as a
matter of law, and we therefore review an award of summary
judgment on a due process issue only for correctness.” Id. (citing
Rupp v. Moffo, 2015 UT 71, ¶ 5, 358 P.3d 1060).
¶14 Assuming, however, Blanke could establish that the
district court erred in granting summary judgment to the Parole
Board on his due process claim, he would be only “eligible for,
but not entitled to, extraordinary relief.” State v. Barrett, 2005 UT
88, ¶ 24, 127 P.3d 682; UTAH R. CIV. P. 65B(d)(2)(D) (“Appropriate
relief may be granted . . . where the Board of Pardons and Parole
has exceeded its jurisdiction or failed to perform an act required
by constitutional or statutory law.” (emphasis added)). And when
deciding whether to grant the relief sought in a rule 65B(d)
petition, a court “will consider multiple factors” such as “the
(internal quotation marks omitted)). That is exactly what we are
doing here—refining Neese and holding that it does not extend to
Blanke’s situation. Bottom line: the concurrence has been and
remains more willing than the other members of this court to
uproot precedent. And to be clear, the concurrence’s view when it
comes to the proper role of stare decisis is principled and
consistent. But so is the view of the other members of this court.
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Opinion of the Court
egregiousness of the alleged error, the significance of the legal
issue presented by the petition, [and] the severity of the
consequences occasioned by the alleged error.” Barrett, 2005 UT
88, ¶ 24.
ANALYSIS
¶15 Blanke was convicted of a crime that requires his
registration as a sex offender and admitted in his presentence
report to having sex with a fifteen-year-old. Still, he contends that
the Parole Board must afford him the additional procedural
protections discussed in Neese v. Utah Board of Pardons and Parole,
2017 UT 89, 416 P.3d 663, 7 before it can determine that he is a sex
offender and condition his parole on sex offender treatment.
¶16 In support of his contention, Blanke argues that
attempted child kidnapping is not a sex offense. He also urges
that, even if attempted child kidnapping is a sex offense, the
Parole Board did not base its decision on the attempted child
kidnapping charge but instead on the uncharged allegations that
Blanke raped Michelle and sexually abused Elisabeth. 8 These
arguments are not persuasive.
¶17 For the reasons below, we hold that the Parole Board did
not violate Blanke’s due process rights when—without using the
procedures set out in Neese—it found that he was a sex offender
and thus conditioned his parole on sex offender treatment. Due
process does not require those procedures when an inmate has
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7 We required the Parole Board to use three additional
procedural protections in Neese: “(1) timely, particularized written
notice that allegations [inmates] committed unconvicted sexual
offenses will be decided; (2) the opportunity to call witnesses
[unless the safe administration of the prison system requires
otherwise]; and (3) a written decision adequately explaining [the
Parole Board’s] basis for determining that [inmates are] sex
offenders and asking them to participate in sex offender
treatment.” 2017 UT 89, ¶¶ 1, 43.
8 Blanke also urges us to follow the Kentucky Supreme Court’s
decision in Ladriere v. Commonwealth, 329 S.W.3d 278 (Ky. 2010).
That decision, however, is not on point because the issue in that
case was whether ordering a defendant to complete sex offender
treatment was authorized by a Kentucky statute. Id. at 281–82. We
thus do not address it.
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Opinion of the Court
been convicted of—or, in a procedural setting like a sentencing
hearing, has admitted to—a crime that requires him to register as
a sex or kidnap offender.
I. DUE PROCESS AT ORIGINAL PAROLE-GRANT HEARINGS
¶18 The Utah Constitution gives to the Parole Board power to
“grant parole . . . subject to regulations as provided by statute.”
UTAH CONST. art. VII, § 12(2)(a). In general, “[d]ecisions of the
board in cases involving paroles . . . are final and are not subject to
judicial review.” UTAH CODE § 77-27-5(3). This court has
consistently held, however, that article I, section 7 of the Utah
Constitution, which provides that “[n]o person shall be deprived
of life, liberty or property, without due process of law,” applies to
original parole-grant hearings. Neese v. Utah Bd. of Pardons &
Parole, 2017 UT 89, ¶ 23, 416 P.3d 663; Labrum v. Utah State Bd. of
Pardons, 870 P.2d 902, 911 (Utah 1993); see also Lancaster v. Utah Bd.
of Pardons, 869 P.2d 945, 947 (Utah 1994) (explaining that courts
“review the fairness of the process by which the Board undertakes
its sentencing function, but [they] do not sit as a panel of review
on the result, absent some other constitutional claim, such as cruel
and unusual punishment”). That is because Utah uses an
indeterminate sentencing scheme. Neese, 2017 UT 89, ¶ 23. Under
that scheme, the district court “impos[es] the statutorily
prescribed range of years for the offense of conviction.” Id. But
then the Parole Board, using its “unfettered discretion,” fixes the
term of imprisonment within that range. Id. (quoting Labrum, 870
P.2d at 908). And because of that unfettered discretion, original
parole-grant hearings are “analogous to sentencing hearings,”
requiring “due process to the extent that the analogy holds.” Id.
(quoting Labrum, 870 P.2d at 908).
¶19 Of course, due process does not require every procedural
protection for every original parole-grant hearing. See Labrum, 870
P.2d at 911. Indeed, we have recognized that procedural rights in
the parole-hearing context are “not unlimited.” Neese, 2017 UT 89,
¶ 62; Neel v. Holden, 886 P.2d 1097, 1103 (Utah 1994) (“Just as the
requirements of due process are limited in sentencing
proceedings, so they are in parole hearings at which an inmate’s
predicted term of incarceration may be set.”). Whether due
process calls for the Parole Board to bolster an original parole-
grant hearing with more procedural protections “depend[s] on the
demands of the particular situation.” Neese, 2017 UT 89, ¶ 24;
Labrum, 870 P.2d at 911 (“The extent to which additional due
process protections must be afforded inmates in this and other
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Opinion of the Court
proceedings in the parole system will require case-by-case review.
Due process is flexible and calls for the procedural protections
that the given situation demands.” (citation omitted) (internal
quotation marks omitted)). And “[p]recisely what due process
requires of the board of pardons cannot be determined in the
abstract, but must be determined only after the facts concerning
the procedures followed by the board have been [fleshed] out.”
Neel, 886 P.2d at 1102 (second alteration in original) (citation
omitted) (internal quotation marks omitted).
¶20 “[T]he touchstone of due process in the context of parole
hearings is whether the proposed procedural due process
requirement substantially furthers the accuracy and reliability of
the Board’s fact-finding process.” Id. at 1103 (emphasis added).
But we recognize that other factors play into the due process
analysis as well. So, to help us decide what procedures the Parole
Board must follow in each situation, “we balance the goals of
(1) minimizing errors in the Parole Board’s sentencing process and
(2) promoting the perception of fairness with (3) ensuring the
effective administration of Utah’s prison and parole systems.”
Neese, 2017 UT 89, ¶ 53; see also Labrum, 870 P.2d at 909 (“At least
two critical functions related to fundamental fairness are
implicated by a petitioner’s request for timely disclosure of
information: minimizing error and preserving the integrity of the
process itself.”). We also strive to “promot[e] uniformity in
sentences, reduc[e] the need for trials by encouraging rational plea
bargains, and provid[e] incentives for good behavior in prison.”
Neese, 2017 UT 89, ¶ 24 (citation omitted) (internal quotation
marks omitted).
¶21 Our opinions in Neese and Labrum provide examples of
the procedural protections required in particular situations. In
Labrum, the Parole Board withheld from an inmate notice of the
“information used against him at the parole determination
hearing.” 870 P.2d at 904. We held that “due process requires
(1) that an inmate receive adequate notice to prepare for a parole
release hearing, and (2) that an inmate receive copies or a
summary of the information in the Board’s file on which the
Board will rely.” Id.
¶22 The procedure in Labrum—adequate notice of a hearing
and the opportunity to review the Parole Board’s information—
substantially minimized errors and increased the perception of
fairness in the decision-making process by allowing the inmate to
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Opinion of the Court
“point out errors” that the Parole Board might have otherwise
relied on. Id. at 909 (citation omitted).
¶23 We required procedural protections in our Neese decision
beyond those required in Labrum. We considered “what
procedural protections the Parole Board must respect before it
determines that someone who has never before been adjudicated
a sex offender is one and effectively conditions his early release on
his participation in sex offender treatment.” Neese, 2017 UT 89,
¶ 25. The inmate in that case “ha[d] never been convicted of a sex
offense or adjudicated a sex offender in a disciplinary, juvenile, or
any other proceeding.” Id. ¶ 32. And he “steadfastly maintained
that he was innocent of sexual misconduct.” Id. We held that due
process required the Parole Board to give the inmate more
procedural protections—advance written notice, the ability to call
witnesses and present evidence (unless the safe administration of
the prison system requires otherwise), and a written statement—
before it could consider him a sex offender for the purposes of
sex-offender-treatment parole conditions. Id. ¶ 43.
¶24 The Neese procedures substantially “reduce the risk of
error and promote the perception of fairness” in three ways: First,
they “allow[] inmates to meaningfully present evidence in a
situation where they’ve never before had the opportunity to do
so.” Id. ¶ 44. Second, they “ensur[e] that the Parole Board has
carefully considered the evidence.” Id. ¶ 46. Third, they “creat[e] a
record of the Parole Board’s adjudication that allows for
meaningful due process review.” Id.
II. APPLICABILITY OF NEESE
¶25 Applying the paradigm of Neese v. Utah Board of Pardons
and Parole, 2017 UT 89, 416 P.3d 663, and its ancestry, we
determine that the Parole Board did not violate Blanke’s right to
due process by considering him a sex offender for the purposes of
sex offender treatment. Two facts here strip away the need for
additional procedure. First, Blanke was convicted of attempted
child kidnapping—a crime that, at the time of his conviction,
required him to register as a sex offender. Second, he admitted in
his presentence report, while benefiting from the extensive
procedures of a sentencing hearing, to having sexual intercourse
with a fifteen-year-old. If he were convicted of it, that admitted
conduct would constitute a crime that would also require Blanke
to register as a sex offender.
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¶26 Given the procedural protections that Blanke enjoyed in
pleading guilty to attempted child kidnapping and in admitting to
having sexual intercourse with a fifteen-year-old, more
procedural protections were unnecessary to satisfy due process
before the Parole Board could consider Blanke’s unconvicted sex
offenses for purposes of sex offender treatment. 9 Additional
procedures would neither substantially reduce the risk of error
nor protect the appearance of fairness in the Parole Board’s
decision that Blanke was a sex offender. Thus under our
precedents, the Parole Board owed Blanke no more procedural
protections before it decided that he is a sex offender.
A. Blanke Was Adjudicated a Sex Offender
¶27 Neese’s “unique procedural protections,” 2017 UT 89,
¶ 30, are not required by due process because Blanke was
convicted of attempted child kidnapping. 10 As a result of that
conviction, he is required under the Utah sex offender registration
statute to register as a sex offender. Thus he has been adjudicated
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9 The concurrence says that “there is nothing in Neese that
dictates this result” and that this “is a policy decision that we are
making based on the facts of this particular case.” Infra ¶ 61. We
disagree. We are not making a policy decision; rather, we are
fulfilling our judicial role, which is to determine what procedural
protections due process requires in this case. Labrum v. Utah State
Bd. of Pardons, 870 P.2d 902, 911 (Utah 1993) (“Due process is
flexible and calls for the procedural protections that the given
situation demands.” (citation omitted) (internal quotation marks
omitted)); Foote v. Utah Bd. of Pardons, 808 P.2d 734, 735 (Utah
1991) (“Precisely what due process requires of the board of
pardons cannot be determined in the abstract, but must be
determined only after the facts concerning the procedures
followed by the board are [fleshed] out.”). And the principles of
due process voiced in Neese and its ancestry require the result we
reach today.
10 The crime of child kidnapping is committed when a person
“intentionally or knowingly, without authority of law, and by any
means and in any manner, seizes, confines, detains, or transports
a child under the age of 14 without the consent of the victim’s
parent or guardian, or the consent of a person acting in loco
parentis.” UTAH CODE § 76-5-301.1(1).
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Opinion of the Court
a sex offender, 11 and the Parole Board did not violate due process
by refusing to afford him additional procedures before
considering him to be a sex offender for parole purposes.
¶28 Blanke contends that he deserves the procedures in Neese.
But the situation in Neese was very different from Blanke’s
situation. Unlike the Neese inmate, Blanke has been adjudicated a
sex offender. He was convicted of attempted child kidnapping.12
At the time of his conviction, attempted child kidnapping was a
registerable offense under Utah’s sex offender registration
statute. 13 So as a result of that conviction, Blanke had to register as
a sex offender. And thus he has been adjudicated a sex offender.
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11 The concurrence argues that Neese “gave little guidance on
what it means to have ‘been adjudicated a sex offender.’” Infra
¶ 56. Consequently, the concurrence believes that “[i]t is not at all
clear that Neese provides that Blanke ‘has been adjudicated a sex
offender.’” Infra ¶ 54. Although the concurrence may be correct in
that the Neese opinion left open what we meant by that phrase (we
did not need to define it there), this court may define terms that it
has used in past cases. And it is patently reasonable to conclude
that a sex offender, as used in Neese, means someone who fits the
definition of a sex offender under the Utah Code.
12 Blanke argues that the Parole Board cannot classify him as a
sex offender because attempted child kidnapping is not one of the
crimes listed under Title 76, Chapter 5, Part 4 of the Utah Code,
the part named “Sexual Offenses.” But regardless of whether a
crime is housed in that part of the Utah Code, we hold that the
Parole Board may classify an inmate as a sex offender when the
inmate is required to register as a sex offender. See infra ¶ 32. He
also points out that attempted child kidnapping requires no
sexual element or motive. Although true, there is a correlation
between attempted child kidnapping and sex offenses. See infra
¶ 31.
13 At the time of Blanke’s conviction of attempted child
kidnapping, Utah Code section 77-27-21.5 governed sex offender
registration. That section required sex offenders to register,
defining a “sex offender” to include any person convicted of
“Section 76-5-301.1, kidnapping of a child” or “attempting” that
crime. UTAH CODE § 77-27-21.5(1)(e) (2002) (repealed 2012).
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¶29 In contrast to Neese, more procedural protections here
would not serve the “critical functions” of due process. See Labrum
v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah 1993).
Specifically, they would not substantially increase the accuracy of
the Parole Board’s decision that Blanke is a sex offender since
Blanke already had the opportunity to meaningfully present
evidence about the events leading to the attempted child
kidnapping conviction. 14 Neese, 2017 UT 89, ¶ 44. That is, in part,
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14 The concurrence contends that additional procedure is
arguably warranted because it “would aid the Parole Board’s
decision-making to some degree.” Infra ¶ 71. But our precedents
require more than that: an inmate must show that “a particular
procedural requirement will substantially further the [Parole]
Board’s fact-finding process.” Neese, 2017 UT 89, ¶ 63 (alteration
in original) (emphasis added) (citation omitted); Monson v. Carver,
928 P.2d 1017, 1030 (Utah 1996) (“[O]ur decision to extend
particular procedural due process requirements under article I,
section 7 of the Utah Constitution to certain parole hearings is
grounded in the rationale that such requirements will
substantially further the accuracy and reliability of the Board’s
fact-finding process.”); Neel v. Holden, 886 P.2d 1097, 1103 (Utah
1994) (“[T]he touchstone of due process in the context of parole
hearings is whether the proposed procedural due process
requirement substantially furthers the accuracy and reliability of
the Board’s fact-finding process.”). Undoubtedly, the robust
procedure required in Neese—notice, an opportunity to call
witnesses, and a written decision—substantially furthers the
accuracy of the Parole Board’s decision-making, even if we have
not explicitly said so. See also Labrum v. Utah State Bd. of Pardons,
870 P.2d 902, 909 (Utah 1993) (holding that due process “requires
that the inmate know what information the Board will be
considering at the hearing and that the inmate know soon enough
in advance to have a reasonable opportunity to prepare responses
and rebuttal of inaccuracies,” in part, because “researchers and
courts have discovered many substantial inaccuracies in inmate
files” (citation omitted)). And although this court does not always
say out loud that the procedural requirement must substantially
further the fact-finding process, this court has never held that due
process requires additional procedure whenever it aids the Parole
Board’s decision-making to some degree. Such a standard would
render the required procedure virtually limitless.
13
BLANKE v. BOARD OF PARDONS
Opinion of the Court
the function of plea and sentencing proceedings. Nor would more
procedures substantially further the appearance of fairness in the
Parole Board’s decision-making: an inmate who pleads guilty to a
crime that requires him to register under the sex offender
registration statute cannot reasonably think it unfair that the
Parole Board would then consider him a sex offender and
condition his parole on sex offender treatment.
¶30 We note that under the current statutory scheme, an
individual convicted of attempted child kidnapping is considered
a kidnap offender—not a sex offender. UTAH CODE § 77-41-102(9),
(17). But even if the new Sex and Kidnap Offender Registry were
to apply to Blanke, we would still conclude that more procedural
protections are unnecessary before the Parole Board determines
that he is a sex offender. We hold this for two reasons.
¶31 First, the Utah Legislature added attempted child
kidnapping as a registerable sex offense in 1997, noting that it was
“expanding the definition of sex offender to include other offenses
against minors.” 1997 Utah Laws 763. Before then, the Legislature
had defined sex offender only as someone with a felony
conviction under Title 76, Chapter 5, Part 4. UTAH CODE
§ 77-27-21.5 (1983). The Utah Legislature, then, apparently saw a
link between sex offenses and attempted child kidnapping. That
view does not lack support, given the apparent significant
correlation between child kidnapping and child sex offenses. 15
Second, the crime of child kidnapping carves out an exception for
__________________________________________________________
15 See CHILD VICTIMS OF STEREOTYPICAL KIDNAPPINGS KNOWN TO
LAW ENFORCEMENT IN 2011, U.S. DEP’T OF JUSTICE 1, 10 (2016),
https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/24924
9.pdf (noting that in 2011, 63 percent of stereotypically kidnapped
children “were sexually assaulted during detainment” and that
“[h]alf of all stereotypical kidnappings in 2011 were sexually
motivated crimes against adolescent girls”). Child kidnapping is
also often charged with other crimes that require a sexual element.
See, e.g., State v. Strunk, 846 P.2d 1297, 1299 (Utah 1993)
(recounting that the defendant had been charged with child
kidnapping and aggravated sexual abuse of a child); State v. Diaz,
2002 UT App 288, ¶ 6, 55 P.3d 1131 (noting the defendant had
been charged with one count of aggravated kidnapping, or in the
alternative, one count of child kidnapping, and one count of
aggravated sexual abuse of a child).
14
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Opinion of the Court
the typical family kidnapping—i.e., conduct that would constitute
“custodial interference” 16—making the conduct underlying child
kidnapping more likely to be sexually motivated.
¶32 For these reasons, we hold that the procedural
protections in Neese do not apply when an inmate must register as
a sex or kidnap offender.
B. Blanke Admitted to Having Sexual Intercourse with a Fifteen-Year-
Old in a Setting in Which He Had Enough Procedural Protections
¶33 In addition to Blanke having been adjudicated a sex
offender, Neese’s procedural protections would not substantially
further the “critical functions” of due process because Blanke
admitted in his presentence report to sexual misconduct. And the
conviction of that misconduct would have required his
registration as a sex offender. For that reason alone the Parole
Board did not violate due process by determining that Blanke was
a sex offender and conditioning his release on sex offender
treatment.
¶34 Blanke’s admitted conduct constituted a crime that would
have required him to register as a sex offender had he been
convicted of it. Specifically, he admitted in his presentence report
to having sex in 1997 with a fifteen-year-old, when he was forty-
three years old. At that time, that conduct constituted the crime of
unlawful sexual intercourse, a crime that required registration as a
sex offender. 17 By the time of Blanke’s kidnapping conviction in
__________________________________________________________
16 See UTAH CODE § 76-5-301.1(2) (“Violation of Section 76-5-303
is not a violation of this section.”); id. § 76-5-303 (2001) (repealed
2010) (criminalizing, among other things, (1) the taking of a child
from its lawful custodian with knowledge that “the actor has no
legal right to do so” and “with the intent to hold the child for a
period substantially longer than the court-awarded parent-time or
custody period” and (2) concealing or detaining a “child with
intent to deprive” a person “of lawful parent-time, visitation, or
custody rights”).
17 In 1997, a sex offender included any person convicted of a
“felony, under Title 76, Chapter 5, Part 4, Sexual Offenses.” UTAH
CODE § 77-27-21.5(1)(e) (1997). And Utah Code section 76-5-401
(1983) made it a third-degree felony (unlawful sexual intercourse)
for a person to have “sexual intercourse with a person . . . who is
(continued . . .)
15
BLANKE v. BOARD OF PARDONS
Opinion of the Court
2003, the name of that crime had changed to unlawful sexual
activity with a minor, but it still required registration as a sex
offender. 18 Regardless of which statute applies—unlawful sexual
intercourse or unlawful sexual activity with a minor—Blanke’s
admitted conduct constituted a crime that would have required
him to register as a sex offender had he been convicted of it.
¶35 With that in mind, we turn to Blanke’s contention that
Neese requires the Parole Board to give him more procedural
protections at his parole hearing. It does not. Unlike the inmate in
Neese, Blanke did not “steadfastly maintain[] that he was innocent
of sexual misconduct.” Neese, 2017 UT 89, ¶ 32. Instead, he
admitted in the presentence report to conduct that would require
him to register as a sex offender if he were convicted of it. What is
more, Blanke had the chance to refute the presentence report at
his sentencing hearing. But there he only denied having “raped
and sodomized” Michelle. Crucially, he did not dispute having
sexual intercourse with her, her identity, or her status as a
minor. 19 Put differently, that Blanke had sexual intercourse with a
fifteen-year-old was an “undisputed background fact[].” Id. ¶ 29.
¶36 Unlike in Neese, the critical functions of procedural due
process have been tended to here. More specifically, they were
under sixteen years of age,” if the actor was more than three years
older than the victim.
18 In 2003, Utah Code section § 77-27-21.5(1)(e) (2002) defined
“sex offender” in part as “any person . . . convicted by this state
of . . . a felony violation of Section 76-5-401, unlawful sexual
activity with a minor.” At that time, unlawful sexual activity with
a minor included having “sexual intercourse with [a] minor.”
UTAH CODE § 76-5-401 (1998). A minor was defined as person who
was “14 years of age or older, but younger than 16 years of age, at
the time the sexual activity . . . occurred.” Id. This crime was a
third-degree felony “unless the defendant establishe[d] by a
preponderance of the evidence the mitigating factor that the
defendant [was] less than four years older than the minor at the
time the sexual activity occurred.” Id.
19 “Section 76-5-401 makes sexual intercourse with a fourteen
or fifteen-year-old a violation of the statute, irrespective of
defendant’s knowledge of the victim’s age . . . .” State v. Martinez,
2002 UT 80, ¶ 12, 52 P.3d 1276.
16
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Opinion of the Court
fulfilled by virtue of the sentencing proceeding. Blanke’s
sentencing proceeding greatly “reduce[d] the risk of error” in the
Parole Board’s decision-making, id. ¶ 25, by giving him the
opportunity (while being represented by counsel) to refute the
presentence report—i.e., to “meaningfully present evidence” to
contradict it, id. ¶ 44, and to “point out errors,” Labrum, 870 P.2d
at 909 (citation omitted). Indeed, the prosecutor even asked the
district court to “allow Mr. Blanke” to “provide anything for the
record” and to “let the Court know about any objections he has to
the pre-sentence report.” The sentencing proceeding also
promoted the “appearance of fairness:” an inmate cannot
reasonably think it unfair that the Parole Board classifies him as a
sex offender when he has admitted to sexual misconduct in the
presentence report and then left that admission unchallenged in
the sentencing proceeding.
¶37 The bottom line is that the procedural protections of Neese
do not apply when the Parole Board classifies an inmate as a sex
offender and thus conditions the inmate’s parole on sex offender
treatment when he has admitted, in a proceeding with procedural
protections like those of a sentencing hearing, to conduct that
would constitute a crime making him a sex or kidnap offender.
Consequently, the Parole Board did not violate due process by
categorizing Blanke as a sex offender and conditioning his parole
on sex offender treatment.
C. Neese Does Not Apply, and
Blanke Has Not Asked Us to Expand Its Scope
¶38 Blanke last argues that he deserves the procedural
protections of Neese because in making its decision the Parole
Board was “fixated on alleged, unconvicted sexual misconduct”—
the rape and sexual abuse allegations—rather than on his
convicted offense (attempted child kidnapping). 20 But this
argument misunderstands our decision in Neese. Neese held only
that due process requires “unique procedural protections” when
(1) an inmate has never been adjudicated a sex offender in any
__________________________________________________________
20 Blanke also contends his “false confession” to the rape at the
2006 parole hearing does not obviate his right to Neese procedures.
This argument is irrelevant, however, because Blanke is not
entitled to the Neese procedures for two other, independent
reasons. See infra ¶ 39. We therefore decline to address his
argument in further detail.
17
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
proceeding and (2) the Parole Board considers unconvicted sex
offenses in its decision to condition parole on sex offender
treatment. Neese, 2017 UT 89, ¶ 40. We did not decide in Neese
whether the Parole Board must afford an inmate additional
procedural protections whenever it considers any unconvicted
sexual misconduct, even when the inmate has been adjudicated a
sex offender for some other sexual misconduct.
¶39 Neese does not apply here because Blanke was
adjudicated a sex offender by virtue of his attempted child
kidnapping conviction. Beyond that, he admitted in the
presentence report to conduct constituting another registerable
sex offense. Those two facts push Blanke outside of Neese’s
protection. The Parole Board thus owed Blanke no additional
process before it considered unconvicted sex offenses in its
decision to require Blanke to undergo sex offender treatment.
Blanke has not asked us to expand the scope of Neese, and so we
leave that issue for another day.
CONCLUSION
¶40 We conclude that under these circumstances the Parole
Board need not afford Blanke the due process protections
explained in Neese. We therefore affirm the decision of the court of
appeals.
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:
¶41 The founding constitution of the State of Utah gave to the
“Board of Pardons” the discretion to “commute punishments”
with any “limitations and restrictions” that a majority of the
Board might “deem proper.” UTAH CONST. art. VII, § 12 (1896).
This was the founding-era notion of parole in Utah. The Board’s
authority was subject to “regulations as may be provided by law,
relative to the manner of applying for pardons,” id., but never to
the demands of “due process” as applied in judicial proceedings.
Historically, the Parole Board had untrammeled discretion to
decide the terms and conditions of early release from
incarceration. Because early release on parole was seen as a matter
of executive “grace,” our law stopped far short of imposing the
18
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Lee, A.C.J., concurring in the judgment
demands of trial process on parole hearings. 21 That understanding
is both reinforced in the constitution as it stands today, 22 and
confirmed by longstanding legislation 23 and judicial practice.24
For many decades, the parole process was governed by statutes
enacted by the legislature and rules adopted by the Parole Board
without interference from this court.
¶42 This court first inserted itself into the Parole Board’s
procedures in Foote v. Utah Board of Pardons, 808 P.2d 734 (Utah
1991). There, we acknowledged that parole decisions in Utah are
statutorily committed to the unreviewable discretion of the Board,
id. at 735 (citing UTAH CODE § 77-27-5(3)), and noted that parole is
not generally “a protected liberty interest under the federal due
process clause,” id. at 734 (citing generally Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 14–16 (1979)). 25 But we
__________________________________________________________
21 See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 164,
416 P.3d 663 (Lee, A.C.J., dissenting) (“Any decision to impose
less than the maximum sentence . . . is an act of grace—a grant of
greater liberty than the defendant was entitled to. And on that
basis the original understanding of the right to due process does
not extend to sentencing proceedings.” (footnote omitted)).
22 See UTAH CONST. art. VII, § 12(2)(a) (“The Board of Pardons
and Parole, by majority vote and upon other conditions as provided by
statute, may grant parole, remit fines, forfeitures, and restitution
orders, commute punishments, and grant pardons after
convictions, in all cases except treason and impeachments, subject
to regulations as provided by statute.” (emphases added)).
23See UTAH CODE § 77-27-5(3) (“Decisions of the board in cases
involving paroles, pardons, commutations or terminations of
sentence, restitution, or remission of fines or forfeitures are final
and are not subject to judicial review.”).
24 See Neese, 2017 UT 89, ¶ 161 (Lee, A.C.J., dissenting)
(“Throughout the late nineteenth and early twentieth centuries,
judges and parole boards enjoyed wide discretion to determine
the appropriate sentence. Yet sentencing and parole proceedings
were never treated like trials.”(footnote omitted)).
25See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 7 (1979) (holding that “[t]here is no constitutional or
inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence,” because “[t]he natural
(continued . . .)
19
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
nonetheless asserted, with no analysis of the language of the Utah
Constitution and no attempt to tie our decision to its original
understanding, that “the mandate of the due process clause” must
apply “to all activities of state government.” Id. at 735. And we
remanded the case to the district court for further proceedings
and a determination of “[w]hat may constitute due process” in the
context of a parole hearing. Id.
¶43 We took up the question of “what may constitute due
process,” id., in an original parole grant hearing in Labrum v. Utah
State Board of Pardons, 870 P.2d 902 (Utah 1993). Labrum embraced
the purported “reality” that original parole grant hearings “are
analogous to sentencing hearings.” Id. at 908. And on the basis of
that “reality,” Labrum held that an inmate in such a hearing has a
constitutional “due process” right to “know what information the
Board will be considering at the hearing . . . soon enough in
advance to have a reasonable opportunity to prepare responses
and rebuttal of inaccuracies.” Id. at 909.
¶44 We took the matter a significant step further in Neese v.
Utah Board of Pardons & Parole, 2017 UT 89, 416 P.3d 663. There we
established a new right (among others) of inmates “to call
witnesses and present documentary evidence” in original parole
grant hearings in which the Parole Board anticipates “classify[ing]
as a sex offender an inmate who has never been convicted of a sex
offense or otherwise adjudicated a sex offender.” Id. ¶ 43.
¶45 The new procedural rights established in Labrum and
Neese were not rooted in any historically recognized right to “due
process” in parole hearings (or even in sentencing hearings 26).
Instead, these new rights flowed from our court’s sense of fairness
and equity. We framed our decision as dictated by “‘critical
functions’ of procedural due process” found in our case law—
factors that look to whether new procedures will decrease the risk
of error and increase the perception of fairness in parole decisions.
desire of an individual to be released is indistinguishable from the
initial resistance to being confined,” and “the conviction, with all
its procedural safeguards, has extinguished that liberty right”).
26 See Neese, 2017 UT 89, ¶¶ 159–61, (Lee, A.C.J., dissenting)
(explaining that sentencing proceedings were not traditionally
treated like trials, constrained by due process, or generally subject
to the rules of evidence).
20
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Lee, A.C.J., concurring in the judgment
See id. ¶ 28. But those factors are not a test that bridles judicial
discretion. They are a one-way ratchet that justifies any new set of
procedures that a majority of this court decides to impose on the
Parole Board in the name of due process.
¶46 I dissented on these grounds in Neese.27 In so doing I
expressed a shared interest in “preserving the . . . ‘safe and
effective administration of the prison system.’” Id. ¶ 176 (Lee,
A.C.J., dissenting). But I emphasized that we have a ready
“means” of doing so—in “respect[ing] the traditional role of the
Parole Board” and the legislature in “adopting rules of procedure
in this field,” and “leav[ing] the limits of the Due Process Clause
to the procedures historically understood to be guaranteed by the
constitution.” Id. And I lamented the fact that Neese not only
departed from the original understanding of due process but also
failed to provide a transparent test or standard that explained our
decision.
¶47 My concerns stand. The Neese opinion provides no
“workable legal standard” that explains the basis for
constitutionalizing new procedural rules to impose on the Parole
Board. Id. ¶ 141. It just gives a “circular confirmation for whatever
procedure a majority of this court may deem appropriate.” Id.
¶48 Today the court declines to extend Neese beyond its
specific facts. And I endorse the decision to halt any further
extensions of our precedent in this area. I write separately,
however, to note that today’s decision reinforces the concerns that
I raised in Neese and confirms that the proper course of action is to
repudiate Neese and return to the originalist first principles of due
process set forth in my dissent in that case.
¶49 The majority cites two principal grounds for refusing to
extend the procedures established in Neese to the facts of this case.
__________________________________________________________
27 See id. ¶ 184 (explaining that the court failed to “identify an
operative legal principle or legal test,” and chose instead to
“simply identif[y] grounds for ever-expanding procedural
mechanisms”); id. (noting that the majority’s test “provides no
stopping point” and allows “a majority of the court” to decide
that any additional procedures it prefers to endorse are “required
by the Utah Constitution”); id. ¶ 185 (maintaining that “[t]he
court’s articulated factors” and new standards “are as fuzzy and
unworkable as they are unmoored from history”).
21
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
First, the court suggests that we have already decided the
question presented. It says that the Neese procedures apply only to
someone who has never been “‘adjudicated a sex offender,’” supra
¶ 27 (the phrase at issue in Neese, 2017 UT 89, ¶ 25), and asserts
that Blanke has in fact “been adjudicated a sex offender,” supra
¶ 28. Second, the court contends that the due process
considerations identified in Neese—whether additional procedures
would “increase the accuracy of the Parole Board’s decision[-
making]” and “further the appearance of fairness in the Parole
Board’s decision-making”—counsel against extending Neese.
Supra ¶ 29.
¶50 But the decision today is not dictated by anything set
forth in Neese—not by our articulation of the holding, and not by
our announcement of any governing standard. 28 Here, as in Neese,
we are making a policy decision. We are concluding that the facts
of this case are less sympathetic than the facts in Neese, and thus
insufficient to justify extending the reach of our newly
constitutionalized parole procedures.
¶51 Like the majority, I would hold that there is no basis for a
decision granting Blanke the right to call witnesses (and avail
himself of the other rights we announced in Neese) in his parole
hearing. But I would base that decision on a determination—
explained in detail in my dissent in Neese and elaborated further
below—that there is no due process ground that justifies this
court taking over a policymaking function that has long been
vested in the Parole Board and subject to oversight by the
legislature.
¶52 In the paragraphs below I first show that our articulation
of the holding in Neese does not resolve the question presented
today. I then demonstrate that a serious application of the Neese
factors would lead to a decision in Blanke’s favor. And I conclude
by explaining why this court can and should repudiate Neese and
place these sensitive decisions back in the hands of the Parole
Board.
__________________________________________________________
28 The majority seems to acknowledge this point implicitly in
its reformulation of the Neese standard—in its statement that the
Neese standard now requires a showing that any additional
procedure will “substantially” advance the goals set forth in
Neese. See supra ¶ 29.
22
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Lee, A.C.J., concurring in the judgment
I
¶53 The majority first asserts that the concerns that drove the
Neese decision are not present in the case before us. It says that
Neese decided “what procedural protections the Parole Board
must respect before it determines that someone who has never
before been adjudicated a sex offender is one and effectively
conditions his early release on his participation in sex offender
treatment.” Supra ¶ 23 (quoting Neese v. Utah Bd. of Pardons &
Parole, 2017 UT 89, ¶ 25, 416 P.3d 663 (internal quotation marks
omitted)). And it holds that Neese does not apply to Blanke’s
situation because “[u]nlike the Neese inmate, Blanke has been
adjudicated a sex offender.” Supra ¶ 28.
¶54 But this is pure ipse dixit—a preference for a given policy
outcome cloaked in a conclusory statement that the premise holds
because we say it does. It is not at all clear that Neese provides that
Blanke “has been adjudicated a sex offender.” Nor is that
apparent from the Utah criminal code or the record in this case.
This is a question of first impression.
¶55 Neese held that a person is a “sex offender” if he
committed an offense that justifies a Board decision to
“condition[] his early release on his participation in sex offender
treatment.” Neese, 2017 UT 89, ¶ 25. But the Utah Code does not
regulate the Board’s authority to impose such conditions on early
release. And it certainly doesn’t define what counts as a “sex
offense” for these purposes. It is silent on the matter.29 The same
goes for our case law, which reflects the longstanding discretion
of the Board to impose the terms and conditions that it sees fit.
¶56 Neese likewise gave little guidance on what it means to
have “been adjudicated a sex offender.” It told us only that a
defendant who has been subject to trial and mistrial on a count of
“forcible sodomy,” id. ¶ 2, cannot be deemed to have been
“adjudicated” guilty of the kind of offense that leads to a
requirement of sex offender treatment as a precondition of early
release, id. ¶ 25. But that decision in no way dictates an answer to
__________________________________________________________
29Our criminal code defines a category of “sexual offenses,” see
UTAH CODE § 76-5-401 et seq. (Part 4 classifying “Sexual
Offenses”), but it nowhere restricts the Parole Board in its
identification of which offenses may justify a requirement of sex
offender treatment as a precondition of early release on parole.
23
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
the question presented in this case. There is no a priori, objective
sense in which we can conclusively say that Blanke has been
“adjudicated a sex offender”—the kind of offender that justifies
the Board in conditioning his early release on the completion of
sex offender treatment. The standard certainly wasn’t articulated
in Neese. 30 And Blanke credibly argues that at least some of the
differences between his case and Neese’s support the conclusion
that he deserves additional procedure at least as much as Neese
did.
¶57 Neese was charged with and tried on a crime our code
classifies as a “sexual offense.” 31 And the crime in question
required proof of a non-consensual “sexual act . . . involving the
genitals of one individual and the mouth or anus of another
individual.” 32 He also had the opportunity to defend against that
charge in a full-blown criminal trial—with all the procedural
rights that accompany such a proceeding (including the right to
call, confront, and cross-examine witnesses).
¶58 Blanke’s case is different in several respects. But many of
the differences cut in his favor—and cannot themselves justify
distinguishing Neese. The charges against Blanke (on which he
pleaded guilty) were for kidnapping and attempted child
kidnapping. Neither of those crimes is classified as a “sexual
offense” in the code or requires proof of a non-consensual “sexual
__________________________________________________________
30 The majority acknowledges that Neese “left open” what it
means to be “adjudicated a sex offender,” but insists that “it is
patently reasonable” to treat anyone “who fits the definition of a
sex offender under the Utah Code” as having been “adjudicated a
sex offender.” Supra ¶ 27 n.11. But this makes my point. I am not
saying that what the court is doing today is unreasonable. I am just
saying that its decision is not dictated by existing law (by Neese or
the Utah Code). Again, the code does not define “sex offender”
for any purpose—let alone for mandatory, Board-imposed sex
offender treatment purposes. Supra ¶¶ 53–54. It tells us only who
must register as one. The majority is thus making new policy in its
decision today. It may be reasonable policy. But it is not a decision
mandated by Neese or the code.
31See UTAH CODE § 76-5-401 et seq. (Part 4 classifying “Sexual
Offenses”); id. § 76-5-403 (elements of forcible sodomy).
32 Id. § 76-5-403(1).
24
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Lee, A.C.J., concurring in the judgment
act.” On these grounds, Blanke may be in a stronger position than
Neese to complain about the Parole Board branding him a “sex
offender” and prescribing sex offender treatment as a
precondition of early release.
¶59 Granted, Neese was never convicted of the conduct for
which he was required to undergo sex offender treatment. But
neither was Blanke. He was convicted of attempted child
kidnapping and kidnapping, crimes that, again, were neither
classified as “sexual offenses” nor required proof of a
non-consensual “sexual act.”
¶60 The majority dismisses these arguments, noting that the
crime of attempted child kidnapping “was a registerable offense
under Utah’s sex offender registration statute” at the time of
Blanke’s guilty plea, supra ¶ 28, and asserting that “there is a
correlation between attempted child kidnapping and sex
offenses,” supra ¶ 28 n.12. On these bases, the court concludes that
Blanke “has been adjudicated a sex offender.” Supra ¶ 28. It also
notes that Blanke did not object to allegations in a presentence
report that he engaged in conduct that “constituted the crime of
unlawful sexual intercourse” (statutory rape) under Utah Code
section 76-5-401 (1983). Supra ¶ 34. And because that conduct
“constituted a crime that would have required him to register as a
sex offender had he been convicted of it,” supra ¶ 34, the court
suggests that Blanke’s circumstances fall outside the holding of
Neese.
¶61 But again, there is nothing in Neese that dictates this
result. We might wish to treat Blanke as a “sex offender” of the
sort that may justly be required to undergo sex offender treatment
as a precondition of early release on parole. But that crucial
definition of “sex offender” is nowhere stated in Neese and
nowhere provided in our statutes governing parole. This is a
policy decision that we are making based on the facts of this
particular case. Attempted child kidnapping is neither classified
as a sexual offense nor requires proof of a non-consensual sexual
act. The same goes for kidnapping. And although there was
conduct mentioned in the presentence report in the kidnapping
case that could have constituted a sexual offense if it had been
charged, see supra ¶ 34, there was no charge and thus no
conviction. If we justify the Board’s decision based on the fact that
Blanke could have been convicted of statutory rape and required
to register as a sex offender, Blanke is in a worse position than
Neese was—he is being required to undergo treatment for
25
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
conduct for which he was never even charged or tried, let alone
convicted. Clearly, then, Blanke’s failure to “object” to the
allegation in the presentence report does not show that he has
been “adjudicated a sex offender” under Neese.
¶62 I am not suggesting that Blanke has a clear-cut case under
Neese. I am just noting that Neese does not tell us who counts as
the kind of “sex offender” that the Board may require to
participate in sex offender treatment as a precondition of early
release. I have cited a difference between this case and Neese that
seems to make Blanke’s case the more sympathetic one—that
Neese was charged with and tried on a crime classified as a
“sexual offense” and requiring proof of a non-consensual “sexual
act,” while Blanke was charged with and pleaded guilty to crimes
with neither of those features. The majority, by contrast, cites
differences that seem to cut in the opposite direction—that Neese
pleaded guilty only to charges of obstruction of justice, theft, and
burglary, while Blanke pleaded guilty to one “registrable offense”
and failed to contest allegations of misconduct that would have
constituted another. Fair enough. But none of this tells us whether
Blanke has been “adjudicated” of the kind of sex offense that
should require him to participate in sex offender treatment as a
precondition of early release.
¶63 This is because there is no law governing the imposition
of such a precondition. Again, this is unsurprising because these
decisions have long been matters of discretion for the Parole
Board. We cut back on that discretion in Neese when we held that
a person charged with and tried on a sex offense resulting in a
mistrial could not be subjected to sex offender treatment by the
Parole Board without additional procedures mandated by this
court. And in so ruling we characterized the imposition of such a
condition as a determination by the Board that an inmate is an
“adjudicated . . . sex offender.” But that does not tell us whether a
person charged only with attempted child kidnapping and
kidnapping has been “adjudicated” of the kind of “sex offense”
that should require him to go through sex offender treatment as a
precondition of early release on parole.
¶64 The court is thus making a new policy decision in ruling
that “the Parole Board may classify an inmate as a sex offender”
(and therefore require sex offender treatment as a condition of
early release on parole) “when the inmate is required to register as
a sex offender,” supra ¶ 28 n.12, or when an inmate fails to deny
conduct that would have constituted a registrable offense (if he had
26
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been charged and convicted), supra ¶ 33. Nothing in Neese, and
certainly nothing in the statutes and regulations governing parole,
dictates the court’s decision.
II
¶65 The majority also insists that its decision follows from the
legal “paradigm” set forth in Neese v. Utah Board of Pardons &
Parole, 2017 UT 89, 416 P.3d 663. Supra ¶ 25. Citing the “‘critical
functions’ of due process” identified in that case, the court says
that “more procedural protections here” would neither
“substantially increase the accuracy of the Parole Board’s decision
that Blanke is a sex offender” nor “substantially further the
appearance of fairness.” Supra ¶ 29.
¶66 If we apply the plain language of Neese—which does not
require that procedures do anything “substantially” 33—I can’t see
__________________________________________________________
33 The majority insists that our case law has always required an
inmate to show “that ‘a particular procedural requirement will
substantially further the [Parole] Board’s fact-finding process.’”
Supra ¶ 29 n.14 (alteration in original) (citing Neese v. Utah Bd. of
Pardons & Parole, 2017 UT 89, ¶ 63, 416 P.3d 663). And it seems to
attach this qualifier to Neese’s “appearance of fairness” factor as
well. See supra ¶ 29. But this is a reformulation of the Neese
standard. In Neese, we repeatedly asserted that due process
demands additional procedures whenever they will “reduce the
risk of error,” 2017 UT 89, ¶¶ 24, 25, 29, 44, “minimiz[e] error,” id.
¶¶ 28, 31; see also id. ¶¶ 53, 55, or ensure “factual accuracy,” see id.
¶ 62 (citation omitted). And we held that additional safeguards
were necessary in Neese’s case because we “lack[ed] confidence in
the accuracy of the[] proceedings,” id. ¶ 34, and had “concerns for
accuracy in meting out punishment,” id. ¶ 113. In the past, we
have cited a standard of “substantially” furthering accuracy or
“meaningfully” reducing error only when rejecting requests for
more procedure. See id. ¶¶ 54, 63; see also Padilla v. Utah Bd. of
Pardons & Parole, 947 P.2d 664, 670 (Utah 1997) (rejecting an
inmate’s request that his counsel be allowed to “speak for him”
and “confer with him” during portions of a Board hearing);
Monson v. Carver, 928 P.2d 1017, 1030 (Utah 1996) (rejecting an
inmate’s request for counsel); Neel v. Holden, 886 P.2d 1097, 1103
(Utah 1994) (rejecting an inmate’s request that his counsel be
allowed to address the Board). So the majority’s new, heightened
standard underscores the internal inconsistency and ultimate
(continued . . .)
27
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
how that could be so. It would be a rare case indeed where
additional precautions would not increase accuracy, and an even
rarer one where such safeguards would not enhance the inmate’s
“reasonable,” see supra ¶¶ 29, 36, perception of fairness. See Neese,
2017 UT 89, ¶ 141 (Lee, A.C.J., dissenting) (“Any additional
procedure, after all, can be said to ‘minimiz[e] error’ and
‘preserv[e] the integrity of the [parole] process.’” (alterations in
original)). And this does not strike me as such a case.
¶67 Even if we apply the majority’s new and improved
“substantially increases” standard, it is not clear to me that Blanke
should lose. The Neese factors, after all, are “not a legal test.” Id.
¶ 182. They are just a recitation of the “benefits of additional
procedure.” Id. And when our test cites “only the benefits—the
upsides—of additional procedure[,] we will have a one-way
ratchet that will always result in more constitutionally required
procedure.” 34 Id. This “mode of reasoning” thus “provides no
unworkability of the Neese framework. And today’s decision
continues the sad tradition of invoking one standard when we
decide to require new procedural safeguards and another when we
decide to reject such safeguards.
34 In Labrum we gave an after-the-fact nod to the idea that
additional requirements “may add administrative burdens for the
limited staff of the Board.” Labrum v. Utah State Bd. of Pardons, 870
P.2d 902, 911 (Utah 1993). But we immediately dismissed that
concern, stating that “[i]t has never been an option for the
government to argue that constitutional due process need not be
provided because it creates administrative burdens.” Id. Our
“test” thus stands in contrast to the balancing test sometimes
applied as a matter of federal law. That test, under Mathews v.
Eldridge, 424 U.S. 319, 335 (1976), seems problematic to the extent
it allows judges to constitutionalize new procedures on the basis
of their case-by-case sense of the process that seems due in a given
circumstance. See In re Discipline of Steffensen, 2016 UT 18, ¶ 7, 373
P.3d 186 (noting that “the Due Process Clause is not a
free-wheeling constitutional license for courts to assure fairness
on a case-by-case basis” but a “constitutional standard . . .
measured by reference to ‘traditional notions of fair play and
substantial justice’” (citation omitted)). But at least the federal
standard entails an actual balance—with costs to weigh against
benefits. See Mathews, 424 U.S. at 335 (balancing the importance of
(continued . . .)
28
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Lee, A.C.J., concurring in the judgment
stopping point,” except in any limits that may be found in the
fluid and opaque policy preferences of a “majority of the court.”
See id. ¶ 184. That is the only real limit that I can find in the Neese
framework—whatever a majority of this court thinks will increase
(“substantially” or otherwise) accuracy and the perception of
fairness. And I think we need to own it if that is our standard. See
id. ¶ 147 (noting that if our due process standard is simply
“anything a majority of us deem[s] necessary is required,” “we
should say so” (internal quotation marks omitted)).
¶68 I flesh out these concerns below. First I show that the
Neese concern for accuracy seems to cut in Blanke’s favor. Then I
make a parallel point about the concern for an inmate’s perception
of fairness.
A
¶69 The court says that Blanke’s requested procedures will
not “substantially” enhance accuracy because he “already had the
opportunity to ‘meaningfully present evidence’” of relevance to
the parole decision in earlier sentencing proceedings. Supra ¶ 29.
Blanke had counsel in those proceedings and was aware of the
contents of the presentence report. Supra ¶ 36. And the court notes
that he could have but failed to challenge the State’s allegations
against him. Supra ¶ 36.
¶70 I can’t see how this means that the accuracy of the Parole
Board’s decision would not be “substantially” enhanced by
additional procedure. In the attempted child kidnapping case, the
presentence report would have told Blanke that he was charged
with an offense that would require him to register as one
convicted of that crime. In the kidnapping case, the presentence
report would have told him that the allegations could have led to a
separate charge of “unlawful sexual intercourse” under Utah
Code section 76-5-401 (1983). But in neither case would Blanke
have known that he needed to challenge the allegations to
preserve procedural rights in objecting to sex offender treatment
as a precondition of his early release on parole. The majority does
the interest affected, risk of error, and probable value of
additional or substitute procedural safeguards against “the
Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail”).
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BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
not contend otherwise. It simply says it is enough that Blanke
“had the chance to refute the presentence report,” supra ¶ 35,
“while being represented by counsel,” supra ¶ 36.
¶71 But the mere existence of a previous “chance” to put on
evidence does not defeat Blanke’s right to additional procedure
under Neese. The first Neese factor simply asks whether additional
procedures would “reduce the risk of error” in the Parole Board’s
decision-making, Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89,
¶ 24, 416 P.3d 663, and additional procedure would surely help
the Parole Board make a more informed decision as to whether
Blanke committed an act justifying a requirement of sex offender
treatment as a precondition of early release. The majority insists
that Blanke “admitted” that he committed “conduct that would
have required him to register as a sex offender had he been
convicted of it.” Supra ¶ 34. But he didn’t expressly “admit” to
anything in that proceeding. He just failed to deny every
allegation in a presentence report. And those remaining
allegations have never been “adjudicated,” at least if that means
ruled on after a full and fair trial (as Neese suggests). Ultimately,
moreover, there remains a significant, disputed question about
what facts are sufficient to justify the imposition of a requirement
of sex offender treatment as a precondition of early release. See
supra ¶¶ 55–62. Surely additional procedure would aid the Parole
Board’s decision-making to some degree. And that is all that the
first Neese factor requires. 35
__________________________________________________________
35 The majority disagrees with my assertion that Neese
demands additional procedure whenever it would increase the
accuracy of the Board’s decisions to “some degree.” Supra ¶ 29
n.14. But my reading is borne out by the terms of the Neese
majority opinion. See supra ¶ 66 n.33. Today’s majority’s
reframing, moreover, doesn’t meaningfully raise the bar. A
requirement that a procedure “substantially” increase accuracy
(or the perception of fairness) still “render[s] the required
procedure virtually limitless.” Supra ¶ 29 n.14. Not much will
change so long as the standard weighs only a procedure’s benefits
(and not its costs), supra ¶ 67 n.34, and fails to tie the required
parole hearing procedures to the original meaning of “due
process.”
The addition of “substantially” may do little more than
encourage inmates to demand ever more robust procedures. See
(continued . . .)
30
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Lee, A.C.J., concurring in the judgment
¶72 The majority’s contrary conclusion cannot be reconciled
with our opinion in Neese. After all, in that case the inmate had
been openly charged with forcible sodomy and afforded the full
range of procedural protections available at trial. See Neese, 2017
UT 89, ¶ 2. True, the trial did not result in a conviction; but neither
did it result in an acquittal. The result was a mistrial, id., and the
record of the trial would have been available to the Parole Board
when Neese sought early release on the lesser charges on which
he pleaded guilty and was eventually sentenced. So if the
question is just whether an inmate has had a prior “chance” or
“opportunity” to voice his opposition to a sex offense allegation
that the Board is using to justify a requirement of sex offender
treatment, then surely Neese had that. The majority cannot claim
that Blanke’s opportunity was somehow better than Neese’s.
¶73 When Blanke pleaded guilty to kidnapping and
attempted child kidnapping, he would have had no notice that he
was agreeing to subject himself to sex offender treatment as a
precondition of early release. He would have had little, if any,
incentive to contest the allegations on those grounds. Neese, by
contrast, knew that he had been charged with a crime classified as
a “sexual offense” and requiring proof of a non-consensual
“sexual act.” See supra ¶ 58. And that knowledge arguably put
him on greater notice that the Parole Board might require sex
offender treatment as a precondition of early release.
¶74 The majority seeks to avoid this problem by noting that
Neese “steadfastly maintain[ed] that he was innocent” while
Blanke effectively “admitted” to unlawful sexual intercourse with
a minor. Supra ¶ 35 (citation omitted). But the first Neese factor
does not ask whether the inmate seeking additional procedural
protections previously admitted to the conduct the Board cites as
its reason for requiring sex offender treatment. It asks whether
supra ¶ 29 n.14 (“Undoubtedly, the robust procedure required in
Neese—notice, an opportunity to call witnesses, and a written
decision—substantially furthers the accuracy of the Parole Board’s
decision-making, even if we have not explicitly said so.”). The
implication of today’s majority seems to be this: Ask for too little
protection, and your procedures will be dismissed for not
“substantially” increasing the accuracy of the Board’s
decision-making. But ask for more, and your procedures may be
mandated by this court.
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BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
those additional protections would increase the objective accuracy
of the Parole Board’s decision-making. See Neese, 2017 UT 89, ¶ 25.
And once we have held that the Board’s accuracy is improved by
the right to call more witnesses in addition to those called at a
previous trial, we cannot hold that accuracy is not enhanced by
the same right in a case where the inmate never called any
witnesses and had little incentive to do so.
B
¶75 The second Neese factor points toward the same
conclusion. The majority says that Blanke “cannot reasonably
think it unfair” that the Parole Board is requiring sex offender
treatment as a precondition of his early release on parole based on
(a) a conviction of an offense (attempted child kidnapping)
requiring registration as a sex offender, or (b) allegations in a
presentence report evidencing an uncharged crime (of “unlawful
sexual intercourse”) that were left unchallenged in a prior
sentencing proceeding but also would have required registration.
Supra ¶¶ 29, 36. But Blanke clearly does “think it unfair,” as
evidenced by his resilient prosecution of his case in both the court
of appeals and this court. And if pure gut-level “fairness” is the
test, I can hardly blame him.
¶76 In Neese we highlighted a broad range of harms and
stigmas that result when an inmate is labeled a “sex offender” in
the prison system. Neese v. Utah Bd. of Pardons & Parole, 2017 UT
89, ¶ 31, 416 P.3d 663 (explaining, inter alia, the invasive nature of
sex offender treatment and research showing that inmates
classified as sex offenders are more likely to be physically and
sexually abused). And we imposed new procedural requirements
on parole decisions based on our concern for the reliance interests
of a person in Neese’s circumstances. We emphasized that Neese
could not have known that allegations “not logically implicit in
the factual basis of the[] allocution” leading to his guilty plea
could “come roaring back at [a] parole hearing and result in a
sentence decades longer than the sentence all parties
contemplated based on the sentencing matrix at the time.” Id.
¶ 33.
¶77 If we really believed all that, we would extend the
protections established in Neese to Blanke. When Blanke pleaded
guilty to attempted child kidnapping, he could not have known
that the registration requirement for that offense would “come
roaring back” and result in a requirement of sex offender
treatment as a precondition to his early release—a precondition
32
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Lee, A.C.J., concurring in the judgment
that will significantly extend the sentence that everyone would
have contemplated “based on the sentencing matrix at the time.”
See id. Nor could he have anticipated that an attempted child
kidnapping plea would lead to his classification in prison as a sex
offender—and all the various harms and stigmas we warned of in
Neese.
¶78 The majority attempts to skirt this issue by citing statistics
that show an “apparent significant correlation between child
kidnapping and child sex offenses,” and by noting that the Utah
Legislature “saw” such a correlation when it required registration
for child kidnapping offenses. Supra ¶ 31. There may indeed be a
correlation. But that is not the question. The question is whether
there is a sufficient correlation to justify the Parole Board’s decision
to require sex offender treatment as a precondition of early release
for inmates convicted of child kidnapping offenses. Blanke could
not have anticipated the imposition of such a condition—at least
not any more than Neese could have anticipated that he would be
subject to that condition when he secured a mistrial on a forcible
sodomy charge and pleaded guilty to lesser, nonsexual crimes. At
bottom, the question in both cases is a policy question—one long
left to the Parole Board and legislature, but seized by this court in
Neese. And to the extent the answer to that policy question turns
on the inmate’s perception of fairness, I see little room for the
court’s conclusion that Blanke “cannot reasonably think” the
Parole Board’s process in this case as “unfair” as the one we
condemned in Neese.
¶79 The same goes for the majority’s reliance on Blanke’s
failure to refute allegations in the kidnapping presentence report.
The majority notes that the allegations in that report evidenced
the uncharged crime of “unlawful sexual intercourse” under Utah
Code section 76-5-401 (1983), a crime that “required registration as
a sex offender.” Supra ¶ 34. And it emphasizes that Blanke never
“refute[d]” the allegations of sexual intercourse in the presentence
report, but only “denied having ‘raped and sodomized’” the
victim. Supra ¶ 35. In the majority’s view, this establishes that
Blanke’s “sexual intercourse with a fifteen-year-old was an
‘undisputed background fact[].’” Supra ¶ 35 (alteration in original)
(citation omitted). With this in mind, the court concludes that
Blanke “cannot reasonably think it unfair” for the Parole Board to
accept that “fact” as a basis for requiring sex offender treatment as
a precondition of early release on parole. Supra ¶ 36.
33
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
¶80 I disagree. Blanke was never even charged with “unlawful
sexual intercourse.” At the time of his plea allocution on the
charge of kidnapping, moreover, he could not have known that
allegations that could sustain such an uncharged offense would
“come roaring back,” Neese, 2017 UT 89, ¶ 33, to substantially
increase the sentence that he otherwise expected (and no doubt
took into account when deciding to plead guilty). At that time,
Blanke would have seen no correlation between a failure to
oppose these allegations and the extent of his eventual prison
time—not to mention his classification as a sex offender in prison
and exposure to all the stigmas and harms associated with that
classification.
¶81 So if we really believe that the answer to whether more
procedure is required turns on an “inmate’s perception of
fairness,” id. ¶ 25, we should rule in Blanke’s favor. The Neese
factors ultimately can point in only one direction. If we take them
seriously here, we need to recognize the strength of Blanke’s
position.
III
¶82 None of the above should be interpreted as an
endorsement of the standards set forth in Neese or of Blanke’s
position on appeal. I stand by the view set forth in my dissenting
opinion in Neese. I find the standards laid out in Neese “as fuzzy
and unworkable as they are unmoored from history.” Neese v.
Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 185, 416 P.3d 663 (Lee,
A.C.J., dissenting). Absent an originalist basis for
constitutionalizing our preferred procedure for parole
proceedings, I would reject the Neese framework and leave the
matter to those whose discretion and expertise have long
governed in this sensitive field—the Parole Board, with oversight
by the legislature.
¶83 The majority contends that we should not repudiate the
framework set forth in Neese because the parties “have not asked
us to do so” and we have declined to order supplemental briefing
on the matter. See supra ¶ 11 n.6. But the parties do not dictate
when we revisit our precedents. 36 See supra ¶ 11 n.6. And while it
__________________________________________________________
36 It is emphatically and uniquely our prerogative and
responsibility to “say what the law is.” See McDonald v. Fid. &
Deposit Co. of Md., 2020 UT 11, ¶ 33, --- P.3d ---. Admittedly, the
(continued . . .)
34
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Lee, A.C.J., concurring in the judgment
is wise practice to seek the parties’ input through supplemental
briefing, 37 there is no hard-and-fast rule that we do so, as the
majority acknowledges. 38 See supra ¶ 11 n.6 (recognizing that “we
parties dictate the claims and issues presented for our review. See
Utah Stream Access Coal. v. V.R. Acquisitions, LLC, 2019 UT 7, ¶ 36,
439 P.3d 593, (noting that a “core component of our adversary
system” is “the notion that the plaintiff is the master of the
complaint,” and that we “leave it to the parties to plead claims
and defenses”). But they have no authority to dictate or stipulate
the terms of our law. See McDonald, 2020 UT 11, ¶ 33 (holding that
“we are not limited to a choice between the parties’ competing
positions” because “[w]e must get the law right, even if in so
doing we establish a standard that differs from either of the
approaches presented in the briefing on appeal”); Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is
properly before the court, the court is not limited to the particular
legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction
of governing law.”).
37 See Utah Dep’t of Transp. v. Target Corp., 2020 UT 10, ¶ 18
n.2, --- P.3d --- (explaining that “we are reluctant to resolve a case
on the basis of a revised legal standard without giving the parties
an opportunity to first be heard on the matter” and often choose
to order supplemental briefing because we assume parties “would
rather have input in our process instead of seeing a revised legal
standard for the first time in a published opinion”).
38 This is confirmed by the course we have taken in a number
of recent decisions. Important examples include Target, 2020 UT
10, and State v. Lujan, 2020 UT 5, --- P.3d ---. In these cases, the
parties’ initial briefing left us concerned that our decision might
require the overruling or reformulation of one or more of our
precedents. No party had asked us to take that course. But we
recognized that our disposition of the questions presented would
require us to interpret and apply some precedents of concern.
And our concerns about the viability of those precedents,
combined with our acknowledged responsibility to get the law
right, led to our issuance of sua sponte supplemental briefing
orders—orders requiring the parties to brief whether our
precedents should be overruled, repudiated, or reformulated. See
Supplemental Briefing Order (Jan. 7, 2019), Target, 2020 UT 10
(continued . . .)
35
BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
have the power to revisit precedent at any time” even if it is our
“preferred practice” to order supplemental briefing “if we are
considering overturning or reformulating precedent”).
¶84 Today’s majority may prefer to decide this case without
any briefing on whether and to what extent we should
reformulate or repudiate our decision in Neese. That is the court’s
prerogative. But having made that decision, the majority is in no
position to fault me for explaining why I think we should do so.
And the court is likewise in no position to blame the decision not
to reconsider Neese on a lack of briefing—the lack of such briefing
is a result of its own decision.
¶85 My proposed approach, moreover, does not require an
outright reversal of the judgment in the Neese decision. It just
requires us to own the unworkability of the standards set forth in
that decision and to announce our intention to decline to extend it
any further. And there is no question that we have the power to
do that. As the majority explains, there is no single category of
“overruling.” See supra ¶ 11 n.6. A decision to clarify, refine, or
reconcile our past precedent is not the same thing as a decision to
flatly reverse a prior judgment. In the latter circumstance, we are
more openly implicating the central underpinnings of the doctrine
of stare decisis—reliance interests of parties and the public. 39 See
(asking whether “any of the standards set forth in our cases
[should] be refined or reformulated in any way”); Supplemental
Briefing Order (Aug. 20, 2018), Lujan, 2020 UT 5 (asking whether
“our decision in State v. Ramirez [should] be overruled if it runs
counter to the original understanding of due process” or if the
“factors set forth in that decision [are] . . . subject to revision or
refinement”).
39 Even then, recent precedent makes clear that we may
overrule a case without the request or input of the parties. In
Thomas v. Hillyard, 2019 UT 29, ¶ 18, 445 P.3d 521, for example, we
overruled Jensen v. Young, 2010 UT 67, 245 P.3d 731, without
invitation from the parties because we identified “two lines of
cases” that had “taken inconsistent and confusing paths.” And in
State v. Steed, 2015 UT 76, ¶ 8, 357 P.3d 547, we noted that a prior
“articulation” of an element of our mootness exception in our past
cases was “overly broad.” We thus “clarif[ied]” the “proper
articulation” and “disavow[ed] any language in our prior cases
stating otherwise”—again without invitation from the parties. Id.
36
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Lee, A.C.J., concurring in the judgment
Eldridge v. Johndrow, 2015 UT 21, ¶ 35, 345 P.3d 553 (explaining
that in deciding whether to overrule a case we consider “the
extent to which people’s reliance on the precedent would create
injustice or hardship if it were overturned”). But these concerns
are less obvious (and sometimes not at all present) when we are
just clarifying or refining our precedent,40 and even less so when
we are just limiting a prior decision to its facts. 41 That kind of
move is entirely consistent with the notion of stare decisis—Latin
for “stand[ing]” by what is “decided.” Stare decisis, BLACK’S LAW
DICTIONARY (11th ed. 2019). We clearly stand by what is decided
when we preserve the square holding of a prior decision. And
nothing in the doctrine requires us to take statements in our prior
decisions and extend them to their logical extreme.
¶86 The upshot is that we do not need to be asked by the
parties—or order the parties to chime in—before we can decide to
limit our precedent. The discretion to refine and curtail the reach
of our prior precedents is central to the judicial function of an
appellate court. It is a core element of what we do. And that
discretion is not cabined by the terms of the parties’ briefing—or
our own decision not to order supplemental briefing.
IV
¶87 For these reasons I endorse the majority’s decision to stop
short of any further intrusion into the longstanding prerogatives
of the Parole Board. But I lament the effect of the court’s opinion
on the coherence of our law in this field. And I suggest that it is
time to end our ongoing, standardless extension of problematic
precedent.
¶88 Neese seemed to mandate an ever-expanding set of
procedural requirements for parole proceedings involving a
requirement of sex offender treatment as a precondition of early
release. But Blanke now stands as a reminder that new procedures
__________________________________________________________
40 See, e.g., Target, 2020 UT 10, ¶¶ 18–19, 22 (clarifying and
refining an area of our takings jurisprudence and explaining that
“we have broader license to reformulate and clarify our law . . .
where we are merely reformulating and clarifying, and not
outright overruling a prior decision”).
41 See M.J. v. Wisan, 2016 UT 13, ¶ 29 n.5, 371 P.3d 21
(repudiating the analysis of a prior decision and limiting it to its
facts in the absence of any party asking us to revisit the case).
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BLANKE v. BOARD OF PARDONS
Lee, A.C.J., concurring in the judgment
may not be required when a majority of this court decides to
impose a limit. And this will leave the Parole Board and lower
courts without any guideposts for what procedures are necessary
going forward except their best guess at what a majority of this
court might find “reasonably” fair.
¶89 We should avoid this dissonance and confusion by
returning to the originalist first principles set forth in my
dissenting opinion in Neese. We can do so here without running
afoul of the doctrine of stare decisis. That doctrine calls for respect
for precedent in the interest of preserving stability in our law. But
as I have explained, we are always free to stop extending our
decisions. And in any case, our law as it stands is anything but
stable. Today’s decision leaves inmates and the Parole Board more
confused about what our precedent is in this area. This uncertain
state leaves us free to revise and clarify our law. See Eldridge v.
Johndrow, 2015 UT 21, ¶¶ 43–44, 345 P.3d 553 (arguing that we
should overturn precedent that is highly “fact-intensive” and
leaves lower courts “without guidance”). I would do so in a
manner that restores the original deference given to the Parole
Board and the legislature in this important field.
38