Petersen v. S.D. Bd. of Pardons and Paroles

#28449-a-SLZ
2018 S.D. 39
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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MARY PETERSEN, Appellant,
v.
SOUTH DAKOTA BOARD OF
PARDONS AND PAROLES, Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK BARNETT
Judge
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TARA L. ADAMSKI
Pierre, South Dakota
STEVEN Z. KAPLAN of
Fredrikson & Byron, P.A.
Minneapolis, Minnesota Attorneys for appellant.
MARTY J. JACKLEY
Attorney General
ASHLEY E.H. MCDONALD
Special Assistant Attorney General
Sioux Falls, South Dakota Attorneys for appellee.
****
CONSIDERED ON BRIEFS
MARCH 19, 2018
OPINION FILED 05/16/18
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ZINTER, Justice
[¶1.] The South Dakota Board of Pardons and Paroles adjudicated a prison
inmate’s initial parole-eligibility date, and the inmate did not appeal. Two years
later, the inmate requested the Board to reconsider. The Board declined, and the
inmate filed an administrative appeal in circuit court. The circuit court concluded it
lacked subject matter jurisdiction and dismissed the appeal with prejudice. We
affirm.
Facts and Procedural History
[¶2.] Mary Petersen is an inmate in the South Dakota Women’s Prison.
After being convicted of additional felonies while in prison, the Board of Pardons
and Paroles redetermined her initial parole-eligibility date. Petersen requested the
Board to review its redetermination, and the Board conducted a hearing on the
matter. On February 17, 2015, the Board made its final determination and issued
findings of fact, conclusions of law, and an order setting Petersen’s initial parole-
eligibility date as October 20, 2037. Petersen was served with the findings,
conclusions, order, and notice of entry of order. She did not appeal.
[¶3.] Two years later, on February 2, 2017, Petersen’s attorney wrote a
letter requesting the Board to review her parole date again. The Board summarily
denied the request by letter dated February 22, 2017.
[¶4.] On March 10, 2017, Petersen filed a notice of appeal in circuit court.
The appeal purported to be taken from the Board’s 2017 letter declining review.
Petersen asserted the circuit court had appellate jurisdiction to entertain the appeal
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under SDCL 1-26-30.2, an Administrative Procedure Act statute authorizing circuit
courts to review certain decisions of administrative agencies.
[¶5.] The Board moved to dismiss the appeal for lack of subject matter
jurisdiction. The Board contended its 2017 letter declining to review Petersen’s
parole date a second time was not a decision that could be appealed under SDCL 1-
26-30.2. Petersen made responsive arguments and also moved to amend her notice
of appeal to include original causes of action for habeas corpus and declaratory
relief.
[¶6.] The circuit court ruled that the Board’s 2017 letter was not an
appealable “decision, order, or action” within the meaning of SDCL 1-26-30.2. The
court considered Petersen’s 2017 letter an untimely appeal of the Board’s 2015
decision. Accordingly, the court ruled that it did not have subject matter
jurisdiction to review the Board’s final parole determination, and the court
dismissed the appeal with prejudice. Because the court determined that it did not
have the power to act beyond dismissal, the court declined to rule on Petersen’s
motion to amend.
Decision
[¶7.] The Legislature has prescribed the circuit courts’ appellate jurisdiction
to consider appeals of administrative agency decisions. Under SDCL chapter 1-26,
an aggrieved party in a “contested case” may appeal to circuit court the “final
decision, ruling, or action of an agency.” SDCL 1-26-30, -30.2. Petersen contends
the Board’s 2017 letter was a “final decision” within the meaning of SDCL 1-26-
30.2. However, we need not determine whether the Board’s letter was a “final
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decision” because the statute also requires the appeal to be by a party in a
“contested case.” SDCL 1-26-30.2.
[¶8.] The Legislature defined a “contested case” in the administrative
context as “a proceeding . . . in which the legal rights, duties, or privileges are
required by law to be determined by an agency after an opportunity for
hearing . . . .” SDCL 1-26-1(2) (emphasis added). Therefore, for Petersen to be an
aggrieved party in a “contested case,” the Board must have been required by law to
review her parole date a second time.
[¶9.] Petersen argues SDCL 24-15A-331 required the Board to make that
redetermination in 2017. The first sentence of SDCL 24-15A-33 provides that an
inmate’s parole date is subject to change when there has been change in the number
of the inmate’s convictions. The second sentence provides that “[a]ny inmate who is
aggrieved by the established parole date” may “apply for a review of the date with
the board for a determination of the true and correct parole date.” Id. Petersen
contends this statute provided her the right and assigned the Board the duty to
review her parole date when she requested in 2017.
[¶10.] However, Petersen previously exercised her SDCL 24-15A-33 right to
have the Board review her parole date in the 2015 contested-case proceeding. The
Board issued findings of fact, conclusions of law, an order, and a notice of entry of
1. SDCL 24-15A-33 provides:
An inmate’s initial parole date is subject to change upon receipt of
information regarding a change in the number of prior felony
convictions or any subsequent felony convictions. Any inmate who is
aggrieved by the established parole date may apply for a review of the
date with the [Board of Pardons and Paroles] for a determination of
the true and correct parole date.
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order. Petersen cites no authority suggesting that the statute requires the Board to
provide multiple reviews of the same facts.
[¶11.] Petersen’s contrary interpretation would mean that the Legislature
intended to give inmates the right to unlimited Board hearings and circuit court
appeals concerning their parole dates without any change in facts. The Legislature
could not have intended to burden the Board and the courts in such a way.
Additionally, as the circuit court observed, such an interpretation would mean that
the thirty-day time limit for appealing administrative decisions in SDCL 1-26-31
“would have no meaning whatsoever.” We do not engage in statutory interpretation
that renders other related statutes meaningless. See In re Appeal of Real Estate
Tax Exemption for Black Hills Legal Servs., Inc., 1997 S.D. 64, ¶ 12, 563 N.W.2d
429, 432.
[¶12.] We hold that absent a change in circumstances such as a subsequent
conviction, once an inmate’s parole date has been administratively reviewed
pursuant to SDCL 24-15A-33, the Board is not required to provide additional
reviews at the discretion of the inmate.2 Accordingly, the Board’s 2017 letter
declining an additional review was not a final decision in a contested case that could
be appealed to the circuit court under SDCL 1-26-30.2. The only decision Petersen
could have appealed was the Board’s final determination in 2015, but she failed to
appeal that decision within thirty days as required by SDCL 1-26-31. As we have
previously stated, “‘when the legislature provides for appeal to circuit court from an
2. This decision does not prohibit the Board from subsequently redetermining
an inmate’s parole date in its administrative discretion. We only hold that
SDCL 24-15A-33 does not require a second review.
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administrative agency, the circuit court’s appellate jurisdiction depends on
compliance with conditions precedent set by the legislature.’ The failure to comply
with a statutory condition precedent deprives the circuit court of subject matter
jurisdiction.”3 Schreifels v. Kottke Trucking, 2001 S.D. 90, ¶ 9, 631 N.W.2d 186, 188
(quoting Claggett v. Dep’t of Revenue, 464 N.W.2d 212, 214 (S.D. 1990)). The circuit
court correctly concluded it did not have subject matter jurisdiction to hear
Petersen’s appeal.
3. We note that the failure to comply with statutory prerequisites does not
always deprive the court of subject matter jurisdiction, which is the power of
the court to determine certain types of cases. See Wipf v. Hutterville
Hutterian Brethren, Inc., 2013 S.D. 49, ¶ 21, 834 N.W.2d 324, 331.
Sometimes the failure to comply with statutory prerequisites merely deprives
a party the ability to litigate a specific issue or case. Additionally, some
failures may be waived or forfeited, which is not the case for true
jurisdictional defects. Because a discussion of these differences is not
necessary to resolve this appeal, we do not further address them here. We
only caution careful use of the terms power, authority, and subject matter
jurisdiction when discussing procedural requirements for appeals. This
Court and others are beginning to address and clarify the distinctions when
necessary to the outcome of the case. See, e.g., Hamer v. Neighborhood
Housing Servs. of Chicago, ___ U.S. ___, ___, 138 S. Ct. 13, 17-18, 199 L. Ed.
2d 249 (2017) (emphasizing that lack of court jurisdiction, the rules for which
may only be set by the a legislative branch, requires dismissal; whereas
claim-processing rules not set by the legislative branch “may be waived or
forfeited”); Henderson v. Shinseki, 562 U.S. 428, 434-35, 131 S. Ct. 1197,
1202-03, 179 L. Ed. 2d 159 (2011) (distinguishing jurisdictional rules, which
“govern[ ] a court’s adjudicatory capacity,” and claim-processing rules, which
“are rules that seek to promote the orderly progress of litigation by requiring
that the parties take certain procedural steps at certain specified times”);
People ex rel. S.D. Dep’t of Social Servs., 2014 S.D. 95, ¶ 4 & n.1, 857 N.W.2d
886, 887 & n.1 (noting this Court had discretion to dismiss appeal where
there was no certificate of service and that although “failure to timely serve
and file the notice of appeal is jurisdictionally fatal to an appeal’s validity, . . .
lesser omissions may be subject to sanctions”); March v. Thursby, 2011 S.D.
73, ¶ 15, 806 N.W.2d 239, 243 (stating that “[s]ubject matter jurisdiction is
only dependent on the nature of the proceeding and the relief sought” and “is
not determined by technical pleading requirements”).
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[¶13.] Petersen also argues the circuit court erred in failing to address her
motion to “amend” her “pleadings” to include original causes of action for habeas
corpus and declaratory relief. But Petersen only filed a notice of appeal, and that
filing only purported to invoke the circuit court’s appellate jurisdiction. Therefore,
even if the court had subject matter jurisdiction to review the Board’s 2017 refusal
to review, that jurisdiction would not have included the power to adjudicate untried,
original causes of action in the course of reviewing the appeal. Ultimately, the
circuit court correctly recognized that because it had no subject matter jurisdiction
to review the appeal, it had no authority to rule on Petersen’s motion to amend. See
Claggett, 464 N.W.2d at 214 (“When an attempt is made to appeal from a non-
appealable order, the circuit court does not have jurisdiction for any purpose, except
to dismiss the appeal.”). The circuit court did not err in declining to address
Petersen’s motion to amend.
[¶14.] Petersen finally argues the circuit court prejudicially erred in
dismissing her appeal “with prejudice.” However, the court did not err. The phrase
“with prejudice” only serves to preclude Petersen from filing the same appeal again.
See McCann v. Lakewood, 642 N.E.2d 48, 52 (Ohio Ct. App. 1994). Additionally,
Petersen was not prejudiced. This appeal was dismissed for lack of jurisdiction, and
unless barred by other defenses, dismissal of the appeal “with prejudice” does not in
and of itself bar other viable, original actions she may have concerning her parole
and confinement.
[¶15.] Affirmed.
[¶16.] GILBERTSON, Chief Justice, and SEVERSON, Justice, concur.
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[¶17.] KERN and JENSEN, Justices, concur specially.
JENSEN, Justice (concurring specially).
[¶18.] I agree with the majority opinion that Petersen’s administrative
appeal from the Board’s 2015 parole calculation is time barred and that the circuit
court’s dismissal “with prejudice” applies only to the administrative appeal of the
Board’s 2015 parole calculation. Supra ¶ 14. Although I express no opinion on the
merits of the Board’s 2015 parole calculation, I write to highlight SDCL 24-15A-204
as a seeming outlier from the system of parole created by the Legislature in 1996
under SDCL 24-15A-32.5
4. SDCL 24-15A-20 provides:
If a person is convicted of a felony while an inmate under the
custody of the warden of the penitentiary, the sentence shall run
consecutively and the person is not eligible for consideration for
parole until serving the last of all such consecutive sentences,
unless the sentencing court specifically orders otherwise. The
parole date shall be established subject to the provisions of § 24-
15A-32. This section does not apply to a person who commits a
felony while on parole as defined in § 24-15A-15.
5. SDCL 24-15A-32 provides, in part:
Each inmate sentenced to a penitentiary term, except those under
a sentence of life or death, or determined to be ineligible for
parole as authorized in § 24-15A-32.1, shall have an initial parole
date set by the department. This date shall be calculated by
applying the percentage indicated in the following grid to the full
term of the inmate’s sentence pursuant to § 22-6-1.
SDCL 24-15A-32 was amended by the 2018 Legislature in H.B. 1054 (adding
additional violent offenses for parole calculations) and 1109 (providing for
discretionary parole for inmates that are seriously ill).
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[¶19.] In 2005, Petersen was sentenced to serve 26 years consecutively in the
State penitentiary on three counts of grand theft.6 Because all three convictions
were nonviolent offenses and were Petersen’s first, second, and third felony
convictions, she was initially eligible to be released on presumptive parole in May
2014 under SDCL 24-15A-32. In 2008, Petersen was convicted of two charges of
forgery, a charge of identity theft, and a class five felony for grand theft. Petersen
was sentenced to a total of seven consecutive years in the penitentiary on all four
convictions. Because these offenses were committed while Petersen was
incarcerated in the penitentiary, the Board recalculated her parole eligibility in
2015. The Board determined that, under SDCL 24-15A-20, Petersen was not
eligible for parole until October 2037.7
[¶20.] Petersen points out the significant difference between the parole
calculation made by the Board under SDCL 24-15A-20 and presumptive parole
under SDCL 24-15A-32. The new convictions added not just seven years to
Petersen’s calculated parole-eligibility date but an additional 23 years. Under the
6. Petersen was facing multiple charges for grand theft in two counties and a
number of charges were dismissed. At the time, the theft of property with a
value exceeding $500 was a class four felony. Currently, the value of the
property must exceed $5,000 to be classified as a class four felony.
7. The Board arrived at this date first by adding the sentences for the four
felonies committed while in the penitentiary (two years for each of the forgery
convictions, two years for the grand-theft conviction, and one year for the
identity-theft conviction) to the original 26 years imposed, resulting in a
term-expiration date of May 2038. Per SDCL 24-15A-32, the Board then
applied 40% to the one-year sentence for the identity-theft conviction. Thus,
Petersen would be eligible for parole in October 2037, or 146 days after she
began to “serv[e] the last of all . . . consecutive sentences[.]” SDCL 24-15A-
20.
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Board’s 2015 calculation, Petersen will serve over 32 years in the penitentiary and
be a few months shy of 70 before she is eligible for parole. Petersen claims that if
parole eligibility had been properly calculated by the Board under SDCL 24-15A-32,
she would have been released in early 2017, even with the new convictions.
[¶21.] SDCL 24-15A-20 also seems to add another twist. Under the current
system of parole, we have stated that parole is an executive function, and the Board
is solely responsibility under SDCL 24-15A-32 “to calculate an initial parole date ‘by
applying the percentage indicated in the grid to the full term of the inmate’s
sentence.’” Rowley v. S.D. Bd. of Pardons & Paroles, 2013 S.D. 6, ¶ 14, 826 N.W.2d
360, 365 (quoting SDCL 24-15A-32). Yet, SDCL 24-15A-20 states that “the sentence
shall run consecutively and the person is not eligible for consideration for parole
until serving the last of such consecutive sentences, unless the sentencing court
specifically orders otherwise.” (Emphasis added.)
[¶22.] Sentencing judges are well versed in the presumptive parole grids set
forth in SDCL 24-15A-32, but judges may wish to consider SDCL 24-15A-20 when
imposing a sentence on an inmate convicted of a crime that occurred while
incarcerated in the penitentiary.
[¶23.] KERN, Justice, joins this writing.
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