Privacy on the Parole Board

Molly Ball

Wednesday, Feb. 1, 2006 | 8:01 a.m.

When the state Parole Board meets to decide whether eligible inmates should be released from prison, only certain people are allowed to speak.

Agendas may be changed without notification, and some evidence is taken in private. Inmates are not allowed to know what evidence the board considered or why they were denied parole. The hearings are not recorded or transcribed.

Despite all that, the Parole Board insists it is not violating Nevada's open meeting law. Prison inmates and their advocates, however, disagree.

Many of the board's basic operating procedures, on their face, constitute violations of Nevada's law requiring public bodies to operate in the sunshine of public scrutiny. The question is whether parole hearings fall under the open meeting law.

"The Parole Board does whatever they want, and we can't check on them because they operate in secret," said Juli T. Star-Alexander, executive director of Redress Inc., a nonprofit group for people who believe the legal system has abused them. "By statute, those are public meetings and they are flouting the law."

However, the state lawyer who prosecutes open meeting law violations says that's not how his office interprets the law.

"Our position is that this particular statute does not apply to the Parole Board because they are an extension of the judiciary," Senior Deputy Attorney General Neil Rombardo said. "As far as they are doing that type of work, they do not have to comply."

To clarify the issue, the Parole Board has twice proposed legislation that would explicitly exempt it from the open meeting law. Both times, the legislation failed.

Inmate advocates contend that the Legislature's repeated refusal to give the board an exemption implies that legislators want the board to be subject to the open meeting law.

Last year the bill, passed by the Senate, died in the Assembly Judiciary Committee. "We are not going to sanction or put into state law their practice," said the committee's chairman, Assemblyman Bernie Anderson, D-Sparks, according to the legislative record.

While the board admits it has not been abiding by the open meeting law, it says that's because it does not have to. The board's legal advisers at the attorney general's office have opined that the panel is not subject to the open meeting law.

The board says it sought legislation merely to codify in statute what is already a matter of legitimate practice. "We're not trying to get out of doing anything -- we're trying to make it clear that this is the way it is," Parole Board Management Analyst David Smith testified before the Judiciary Committee in May.

But to critics, the board's attempts to get the statute changed imply that it knows it is violating the law and hopes to change the law instead of changing its behavior.

"The people who are supposed to be enforcing the law against criminals are themselves criminals," Star-Alexander said. "They're violating the law."

What kind of meeting is it?

At issue is whether parole hearings -- at which a board of commissioners, appointed by the governor, decides whether eligible inmates should be released from prison before the full length of their sentence has been served -- are more like a court proceeding or a council meeting.

Anyone can sit in on a court proceeding such as an arraignment or trial. But members of the public do not get to stand up and tell the judge what they think. That's because a statute exempts "judicial proceedings" from the open meeting law.

When other agencies meet, however, the open meeting law specifies that they hear evidence in public and provide time for the public to comment, among other requirements.

The Parole Board calls itself a quasi-judicial body because it hears evidence to determine how long individual criminals will stay in prison.

"Parole and clemency related hearings could (affect) the inmate's continued confinement for the term of the sentence handed down by the court," Joe Ward Jr., a senior deputy attorney general, wrote in a 2003 memo to the Legislative Counsel Bureau on the issue.

"Thus, the members of (the Parole Board) are not like typical executive government officials or school board members. In making parole or clemency related decisions, they act in a judicial fashion as an arm of the sentencing judge."

Ward noted that holding such hearings to open meeting requirements could cost the state money and lead to "Jerry Springer Show-type displays" as a result of public comment.

Inmate advocates, however, point out that the parole commissioners are not judges. Their positions were created by the Legislature, and members are appointed by the governor.

The statute on parole hearings says they are "open to the public" and describes them as "a public meeting held to consider a prisoner for parole."

While the board currently operates on lawyers' advice that it is quasi-judicial, that term does not appear in the statute itself, and there is no indication in the statute or its legislative history that the open meeting exemption was intended to apply to anything other than the judiciary proper, advocates contend. The board counters that the statute refers to "judicial proceedings," not "court proceedings."

Even state lawyers have not offered consistent counsel on the issue. For a time in the 1990s, the attorney general's office advised the Parole Board that its hearings were subject to the open meeting law, but the office later reversed itself.

The Open Meeting Law Manual published by the attorney general's of-fice acknowledges the ambiguity.

"Nevada law is not settled on this issue," the most recent edition of the manual states, "but the office of the at-torney general believes that absent a specific statute to the contrary, public bodies performing quasi-judicial activ-ities are not per se exempt from the open meeting law."

Nonetheless, inmates' attempts to make an issue of the unclear situation have met with little success.

One prisoner who has tried to make a case under the open meeting law is convicted murderer Russell Crew, currently serving a sentence of 40 years to life. In 1981, in an alleged drug deal gone bad, Russell and his brother Norman shot two men, Theodore Zappa and Michael Nasse, slit their throats and buried them in shallow graves near Lake Mead.

Crew filed a lawsuit against the Parole Board charging that it violated the open meeting law during a 2004 hearing on his case in which it voted to deny parole. The board closed the hearing to everyone but its members and two witnesses, family members of the murder victims.

The witnesses' testimony was "taken in secret," the lawsuit states.

But District Judge William A. Maddox of Carson City did not agree. Siding with the Parole Board, he dismissed Crew's suit, writing: "Parole Board hearings are judicial in nature and therefore a judicial proceeding that is exempt from the open meeting law."

Crew's lawsuit is now pending before the Nevada Supreme Court.