Witherow v. State Board of Parole Commissioners

Hardesty, J., with whom Maupin, C. J.,

agrees, concurring in part and dissenting in part:

While I concur with the majority that parole hearings are exempt from the Open Meeting Law, I would take this opportunity to overrule Stockmeier v. State, Department of Corrections,1 and the test it established to determine whether a panel qualifies as a quasi-judicial proceeding under the judicial exception to the Open Meeting Law.

In Stockmeier, we recognized that quasi-judicial proceedings, like judicial proceedings, are exempt from the Open Meeting Law.2 We then concluded that the psychological review panel’s hearings are not quasi-judicial proceedings because the panel does not provide certain due process safeguards, such as the ability to present evidence and the right to cross-examine witnesses.3 Our decision in Stockmeier thus framed the definition of “quasi-judicial proceeding” in terms of whether the hearing entity provides certain, “minimum” due process safeguards.

Conflict with the Open Meeting Law

By equating quasi-judicial proceedings with any proceeding that offers due process protections, the Stockmeier holding eviscerates the purpose of the Nevada Open Meeting Law. The Open Meeting Law exists to make certain that public bodies undertake actions and deliberations openly, because “all public bodies exist to aid in the conduct of the people’s business.”4 The Legislature defined “public body” broadly to include nearly all governmental entities other *314than the Legislature.5 This definition seeks to ensure public access to a variety of governmental proceedings where determinations affecting the public are made. However, pursuant to Stockmeier, any public body may implement modest due process protections to qualify as quasi-judicial and thereby exempt itself from the requirements of the Open Meeting Law.

By defining quasi-judicial proceedings as any that provide due process protections, the Stockmeier holding creates an absurd result by permitting public bodies to easily circumvent the Open Meeting Law.6 Entities such as the Public Utilities Commission, the Nevada Interscholastic Association, the Board of Architecture, the Board of Dental Examiners, county planning commissions, county boards of commissioners, the state Chiropractic Physicians’ Board, and the state Board of Equalization are free to claim exemption from the Nevada Open Meeting Law simply upon the adoption or utilization of basic due process protections.

The judicial function test

The majority concludes that parole hearings are quasi-judicial because the Board performs a quasi-judicial function.7 The majority’s holding is thus compatible with the well-recognized judicial-function test adopted by many other jurisdictions. I believe that we should adopt this test and overrule Stockmeier, to the extent that it relies solely on the existence of minimum due process safeguards to determine whether an entity performs a quasi-judicial function.

This court has previously recognized that it is the entity’s performance of judicial or quasi-judicial functions that controls the determination of whether administrative proceedings before that entity are quasi-judicial in nature.8 Several other jurisdictions have also looked to the function of a particular hearing entity to deter*315mine whether administrative proceedings before that entity are quasi-judicial in nature.9 In these cases, courts have recognized that proceedings before a hearing entity are quasi-judicial if the entity performs a judicial function.10

As recognized by the majority, in Sellars v. Procunier, for example, the Ninth Circuit Court of Appeals concluded that parole officials have absolute immunity from suits by prisoners for actions taken in relation to parole applications.11 The Ninth Circuit reasoned that courts must “look not just to the title of a state or federal official, or to his or her location within the bureaucratic superstructure, but to the official’s function as well in determining the question of immunity.”12 The Ninth Circuit then noted that in deciding whether to grant, deny, or revoke parole, parole officials perform “functionally comparable tasks” to judges and, thus, are entitled to immunity.13 As indicated, several other jurisdictions take a comparable view, specifically in regard to parole hearings.14

The court’s holding today, coupled with our refiisal to recognize hearings conducted by the psychological review panel as quasi-judicial proceedings, yields an incongruous result. The Parole Board is exempt from the Open Meeting Law, yet the psychological review panel, which provides predicate recommendations to the Parole Board,15 is not.16 This result is especially curious because, *316under the statutory framework, the psychological review panel is not even required to meet regularly in a manner that would invoke the Open Meeting Law.17 Surely such an inconsistency should be resolved, but this cannot occur until we overrule Stockmeier. Accordingly, for the reasons stated above, I respectfully concur in part and dissent in part.

122 Nev. 385, 135 P.3d 220 (2006).

Id. at 390, 135 P.3d at 223; see also NRS 241.030(4)(a) (explicitly exempting judicial proceedings from the Open Meeting Law).

Stockmeier, 122 Nev. at 391-92, 135 P.3d at 224-25.

NRS 241.010.

NRS 241.015(3) defines “public bodies” as follows:

Except as otherwise provided in this subsection, “public body” means any administrative, advisory, executive or legislative body of the State or a local government which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof and includes an educational foundation as defined in subsection 3 of NRS 388.750 and a university foundation as defined in subsection 3 of NRS 396.405. “Public body” does not include the Legislature of the State of Nevada.

General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995) (“A statute should always be construed to avoid absurd results.”).

See majority opinion ante p. 312.

Raggio v. Campbell, 80 Nev. 418, 423, 395 P.2d 625, 627 (1964) (holding that parole boards perform a quasi-judicial function when releasing prisoners on parole).

See, e.g., Kim v. Walker, 256 Cal. Rptr. 223, 227 (Ct. App. 1989) (parole officials enjoy statutory immunity from suit regarding parole decisions when they exercise their discretion in fulfilling their duties), rejected on other grounds by State v. Superior Court (Bodde), 90 P.3d 116 (Cal. 2004); State v. Mason, 724 P.2d 1289, 1291 (Colo. 1986) (parole board members perform “essential judicial” functions in making parole decisions); Andrews v. Florida Parole Com’n, 768 So. 2d 1257, 1262 (Fla. Dist. Ct. App. 2000) (parole board conducts quasi-judicial functions in carrying out its statutory duties); Vest v. Easley, 549 S.E.2d 568, 572 (N.C. Ct. App. 2001) (parole board members perform quasi-judicial functions).

While these cases involve the quasi-judicial nature of parole hearings in the context of immunity from suit rather than exemptions to open meeting laws, I, like the majority, “see no reason to differentiate the analysis for the limited purposes of this appeal.” See majority opinion ante p. 312. Ironically, the majority cites these cases to support its position that parole boards “perform a judicial function when releasing prisoners on parole” — a position with which I agree. See majority opinion ante p. 311-12 & n.29.

See cases cited supra note 9.

641 F.2d 1295, 1302 (9th Cir. 1981).

Id. at 1302-03 (citing Butz v. Economou, 438 U.S. 478, 512-17 (1978)).

Id. at 1303.

See cases cited supra note 9.

See NRS 213.1214(1).

Under NRS 213.1214(1), the psychological review panel is arguably not even a panel per se, but rather three individuals qualified to make recommendations on parole for a certain class of offenders.

NRS 213.1214.