APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kevin S. Varner Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Elizabeth Rogers
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
FILED
Indiana Supreme Court Mar 10 2010, 1:55 pm
_________________________________
CLERK
of the supreme court,
No. 45S04-0909-CR-407 court of appeals and
tax court
KEVIN S. VARNER,
Appellant (Petitioner below),
v.
INDIANA PAROLE BOARD,
Appellee (Respondent below).
_________________________________
Appeal from the Lake Superior Court, No. 45G02-9006-CF-109
The Honorable Clarence Murray, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 45A04-0812-CR-693
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March 10, 2010
Sullivan, Justice.
When the five-member Parole Board denied an inmate parole by a vote in which only
four members participated, the inmate sought to compel a vote by all five members. The statute
governing final decisions by the Parole Board requires the “full parole board” to make the de-
termination. We find that a majority of the Board constitutes the “full parole board” for this pur-
pose. As such, the inmate received a decision from the board that accorded with the statute’s
requirements.
Background
On October 9, 2008, four out of the five members of the Indiana Parole Board conducted
a hearing to determine whether inmate Kevin Varner should be paroled. Two members of the
Board voted for parole, and two members voted against it. The fifth member neither participated
in the hearing nor cast a vote; the Board based its final decision on the votes of four Board mem-
bers. Because Varner did not receive a majority vote in favor of his parole release, he requested
a rehearing at which the absent fifth member could cast his vote. The Board, however, did not
respond to Varner’s request.
Varner filed a pro se mandate action seeking to compel the Board to determine his parole
eligibility based on a five-member vote. The trial court denied his petition, citing lack of subject
matter jurisdiction. Varner appealed. The Court of Appeals found subject matter jurisdiction
over Varner’s writ of mandamus. Varner v. Ind. Parole Bd., 905 N.E.2d 493, 498 (Ind. Ct. App.
2009). On the merits of the claim, the Court of Appeals held that the Board was statutorily obli-
gated to determine Varner’s parole eligibility by a five-member vote. Id. at 504.
The Board sought, and we granted, transfer. Ind. Appellate Rule 58(A).1
1
The Court of Appeals resolved the issue of subject matter jurisdiction in favor of Varner. Varner, 905
N.E.2d at 498. We summarily affirm the decision of the Court of Appeals as to this issue. App. R.
58(A)(2).
2
Discussion
Varner contends that the use of “full parole board” in Indiana Code section 11-13-3-3(b)
means that all five members of the Board must participate in the decision whether to grant or de-
ny parole. The State, on the other hand, maintains that requiring the participation of all five
Board members imposes a duty on the Board that is not required by Indiana Code section 11-13-
3-3(b).
The first step in interpreting a statute is to determine whether the Legislature has spoken
unambiguously on the question. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). The
primary purpose of statutory construction is to give effect to the Legislature’s intent. State v.
Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). We construe statutes only where there is some
ambiguity which requires construction. State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297
(Ind. 2008). A statute is ambiguous when it is susceptible to more than one interpretation. El-
mer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001).
The Indiana Parole Board consists of five members appointed by the governor. Ind. Code
§ 11-9-1-1(a). The Board is charged with making decisions on parole release and revocations of
parole. I.C. § 11-9-1-2(a)(2). Indiana Code section 11-13-3-3(b) states in relevant part that a
parole eligibility hearing:
[S]hall be conducted by one (1) or more of the parole board members. If one (1)
or more of the members conduct the hearing on behalf of the parole board, the fi-
nal decision shall be rendered by the full parole board based upon the record of
the proceeding and the hearing conductor’s findings.
The phrase “full parole board” is not defined in the code. The Court of Appeals con-
strued it to mean all five members of the Board. This led the Court of Appeals to conclude that
the Board was statutorily obligated to determine Varner’s parole eligibility by a full, five-
member vote. Varner, 905 N.E.2d at 503. We take a different view than our colleagues.
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We believe that “full parole board” in Indiana Code section 11-13-3-3(b) requires that the
Board’s final decision on an inmate’s parole eligibility be rendered by a majority of the Board,
not necessarily each of the five Board members.
We reach this conclusion for several reasons. First, reading the statute in this way com-
ports with the Legislature’s rules of statutory construction.2 The Legislature has specified that
“Words importing joint authority to three (3) or more persons shall be construed as authority to a
majority of the persons, unless otherwise declared in the statute giving authority.” I.C. § 1-1-4-
1(2). The Board has five members. Indiana Code section 11-9-1-2(a)(2) confers joint authority
on a majority – three members – of the five member Board.
This reading is also supported by the Board’s administrative rule, which requires a quo-
rum of three members to render decisions and at least three members to vote in favor of parole.
See 220 Ind. Admin. Code § 1.1-2-2(a)(3)-(4). An administrative board may not make rules and
regulations inconsistent with the statute it is administering. Ind. Dep’t of State Revenue v. Col-
paert Realty Corp., 231 Ind. 463, 478-79, 109 N.E.2d 415, 422 (1952). This administrative rule
is not inconsistent with Indiana Code section 11-13-3-3(b); we give deference to the interpreta-
tion of a statute by an administrative agency charged with the duty of enforcing it. Ind. Dep’t of
Revenue v. Kitchin Hospitality, LLC, 907 N.E.2d 997, 1002 (Ind. 2009).
In the worker’s compensation context, our courts have repeatedly held that a decision by
the “full board” does not necessitate that all five members participate in the hearing and final
award as long as a majority of the board approve the finding and award. ACLS d/b/a Nations
Transp. v. Bujaroski, 904 N.E.2d 1291, 1292 (Ind. Ct. App. 2009); Allison v. Wilhite, 106 Ind.
App. 16, 20-22, 17 N.E.2d 874, 876-77 (1938); Feulner v. Ritter, 102 Ind. App. 404, 407, 2
N.E.2d 812, 813 (1936). Although these cases construe the worker’s compensation statutes, we
find them instructive.
2
The Legislature has set forth general rules for construing statutes unless such construction would be
plainly repugnant to the intent of the Legislature or of the context of the same statute. See I.C. § 1-1-4-1.
4
For example, in Feulner, the Appellate Court addressed whether less than five members
of the Industrial Board could sit as the full board to review an award made by a single member.
102 Ind. App. at 405, 2 N.E.2d at 812. In holding that three of the five members could sit as the
full board to review a compensation award, the Court found that the Legislature provided specif-
ic guidance for such situations in its rules of statutory construction referenced above: joint au-
thority to three or more persons shall be construed as authority to the majority, unless otherwise
declared in the statute. Feulner, 102 Ind. App. at 407-08, 2 N.E.2d at 813.
In this case, invoking the principle that the court may consider the consequences of a par-
ticular construction where a statute is susceptible to more than one interpretation, Superior
Constr. Co. v. Carr, 564 N.E.2d 281, 284 (Ind. 1990), we believe the interpretation by the Court
of Appeals would limit the ability of the Board to discharge its duties to a degree well beyond
that which we believe the Legislature intended. As the State points out, to require all Board
members to vote on each parole decision would cause unnecessary delay in the grant of parole.
Board members are absent from Board meetings for any number of reasons. A member could
take sick leave, vacation leave, family medical leave, or even resign. Under the rule advanced by
the Court of Appeals, the Board, which hears approximately 50 parole release hearings per
month, would come to a standstill during the absence of one member. In furtherance of the
proposition that courts should attempt to prevent hardship and advance public convenience when
interpreting statutes, P.B. v. T.D., 561 N.E.2d 749, 750 (Ind. 1990), we disapprove of the conclu-
sion reached by the Court of Appeals.
We hold that Indiana Code section 11-13-3-3(b) does not require the Board to determine
parole eligibility by a five-member vote. The “full parole board” delineates a majority of the
Board, which may consist of less than five members.
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Conclusion
The opinion of the Court of Appeals is vacated except for that portion addressing subject
matter jurisdiction. App. R. 58(A)(2). Varner’s request for a writ of mandamus is denied; he
received a determination by the full parole board.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
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