(dissenting):
This proceeding seeks review of a Board of Pardons decision refusing to grant William Andrews a second commutation hearing. I do not believe that Andrews is entitled under the law to a second hearing. The Board could have granted Andrews a second hearing, but it found no reason or basis for doing so. In my view, that decision was lawful. Rule R671-312-2 of the Board of Pardons provides, inter alia, “There shall be only one Commutation Hearing per petitioner unless new and significant information is found that has not already been submitted to the Board.” There is no such information. I think that there is no point in referring to the Board for clarification of a decision that is clear.
SUPPLEMENTAL OPINION
Yesterday, July 28, 1992, we entered a per curiam opinion addressing petitioner Andrews’ request for a writ of habeas corpus, an extraordinary writ, and a stay of execution (hereinafter Opinion of July 28, 1992). We denied the writ of habeas corpus, we granted the extraordinary writ in two respects, and we denied a stay of execution. We ordered the Board of Pardons to provide the court with the following information:
[i] to respond to the allegations of petitioner [that information other than the proceedings of the 1989 commutation hearing were considered in denying the hearing] and to inform this court of the materials upon which it relied in deciding not to order a full commutation hearing.... [; and]
[ii] either to make clear that [in deciding not to grant a commutation hearing] it has not followed the restrictive criteria set forth in section 77-27-5.5(6) and (7) or to reconsider the petition for a commutation hearing under the substantive criteria that existed in 1974.
Opinion of July 28, 1992, 836 P.2d at 793.
The Board has responded to our decision of yesterday with a filing and an amended order, dated July 29, 1992. This afternoon, *795the petitioner has filed a response to the Board’s filing and amended order.
Addressing the first of our directions to the Board, affidavits of each member of the Board have been filed listing the materials considered in deciding whether to provide Andrews with a new commutation hearing. Those affidavits, as well as the amended order, contradict the allegations of Andrews’ counsel made on information and belief in support of the petition for an extraordinary writ. There is no indication that the Board considered materials other than Andrews’ petition for a commutation hearing, the State’s response to that petition, and videotapes and transcripts of the 1989 plenary commutation hearing. In fact, the amended order states that “the Board wants to make itself absolutely clear that it has not reviewed or even considered any letters, postcards, documents, videotapes, interviews, facsimiles or other information submitted to the Board which is not part of the record of the prior hearing or submitted by the parties in this matter....”
We find no basis for concluding that the Board violated the Utah Open and Public Meetings Act. See Utah Code Ann. §§ 52-4-1 to -9. While the Act applies to the Board, deliberations over whether to grant a commutation hearing are judicial in nature and are exempt from the requirements of the Act. Opinion of July 28, 1992, at 2-3; see Common Cause of Utah v. Utah Public Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979). Petitioner complains of the Board’s not having considered the public comment received by the Board. However, that fact is not relevant to the issue before us. Nothing in his filing creates a factual question as to whether the Board was acting in an information-gathering mode, rather than in a judicial mode, when it reviewed the materials upon which it based the decision not to hold a hearing. The Act has been satisfied. See Opinion of July 28, 1992, 836 P.2d at 792-93.
In regard to our second direction to the Board, following entry of our decision of yesterday, the Board met and reconsidered Andrews' request for a second commutation hearing. This time, the Board has applied the constitutionally correct criteria, the criteria that were in effect in 1974, and again decided to deny a hearing. The amended order recites in part as follows:
On August 10th and 11th of 1989, the Board held a full commutation hearing that complied with all the requirements of the 1974 Board’s rules and regulations to determine whether Petitioner should be granted a commutation from the death sentence he is currently under. Petitioner was present and represented by counsel. After approximately sixteen hours of receiving testimony and documentary evidence, hearing argument from counsel from both parties, statements from Mr. Andrews, and fully considering the issues presented to the Board, the Board determined by a majority opinion that it would not commute Petitioner’s sentence.
On June 12, 1992, a petition for a second commutation hearing was filed by Petitioner. The Board went to great lengths allowing counsel to submit any written memoranda on the issues presented before the Board. The Board then reviewed the petition, all legal mem-oranda filed by counsel, the full public commutation hearing held in 1989 through written transcripts and videotapes of that hearing.
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Wherefore, after further deliberation on the issues presented and upon reconsideration of the petition consistent with the 1974 Board rules and regulations, the Board is not persuaded that a second commutation hearing is justified; therefore, the Board makes the following [order:]
The Petitioner’s petition for a second commutation hearing is hereby denied.
Based on the Board’s submissions and the amended order, we conclude that the Board has obviated the ex post facto problem that was created when it applied the restrictive criteria of section 77-27-5.5(6) and (7) in its first consideration of An*796drews’ petition for a hearing. See Utah Code Ann. § 77-27-5.5(6) & (7).
Petitioner contends that the Board’s reconsideration of his petition for a hearing, as required by our decision of yesterday, has denied him due process of law. He argues that the 1974 criteria for determining whether to hold a hearing differ from the standards contained in section 77-27-5.5(6) and (7) and in the Board’s current rules; that the submissions of petitioner and the State to the Board of Pardons were directed to the current criteria for granting a hearing; and that he has been disadvantaged by not having an opportunity to make new submissions to the Board arguing the 1974 criteria.
We agree that the Board has followed different substantive standards in reconsidering the petition for a hearing, as we directed it to do in our decision of yesterday. However, we cannot conceive of any harm that may have resulted to petitioner because of this change and therefore conclude that he has not been denied due process. The standards that governed the grant of a commutation hearing in 1974 were far more liberal than those under which the Board first considered this most recent petition. Essentially, the Board’s discretion to grant a hearing is unfettered under the 1974 standards. See Rules and Regulations of Board of Pardons of the State of Utah, ch. IV, § 4 (adopted Apr. 24, 1952, amended July 23, 1969, amended July 11, 1973). Therefore, the change in the substantive standards for granting a hearing required by our decision of yesterday was entirely to the advantage of petitioner. Yet the Board still denied the hearing. On this ground, we reject petitioner’s due process challenge to the Board’s reconsideration of his petition for a hearing and its denial of a hearing.
Petitioner also claims that under the 1974 rules of the Board, the decision whether to hold a commutation hearing must be made only after a public hearing is held. The rule relied upon by petitioner provides no more than that once a decision to hold a commutation hearing is made, that hearing must be open to the public. Id., ch. III, § 2. We do not have before us the question of whether the Board can refuse to grant at least one commutation hearing to one sentenced to death consistent with article VII, section 12 of the Utah Constitution. See Utah Const. art. VII, § 12. The only issue before us is whether the Board, consistent with the 1974 rules, can deny a commutation hearing without first holding a public hearing. We conclude that it can.1
Finally, petitioner contends that the Board’s filings indicate that it did not consider the possibility of life without possibility of parole in rejecting his petition for a hearing. Andrews asserts that the Board was required to consider this option by the terms of section 77-27-9(2)(d), a companion to the 1992 enactment that we held yesterday could not be applied to Andrews because of Utah’s ex post facto ban. See Opinion of July 28, 1992, 836 P.2d at 793 (citing Utah Const. art. I, § 18). Section 77-27-9(2)(d) provides that “[o]n or after April 27, 1992, the board may commute a sentence of death only to a sentence of life in prison without parole.” Utah Code Ann. § 77-27-9(2)(d). We agree that the Board does not appear to have considered this option, although we cannot determine that for a fact. However, we do not think that this failure invalidates its decision not to hold a hearing.
Section 77-27-9(2)(e) provides, “The restrictions imposed in Subsections 77-27-9(2)(c) and (d) apply to all cases that come before the board of pardons on or after April 27, 1992.” Id. § 77-27-9(2)(e). We read this to mean that if the Board holds a hearing on a case — i.e., the case “comes *797before the board” — after April 27th, then the Board may commute a death sentence only to life without parole. Here, the Board has found no justification for a second commutation hearing. We hold that there is nothing in the statute that requires the Board to consider the possible ultimate remedy it might order if it granted commutation when it made the entirely, separate decision of whether to hold a second hearing.
Based upon the Board’s submissions and the amended order, we conclude that the petition for extraordinary relief is without merit. The petition is denied.
STEWART, J., adheres to the views expressed in his dissenting opinion of July 28, 1992.
. Petitioner’s argument on this point is far from clear. It may be that petitioner is contending that the 1974 rules require a hearing before commutation is denied; that the decision not to hold a commutation hearing is a denial of commutation; and therefore, that a public hearing must be held before the decision is made not to hold a commutation hearing. We reject such a reading of the rule. The rule relied upon by petitioner plainly applies only to a commutation hearing, not to the decision to hold a hearing.