2018 UT App 188

THE UTAH COURT OF APPEALS

DANNY P. PITCHER,

Appellant,

v.

STATE OF UTAH AND BOARD OF PARDONS AND PAROLE,

Appellees.

Opinion

No. 20160573-CA

Filed October 4, 2018

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 150907916

Lorenzo K. Miller, Attorney for Appellant

Sean D. Reyes, Erin T. Middleton, and Amanda N. 

Montague, Attorneys for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN 

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Following a parole review hearing, the Utah Board of 

Pardons and Parole (the Board) determined that Danny P. 

Pitcher would serve his maximum sentence of life in prison. 

Pitcher petitioned the district court for relief from the Board’s 

decision. He now appeals from the district court’s dismissal of 

his petition for extraordinary relief. We reverse and remand for 

additional proceedings.

BACKGROUND

¶2 In 1999, Pitcher pleaded guilty to two counts of sodomy 

on a child. For each count, he was sentenced to a prison term of 
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five years to life, with the two sentences ordered to run 

concurrently. In January 2014, the Board held a parole hearing.

¶3 At that hearing, the Board considered a letter from 

Pitcher’s son (Son), who was not one of the victims of the 

charges to which Pitcher pleaded guilty. In his letter to the 

Board, Son alleged that Pitcher had sexually abused Son, Son’s 

friends, and Son’s cousins. Also in his letter, Son asked the Board 

to keep Pitcher in prison. Son appeared personally at the parole 

hearing and reiterated this request. In addition to Son’s letter, 

the Board received letters from several of the producers and 

hosts of a reality television show on which Son had appeared.

These letters advocated denying Pitcher parole as well. The 

Board also considered other uncharged allegations of abuse from 

Idaho and Colorado.

¶4 The Board denied Pitcher parole and ordered that he 

“expire [his] life sentence.” A “Rationale for Decision” checklist 

was attached to the order, identifying ten aggravating factors 

and three mitigating factors that supported the Board’s decision.

¶5 Pitcher subsequently filed a petition in the district court 

pursuant to rule 65B(d) of the Utah Rules of Civil Procedure, 

seeking extraordinary relief from the Board’s decision. Pitcher’s

petition alleged that the Board’s decision to expire his maximum 

sentence was fundamentally unfair and constituted cruel and 

unusual punishment. Pitcher also alleged that the Board violated 

his due process rights by denying him “real” access to the 

information the Board was considering, failing to provide a 

meaningful written explanation of its decision, denying him 

access to legal assistance during the parole process, and failing 

to give him a “meaningful” opportunity to address allegations 

made at the hearing.

¶6 Upon initial review of Pitcher’s petition, the district court 

determined that no claims in the petition were frivolous and that 

the petition should be permitted to proceed. Accordingly, the 

court ordered the Board to respond. The Board filed an answer 
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asserting, among other defenses, that Pitcher had failed to state a 

claim for which relief could be granted. Subsequently, the 

district court dismissed Pitcher’s petition sua sponte, 

determining that Pitcher’s claims lacked merit. Pitcher filed a 

motion to reconsider, which the court denied. Pitcher now 

appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Pitcher asserts that the district court erred in sua sponte 

dismissing his petition for extraordinary relief without a motion 

from the Board and without providing him an opportunity to 

respond. Whether the district court properly dismissed the 

petition is a question of law, which we review for correctness. 

See Lancaster v. Utah Board of Pardons, 869 P.2d 945, 947 (Utah 

1994).

ANALYSIS

¶8 “Rule 65B of the Utah Rules of Civil Procedure allows a 

petition for extraordinary relief where no other plain, speedy[,]

and adequate remedy is available.” Gilbert v. Maughan, 2016 UT 

31, ¶ 15, 379 P.3d 1263 (quotation simplified); see also Utah R. 

Civ. P. 65B(a). However, such a petition “is not a proceeding for 

general review, and cannot be used as such.” Gilbert, 2016 UT 31, 

¶ 15 (quotation simplified). This is particularly true in petitions 

seeking review of decisions of the Board of Pardons and Parole, 

whose decisions involving “paroles . . . or terminations of 

sentence . . . are final and are not subject to judicial review.” 

Utah Code Ann. § 77-27-5(3) (LexisNexis 2017). The court’s 

review of the Board’s decisions is therefore limited to situations 

where (1) procedural due process was denied, see Foote v. Utah 

Board of Pardons, 808 P.2d 734, 735 (Utah 1991), or (2) there has 

been a clear abuse of discretion, see Ward v. Smith, 573 P.2d 781, 

782 (Utah 1978); see also Utah R. Civ. P. 65B(d)(2)(D) (permitting 

individuals to seek extraordinary relief “where the Board of 
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Pardons and Parole has exceeded its jurisdiction or failed to 

perform an act required by constitutional or statutory law”). In 

other words, courts may review “the fairness of the process by 

which the Board undertakes its sentencing function,” but not the 

result. Lancaster v. Utah Board of Pardons, 869 P.2d 945, 947 (Utah 

1994) (emphasis omitted). 

¶9 Rule 65B permits a court to summarily dismiss a frivolous 

claim for extraordinary relief without findings of fact or 

conclusions of law. Utah R. Civ. P. 65B(b)(5).1 In doing so, it 

must “stat[e] that the claim is frivolous on its face and the 

reasons for this conclusion.” Id. If the court does not dismiss the 

claim as frivolous, the court is required to serve a copy of the 

petition upon the respondent and may issue an order directing 

the respondent to answer or otherwise respond. See id.

R. 65B(b)(6).

¶10 Here, the district court did not dismiss Pitcher’s claims as 

frivolous but instead ordered the Board to respond. After the 

Board filed an answer, but not a motion to dismiss, the district 

court sua sponte dismissed the petition because it “lack[ed]

merit.” The district court’s memorandum decision dismissing 

 

1. We note that rule 65B(b) “governs all petitions claiming that a 

person has been wrongfully restrained of personal liberty other 

than those specifically governed by Rule 65C.” Utah R. Civ. 

P. 65B advisory committee’s note. Here, Pitcher requested relief 

under subsection (d) of rule 65B, asserting that the Board “has 

exceeded its jurisdiction or failed to perform an act required by 

constitutional or statutory law.” Utah R. Civ. P. 65B(d)(2)(D). 

Although subsection (d) does not expressly authorize dismissal 

of a frivolous petition, “[a] petition of any nature which fails to 

state a claim may be dismissed” as frivolous. See Lancaster v. 

Utah Board of Pardons, 869 P.2d 945, 948 (Utah 1994) (explaining 

that the district court properly dismissed a petition for 

extraordinary relief as frivolous on its face, despite the lack of 

express authority to do so in the applicable rule 65B subsection).
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the petition first emphasized the limits of the court’s jurisdiction 

over the Board’s actions and then noted that (1) Son fell within 

the Board’s definition of “victim,” see Utah Admin. Code R671-

203-1 (2017) (defining “victim” as “any person, of any age, 

against whom a related crime or act is alleged to have been 

perpetrated or attempted”)2; (2) Pitcher was not entitled to 

appointed counsel in connection with the parole proceedings;

and (3) the Board’s determination that Pitcher must expire his 

sentence was subject to redetermination in the future. The court 

then stated that Pitcher’s claims lacked merit and dismissed the 

petition.

¶11 We agree with Pitcher that the district court erred in 

dismissing his petition sua sponte without a motion from the 

Board and without providing Pitcher an opportunity to argue

the merits of his petition. The Board asserts that the court may 

have been merely reconsidering its non-final determination on 

the frivolousness of Pitcher’s petition. But the frivolousness 

determination under rule 65B considers whether “the claim is 

frivolous on its face.” Utah R. Civ. P. 65B(b)(5) (emphasis added). 

The court engaged in this assessment, determined that Pitcher’s 

claims were not frivolous on their face, and accordingly required 

the respondents to answer or otherwise respond to the petition. 

We are not persuaded that, in subsequently resolving the 

petition, the court was simply revisiting its frivolousness 

determination. The court did not identify this provision as a 

basis for its resolution of Pitcher’s petition, nor did the court

“stat[e] that the claim[s were] frivolous” or provide any “reasons 

for this conclusion.” Id. It is also unlikely that the court regarded 

the claims frivolous on their face, on reconsideration, because it 

 

2. It is worth noting that the current version of this rule 

eliminates this definition of “victim” and limits the definition to 

those against whom the defendant committed a criminal offense 

“for which a conviction was entered and for which the [Board] 

has jurisdiction” or who was “originally named in an allegation 

of criminal conduct.” Utah Admin. Code R671-203-1(1) (2018).
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was not until the court received the Board’s response to Pitcher’s 

motion to reconsider that the court was able to determine, 

relying on the Board’s arguments, that Pitcher’s claims were

meritless. By dismissing the case without further briefing or 

hearing, the district court denied Pitcher notice and a 

meaningful opportunity to defend against the dismissal. See

Plumb v. State, 809 P.2d 734, 743 (Utah 1990) (“Timely and 

adequate notice and an opportunity to be heard in a meaningful 

way are at the very heart of procedural fairness.” (quotation 

simplified)).

¶12 The district court dismissed Pitcher’s petition following 

the Board’s filing of an answer. The parties do not dispute on 

appeal that the court acted sua sponte, without the prompt of a 

motion, and without any other apparent authority to resolve the 

case at that stage. Indeed, the Board “recognizes the district 

court’s dismissal may have been procedurally inappropriate.” 

Addressing Pitcher’s motion for reconsideration, the court 

explained that “the claims were legally insufficient to proceed” 

and that “[n]o facts were found or adjudicated in this matter.” 

The parties’ arguments on appeal illustrate the conundrum

created by the court’s sua sponte decision. With no indication of 

the applicable standard or any factual findings to review, the 

parties struggle to fit the district court’s memorandum decision 

into the framework of a rule 12(b)(6) dismissal or rule 56 

summary judgment. See generally Utah R. Civ. P. 12(b); id. R. 56. 

Similarly, we are at a loss to select the appropriate measure by 

which we might meaningfully review the court’s decision. 

¶13 To be sure, rule 65B authorizes special procedures for 

petitions requesting extraordinary relief that are different from 

the general rules of procedure. It allows the court, for example, 

to set a “hearing on the merits” following the filing of a petition, 

even before a responsive pleading is filed. See id. R. 65B(d)(3). It 

also authorizes the court to direct the respondent to provide a 

record or transcript of the challenged proceedings. See id. In 

determining whether to dismiss Pitcher’s claim that he was 

denied due process because he was not given adequate 
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opportunity to review the evidence against him and did not 

have a meaningful opportunity to defend himself at the parole 

hearing, the legal question is not whether Pitcher actually had 

these opportunities but whether the denial of such opportunities, 

if proven, would be a violation of due process protections.

¶14 Of additional concern, the district court’s decision to 

dismiss the petition did not address all of Pitcher’s claims. The 

court’s decision emphasized the limitations of its jurisdiction, 

apparently considering Pitcher’s petition to be a challenge to the 

result of the Board’s decision that Pitcher expire his life sentence. 

See Lancaster v. Utah Board of Pardons, 869 P.2d 945, 947 (Utah 

1994) (explaining that courts “must review the fairness of the

process by which the Board undertakes its sentencing function, 

but [the courts] do not sit as a panel of review on the result, 

absent some other constitutional claim”). Here, the court appears 

to have summarily dismissed his claims based primarily on Utah 

Code section 77-27-5(3), which limits judicial review of the 

Board’s decisions. Many of Pitcher’s allegations, however, raised 

due process or constitutional questions. These claims remain 

subject to judicial review. See Foote v. Utah Board of Pardons, 808 

P.2d 734, 735 (Utah 1991). While the question of whether these 

claims are meritorious may be debatable, we agree with Pitcher 

that he was entitled, at a minimum, to participate in a debate

about the sufficiency of the process provided by the Board at his 

parole hearing. While the court did address the merits of some of 

Pitcher’s claims, it did not address those claims in full, appearing 

to rely instead on its assessment that the claims inappropriately 

challenged the Board’s decision rather than the fairness of the

process. Most notably, the court did not touch on Pitcher’s claim 

that he was denied an adequate opportunity to review the 

evidence against him or to meaningfully defend himself at the 

parole hearing. The court also did not address Pitcher’s claim 

that the Board erred in considering letters from other parties and 

relying on uncharged allegations of abuse in other states.

¶15 The Board argues that any failure to address the issues 

Pitcher asserts on appeal was harmless because Pitcher’s petition 
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did not elaborate on the facts supporting his claims. But this 

assertion illustrates precisely why it was error for the court to 

have dismissed the case sua sponte without giving Pitcher an 

opportunity to defend against the dismissal. Under Utah’s 

“liberal standard of notice pleading,” see Canfield v. Layton City, 

2005 UT 60, ¶ 14, 122 P.3d 622, a petitioner need submit only “a 

short and plain . . . statement of the claim showing that the party 

is entitled to relief” and a “demand for judgment for specified

relief,” Utah R. Civ. P. 8(a); see also id. R. 65B(b)(3) (requiring that 

a petition for extraordinary relief “contain a short, plain 

statement of the facts on the basis of which the petitioner seeks 

relief”). The statement of the claim should give the respondent 

“fair notice of the nature and basis or grounds of the claim and a 

general indication of the type of litigation involved.” Williams v. 

State Farm Ins. Co., 656 P.2d 966, 971 (Utah 1982) (quotation 

simplified). The petitioner is not required to provide full 

evidentiary support for the allegations at the pleading stage. We 

cannot conclude that the error was harmless if Pitcher asserted 

claims, in short and plain fashion, and was then denied the

opportunity to elaborate on or develop the facts supporting his 

petition. Indeed, had the court proceeded to resolve the petition 

at a hearing on the merits, the court could have required the 

respondent to “deliver to the court a transcript or other record of 

the [challenged] proceedings.” Utah R. Civ. P. 65B(d)(3). 

¶16 Here, Pitcher claimed that the Board denied him due 

process as guaranteed under the Utah and United States 

Constitutions. Among other allegations, Pitcher asserted that he 

was denied (1) “real access to the information the Board was 

considering”; (2) the “right to an attorney or other legal 

assistance during the [Board’s] decision-making process”; and 

(3) the “right to meaningfully address the Board and/or to 

defend against the . . . allegations of non-victims.” These are 

sufficient to fulfill the requirements of a short and plain 

statement under our notice-pleading standard. Accordingly, we 

see no merit in the Board’s argument that we can affirm the 

dismissal of Pitcher’s petition on the alternative basis that he 

failed to allege specific facts to support these allegations. When
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considering procedural due process claims, our supreme court 

has cautioned that “[p]recisely what due process requires of the 

board of pardons cannot be determined in the abstract, but must 

be determined only after the facts concerning the procedures 

followed by the board are” delineated. Foote, 808 P.2d at 735.

This was not done.

¶17 We conclude that the district court erred in summarily 

dismissing Pitcher’s petition sua sponte without the prompt of a 

dispositive motion, and without affording Pitcher a hearing on 

the merits of his petition as expressly provided for in rule 65B.

Consequently, we express no opinion on the veracity or strength 

of Pitcher’s underlying claims in his petition for extraordinary 

relief. The lack of legal authority—and corresponding 

standard—supporting the district court’s summary dismissal, 

deprives us of any meaningful opportunity to gauge the 

correctness of that decision. Additionally, we decline the Board’s 

invitation to step into the district court’s shoes, perform the 

analysis it should have performed in the first instance, and 

affirm despite the “procedurally inappropriate” dismissal.

CONCLUSION

¶18 We conclude that the district court erred when, after 

determining that Pitcher’s claims were not frivolous on their 

face, it dismissed Pitcher’s petition without providing him an 

opportunity to address the court’s dismissal or without 

affording him a hearing on the merits of his petition. 

Accordingly, we reverse the district court’s dismissal of Pitcher’s 

petition for extraordinary relief and remand for further 

proceedings.