2018 UT App 188



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

D ANNY P. P ITCHER , Appell ant
,

v. S TATE OF U TAH AND B OARD OF P ARDONS AND P AROLE , Appell ees

.

Opinion

N o. 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

, Attorney s for Appellee s

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored th is Opinion

, in which J UDGES D AVID N. M ORTENSEN and D IANA H AGEN 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 ofPitcher v. State

20160573

- CA 2 2018 UT App 188 five years to life, with the two sentences ordered to run concurrently. In January 2014, the Board held a parole hearing.

¶3 At th at 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 o n 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 “R ationale 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 Uta h 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 alle ged 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 proc ess, 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 permi tted to proceed. Accordingly, the court ordered the Board to respond. The Board filed an answerPitcher v. State

20160573

- CA 3 2018 UT App 188 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 O F REVIEW

¶7 Pitcher asserts that the district court erred in sua sponte dismissing hi s 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, 37 9 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

see king 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) ; s ee also Utah R. Civ. P. 65B(d)(2)(D) (permitting individuals to seek extraordinary relief “where the Board ofPitcher v. State

20160573

- CA 4 2018 UT App 188 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 s ummarily 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 c ourt 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 d ismiss 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 d ecision 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. Her e , 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 proper ly 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).Pitcher v. State

20160573

- CA 5 2018 UT App 188 the petition first emphasize d the limits of the court’s jurisdiction

over the Board ’s actions and then note d that (1) S on fell within
the Board’s definition of “victim

, ” see Utah Admin. Code R671

- 203

- 1 (2017) (defining “victim” as “any p erson, 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 exp ire 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 f rom the
Board and without providing Pitcher an opportunity to a rgue 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 p rovision 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 regard ed 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 “vic tim” 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).Pitcher v. State

20160573

- CA 6 2018 UT App 188 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 merit less . 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 meaningf ul way are at the very heart of procedural fairness.” (quotation simplified)).

¶12 T he 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 prom pt 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

e xplained 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 th e court’s decision.

¶13 To be sure, r ule 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). I t also authorizes the court to direct the respondent to provide a record or transcript of the challenged proceedings. See i d. In determining whether to dismiss Pitcher’s claim that he was denied due process because he was not given adequatePitcher v. State

20160573

- CA 7 2018 UT App 188 opportunity to review the evidence against him and did not have a meaningful oppo rtunity 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 decisi on 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, t he 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

. M any 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 un charg ed 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 petitionPitcher v. State

20160573

- CA 8 2018 UT App 188 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) ; s ee 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 res pondent “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 prov ide 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 require d 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
C onstitutions. Among other allegations, Pitcher asserted that he
was denied (1) “real access to the information the Board was
consider ing” ; (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 fulfil l 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 fac ts to support these allegations. WhenPitcher v. State

20160573

- CA 9 2018 UT App 188 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 o f 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 c ourt’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 fr ivolous on their face, it dismiss ed 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.