No

No. 97-394

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 168 

RON WORDEN; JOHN FAIRSERVICE; FAYE 

SLICE; and TIMOTHY OWENS, on behalf of 

themselves and all others similarly situated, and the 

MONTANA DEFENDER PROJECT, 

Plaintiffs and Appellants,

v.

MONTANA BOARD OF PARDONS and PAROLE,

JOHN THOMAS, JULENE KENNERLY, PATRICK

FLEMING and MARY JO FOX,

Defendants and Respondents. 

 APPEAL FROM: District Court of the First Judicial District,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (1 of 15)4/19/2007 9:35:21 AM
No

In and for the County of Lewis & Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Jeffrey T. Renz (argued); Montana Defender Project, Missoula, Montana

For Respondents:

David Ohler, Matthew A. Robertson (argued) Special Attorneys General,

Montana Department of Corrections, Helena, Montana

Argued: April 3, 1998

Submitted: April 30, 1998

Decided: July 7, 1998

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Appellants Ron Worden (Worden), John Fairservice (Fairservice), Timothy 

Owens (Owens), Faye Slice (Slice) and other similarly-situated inmates at the 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (2 of 15)4/19/2007 9:35:21 AM
No

Montana State Prison (collectively referred to as "Inmates") appeal from the order 

of the First Judicial District Court, Lewis & Clark County, dismissing their class 

action suit against the Montana Board of Pardons and Parole (Board of Pardons) 

and board members John Thomas, Julene Kennerly, Patrick Fleming, and Mary Jo 

Fox. We reverse in part, affirm in part, and remand.

¶2 In determining whether the District Court erred in dismissing the Inmates' 

complaint for failure to state a claim, we address the following issues:

¶3 1. Does Article II, Section 9 of the Montana Constitution (right to know) require 

the Board of Pardons to grant the Inmates access to their parole files?

¶4 2. Do the Inmates have a right to inspect their parole files under the due process 

clauses of the Montana or federal constitutions?

Standard of Review

¶5 A district court's decision to dismiss a complaint for failure to state a claim upon 

which relief may be granted is a conclusion of law. Hollister v. Forsythe (1996), 277 

Mont. 23, 26, 918 P.2d 665, 667. We review conclusions of law to determine whether 

the district court is correct. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 

207, 900 P.2d 314, 317. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the 

effect of admitting all well-pled allegations in the complaint. Lockwood, 900 P.2d at 

317. Thus, in considering a motion to dismiss, the complaint must be construed in the 

light most favorable to the plaintiff, and all allegations of fact must be taken as true. 

Hollister, 918 P.2d at 667. 

Factual and Procedural Background

¶6 The following facts, as alleged in the Inmates' complaint, are taken as true:

¶7 Inmates Worden, Fairservice, and Owens are incarcerated at the Montana State 

Prison in Deer Lodge, Montana. Inmate Slice was formerly incarcerated at the 

Women's Correctional Center and is currently on parole. Each allege that they have 

been denied access to all or part of their files by the Board of Pardons.

¶8 Worden was convicted of felonies in 1979, 1981, and 1996. He alleges that prior to 

hearings before the Board of Pardons, he asked to review and copy documents 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (3 of 15)4/19/2007 9:35:21 AM
No

contained in his parole records and was denied. On January 26, 1994, a student 

intern for the Montana Defender Project who was representing Worden at a parole 

hearing requested to inspect and copy Worden's files. Worden's student counsel was 

given access to only part of the file and was told he would have to copy the 

information by hand. He asked to see Worden's psychological examination and was 

told by Board of Pardons personnel that neither he nor Worden could view that 

information, but that the evaluation would not be considered by the Board of 

Pardons. However, at his hearing, members of the Board of Pardons told Worden 

that they had seen his psychological evaluation and that Worden should know what 

problems he needed to address. Worden was denied parole.

¶9 Fairservice was convicted of a felony in 1991. He appeared before the Board of 

Pardons on June 30, 1994 and was denied parole that same day. After learning that 

the decision was based in part on information provided by third parties, he asked to 

see the documents contained in his file. The Board of Pardons denied his request. 

Fairservice appeared before the Board of Pardons again on June 29, 1995. At this 

hearing, several witnesses, some of whom Fairservice did not know, testified in 

opposition to his release. Fairservice was denied parole. Again, he asked to see the 

information in his file and was denied. 

¶10 Owens, who was convicted of a felony on August 17, 1990, was granted parole. 

However, at a parole revocation hearing, his attorney asked to inspect the files held 

by the Board of Pardons and was denied.

¶11 Slice was incarcerated in the Women's Correctional Center after her felony 

conviction in 1987. She applied for prerelease, and, prior to the hearing on her 

application, she was denied access to her file. Her application for prerelease was 

rejected.

¶12 The Inmates filed a class action complaint against the Board of Pardons and 

individual members of the Board. The Inmates allege that the Board of Pardons 

violated Article II, Section 9 of the Montana Constitution (right to know) and § 2-6-

102, MCA (right to inspect and copy public writings) by refusing to allow them to 

inspect and copy their files. Those Inmates who were serving sentences for crimes 

committed before the 1989 amendment of § 46-23-201, MCA (eligibility for parole) 

also claim that the Board of Pardons violated their due process rights under the 

federal and Montana constitutions. The Montana Defender Project was also named 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (4 of 15)4/19/2007 9:35:21 AM
No

as a plaintiff in the suit. However, because it will no longer be representing Inmates 

before the Board of Pardons, the Defender Project states that the issue of whether its 

rights have been violated has been rendered moot and does not appeal. 

¶13 The Board of Pardons moved to dismiss the complaint for failure to state a claim 

for which relief could be granted. The District Court dismissed the complaint. The 

court held that neither the federal nor Montana due process clauses requires that 

Inmates be allowed to inspect their parole files. The District Court further held that 

§ 46-23-108, MCA, creates an expectation of privacy for individuals who disclose 

information to the Board of Pardons and that this privacy interest outweighs the 

Inmates' right to know.

Discussion

¶14 1. Does Article II, Section 9 of the Montana Constitution (right to know) require 

the Board of Pardons to grant the Inmates access to their parole files?

¶15 The Inmates claim that by refusing to allow them access to their parole files, the 

Board of Pardons is violating Article II, Section 9 of the Montana Constitution. The 

District Court dismissed this claim, holding that the Inmates had failed to state a 

claim on which relief could be granted. The District Court did not have before it any 

of the Inmates' files, and, consequently, they are not part of the record on review. 

Therefore, we look to the pleadings to determine whether the District Court erred in 

holding that the Inmates did not sufficiently state a claim for violation of the right to 

know. 

¶16 Article II, Section 9 of the Montana Constitution states: "No person shall be 

deprived of the right to examine documents or to observe the deliberations of all 

public bodies or agencies of state government and its subdivisions, except in cases in 

which the demand of individual privacy clearly exceeds the merits of public 

disclosure." In analyzing the right to know in Becky v. Butte-Silver Bow School Dist. 

No. 1 (1995), 274 Mont. 131, 906 P.2d 193, we set forth the following three-part test:

First, we consider whether the provision applies to the particular political 

subdivision against whom enforcement is sought. Second, we determine 

whether the documents in question are "documents of public bodies" subject 

to public inspection. Finally, if the first two requirements are satisfied, we 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (5 of 15)4/19/2007 9:35:21 AM
No

decide whether a privacy interest is present, and if so, whether the demand of 

individual privacy clearly exceeds the merits of public disclosure.

Becky, 906 P.2d at 196. 

¶17 The Board of Pardons is an agency under the administration of the Department 

of Corrections. Section 2-15-2302(6), MCA. Its members are appointed by the 

governor to serve in a quasi-judicial capacity and are compensated as provided by 

legislative appropriation. Section 2-15-2302(7), MCA. Undoubtedly, the Board of 

Pardons is a public agency to which the right to know applies. 

¶18 Next, we determine whether the Inmates' parole files are "documents of public 

bodies" subject to public inspection. Art. II, § 9, Mont. Const. The Inmates wish to 

review the contents of their own files, but contend that the files should not be 

available to the general public. The Inmates argue that in O'Neill v. Dep't of Revenue 

(1987), 227 Mont. 226, 234, 739 P.2d 456, 461, this Court drew "a distinction between 

public disclosure and limited disclosure to the . . . party . . . ." The State contends 

that the Inmates' request to have the parole files opened for their individual review, 

but closed to the public, necessarily implies that these files are not public documents 

to which the right to know applies. 

¶19 We agree that the right to know grants the public the right to examine 

documents of public bodies. Becky, 906 P.2d at 196. Thus, Article II, Section 9 of the 

Montana Constitution does not apply to the Inmates' files unless they are open to 

review by every citizen. The distinction made by this Court in O'Neill between 

limited review by the party and general review by the public was not drawn to 

determine whether the subject documents were "documents of public bodies" under 

Article II, Section 9, but rather to aid in weighing the merits of disclosure against 

individual privacy interests. See O'Neill, 739 P.2d at 461. 

¶20 Neither the Montana Constitution nor Montana statutes define "documents of 

public bodies." However, this Court has held that the term "must reasonably be held 

to mean documents generated or maintained by a public body which are somehow 

related to the function and duties of that body." Becky, 906 P.2d at 197. Because the 

Inmates' files are not before us, we cannot determine whether they contain 

documents generated by the Board of Pardons or other public bodies, documents 

generated by private third parties, or both. However, this is not fatal to our 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (6 of 15)4/19/2007 9:35:21 AM
No

classification of the files as "documents of public bodies." Regardless of their 

content, the Inmates' files are maintained by the Board of Pardons and are used by 

the Board in the performance of its official duties -- determining whether an Inmate 

is eligible for parole. See § 46-23-104, MCA (defining responsibilities of the Board of 

Pardons). Thus, we hold that the Inmates' files are "documents of public bodies" 

within the scope of Article II, Section 9 of the Montana Constitution.

¶21 Under its plain language, the right to know does not apply when "the demand of 

individual privacy clearly exceeds the merits of public disclosure." Art. II, § 9, Mont. 

Const. Thus, having determined that the right to know applies to the Inmates' parole 

files, we next determine the privacy interests involved and weigh these interests 

against the merits of public disclosure. Becky, 906 P.2d at 196. To determine whether 

a person has a constitutionally-protected privacy interest, this Court looks at the 

following factors: (1) whether the person involved had a subjective or actual 

expectation of privacy; and (2) whether society is willing to recognize that 

expectation as reasonable. Missoulian Inc. v. Board of Regents of Higher Educ. 

(1984), 207 Mont. 513, 522, 675 P.2d 962, 967. 

¶22 In this case, the District Court held that individuals who disclose information to 

the Board of Pardons have an expectation of privacy created by statute, specifically § 

46-23-108, MCA. Section 46-23-108, MCA, provides:

The department shall keep a record of the board's acts and decisions available 

to the public. However, all social records, including the presentence report, 

the preparole report, and the supervision history obtained in the discharge of 

official duty by the department, are confidential and may not be disclosed 

directly or indirectly to anyone other than the members of the board or a 

judge. The board or a court may, in its discretion, when the best interests or 

welfare of a particular defendant or prisoner makes such action desirable or 

helpful, permit the inspection of the social record or any parts thereof by the 

prisoner or his attorney.

In passing this statute, the legislature attempted to define classes of information, i.e., social 

records, presentence reports, preparole reports, and supervision histories, that are not 

subject to the right to know. However, we have held that the legislature does not have the 

power to dictate through the passage of a statute under what circumstances the right to 

know may be exercised unless it specifically finds that curtailment of the right is necessary 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (7 of 15)4/19/2007 9:35:21 AM
No

to protect the right of individual privacy. In re Lacy (1989), 239 Mont. 321, 325-26, 780 

P.2d 186, 188. Similarly, the legislature may not specify certain documents to which the 

right does not apply. 

¶23 In Lacy, 780 P.2d at 187, Allstate Insurance Company (Allstate) filed an 

application with the district court seeking production of records held by the Billings 

Police Department of its investigation into the death of one of Allstate's insureds. At 

that time, the Criminal Justice Information Act (CJIA) stated that "[d]issemination 

of confidential criminal justice information is restricted to criminal justice agencies 

[or] to those authorized by law to receive it. . . ." Section 44-5-303, MCA (1993). The 

district court denied Allstate's application, interpreting "authorized by law" to mean 

authorized by statute. Lacy, 780 P.2d at 188. 

¶24 On appeal, we held that "any interpretation of § 44-5-303, MCA, which requires 

specific legislative authorization to review criminal justice information would render 

the statute unconstitutional." Lacy, 780 P.2d at 188. Thus, we held that "authorized 

by law" must be interpreted to mean authorized by statute or constitution, including 

Article II, Section 9's right to know. Lacy, 780 P.2d at 188. 

¶25 We addressed the issue again in Bozeman Daily Chronicle v. City of Bozeman 

Police Dep't (1993), 260 Mont. 218, 859 P.2d 435. In that case, the Bozeman Police 

Department was ordered to show cause why it refused to release to the Bozeman 

Daily Chronicle the name of a police officer accused of sexual intercourse without 

consent. Bozeman Daily Chronicle, 859 P.2d at 437. We reiterated that a person "is 

'authorized by law' to receive confidential criminal justice information under the 

Right to Know provision of the Montana Constitution, qualified only by Article II, 

Section 10, of the Constitution, the 'Right to Privacy' provision . . . ." Bozeman Daily 

Chronicle, 859 P.2d at 438 After balancing the police officer's privacy interests 

against the public's right to know, we concluded that the Bozeman Chronicle should 

be given access to the information. Bozeman Daily Chronicle, 859 P.2d at 440-41.

¶26 Although we interpreted the CJIA in a constitutional manner, we cannot do the 

same with § 46-23-108, MCA. Section 46-23-108, MCA, clearly denies the public 

access to certain information without considering the public's right to know. The 

limited exception to the statute's broad rule of nondisclosure allows an Inmate access 

to his or her own file upon a discretionary finding by the Board of Pardons or a court 

that "the best interests or welfare of a particular defendant or prisoner makes such 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (8 of 15)4/19/2007 9:35:21 AM
No

action desirable or helpful. . . ." Section 46-23-108, MCA. As noted above, "[t]he only 

limitation placed on the Montana right to know is the right of the individual to 

personal privacy." Larry M. Elison & Deborah E. Elison, Comments on Government 

Censorship and Secrecy, 55 Mont. L. Rev. 175, 189. Discretionary disclosure based 

on "best interests" or "desirable or helpful" does not withstand constitutional 

scrutiny. 

¶27 Section 46-23-108, MCA, denies citizens, including Inmates, their right to inspect 

presentence reports, preparole reports, supervision histories, and other social 

records without balancing the right to know against the demands of individual 

privacy. Therefore, we hold that § 46-23-108, MCA, is unconstitutional. 

¶28 The District Court further held that testimony provided to the Board of Pardons 

by third parties, including crime victims, members of the community, and 

professionals reporting psychological and other information regarding Inmates, "is 

critical to a parole board's ability to render fair and informed decisions. Without 

protection, fear of inmate reprisals would prevent many of these individuals from 

providing information to parole boards. Consequently, the privacy interests of those 

providing information to parole boards outweighs the inmates' right to know."

¶29 While we agree that encouraging the flow of information to the Board of 

Pardons is an important policy, we do not agree that anyone who provides 

information to the Board necessarily has a privacy interest that outweighs the 

Inmates' right to know. For example, law enforcement personnel would generally 

have no privacy interest in a document describing the crimes committed by an 

Inmate, nor would Department of Corrections personnel have a privacy interest in 

records reflecting an Inmate's behavior while under its supervision. A victim may 

have a privacy interest in a letter submitted to the Board of Pardons, but often this 

interest can be served by simply redacting his or her address or phone number. 

Likewise, when members of the community submit letters to the Board of Pardons 

expressing concern about an Inmate's possible parole, names and addresses can be 

removed. We conclude that each document in an Inmate's file must be examined to 

determine whether all or part of it is subject to the privacy exception of the right to 

know. See Art. II, § 9, Mont. Const. 

¶30 Because the documents contained in an Inmate's file are documents of a public 

body, they are not only open to inspection by the Inmate, but also subject to 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (9 of 15)4/19/2007 9:35:21 AM
No

inspection by the general public. Obviously, an Inmate has a strong privacy interest 

in his or her own parole file. Thus, as with the Inmates' requests to examine their 

own files, the requests of third parties must be considered on a case-by-case basis to 

determine whether an Inmate or third party has a privacy interest in the document 

that outweighs the requesting party's right to know. 

¶31 Having held that the privacy interests involved must be determined on a case-bycase basis, it is necessary to discuss the burden of asserting and proving these 

interests. We start with the broad proposition that under Article II, Section 9 of the 

Montana Constitution, the public has a right to inspect all documents in the control 

of the Board of Pardons. Thus, it is "incumbent upon the [Board of Pardons] to 

demonstrate why all or portions thereof should not be released because the rights of 

individual privacy outweigh the merits of public disclosure." Bozeman Daily 

Chronicle, 859 P.2d at 441. 

¶32 Pragmatically, requiring the Board of Pardons to hold a hearing at which the 

Inmate and all parties with possible privacy interests appear each time an Inmate 

requests to review his or her parole file is unduly cumbersome. Thus, we hold that 

when the Board of Pardons or other agency is vicariously asserting a claim of 

individual privacy on behalf of an unnamed individual, the Board of Pardons should 

attempt to notify the individual, "advising the individual of the request for 

information and allowing waiver or objection." Elison, supra, at 197. If the 

individual asserts a privacy interest, or "[i]f notification is not possible, for example, 

if the individual cannot be located or the number of individuals involved would make 

notification pragmatically impossible," the Board of Pardons should independently 

weigh the privacy interests involved and "provide maximum access to the 

information while protecting the individual's right to privacy." Elison, supra, at 197-

98. 

¶33 Though the public's right to know may only be limited when "the demands of 

individual privacy clearly exceed the merits of public disclosure," Art. II, § 9, Mont. 

Const., when an Inmate asserts his or her right to know, there is another limitation 

that may be placed on the right. The United States Supreme Court has held that 

when a prison regulation impinges on inmates' constitutional rights, the regulation is 

valid if it is reasonably related to legitimate penological interests. Turner v. Safley 

(1987), 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64. The State argues, and we 

agree, that the rights of the Inmates under the Montana constitution may be limited 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (10 of 15)4/19/2007 9:35:21 AM
No

by legitimate, penological interests as well.

¶34 Section 46-18-801, MCA, states: "Conviction of an offense does not deprive the 

offender of a civil or constitutional right, except as provided in the Montana 

constitution or as specifically enumerated by the sentencing judge as a necessary 

condition of the sentence directed toward the objectives of rehabilitation and the 

protection of society." Under Article II, Section 28 of the Montana Constitution 

(entitled "Rights of the convicted"), "[l]aws for the punishment of crime shall be 

founded on the principles of prevention and reformation. Full rights are restored by 

termination of state supervision for any offense against the state." Under these 

provisions, the State may limit or abrogate the rights of an Inmate, as long as it is 

done to prevent further offenses or for reformation of the Inmate. 

¶35 For example, a defendant is sentenced to incarceration, in part, to prevent 

further offenses and to provide an opportunity for reformation. See § 46-18-101, 

MCA. As a result, certain rights of the Inmate are abrogated. Other rights, such as 

liberty, freedom of speech and expression, and the right of privacy, although not 

completely lost, may be substantially limited. Likewise, Article II, Section 9 of the 

Montana Constitution grants citizens the right to "observe the deliberation of all 

public bodies." Obviously, principles of prevention and reformation are not served 

by excusing an Inmate from prison to attend a public meeting. 

¶36 Though we recognize that the State may limit Inmates' rights to serve its 

penological interests, we note that the provision of Article II, Section 9 that we have 

been focusing on, the right to examine documents of public bodies, not need be 

completely abrogated. For example, because allowing an Inmate to inspect a 

document submitted by prison personnel or other Inmates to the Board of Pardons 

may compromise safety, the Department of Corrections could assert its legitimate 

penological interest in maintaining order and security within its institutions. 

However, as with an individual's privacy interests, the Department of Corrections' 

interests can often be served by redacting names and other identifying characteristics 

from such documents. We hold that such decisions must be made on a case-by-case 

basis to ensure that an Inmate's right to know is only limited to the extent it serves 

the State's legitimate interests.

¶37 We hold that the Inmates' parole files are documents of a public body to which 

the right to know applies. We determine that once a party requests access to an 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (11 of 15)4/19/2007 9:35:21 AM
No

Inmate's file, it is incumbent upon the Board of Pardons to assert the privacy and 

penological interests involved. Only where the Board of Pardons or reviewing court 

determines that "the demand of individual privacy clearly exceeds the merits of 

public disclosure," Art. II, § 9, Mont. Const., or that a legitimate penological interest 

is served by nondisclosure, may access to an Inmate's parole files be denied.

¶38 The Inmates also argue that the Board of Pardons' failure to allow them to 

inspect and copy the contents of their parole files violates § 2-6-102, MCA. Section 2-

6-102, MCA, states that "[e]very citizen has a right to inspect and take a copy of any 

public writings of this state . . . ." We determine that if a party is entitled to access an 

Inmate's parole file under the right to know, he or she may also copy the information 

contained therein pursuant to § 2-6-102, MCA.

¶39 Based on the foregoing, we hold that the District Court erred in dismissing the 

Inmates' claim that the Board of Pardons violated their constitutional right to know. 

We remand for further proceedings consistent with this opinion. 

¶40 2. Do the Inmates have a right to inspect their parole files under the due process 

clauses of the Montana or federal constitutions? 

¶41 Those Inmates who committed offenses prior to 1989 also argue that by denying 

them access to the information contained in their parole files, the Board of Pardons is 

violating their due process rights. Prior to 1989, § 46-23-201, MCA (1987), stated that 

"the board shall release on parole . . . any person confined in the Montana state 

prison or the women's correctional center . . . when in its opinion there is reasonable 

probability that the prisoner can be released without detriment to the prisoner or to 

the community." The United States Supreme Court has held that the mandatory 

language of this statute, "shall release," creates a liberty interest in parole that is 

protected by the due process clause of the federal constitution. Board of Pardons v. 

Allen (1987), 482 U.S. 369, 377, 107 S.Ct. 2415, 2420, 96 L.Ed.2d 303. 

¶42 In response to Allen, the Montana legislature amended § 46-23-201, MCA, to 

state that "the Board may release" inmates on parole when there is a reasonable 

probability that the prisoner can be released without detriment. Section 46-23-201, 

MCA (1989). The State argues that this amendment extinguished any federallyprotected liberty interest in parole for all Montana Inmates. However, while those 

Inmates who committed offenses after 1989 concede that they have no liberty interest 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (12 of 15)4/19/2007 9:35:21 AM
No

in parole, those Inmates who committed their crimes prior to 1989 argue that they 

are entitled to due process protections. We agree.

¶43 Nevertheless, the due process to which an inmate is entitled at a parole eligibility 

hearing is substantially less than that to which he or she is entitled in an adversarial 

hearing. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979), 

442 U.S. 1, 15, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668; Sage v. Gamble (1996), 279 Mont. 

459, 929 P.2d 822. In Greenholtz, 442 U.S. at 16, Nebraska statutes provided that an 

inmate eligible for parole be given an opportunity to be heard by the parole board 

and, if parole was denied, be informed in what respects the inmate failed to qualify. 

The inmates claimed that this procedure violated due process, arguing, inter alia, 

that the parole board should be required to specify the particular evidence on which 

it based its decision. Greenholtz, 442 U.S. at 15. The Supreme Court held that a full, 

adversarial hearing is not required and that Nebraska's procedure, which allowed 

inmates to appear before the parole board and present statements on their own 

behalf, satisfied due process. Greenholtz, 442 U.S. at 15-16. The Court noted that this 

procedure was sufficient to ensure that the board was indeed reviewing the records 

of the parolee before it and allowed the parolee to present considerations as to why 

he or she was an appropriate candidate for parole. Greenholtz, 442 U.S. at 16. 

¶44 This Court applied Allen and Greenholtz in Sage v. Gamble, 929 P.2d at 825. In 

Sage, 929 P.2d at 823, the petitioner was convicted of a crime committed in 1982 and 

became eligible for parole in 1993. The Board of Pardons did not allow the petitioner 

to appear before it and denied him parole. Sage, 929 P.2d at 823. The petitioner filed 

a writ of habeas corpus, arguing that he had a due process right to appear at his 

parole hearing personally. Sage, 929 P.2d at 823. The district court agreed and 

granted his writ. On appeal, this Court determined that under Allen, 482 U.S. at 377, 

the petitioner did have a liberty interest in parole. Sage, 929 P.2d at 825. Further, we 

inferred from Greenholtz, 442 U.S. at 15-16, that due process requires the Board of 

Pardons to allow parolees to appear before it personally to verify or refute the 

accuracy of the Board's records and to present any special considerations showing 

that the parolee is an appropriate candidate for parole. Sage, 929 P.2d at 825-26. 

¶45 Those Inmates entitled to due process protection argue that to ensure the 

accuracy of the Board of Pardons' records, a right to which they are entitled under 

Sage, they must have access to their files. However, no precedent of the United States 

Supreme Court or of this Court leads us to conclude that the due process clause of 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (13 of 15)4/19/2007 9:35:21 AM
No

either the U.S. or Montana constitutions require that Inmates be allowed to inspect 

the specific information contained in the Board of Pardons' files. Rather, the purpose 

of the procedure approved in Greenholtz, 442 U.S. at 16, is to give the parolee an 

opportunity to verify that it is his or her file that the parole board has before it. The 

United States Supreme Court noted:

[W]e find nothing in due process concepts as they have thus far evolved that 

requires the Parole Board to specify the particular "evidence" in the inmate's 

file or at his interview on which it rests the discretionary determination that an 

inmate is not ready for conditional release. 

Greenholtz, 442 U.S. at 15. 

¶46 Further, in Sage, 929 P.2d at 826, we held that a parolee must be given a 

personal appearance before the Board of Pardons not to give the parolee an 

opportunity to examine and refute evidence in the Board's files, but rather to give the 

parolee an opportunity to speak on his or her own behalf and to ensure that the 

Board is reviewing the proper file. Therefore, we hold that due process does not 

require that the Inmates be allowed to review the contents of their parole files. 

¶47 Based on the foregoing, we affirm the District Court's dismissal of the Inmates' 

claim that the Board of Pardons violated their due process rights.

¶48 Reversed in part, affirmed in part, and remanded for further proceedings.

/S/ W. WILLIAM LEAPHART

 We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (14 of 15)4/19/2007 9:35:21 AM
No

/S/ ED McLEAN

Judge of the District Court, sitting for

Justice Jim Regnier

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-394%20(07-07-98)%20Opinion.htm (15 of 15)4/19/2007 9:35:21 AM