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Quigg v. Salmonsen

Supreme Court of Montana

March 13, 2018

GARY L. QUIGG, Petitioner,
v.
JIM SALMONSEN, Acting Warden of the Montana State Prison; the MONTANA BOARD OF PARDONS & PAROLE; and the STATE OF MONTANA, Respondents.

          ORDER

         Gary L. Quigg petitions for habeas corpus relief from his alleged unlawful imprisonment and restraint because of a 2017 parole revocation by the Board of Pardons and Parole (Board). He includes a memorandum and supporting documents.

         In 1969, a jury found Quigg guilty of murder in the first degree, and the Thirteenth Judicial District Court sentenced him to life imprisonment. State v. Quigg, 155 Mont, 119, 121-22, 467 P.2d 692, 693-94 (1970). Quigg has been granted parole several times, [1]including a release from Montana State Prison (MSP) in 1993, followed by revocation of his parole in 1996, and his parole in May 2006, Quigg contends that his rights under the Montana and United States Constitutions were violated during his on-site and parole revocation hearings leading to his 2017 revocation. Quigg first contends that the on-site hearing was improper because he could not present his witnesses due to the hearing's location in the jail. He explains that following his arrest on September 15, 2015, he received from his Probation and Parole Officer (P.O.) a copy of the Report of Violations (ROV), which listed the alleged parole violations, specifically, Rule 8 (Laws and Conduct) and Rule 9 (Illegal Drug Use). Quigg states that, in response, he "completed a form specifying the names of witnesses he wished to call in his behalf and gave [the] same to [his] P.O....." He was later informed that the on-site hearing would be held at the Yellowstone County Detention Facility, and learned at the hearing that the facility's commander had refused attendance to his witnesses. Quigg asserts that this denial was "in direct disobedience of clearly established United States Supreme Court law on subject as outlined in Morissey v. Brewer.''' 408 U.S. 471, 92 S.Ct. 2593 (1972). He further challenges the underlying basis of the ROV, and he asserts various anomalies with this on-site hearing.

         Morissey set forth the nature of the process that is due in a parole revocation proceeding, which has been codified in statute by many states. Recognizing that "the liberty [of a parolee] is valuable and must be seen as within the protection of the Fourteenth Amendment[, ] [i]ts termination calls for some orderly process, however informal." Morissey, 408 U.S. at 482, 92 S.Ct. at 2601. In one of Quigg's prior proceedings, we explained that this Court has followed the requirements of Morissey:

In Sage [v. Gamble, 279 Mont. 459, 465, 929 P.2d 822, 825 (1996)], we adopted the United States Supreme Court's reasoning that "due process in the context of parole does not require 'repeated adversary hearings. . . .'" Moreover, we explained "at minimum, ... the prisoner be provided an opportunity to be heard and a written statement explaining why he was denied parole."

Quigg v. Slaughter, 2007 MT 76, ¶ 45, 336 Mont. 474, 154 P.3d 1217 (citations omitted); see also McDermott v. Mahoney, 2001 MT 89, ¶¶ 10-11, 305 Mont. 166, 24 P.3d 200 (noting the flexible nature of due process).

         Thus, Morissey held that the process required, first, a finding of a parole violation based on verified facts to support the revocation. "What is needed is an [initial] informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." Morissey, 408 U.S. at 484, 92 S.Ct. at 2601. This process has been codified in Montana statutes. Sections 46-23-1001 through 46-23-1032, MCA (2015). About the subsequent parole revocation hearing, Morissey held that "[t]he parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, " but that the inquiry is a narrow one. Morissey, 408 U.S. at 488-89, 92 S.Ct. at 2603-04.

         1) On-Site Hearing

         Section 46-23-1024(2), MCA (2015), provides that an initial hearing after an arrest "is an on-site hearing and must be held to determine whether there is probable cause or reasonable grounds . . . ." Further, the parolee "must be given notice of the hearing and must be allowed to appear and speak in the parolee's own behalf and introduce relevant information to the hearings officer." Section 46-23-1024(2), MCA (2015). Quigg was informed of the reasons for his arrest and was also provided a copy of the ROV. He admits that he was aware of the on-site hearing, and that he had the opportunity to appear and speak for himself. Quigg also received a copy of the Summary of On-Site Hearing as prepared by the Hearings Officer. Section 46-23-1024(3), MCA (2015). Quigg was thus given proper notice of the proceeding and the opportunity to participate.

         Quigg argues that the denial of the attendance of his witnesses violated Morissey, Although not expressly addressed in statute, witness participation is addressed in Montana by regulation:

The parolee may have witnesses attend the on-site hearing, but only //they witnesses have relevant testimony to present concerning whether the parolee did or did not violate the conditions of release on parole, and only if the witnesses can qualify to enter the correctional facility if the hearing is held in a secure facility.

         Admin. R. M. 20.25.801(6) (2012) (emphasis added). The Hearings Officer noted that the attendance of Quigg's witnesses, who were likewise detained at the facility, was denied by the detention facility commander for security concerns, which is an exception to witness attendance stated in Rule 801(6). Consequently, the hearing officer contacted Quigg's witnesses in person and offered to take their recorded or written statements to be presented at the hearing. One written statement from a witness was received and read during the proceeding. Quigg appeared at the on-site hearing with counsel. After consideration of the process given to Quigg, we conclude that his complaints about on-site hearing lack merit. The hearing officer properly found that probable cause had been established and recommended "to hold the parolee for the final decision of the board . . .." Section 46-23-1024(3), MCA (2015).

         2) Parole Revocation Hearing

         Quigg was placed in MSP on October 8, 2015, pending a hearing before the Board. The initial hearing was scheduled for October 30, 2015, but was continued to November 24, 2015. At that time, the Board granted his request for counsel, and continued the hearing.[2] Later, on September 19, 2017, the Board rescinded its order appointing counsel for Quigg.

         Quigg questions the delay of his hearing from October to November 2015. Quigg argues the Board's decision to rescind its earlier order appointing counsel was "an indication of bad faith, malice and ill will directed toward [him] as a result of having filed previous successful litigation against the Board." He contends that his subsequent parole denial after his appearance before the Board was a waste of taxpayer money, and that he should have been "re-paroled" despite his federal ...


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