The Nevada Supreme Court is reconsidering whether parole hearings are judicial proceedings which can be closed or if they fall under the open meeting law.
But the case filed by inmate John Witherow may ultimately hang on a much more basic question - whether any inmate has standing to bring a court action involving a parole question.
The court originally decided Nevada Revised Statutes don't specifically exempt parole hearings from the open meeting law and, therefore, they must comply with that statute.
That ruling caused the parole board to shut down in October with board Chairwoman Dorla Salling saying it would be practically impossible to follow the open meeting law and handle hundreds of hearings a month.
The court responded by agreeing to reconsider the case, staying the Witherow ruling until the issue is resolved.
The board operated for decades as a quasi-judicial body exempt from the rules in the open meeting law. That allowed them to limit public testimony, deliberate in private and keep personal data of both inmate families and victims confidential.
Reno lawyer Don Evans told the high court Tuesday there is no exemption for the parole board and, therefore, under Nevada law, the board must comply with the open meeting law. He said if, instead, the board is considered judicial, it must provide inmates with full due process rights. He said his client, Witherow, isn't challenging the board's power to deny his parole, only their power to ignore the open meeting law. Specifically, he wanted his mother and sister to be allowed to speak on his behalf before the board.
Chief Deputy Attorney General Joe Ward argued the board derives its judicial authority from the court which originally sentenced the inmates whose cases the board hears and, therefore, isn't bound by the open meeting law.
He said prior Nevada Supreme Court rulings as well as the 9th U.S Circuit Court of Appeals and U.S. Supreme Court have all recognized that parole boards are judicial proceedings.
Ward also argued the case should be tossed out because Nevada law is clear there is no right to parole and no inmate right to challenge a parole board action of any type in court.
"It's an act of grace," he said adding that inmates have "absolutely no right to bring a cause of action."
Evans, however, argued any person has a right to sue under the open meeting law including a prison inmate.
If the high court decides statute doesn't exempt the parole board from the requirements of the open meeting law, Salling has said it is important they do so before the 2007 Legislature adjourns so the board has time to ask lawmakers to make that exemption.
• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.