Cite as Phillip v. Kosrae State Parole Bd.,11 FSM Intrm. 331 (Kos. S. Ct. Tr. 2003)

[11 FSM Intrm. 331]

CIVIL ACTION NO. 78-02

Hearing: January 15, 2003
Decided: January 20, 2003

APPEARANCES:

HEADNOTES

Criminal Law and Procedure – Parole

The Kosrae Parole Board must consider any written statements and recommendations of the presiding justice. If one is not in the file, the Board, upon receipt of a parole petition, will serve a written notice on the presiding justice, who may, in his sole discretion, submit or decline to submit a written statement or recommendation. If no written statement and/or recommendation is received by the Parole Board from the presiding justice within the specified 10 day period, the Parole Board shall so state in its submission to the Governor. Phillip v. Kosrae State Parole Bd., 11 FSM Intrm. 331, 332-33 (Kos. S. Ct. Tr. 2003).

Criminal Law and Procedure – Parole

The Kosrae Parole Board will not consider any verbal statements made by the presiding justice. Phillip v. Kosrae State Parole Bd., 11 FSM Intrm. 331, 333 (Kos. S. Ct. Tr. 2003).

[11 FSM Intrm. 332]

COURT'S OPINION

YOSIWO P. GEORGE, Chief Justice:

On September 4, 2002, Petitioner filed a Writ of Mandamus to require the Parole Board to issue written findings regarding the Petitioner's Petition for commutation of his criminal sentence. On September 23, 2002, the Parole Board submitted supplemental findings and recommendation dated September 18, 2002, regarding the Petitioner's Petition. On November 7, 2002, Petitioner filed a Motion for Default Judgment, claiming that the Respondents have failed to file a timely response to the Petition. On November 11, 2002, the Respondents filed a Response to Motion for Default Judgment, which included the supplemental findings and recommendation of the Parole Board dated September 18, 2002. A hearing on the Petition for Writ of Mandamus and Motion for Default Judgment was held on January 15, 2003. Sean Lynch, Public Defender, appeared for the Petitioner. Respondents were represented by Danny Clearman, Assistant Attorney General.

After the hearing, I took the matter under advisement. This Order sets forth the Court's decision and reasoning.

The Petitioner is currently serving a sentence of incarceration for a term of 15 years for three felony convictions for the offense of aggravated assault. Petitioner has filed a Petition for commutation of his criminal sentence. The Regulations Establishing Uniform Written Standards for Consideration of Reprieve, Commutation, Pardon or Parole After Criminal Conviction ("Regulations") govern the timing and procedure for submission and review of petitions for reprieve, commutation, pardon and parole. The Regulations require the Parole Board to consider any statement and/or recommendation made by the Presiding Justice. The Regulations also provide that if a statement by the Presiding Justice is not in the court file, the Parole Board shall serve a request for such statements or recommendations upon the Justice prior to its consideration of the petition. The Justice may file with the court any time after conviction the statement or recommendation mentioned herein. Regulations, Section 6.1

In this case, the Chairman of the Parole Board contacted the Presiding Justice. The Presiding Justice declined to make a written recommendation in this case. The parties dispute whether the Presiding Justice had agreed to provide a verbal statement for transcription by the Parole Board secretary, and whether the Parole Board had an obligation to transcribe a verbal statement by the Presiding Justice. Thus, the sole issue remaining in this matter relates to the specific duties of the Parole Board to request, obtain, and/or transcribe a statement or recommendation made by the Presiding Justice.

In the interest of maintaining judicial integrity and independence, and establishing a proper record for all petitions submitted to the Parole Board for consideration, I make the following findings and order regarding a statement and/or recommendation made by a Presiding Justice:

1. The Regulations, Section 6.1 refer to the written statements and recommendations of the Presiding Justice, if any. Accordingly the Parole Board shall consider only written a statement and/or recommendation made by a Presiding Justice, if any.

2. The Parole Board shall serve a written notice to the Presiding Justice upon receipt of a Petition for Commutation, Pardon, Parole or Reprieve. The written notice shall identify the Petitioner, the Kosrae State Court case number, and shall request a written statement and/or recommendation from the Presiding Justice, to be submitted by the Presiding Justice to the Parole Board within 10 days.

[11 FSM Intrm. 333]

3. The Presiding Justice may submit a written statement and/or recommendation to the Parole Board, in his sole discretion. The Presiding Justice may decline to submit a written statement and/or recommendation to the Parole Board, in his sole discretion.

4. If no written statement and/or recommendation is received by the Parole Board from the Presiding Justice within the specified 10 day period, the Parole Board shall state in its submission to the Governor that: "The written statement and recommendation of the Presiding Justice was requested in writing. The Presiding Justice has declined to make a written statement or recommendation in this case."

5. Any verbal statements made by the Presiding Justice shall not be considered. The Parole Board does not have any obligation to transcribe any verbal statements or recommendations made by the Presiding Justice.

The Writ of Mandamus is granted. The Respondent shall follow the procedures set forth in this memorandum, paragraphs 1 through 5, in the Petition of John T. Phillip, and in all petitions for reprieve, commutation, pardon or parole which are currently pending with the Parole Board or are submitted to the Parole Board hereafter.