Parole hearings not public unless prisoner release likely

• Nebraskans cannot attend parole hearings unless the subject of the hearing is likely to be granted release, the state Court of Appeals ruled.

Feb. 16, 2005 — Two state prisoners serving life terms failed in bids to open their parole board hearings to the public last month when the Nebraska Court of Appeals ruled that the state’s open meetings law did not apply.

Judge William B. Cassel, writing for a unanimous three-judge panel, ruled that the Nebraska Board of Parole review hearings do not involve the formulation of public policy, the trigger for determining whether such meetings are public, according to a 1990 state Supreme Court ruling.

“The action of the board in merely reviewing an inmate’s record to determine parole eligibility is not a formulation of public policy,” Cassel wrote.

Cassel also cited Nebraska law requiring public hearings before granting parole in cases where “the offender is reasonably likely to be granted parole.” The law’s existence shows that if the legislature made a point of granting access to one class of parole board hearing, then it must have operated on the assumption that parole board hearings were generally closed.

In 2002, Thomas E. Nesbitt became eligible for parole and was denied. Upon his request, the Nebraska Board of Parole reconsidered its decision in 2003, but arrived at essentially the same conclusion: Because Nesbitt had recently been the subject of a prison “misconduct report,” he must wait until 2006 to become eligible again. The parole board’s notification letter included a reminder that inmates were not entitled to transcripts or audiotapes of offender board review hearings since the hearings are not subject to open meetings law.

Nesbitt sued, alleging that the closed 2002 meeting violated state open meetings law. He asked for access to a tape recording of the meeting, and an order mandating public parole board meetings. The trial court dismissed the case for jurisdictional problems, and Nesbitt petitioned the appellate court for a decision on the merits of the case. Another inmate, Gary Pope, intervened to support Nesbitt’s position.

(Pope v. Nebraska Bd. of Parole; Counsel: James L. Stanton; Omaha, Nebraska) — RL

© 2005 The Reporters Committee for Freedom of the Press

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