                    IN THE SUPREME COURT OF THE STATE OF'IDAHO

                                        Docket No. 40021

IN THE MATTER OF THE VERIFIED                      )
COMPLAINT AI\D ALTERNATE WRIT                      )
AND REQUEST FOR STAY OF'                           )
EXECUTION.                                         )
                                                   )          Boise, June   20l2Term
RICHARD H. LEAVITT,                                )
                                                   \           2012 Opinion No. 89
      Petitioner,                                  )
                                                   )          Filed: June 8,2012
v.                                                 )
                                                   )          Stephen Kenyon, Clerk
OLMA       CRAVEN, et al.,                         )
                                                   )
      Respondents.                                 )
                                                   )


         Complaint for Writ of Mandamus and Alternate Writ and Request for Stay    of
         Execution.

        Alternative requests for Writ of Mandamus and Alternate Writ for Stav of
        Execution, denied.

        David Nevin, Boise, for appellant.

        Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.




HORTON, Justice.
        Richard A. Leavitt petitions this Court for a writ of mandamus directing the Commission
of   Pardons and Parole (Commission)     to   schedule   a full hearing on Leavitt's petition for
commutation and comply with its rules for such a hearing by publishing notice of the time and
place of the hearing in a newspaper of general circulation at least once a week for four weeks
prior to the hearing.
                        I. FACTUAL AND PROCEDURAL BACKGROUND
        The facts of this case were recently set forth in this Court's opinion declining to stay
Leavitt's execution:
In 1984, Leavitt brutally atlacked, sexually mutilated, and murdered a 31 year-old
woman, Danette Elg, in Blackfoot, Idatro. In 1985, a jury found Leavitt guilty of
first-degree murder for the killing of Danette Elg. The district court held a
sentencing hearing and imposed the death sentence. In 1986, Leavitt filed a
petition for post-conviction relief, which was denied by the district court. In 1989,
this Court affrrmed Leavitt's conviction, but reversed his death sentence because
the trial court failed to adequately weigh all the mitigating factors against the
statutory aggravating factor that the murder was especially heinous, atrocious or
cruel, manifesting exceptional depravity. On remand, the district court held
another sentencing hearing and found that all of the mitigating factors did not
outweigh the single aggravating factor that the murder was especially heinous,
atrocious or cruel, manifesting exceptional depravity. Therefore, the district court
 again sentenced Leavitt to death. Leavitt appealed to this Court, arguing that his
constitutional rights were violated because the judge, and not a jury, made the
determination regarding whether the mitigating circumstances outweighed the
aggravating nature of the crime. This Court upheld Leavitt's death sentence in
1992.

The district court issued a death wanant on February 5,1992, scheduling the date
of execution for February 28, 1992. Leavitt filed a motion to stay the death
wa:rant, which was denied by this Court. The next day, Leavitt requested a stay
from the Supreme Court of the United States. On February 25,1992, the Supreme
Court of the United States granted Leavitt's stay of execution. The stay expired
upon the Supreme Court's denial of certiorari on November 9, 1992. For reasons
unknown, the State did not request a new death warant until recently.

In  1993, Leavitt filed a Petition for Writ of Habeas Corpus in the United States
District Court for the District of Idatro. In 2000, Judge Winmill granted habeas
relief because of an improper jury instruction and ordered the State to retry
Leavitt within 120 days. The State appealed and the United States Court of
Appeals for the Ninth Circuit reversed Judge Winmill's order, holding that federal
courts are procedurally barred from granting reliefbased upon an erroneousjury
instruction. The United States Court of Appeals for the Ninth Circuit remanded
the case to determine whether Leavitt's resentencing hearing in 1989 violated his
constitutional rights. On remand, in2007, Judge Winmill again granted habeas
relief enjoining the State from imposing a death sentence unless a new sentencing
hearing was given. The State appealed and in 2011, the United States Court of
Appeals for the Ninth Circuit reversed Judge Winmill's decision. On May 11,
2012, Leavitt filed a Motion for Relief from Judgment pursuant to Federal Rule of
Civil Procedure 60(b) in the United States District Court. On May 14,2012, the
Supreme Court of the United States denied Leavitt's Petition for Certiorari. On
May 16, 2012, the United States Court of Appeals for the Ninth Circuit issued a
mandate automatically lifting any stay previously imposed by Judge Winmill. On
June l, 2012, Judge Winmill denied by order Leavitt's Motion for Relief from
Judgment and denied Leavitt's request for a stay of execution. Leavitt's appeal of
this order is presently pending before the United States Court of Appeals for the
Ninth Circuit.
       Anticipating the issuance of a new death warrant, on May 15,2012, Leavitt filed a
       Notice of Demand for Opporhrnity to be Heard regarding the Issuance of the
       Death Warrant in district court. On May 17,2012, LaMont Anderson, Deputy
       Attorney General for the State of Idaho, traveled to Blackfoot, Idaho and asked
       Judge Shindurling to issue a new death warrant. In Leavitt's motion, he conceded
       that no stay of execution was in place and that a sentence of death existed, but
       argued that the court should not issue a death warrant because of Leaviff's
       pending motion in federal court. At 10:50 a.m. on May 17,2012, the district court
       denied the motion based upon Leavitt's failure to show that a stay of execution
       existed or dispute the existence of the death sentence. In explaining the denial of
       Leavitt's motion, Judge Shindurling based his decision upon Idaho Code section
        19-2715(5) and stated "[flurther action by this court is ministerial only and '[n]o
       hearing shall be required for setting a new execution date and the court shall
       inquire only into the fact of an existing death sentence and the absence of a valid
       stay of execution."'Then, Judge Shindurling signed the death wa:rant, which was
       filed at approximately lI.,28 a.m. The death warrant scheduled Leavitt's
       execution for June 12,2012.

       On May 18,2012, Leavitt filed a Motion for Reconsideration in district court,
       arguing that his execution was ba:red by the permanent injunction of the federal
       court, based upon Judge Winmill's 2007 judgment granting habeas relief for
       Leavitt's sentencing. Judge Shindurling denied Leavitt's motion on May 21,
       2012. That same day, Leavitt filed his Notice of Appeal to this Court, appealing
       from the issuance of the death warrant signed by Judge Shindurling on May 17,
       2012, scheduling the execution for June 12, 2012. On May 23,2012, Leavitt filed
       a Motion to Quash the Death Warrant in the district court. On May 29,2012, a
       Verified Petition for a Peremptory Writ of Mandamus Directing the Court to
       Vacate the Issuance of the Death Warrant and Conduct a New Hearing was also
       filed by Leavitt in this Court. On May 30,2012, Judge Shindurling held a hearing
       on the Motion to Quash the Death Warant in which Leavitt's counsel attended.
       The district court denied Leavitt's Motion to Quash, explaining that there was no
       reason to quash the death warrant. On May 30, 2012, Leavitt filed a Notice of
       Appeal from the district court's denial of his Motion to Quash, raising the same
       issues that were presented in his first Notice of Appeal from the issuance of the
       death warrant. On May 3I,2012, the district court entered its Order Denying the
       Motion to Quash the Death Warrant. On May 31, 2012, this Court entered an
       Order Denying Leavitt's Petition for a Peremptory Writ of Mandamus.

State v. Leavitt, 39941, 2012       WL 199498I (Idaho      June 5, 2012). This Court affirmed the
issuance   of the death warrant and the district court's denial of Leavitt's motion to quash. Id. at
*7. On May 25,2012, Leavitt sent a letter to the Commission, in conjunction with his petition for

commutation, requesting      :


       a.    a   full hearing in open session on his commutation petition;
         b.   that notice of the time and place of all hearings concerning Mr. Leavitt's
              commutation petition be published in a newspaper of general circulation at
              least once a week for four weeks prior to the hearing(s); and
         c.   that the Commission recommend to the Governor that a reprieve of the June
               12,2012 execution date be granted so that the Commission could perform its
              ministerial duties and Mr. Leavitt's rights could be satisfied.

In an executive session on June 5,2012,the Commission denied Leavitt's request for a hearing.l
Leavitt filed a complaint for a writ of mandamus on June 6,2012, asking this Court to order the
Commission to schedule a full hearing in open session with notice to be published at least once
per week for four weeks prior to the hearing. In the alternative, Leavitt asked the Court to set a
date for a hearing wherein the Commission must show cause why a                         full hearing should not be
conducted.
                                        II. STAIIDARD OF REVIEW
         The Idatro Constitution and Idatro Code grant this Court original jurisdiction to issue
writs of mandamus. Idaho Const. art.V, $ 9; I.C. $ 1-203. Under the Idaho Appellate Rules,
"[a]ny person may apply to the Supreme Court for the issuance of any extraordinary writ or other
proceeding over which the Supreme Court has original jurisdiction." I.A.R. 5(a). Such writs
"may be issued . .      .   to compel the performance of an act which the law especially enjoins as a
duty resulting from an office, trust or station; or to compel the admission of a party to the use and
the enjoyment of a right or offrce to which he is entitled, and from which he is unlawfully
precluded by such inferior tribunal, corporation, board or person." I.C. $ 7-302. Further:
         This Court has held that mandamus is the proper remedy for one seeking to
         require a public officer to carry out a clearly mandated ministerial actwhich is not
         discretionary. However, the existence of an adequate remedy in the ordinary
         course of law, either legal or equitable in nature, will prevent the issuance of a
         writ of mandamus. The party seeking the writ of mandamus has the burden of
         proving the absence of an adequate, plain, or speedy remedy in the ordinary
         course of law.

' There is a subtle difference in the positions of the parties. Leavitt's complaint focuses on the decision to deny a
hearing on the petition for commutation. The Commission's response indicates that the Commission "made a
determination to recommend to the Governor denial of Leavitt's commutation petition." The record does not include
the minutes of the Commission's meeting, if such have been prepared. (Idatro Code $ 67-2344(l) provides that
"[a]ll minutes shall be available to the public within a reasonable time after the meeting...." Idaho Code g 67-
2344(2) provides that minutes from an executive session identifo the statutory authority for convening an executive
session and identifr the "purpose and topic" of the executive session.) Because we agree with Leavitt's contention,
in his brief in support of the petition, that denial of a commutation hearing is "a fde factol final decision denying the
commutation petition," this opinion will focus on the fact that the Commission decided, in executive session, to
deny Leavitt's request for a public hearing on his petition following notice and publication as provided by IDAPA
50.01.01 .450 .02.qb.
Edwards v. Indus. Comm'n, l3}Idatro 457, 459-60,943 P.zd 47, 49-50 (1997) (emphasis added)
(citations omitted).
           Because "constitutional questions and questions of statutory interpretation are questions
of law," this Court exercises free review over both. Stuart v. State, 149 Idaho 35, 40,232                         P.3d

813, 818 (2010) (citing Federated Publ'ns, Inc. v. Idaho Bus. Rev., Inc., 146Idaho 207,210,192
P.3d 1031, 1034 (2008)). Further, in cases involving the constitutionality of a statute:
           There is a presumption in favor of the constitutionality of the challenged statute or
           regulation, and the burden of establishing that the statute or regulation is
           unconstitutional rests upon the challengers. An appellate court is obligated to seek
           an interpretation of a statute that upholds it [sic] constitutionality. The judicial
           power to declare legislative action unconstitutional should be exercised only in
           clear cases.

Stuart v. State, 149 Idaho at 40,232 P.3d at 818 (citations omitted).


                                                   III. ANALYSIS
A. Procedures for writs of mandamus.
           We begin by noting that under I.A.R. 5(a), no response to an application for a writ of
mandamus is permitted "unless the Supreme Court requests a party to respond to the application
before granting or denying the same." Further, the Appellate Rules also permit this Court, in the
exercise of its discretion, to order briefing or argument. I.A.R. 5(c).2

           In this case, we requested the Commission to file a brief in response to Leavitt's petition
pursuant to Idaho Appellate Rule 5(a), and the Commission timely filed its response. However,

because      of the expedited nature of the proceedings, we declined to order oral argument                        and

instead have determined that this matter may be decided upon the basis of Leavitt's petition and
the Commission's response.
B. Procedural Considerations.
           The Commission argues that Leavitt's petition does not comply with I.A.R. 5(b), which
provides that a          writ of   mandamus "shall issue only upon petitions verified                   by the party
beneficially interested therein and upon briefs in support thereof frled with the Clerk of the

2
    I.A.R. 5(c) provides, in relevant part:
            (c) Procedure for Issuance of Writs. Special writs, except writs of habeas corpus, shall issue as
            herein provided. . . . The court may enter an order providing for briefrng and oral argument prior
            to issuance of a writ . . . . If such an order is entered, briefing shall be conducted in the manner
            outlined in the order as supplemented by these rules. The briefs shall be in the form prescribed by
           Rule 32(e).
 Supreme Court." The Commission is correct that Leavitt's verified petition fails to comply with
 the Rule because, while the petition is verified by Leavitt's attorney, it is not verified by Leavitt,
 the "party beneficially interested" in the petition. While we note the deficiency, we                        also
 recognize that the defect is easily curable. Therefore, in consideration of the parties' interest in
 an expedited resolution of this matter, we       will   address the merits of   Leavitt's claim for relief.3
 C. Leavitt does not have an adequate remedy at law that would preclude issuance of an
 extraordinary writ.

         Leavitt's complaint is predicated upon his contention that Idaho's open meetings law,
I.C. $$ 67'2340, et seq., required that the Commission conduct an open hearing on his request
for hearing on his petition for commutation rather than decide the maffer in executive session.
The Commission argues that the requested writ of mandamus may not issue because Leavitt has
an adequate remedy at law, specifically, the ability to pursue a civil action for the claimed
violation of the open meeting law ptnsuant to I.C. S 67-2347(6).
        The Commission's argument ignores the existence of I.C. $ 19-2708, which provides:
"No judge, cowt or officer, can suspend the execution of a judgment of death, except as provided
in sections 19-2715 and 19-2719, Idatro Code." These statutes do not permit a magistrate judge,
considering a claimed violation of Idaho's open meetings law, to stay execution of the death
warrant that is in place and which directs that Leavitt be put to death on Tuesday, June 12,2012.
If there is merit to Leavitt's contention that the Commission's actions violated the open meetings
law, it is manifest that pwsuing a civil action in the magistrate division of the district court will
not provide Leavitt with a timely, adequate remedy.
D. The Commission was not required to grant Leavitt a full, open session hearing
regarding his commutation petition.

         Leavitt argues that by failing to hold a full, open session hearing on the denial of his
commutation petition, the Commission violated his right to due process as guaranteed by the
Fourteenth Amendment to the United States Constitution. We note that Leavitt does not argue
that he has due process rights independent of those granted by the relevant Idatro statutes and
rules. Rather, he argues that the due process violation is a consequence of the Commission's




' Similar considerations led this Court to disregard the fact that Leavitt's complaint named two former members   of
the Commission. Rather, this Court elected to order amendment of the caption of this action.
failure to comply with the existing procedural guarantees provided by Idaho law and the Idaho
Constitution.
        l.   The Commission's decision did not violate the Idatro Constitution.
        The pertinent portion of article IV, $ 7 of the Idaho Constitution, governing the board       of
pardons, provides:

        Said board, or a majority thereof, shall have power to remit fines and forfeitures,
        and, only as provided by statute, to grant commutations and pardons after
        conviction and judgment, either absolutely or upon such conditions as they may
        impose in all cases of offenses against the state except treason or conviction on
        impeachment. The legislature shall by law prescribe the sessions of said board
        and the manner in which application shall be made, and regulate proceedings
        thereon, but no fine or forfeiture shall be remitted, and no commutation or pardon
        granted, except by the decision of a majority of said board, after a full hearing in
        open session, and until previous notice of the time and place of such hearing and
        the release applied for shall have been given by publication in some newspaper of
        general circulation at least once a week for four weeks. The proceedings and
        decision of the board shall be reduced to writing and with their reasons for their
        action in each case, and the dissent of any member who may disagree, signed by
        him, and filed, with all papers used upon the hearing, in the offrce of the secretary
        of state.

Idaho Const. art. IV, $ 7.
        There are two aspects of article IV, $ 7 that pertain to this appeal. First, there is a specific
grant of authority to the legislature to prescribe procedures governing applications for clemency.

Second, article     IV, $ 7 provides that no commutation or pardon may be granted without the
Commission first having conducted an open hearing following notice and publication. Leavitt
argues that while the first provision authorizes the legislature to determine the process by which

applications for commutation are made and considered, the second provision limits that power.
To the extent that Leavitt is arguing that article IV, $ 7 gives rise to a duty to grant a full hearing
and notice prior      to denial of a petition for      clemency, we disagree, and hold that the
Commission's decision to deny his petition for commutation in executive session did not violate
the Idaho Constitution.
       "[G]enerally, the statutory rules        of construction apply to the interpretation of
constitutional provisions." State ex rel. Kempthorne v. Blaine Cnty.,l39 Idaho 348,350,79 P.3d
707,709 (2003) (citing Sweeney v. Otter, 1 19 Idaho 135, 138, 804 P.2d 308,       31   I (1990). When
interpreting statutes, we "begin[] with the literal words of a statute, which are the best guide to


                                                   7
determining legislative intent." St. Luke's Magic Valley Reg'l Med. Ctr., Ltd. v. Bd. of Cnty.
Comm'rs of Gooding Cnty.,149 Idaho 584, 593, 237 P.3d        l2l0,I2l9   (2010) (citing Doe v. Boy
Scouts of America, 148 Idatro 427,430,224P.3d 494,497 (2009). "Where a statute is clear and
unambiguous the expressed intent of the legislature must be given effect." McNeal v. Idaho Pub.
Uilities Comm'n, I42Idaho 685, 690-91,       132 P.3d 442, 447-48 (2006) (quoting State, Dept.    of
Low Enforcement v. One 1955 Willys Jeep,      l}}Idaho   150, 153, 595P.2d299,302 (1979)).
          Leavitt's reliance on article IV, $ 7 is misplaced. The plain language of article IV, $ 7
does not require that all decisions relating to clemency be the product of open sessions following

notice and publication. Rather, the requirement       of an open session following notice       and
publication applies only to the Commission's decisions to grant clemency. In this case,           as

recognized in Leavitt's briefing, clemency was effectively denied. There is no textual basis for
infening a reciprocal requirement of notice, publication and open hearing in the event that the
Commission determines that clemency         will not be considered. Therefore, we hold that the
Commission's decision to deny Leavitt's petition in executive session did not violate article IV,

$ 7 of the Idaho Constitution.


       applications.

       Leavitt argues that under Idaho's open meetings law, the denial of a commutation petition
is a "defacto [sic] final decision," which may not be made in executive session. The Commission
replies that the open meetings law expressly permits the Commission to make decisions about
commutations in executive session.
       Where more than one statutes are related to the same subject, the statutes arc in pari
materia. Grand Canyon Dories v. Idaho State Tax Comm'n, I24Idatro          l,   4, 855 P.zd 462, 465
(1993). When construing such statutes, "the specific statute   will control over the more    general
statute." Gooding Cnty. v. Wybenga, 137 Idaho 201,204, 46 P.3d 18,21 (2002) (citing State         v.

Barnes, 133 Idaho 378,987 P.zd 290 (1999)). Further,      it is the "well-settled rule in Idaho that
where an irreconcilable inconsistency exists between statutes in         pari materia, the    latest
                          will control." Grand Canyon Dories, l24Idaho at 5, 855 P.2dat
expression of the legislature
466 (citingUnion Pac. R.R. v. Bd. of Tm Appeals, 103 Idaho 808,811,654P.zd901,904
(1e82).
            Idaho's open meetings law was enacted to further "the policy of this state that the
formation of public policy is public business and shall not be conducted in secret." I.C. $ 67-
2340. Under the open meetings statutes, "all meetings of a governing body of a public agency
shall be open to the public . . . ," and "[n]o decision at a meeting of a governing body of a public
agency shall be made by secret ballot." I.C.                  $ 67-2342(l). However, the statutory scheme
expressly authorizes executive sessions, which may be held by, among others, "the commission
of pardons and parole, as provided by law." I.C. S 67-2345(lxg). In tum, "[d]eliberations and
decisions concerning the granting, revoking, reinstating or refusing of paroles, or the granting or
denying of pardons or commutations, may be made in executive session . . . ." Idaho Code $ 20-
213A(lXa). Thus, the plain language of the relevant statutes permits the Commission to meet in
executive session.
            To the extent there is conflict between the open meetings law and the statutes governing
the Commission, the laffer control. Here, the more general statutes are the open meetings law,
Idalro Code gg 67-2342 and -2345, which are modified by the more specific provisions of I.C. $$
67-2345(I)(g) and 20-213A(l)(a), which permit "decisions concerning the . . . the granting or
denying of pardons or commutations . . ." to be made in executive session. Significantly, these
narrow statutory provisions were simultaneously enacted. 1986Idaho Sess. Laws, ch. 59, $$ l-2,
p. 168-69. These narrow provisions were                enacted under the grant     of authority to the legislature
found in article IV, $ 7, of the Idatro Constitution. There is simply no merit to the proposition
that the decision to deny a petition for clemency may not be made in executive session.a



            public hearing.

            Leavitt's petition may also be read broadly as suggesting that once a petition for
clemency has been filed with the Commission, there is an unqualified right to a public hearing.
This is inconsistent with the nature of clemency proceedings and the rules governing applications
for clemency. In Stote v. Ramirez,34 Idatro 623,203 P.279 (1921), abrogation by statute on
other grounds recognized in State v. Freitag,53 Idaho 726,27 P.2d68,72 (1933), this Court
expressly recognized the discretionary nature of clemency proceedings:


n                                                here, we note that to the extent that I.C. $ 20-213A(lXa) purports to
    While   it is not relevant to our decision
authorize the Commissionto grant clemency in executive session, it clearly runs afoul of the requirements of article
IV, $ 7 of the Idaho Constitution.
       Commutation can be granted only by the chief executive of the state, and is
       granted as a matter of clemency. The judicial power to modify a judgment and
       sentence and the executive power to pardon, parole, or commute are wholly
       distinct in their nature. The one is an award of justice, and the other is an act of
       grace. Commutation is a matter of discretion, and may be refused.

Id. at 635-36, 203 P. at 283 (quoting Fritz v. State, 128 P. 170, 177 (Okla. l9l2)).

       The rules adopted by the Commission reflect the discretionary nature of executive
clemency. IDAPA 50.01.01.450.02 governs applications           for commutation and     states: "The

scheduling of a hearing is at the complete discretion of the Commission; if a commutation
hearing is scheduled, the Commission will determine the date of the hearing." IDAPA
50.01.01.450.03 recognizes that "[o]nly rarely will circumstances be extraordinary enough to
approve   a petition for a    commutation hearing      or to grant a commutation." Given the
discretionary nature of clemency proceedings and the standards governing the limited instances
in which a writ of mandate is appropriate, Leavitt has not demonstrated that the requested writ   of
mandamus or alternative writ should issue.
       Leavitt has asked this Court to enter its order staying his scheduled execution in order to
permit the Commission       to   honor his request    for an open   session following notice and
publication. As the Commission was not required to consider Leavitt's application for clemency
in an open session, we deny Leavitt's request for an order for stay of execution.
                                          IV. CONCLUSION
        Based upon the foregoing, we deny the petitioner's requests for a       writ of mandamus,
alternative writ and stay of execution.
        Chief Justice BURDICK, Justices EISMANN, W. JONES and Justice pro                      tem

SCHROEDER CONCUR.




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