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In re Hawley

Decided: November 23, 1983.

IN RE PAROLE APPLICATION OF WILLIAM HAWLEY


On appeal from the State Parole Board.

Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

[192 NJSuper Page 87] The Monmouth County Prosecutor appeals from a July 5, 1983 decision of the State Parole Board (Board) granting respondent

William Hawley parole from Trenton State Prison, where he is presently serving a sentence of life imprisonment. We are asked not only to rule on the propriety of the parole release decision but also to determine whether that decision is appealable by the prosecutor and whether the prosecutor is entitled to a statement of reasons for the decision.

Hawley pleaded non vult to murder on July 6, 1967 and was sentenced to state prison "for the rest of his natural life." In early 1983 the Board gave public notice that it would conduct a parole eligibility hearing. N.J.S.A. 30:4-123.45(b)(5); N.J.S.A. 30:4-123.48(g). The prosecutor filed a timely request to attend the hearing in order to "produce witnesses and/or evidence and argue orally against Hawley's parole." See In re Trantino Parole Application, 89 N.J. 347, 376 (1982). The request, however, was mislaid and a hearing was conducted without notice to the prosecutor. On March 31, 1983 the Board gave notice that parole release had been approved effective May 10, 1983.

When the Board learned of its oversight, it suspended that release date and directed that an informational hearing be held. Hearings were conducted on May 4 and June 15, 1983. Written summaries of the hearings were prepared by the hearing officer and made available to the parties. The prosecutor submitted written exceptions to the information presented by Hawley at the second hearing.

By notice dated July 5, 1983 the Board again approved parole release, now effective July 19, 1983. The prosecutor immediately dispatched a mailgram to the Parole Board in which he made "demand" for a "written statement of reasons for Hawley's parole release" and requested that the parole release date be stayed "until we receive such statement." The Board responded by letter of July 14 that it was "not legally required by statute or administrative regulations to provide a statement of reasons as to why parole is granted," that "the Board sees no reason why the parole release date should be suspended" and that both the demand and request of the mailgram were therefore denied.

The prosecutor then filed his notice of appeal to this court together with a motion for stay pending appeal. We denied the stay motion, but on the prosecutor's application the Supreme Court stayed Hawley's release pending appeal and directed that we accelerate the matter.

I

The prosecutor assumes, but does not expressly argue, that a parole grant is a judicially reviewable administrative determination; and neither Hawley nor the Board disputes that this court has jurisdiction to review a parole release decision. The Board is an administrative agency, created and established within the Department of Corrections, N.J.S.A. 30:4-123.47, whose actions are reviewable in this court to insure that the discretionary powers delegated by the legislature are not exercised arbitrarily or capriciously. See N.J. Const. (1947), Art. VI, ยง 5, par. 4; R. 2:2-3(a)(2); In re Senior Appeals Examiners, 60 N.J. 356, 363 (1972). As Justice Jacobs stated in Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971), ". . . the Board's actions are always judicially reviewable for arbitrariness."

Both Hawley and the Board nevertheless urge that we not entertain the prosecutor's appeal. Hawley contends that the prosecutor does not have "authority to appeal" a parole release decision. The Board does not question the authority of the prosecutor, but argues that as a matter of "judicial accommodation" we "should refrain from reviewing challenges to parole release decisions which are brought by a third party when the sole basis of the challenge on appeal is that the decision the Board reached on the merits is incorrect." We find neither of these suggested limitations on our review to be persuasive.

The contention that the prosecutor has no "authority" to appeal a parole release decision conflicts with the reasoning of In re Trantino Parole Application, supra. Proceeding from the fact that N.J.S.A. 30:4-123.45(b)(5) requires notice of parole ...


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