Opinion
No. 1 CA-CV 18-0332
05-07-2019
LARRY DONNELL DUNLAP, Plaintiff/Appellant, v. DOUG DUCEY, et al., Defendants/Appellees.
COUNSEL Larry Donnell Dunlap, Florence Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By Kelly Gillilan-Gibson Counsel for Defendants/Appellees
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. LC2018-000050-001
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL Larry Donnell Dunlap, Florence
Plaintiff/Appellant Arizona Attorney General's Office, Phoenix
By Kelly Gillilan-Gibson
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Acting Presiding Judge Maria Elena Cruz and Judge Kenton D. Jones joined. THUMMA, Chief Judge:
¶1 Larry Donnell Dunlap challenges the superior court's order dismissing his special action petition alleging the Arizona Board of Executive Clemency improperly denied his application for commutation of sentence. Because Dunlap has shown no error by the superior court, the dismissal order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In 1996, a jury found Dunlap guilty of sexual abuse and five counts of child molestation, and he later was sentenced to a total of 69.5 years in prison. In August 2017, Dunlap filed an application for commutation of his sentence with the Arizona Board of Executive Clemency. In December 2017, after a Phase I hearing, the Board did not pass the application on to Phase II, effectively denying the application.
The Legislature replaced the former Board of Pardons and Paroles with the Board of Executive Clemency in 1994. 1993 Ariz. Legis. Serv. 1401, 1466 (West) (Ch. 255, S.B. 1049).
¶3 In January 2018, Dunlap filed a special action petition with the superior court challenging the Board's action. In the petition, Dunlap argued the Board discriminated against him "because he's a convicted black [male] sex offender" and claimed the denial was an abuse of discretion, arbitrary and capricious, and unconstitutional. Dunlap also filed a motion seeking discovery for various types of information over nearly 25 years, including commutation requests by sex offenders; commutations granted by the Governor and civil litigation against, and communication between, the Governor and the Board. The State opposed the motion on various grounds.
¶4 The superior court declined jurisdiction of Dunlap's special action petition and dismissed the matter. The court found Dunlap's petition "fails to state a claim upon which relief may be granted and this Court does not have jurisdiction to review the decisions of the Board." After filing an unsuccessful motion to reconsider, Dunlap timely sought review by this court.
DISCUSSION
¶5 Dunlap argues the superior court erred in dismissing his petition without a reply; the Board's denial of his application was arbitrary, capricious and an abuse of discretion; the Board violated various of his constitutional, statutory and rule-based rights and the superior court erred in not allowing him to take discovery.
¶6 The superior court did not err in dismissing Dunlap's petition without his filing a reply. A petitioner has no right to file a reply in a special action. See Ariz. R.P. Spec. Act. 4(d) (2019) (requiring a complaint and an answer and allowing "such other responsive pleadings as may be appropriate"). Here, the superior court allowed a response to Dunlap's petition but not a reply. Dunlap has shown no right to file a reply and has shown no error by the superior court in dismissing his petition without a reply.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶7 For Dunlap's remaining arguments, to the extent he presses arguments for the first time on appeal, those arguments are waived. See, e.g., Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007). For arguments first made with the superior court and now pressed on appeal, to the extent his briefs on appeal do not include required "citations of legal authorities and appropriate references to the portions of the record on which [he] relies," Ariz. R. Civ. App. P. 13(a)(7)(A), those arguments are waived, see Stafford v. Burns, 241 Ariz. 474, 483 ¶ 34 (App. 2017); Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62 (App. 2009).
¶8 Although Dunlap obtained a recording of the Board's hearing, neither that recording, nor a transcript of that hearing, are included in the record. Accordingly, to the extent Dunlap's arguments turn on what occurred at that hearing, the missing recording or transcript is presumed to support the Board's conclusions. See Myrick v. Maloney, 235 Ariz. 491, 495 ¶ 11 (App. 2014).
¶9 Turning to Dunlap's remaining arguments, the Board has "exclusive power" to recommend commutation to the Governor if it finds "by clear and convincing evidence that the sentence imposed is clearly excessive . . . and that there is a substantial probability that when released the offender will conform the offender's conduct to the requirements of the law." Ariz. Rev. Stat. (A.R.S.) § 31-402(A), (C)(2). Because "the act of granting commutation is strictly a matter of executive grace," Arnold v. Ariz. Bd. of Pardons & Paroles, 167 Ariz. 155, 158 (App. 1990), commutation decisions "are rarely, if ever, appropriate subjects for judicial review," Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981). Judicial review is appropriate only "to [e]nsure that the requirements of due process have been met and that the [Board] has acted within the scope of its powers." Cooper v. Ariz. Bd. of Pardons & Paroles, 149 Ariz. 182, 184 (1986) (citation omitted).
¶10 Due process applies to Board proceedings and requires that applicants be given "notice and an opportunity to be heard." A.R.S. § 31-402(C)(2); see also Cooper, 149 Ariz. at 184. Dunlap does not argue, and the record does not suggest, that the Board failed to provide Dunlap "notice and an opportunity to be heard." To the extent Dunlap challenges the Board's decision as arbitrary and capricious or an abuse of discretion, absent a constitutional deprivation, this court lacks appellate review over Board decisions. Stinson v. Ariz. Bd. of Pardons & Paroles, 151 Ariz. 60, 61 (1986) (noting a court "cannot compel the Board to act in any 'particular manner'") (citation omitted); Banks v. Ariz. Bd. of Pardons & Paroles, 129 Ariz. 199, 202 (1981) (noting the law "does not require that applicants for commutation be provided with reasons for . . . denial").
¶11 Dunlap argues the Board violated his due process and equal protection rights by denying his application based on his race, sex and offense. As noted above, however, the record on appeal does not contain a recording or transcript from the Board hearing, which would be necessary to show such a violation. Moreover, Dunlap's special action petition and briefs on appeal contain no citations to the record demonstrating the Board mentioned, much less relied upon, impermissible factors.
¶12 "All decision makers, judges and administrative tribunals alike, are entitled to a presumption of honesty and integrity." Emmett McLoughlin Realty, Inc. v. Pima Cty., 212 Ariz. 351, 357 ¶ 24 (App. 2006) (citation omitted). Dunlap cannot rely on "mere speculation about bias" to show the Board violated his constitutional rights; rather, he "must show actual bias." Id.; see also Lathrop v. Ariz. Bd. of Chiropractic Exam'rs, 182 Ariz. 172, 181 (App. 1995) (citation omitted). On this record, Dunlap has failed to do so.
¶13 Dunlap argues that "policies, laws, rules and statutes" governing commutation are discriminatory because, by giving the Board exclusive power over commutation, they allow for discrimination based on "race, gender, religio[n], handicap[], etc." Construing this as a facial challenge to such provisions, because Dunlap has not shown they are unconstitutional as applied to him, there is no need to consider his facial challenge. See Doty-Perez v. Doty-Perez, 245 Ariz. 229, 235 ¶ 25 n.7 (App. 2018) (declining to address facial challenge where statute was constitutional as applied).
¶14 Finally, although the superior court did not expressly rule on Dunlap's motion for discovery, by dismissing the special action, the court is deemed to have denied the motion. See State v. Hill, 174 Ariz. 313, 323 (1993) ("A motion that is not ruled on is deemed denied by operation of law."). On appeal, Dunlap asserts the allegations in his petition would have been supported if his motion for discovery had been granted. Factually, this assertion is not supported by the record, and legally, Dunlap has shown no error.
¶15 There is no right to discovery in a special action, and the superior court has discretion in determining whether to allow any discovery. See Lewis v. Ariz. Dep't of Econ. Sec., 186 Ariz. 610, 616 (App. 1996) (stating, in appeals and special actions, the superior court "has broad discretion in matters of discovery, and its decision will not be disturbed absent a showing of an abuse of that discretion"). The motion seeking discovery did not set forth good cause (or any stated reason) supporting the requested discovery or the grounds for granting the motion. Moreover, given the lack of a transcript or recording of the Board hearing, the record does not show whether the discovery sought would have been relevant. On this record, Dunlap has not shown the superior court abused its discretion in dismissing the petition without allowing the discovery requested.
CONCLUSION
¶16 The superior court's dismissal is affirmed.