Request for Commutation of Life Sentence In Arizona

Along with many other powers, the governor has the power to grant commutation and other forms of clemency. Ariz. Const. art. 5, 5; A.R.S. 31-443 (1996). Arizona's clemency system is unique, however, in that it delegates the majority of the decision- making power to the Board of Executive Clemency. A.R.S. 31-402 (Supp. 1999-2000). As one article described the system, "The functional consequence of this clemency legal structure is to largely remove the Governor from the dynamics at work in a clemency effort, while still affording the Governor the power to ultimately decide on an alternative recommendation of clemency." David Kader and Keith Olbricht, the Quality of Mercy: a History of Clemency in Arizona, the Defender 15 (July 2000). In 1994, the legislature passed an Act authorizing the Board of Executive Clemency to review sentences of certain inmates to ensure that their sentences were not disproportionate to the sentences of others similarly situated. 1994 Ariz. Sess. Laws, ch. 365, 1, 3 (effective July 17, 1994 through June 30, 1996). During the eighteen months that disproportionality reviews occurred, the Board considered the sentences of more than 1500 inmates, recommending commutation of the sentences of 216, including Appellant. See Kader, supra at 16 (citing 1993-95 Annual Reports of the Arizona Board of Executive Clemency). of those 216, then-Governor Symington commuted the sentences of sixteen inmates. Id. Whether an act constitutes an "official act" depends upon the purpose of the inquiry. In its generic sense, the term applies to all "acts by an officer in his official capacity under color and by virtue of his office." Ruiz v. Hull, 191 Ariz. 441, 449, 957 P.2d 984, 992, (1998) (quoting Kerby v. State ex rel. Frohmiller, 62 Ariz. 294, 310-11, 157 P.2d 698, 705-06 (1945)). Such a definition assists in determining, for example, when statutory immunities might shield a public employee from liability, see A.R.S. 12-820.02 (Supp. 1999-2000), or when state insurance might be afforded for acts done within the course and scope of public employment. See A.R.S. 41-621 (1999). For these purposes, nearly all acts performed in an official capacity are "official acts." Such a determination, however, does not require that each act of every state officer be signed by the governor and attested by the secretary of state. See State v. Medrano-Barraza, 190 Ariz. 472, 474, 949 P.2d 561, 563 (App. 1997) (court interprets statutes so as to avoid absurd results). Although neither the legislature nor the courts have specified those official acts that require the governor's signature, affixation of the state seal, and attestation by the secretary of state, it would seem that such formality and ceremony would be reserved for resolutions setting public policy, such as "decisions or determinations of a sovereign, a legislative council, or a court of justice," Ruiz, 191 Ariz. at 449, P 30, 957 P.2d at 992 (citing Op. Ariz. Att'y Gen. I89-009, 5-7), and would include such policy-enunciating acts as "formal rule-making or rate making . . . or any other policy matters." Id. at P 31. A governor's decision regarding commutation in an individual case is not of this magnitude. While important, indeed critical to the individual affected, such decisions do not set state policy or affect the public at large. The sheer number of commutation, parole, and clemency requests also militates in favor of the conclusion that the decision at issue here was not an official act of the sort that required attestation by the secretary of state and entry on the official register in order to be valid. As noted above, the Board reviewed more than 1500 requests and forwarded 216 commutation recommendations to the governor's office in the brief months during which disproportionality reviews were authorized. The record does not reflect the numbers of parole and clemency requests that were presented during the same period. Requiring the governor to sign while the secretary of state is present to attest each grant or denial seems an undue imposition on our heads of state and burdens the functioning of government. See Mendrano-Barraza, 190 Ariz. at 474, 949 P.2d at 563; Forino v. Arizona Dep't of Transp., 191 Ariz. 77, 80, 952 P.2d 315, 318 (App. 1997) (court "may consider the effect and consequences of alternative construction"). Moreover, by the terms of the disproportionality review statute, if the governor failed to act - an action that cannot be sealed or attested by the secretary of state - the commutation is deemed granted. If granting commutation, even if by non-action, can be validly accomplished without attestation - indeed without a signature of any kind - then denying commutation, which has the effect of continuing an applicant's inmate status and requiring the inmate to serve the sentence originally imposed, surely must also be able to be effected without seal and attestation. We note, too, that the Act itself did not provide that the denial of commutation constituted an "official act" requiring the governor's signature. See 1994 Ariz. Sess. Laws, ch. 365. Instead, in a lengthy section describing the Board's duties in the disproportionality review process, the Act stated that if the governor failed to timely act on the Board's recommendation, the recommendation would become effective. See id. 1(G). by its silence, the Act made clear that the governor lacked any power to commute a sentence unless the Board first unanimously recommended that commutation be granted. See State ex rel. Arizona State Bd. of Pardons and Paroles v. Superior Court, 12 Ariz. App. 77, 79-80, 467 P.2d 917, 919-20 (1970), supplemented on reh'g, 12 Ariz. App. 228, 469 P.2d 120 (1970) (holding that power to grant parole rests in Board, not in governor); Laird v. Sims, 16 Ariz. 521, 529, 147 P. 738, 740 (1915) (upholding constitutionality of clemency system); A.R.S. 31-402(A) (giving Board "exclusive power to pass upon . . . commutations"). the Board's action, of course, was not an official act that required attestation. We conclude that the governor's decision similarly did not need to be attested.