Doucette v. Massachusetts Parole Board

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13-P-149 Appeals Court
CHARLES DOUCETTE vs. MASSACHUSETTS PAROLE BOARD.
No. 13-P-149.
Essex. April 4, 2014. - October 29, 2014.
Present: Berry, Katzmann, & Sullivan, JJ.
Parole. Administrative Law, Adjudicatory proceeding, Decision,
Evidence, Failure to raise issue before agency, Hearing,
Regulations. Constitutional Law, Delay in rendering
decision, Impartial tribunal, Parole. Due Process of Law,
Administrative hearing, Delay in rendering decision,
Hearing, Parole. Practice, Civil, Action in nature of
certiorari, Failure to raise issue, Hearsay, Motion to
dismiss, Relief in the nature of certiorari, Review of
administrative action, Waiver. Waiver. Evidence, Absence
of witness, Administrative proceeding, Hearsay, Police
report.
Civil action commenced in the Superior Court Department on
May 18, 2012.
A motion to dismiss was heard by Richard E. Welch, III, J.
Eitan Goldberg for the plaintiff.
Christopher Hurld, Assistant Attorney General, for the
defendant.
2
SULLIVAN, J. Charles Doucette appeals from the dismissal
of his complaint challenging the decision of the Massachusetts
Parole Board (board) revoking his parole. Doucette proceeds on
two fronts -- a civil rights claim asserting that the board
violated due process in the conduct of the revocation
proceedings, and a claim in the nature of certiorari seeking
review of the merits of the board's decision. See 42 U.S.C.
§ 1983; G. L. c. 249, § 4. We conclude that the procedural
irregularities in the revocation proceedings do not rise to the
level of a due process violation, and that the revocation
decision was not arbitrary or capricious. Accordingly, we
affirm.
Background. On February 20, 2007, Doucette was released on
parole from a life sentence for murder in the second degree.
According to the conditions of parole, Doucette was required,
among other things, to conduct himself responsibly and obey all
laws, attend Alcoholics Anonymous (AA) meetings three times per
week, notify and seek permission from his parole officer
regarding any change in residence or living situation, avoid
persons known to have violated the law, comply with all special
instructions given by his parole officer, and pay a monthly
supervision fee.
Four years later, Doucette was arrested and charged with
assault with a dangerous weapon, intimidation of a witness, and
3
threats, charges which arose from an incident with his then
girlfriend. A parole violation detainer issued, listing
violations based on this incident, as well as other violations
previously noted by his parole officer. These violations
included the failure to attend AA meetings, notify his parole
officer and seek permission before allowing his landlord's
daughter to live in his apartment, follow the advice of his
parole officer to end the relationship with his girlfriend, and
pay his monthly supervision fee.
In accordance with 120 Code Mass. Regs. § 303.06 (1997), a
hearing examiner conducted a preliminary revocation hearing
within fifteen days of the arrest. The hearing examiner
recommended revocation in a written decision. He found that
Doucette had violated various provisions of his parole by (1)
engaging in irresponsible conduct by virtue of the new arrest,
by having a restraining order issued against him, by failing to
end the relationship with his former girlfriend as advised by
his parole officer, and by permitting his landlord's daughter to
stay in his residence without his parole officer's permission;
and (2) violating special conditions of parole by failing to
attend AA meetings and failing to pay supervision fees. A
decision revoking parole for these reasons was signed by the
4
board's chair on March 23, 2011.1 However, neither the hearing
examiner's decision nor the chair's written decision was
provided to Doucette.
On May 26, 2011, after a jury trial, Doucette was acquitted
of all charges. By agreement, the final revocation hearing,
which normally must be held sixty days from the date of service
of a parole violation warrant, was postponed until after the
trial. See 120 Code Mass. Regs. § 303.18 (1997). The final
revocation hearing was held on July 20, 2011, fifty-five days
after the trial concluded. In accordance with the board's
regulations, the hearing was held before a panel of the board,
but was referred to the full board for a vote. See 120 Code
Mass. Regs. § 303.17(2) (1997) (full board vote required in
revocation proceeding involving a life sentence). The full
board voted unanimously to revoke Doucette's parole on November
10, 2011, but did not notify Doucette.
Doucette filed a writ of mandamus to compel a final
decision on January 9, 2012. The final decision, which simply
recited by title the violations found in the preliminary
revocation decision, was signed by the board's chair on January
13, 2012. The hearing examiner's findings, the March 23, 2011,
1
The hearing examiner had also found that the landlord's
daughter had a criminal record, and, therefore, that Doucette
had violated parole by associating with a person with a criminal
record. The board did not sustain this violation.
5
preliminary decision, and the January 13, 2012, final decision
were provided to Doucette on January 13, 2012. Doucette's
subsequent appeal and motion for reconsideration were denied by
the board without further explanation, whereupon he filed the
present action in Superior Court, which entered judgment for the
board. On appeal, Doucette argues that the board demonstrated
bias against him; his rights to due process were violated; and
the board's decision to revoke his parole was arbitrary and
capricious.
Discussion. 1. Standard of review. Although the case was
decided on a motion filed pursuant to Mass.R.Civ.P. 12(b)(6),
365 Mass. 754 (1974), both parties relied on matters outside the
pleadings, and the motion judge appears to have considered them
as well.2 Accordingly, we treat Doucette's due process claims
brought pursuant to 42 U.S.C. § 1983 as though they had come
before us on the record pursuant to Mass.R.Civ.P. 56, 365 Mass.
824 (1974). See rule 12(b) ("If, on any motion asserting the
defense numbered [6], to dismiss for failure of the pleading to
state a claim upon which relief can be granted, matters outside
the pleading are presented to and not excluded by the court, the
2
The parties agree on appeal that discovery as to the due
process claims has concluded and that the record on those claims
is complete except for Doucette's request for additional
discovery related to his claim of bias. As is discussed more
fully infra, the bias claim was properly dismissed for reasons
unrelated to this factual inquiry.
6
motion shall be treated as one for summary judgment and disposed
of as provided in Rule 56"); Cousineau v. Laramee, 388 Mass.
859, 860 n.2 (1983). Certiorari review of the merits of the
board's decision pursuant to G. L. c. 249, § 4, is based on
general principles of certiorari review and the administrative
record. See notes 8, 10, infra.
2. Bias. Doucette asserts that he was denied a neutral
and detached hearing body free from bias against him because the
Boston Globe reported that shortly after his arrest in February,
2011, the chair of the board said to a reporter that the
revocation proceeding "gives us the opportunity to return Mr.
Doucette to prison for life."3 This, Doucette maintains,
indicates that the chair had prejudged the case. We agree that
this type of statement, if made, would be improper. See Doe,
Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry
Bd., 84 Mass. App. Ct. 537, 539-543 (2013) (comments posted by
hearing officer on social media indicative of bias constituted
due process violation). We reject the board's argument that
3
Because there was no discovery on this claim, we consider
the statements attributed to the chair not for their truth, but
for the fact that the article placed Doucette on notice of the
bias claim.
7
extrajudicial influence is the sole form of bias warranting
relief. See ibid.4
While these allegations are material, the claim of bias is
waived. As Doucette's complaint makes clear, the newspaper
report was sufficient to place him on notice of a bias claim.
Doucette did not move to recuse the chair at either of his
revocation hearings, in his appeal to the board, or in his
motion for reconsideration before the board. There is no
suggestion in the record that the evidence of bias is newly
discovered. Compare id. at 539. "A party having knowledge of
facts possibly indicating bias or prejudice on the part of an
arbitrator, referee, juror or other person having similar
functions cannot remain silent and thereafter on that ground
successfully object to the decision. Fox v. Hazelton, 10 Pick.
275 [1830]. Hallock v. Franklin, 2 Met. 558, 560 [1841].
Commonwealth Tobacco Co. v. Alliance Ins. Co., 238 Mass. 514,
516 [1921], and cases cited. Donoghue v. Holyoke Street
Railway, 246 Mass. 485, 494 [1923]." Thomajanian v. Odabshian,
272 Mass. 19, 23 (1930). "To preserve an issue for appeal from
an agency's decision, a party must raise the issue before the
agency." Catlin v. Board of Registration of Architects, 414
4
The board's regulations require that a member of the board
"withdraw from participating and abstain from voting in any case
on the basis of personal involvement in the case or for any
other reason which might prevent that member from making an
impartial decision." 120 Code Mass. Regs. § 300.02(4) (1997).
8
Mass. 1, 7 n.7 (1992). See Rivas v. Chelsea Hous. Authy., 464
Mass. 329, 336 (2013) ("arguments not made before an
administrative agency generally cannot be raised on appeal").
To the extent that Doucette now claims a general bias against
him or against his release on the part of the entire board, that
claim also was not raised before the board.
3. Due process. Because parole revocation results in the
loss of liberty, the manner in which parole is revoked must
comport with due process. See Morrissey v. Brewer, 408 U.S.
471, 480-482 (1972) (Morrissey); Doe v. Massachusetts Parole
Bd., 82 Mass. App. Ct. 851, 858 (2012). The minimum
requirements of due process in a parole revocation proceeding
are:
"(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing
confrontation); (e) a 'neutral and detached' hearing body
such as a traditional parole board, members of which need
not be judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence relied on
and reasons for revoking parole."
Morrissey, 408 U.S. at 489. Doucette claims that he (a) was
denied the opportunity to confront an adverse witness at the
preliminary hearing, (b) was not provided written notification
of the reasons for revocation in a timely manner, (c) was not
provided with discovery in advance of the final hearing, and (d)
9
was not provided an adequate written statement of the reasons
for the denial of his administrative appeal.
a. Adverse witness. In making the initial recommendation
to revoke parole, the hearing examiner at the preliminary
hearing relied, in part, on parole officer reports, police
reports, and affidavits filed in connection with an application
for an abuse prevention order summarizing the allegations of
Doucette's former girlfriend. Doucette maintains that the use
of the police reports and other documents deprived him of the
opportunity to confront and cross-examine his former girlfriend
at the preliminary hearing.5
Morrissey did not "write a code of procedure," 408 U.S. at
488, for preliminary revocation proceedings, which are intended
to explore whether there is "probable cause or reasonable ground
to believe that the arrested parolee has committed acts that
would constitute a violation." Id. at 485. The board's
regulations do provide, however, that the parolee "may request
that the Hearing Examiner obtain the presence of persons who
have given information upon which revocation may be based," and
that the "Examiner shall request the attendance of such adverse
witnesses at the preliminary parole revocation hearing unless
5
Doucette alleges in the complaint that he requested her
presence, and the board denied his request through its counsel.
The board has treated this allegation as true both below and on
appeal, and we therefore address it. We note, however, that the
hearing examiner's report states that no such request was made.
10
. . . the Hearing Examiner finds good cause for the witness'
non-attendance." 120 Code Mass. Regs. § 303.11(6) (1997). See
Morrissey, supra at 487, 489.
Because both probation and parole revocation proceedings
involve the potential loss of liberty, see Morrissey, 408 U.S.
at 482; Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973);
Commonwealth v. Thissel, 457 Mass. 191, 195 (2010), we may look
to the cases involving probation revocation for guidance as to
how the "good cause" requirement may be satisfied. The Supreme
Judicial Court has held that reliable hearsay satisfies the good
cause requirement. See Commonwealth v. Bukin, 467 Mass. 516,
522 (2014) (in probation revocation proceedings, "substantial
reliability" of hearsay satisfies the "good cause" standard).
See also Commonwealth v. Durling, 407 Mass. 108, 116 (1990)
(detailing the administrative burdens of holding full
evidentiary hearings in all probation violation cases);
Commonwealth v. Negron, 441 Mass. 685, 691 (2004) ("if reliable
hearsay is presented, the good cause requirement is satisfied").
The use of police reports has long been recognized as
appropriate in probation revocation proceedings, provided that
the reports bear indicia of reliability. See Commonwealth v.
Durling, 407 Mass. at 117-118; Commonwealth v. Bukin, 467 Mass.
at 520-521.
11
Doucette, who denied all wrongdoing, argues that his former
girlfriend's accusations were demonstrably unreliable, as
evidenced by the jury verdict and her testimony at trial. This
argument overlooks the fact that the preliminary hearing
occurred before the trial, and that the hearing examiner was
required to assess reliability as of that time. Moreover, the
burdens of proof at a criminal trial and a preliminary
revocation hearing are substantially different. At a
preliminary hearing, the standard is not reasonable doubt, but
probable cause to conclude a violation was committed. See 120
Code Mass. Regs. § 303.13 (1997); Stefanik v. Board of Parole,
372 Mass. 726, 728-729 (1977).
Neither the hearing examiner who conducted the preliminary
hearing nor the panel that conducted the final hearing made an
express finding regarding the reliability of the police reports.
As is discussed more fully below, it is also unclear on this
record whether the hearing examiner or the board credited the
reports or found a violation based simply on the fact of the
arrest. However, in the final analysis, we discern no prejudice
on this record. See generally Commonwealth v. Pariseau, 466
Mass. 805, 810-812 (2014) (requiring a showing of prejudice to
sustain a due process claim). Doucette did not request the
presence of the witness at his final revocation hearing, nor did
he provide the trial transcript to the board. By failing to
12
renew his request at the final hearing, Doucette waived this due
process issue as it pertains to the final hearing and the final
decision to revoke his parole, thus undercutting any claim of
prejudice. See Commonwealth v. Morse, 50 Mass. App. Ct. 582,
589 (2000); Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 23 n.12
(2014).
b. Timely service of decision. Doucette claims that the
board's considerable delay in sending him written notice of its
decision was a violation of due process, and that he is
therefore entitled to release. By agreement, the final
revocation hearing was held within sixty days after the
conclusion of Doucette's trial. See 120 Code Mass. Regs.
§ 303.18 (1997). Delay between a revocation hearing and the
distribution of a written decision is not a per se due process
violation. See Morrissey, supra at 488; People ex rel. Haskins
v. Waters, 87 A.D.2d 657 (N.Y. App. Div. 1982). A delay
constitutes a due process violation only if it is "fundamentally
unfair." Commonwealth v. Blake, 454 Mass. 267, 277 (2009)
(Ireland. J., concurring). A showing of prejudice is required.
See Commonwealth v. Pariseau, 466 Mass. at 812.
The board's regulations require that it send a written
notice and summary of reasons within twenty-one days of the
decision. 120 Code Mass. Regs. § 303.26 (1997). Here, in
violation of the board's regulations, the written decision was
13
issued 177 days after the hearing, and sixty-four days after the
decision dated November 10, 2011. We "do[] not condone the
length of delay in this case," but conclude that it did not
"amount to legal prejudice that permits a conclusion that a due
process violation . . . occurred." Commonwealth v. Blake, 454
Mass. at 280 (Ireland, J., concurring). Doucette has pointed to
no discernable prejudice warranting release. See ibid.
(Ireland, J., concurring); Commonwealth v. Pariseau, 466 Mass.
at 810-812. See also Commonwealth v. Imbruglia, 377 Mass. 682,
688 (1979); Commonwealth v. McInerney, 380 Mass. 59, 68 (1980)
("[D]isappointment . . . does not amount to legal prejudice").
In the absence of prejudice, the appropriate remedy is to seek a
prompt decision, which Doucette did by filing an action in the
nature of mandamus. Compare Commonwealth v. Pariseau, supra at
814.6
6
In his complaint and on appeal, Doucette frames his
argument concerning the violation of the regulation solely as a
due process argument. We recognize that we have, in other
contexts, decided analogous cases by reference to a regulation
rather than reach the due process question. See, e.g., Royce v.
Commissioner of Correction, 390 Mass. 425 (1983) (complaint for
declaratory relief). In the absence of sustained appellate
argument, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921(1975), we decline to decide whether certiorari relief may be
had concerning the violation of a regulation without a showing
of prejudice. See generally State Bd. of Retirement v. Bulger,
446 Mass. 169, 173 (2006) ("Certiorari allows a court to correct
only a substantial error of law, evidenced by the record, which
adversely affects a material right of the plaintiff")
(quotations omitted). Compare Haverty v. Commissioner of
Correction, 437 Mass. 737, 740 (2002), S.C., 440 Mass. 1 (2003)
14
c. Discovery. Doucette claims that the board failed to
provide him with discovery in advance of the final hearing, in
violation of his right to due process of law and the board's
regulations. See 120 Code Mass. Regs. § 303.22. On June 29,
2011, before the final revocation hearing, Doucette's counsel
sent a letter to the board listing the documents that had been
provided to him and requesting any additional evidence that
"will be presented or relied upon" by the board at the final
hearing. The board responded, and sent a copy of the hearing
examiner's report to Doucette's counsel. Doucette was given a
complete response to his request. Based on questions that he
claims were asked during the final revocation hearing, Doucette
now contends that his entire criminal and psychiatric history
should have been produced. The transcript of the final hearing
contains significant gaps (inaudible portions), and the record
before us is insufficient to support Doucette's claim in this
respect.7 So far as we can tell, no request was made at hearing
for additional documents. No claim of prejudice was made at
that time. Doucette answered the questions posed to him. See
Mass.R.A.P. 16(a)(4) (argument in brief shall cite to "parts of
the record relied on"); Arch Med. Assocs. v. Bartlett Health
(affirming summary judgment on behalf of a class of prisoners
held in segregation; decision based on regulatory violation
rather than due process claim).
7
There was no request to reconstruct the record.
15
Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992) ("Errors
that are not disclosed by the record offer no basis for
reversal"). To the extent he argues that the board looked to
his past criminal history, Doucette cannot have been surprised
by the inquiry, and was fully aware of his own criminal history.
No due process violation has been shown, and even if it were, we
discern no prejudice.
d. Written statement. The minimum requirements of due
process include "a written statement by the factfinders as to
the evidence relied on and reasons for revoking . . . parole."
Commonwealth v. Durling, 407 Mass. at 113, quoting from Gagnon
v. Scarpelli, 411 U.S. at 786. See 120 Code Mass. Regs.
§ 303.26 (1997). Doucette does not challenge the adequacy of
the statement of reasons given in connection with the
preliminary or final revocation decisions. Rather, he asserts
that he was denied due process because his appeal to the board
and motion for reconsideration were denied without a statement
of reasons. These assertions are unaccompanied by citation to
authority, and we have found none to suggest that once written
findings were issued, due process requires further findings and
rulings with respect to administrative appeals filed after the
final revocation decision has been made. See 120 Code Mass.
Regs. § 304 (1997). See generally McLellan v. Acting
Superintendent, Mass. Correctional Inst., Cedar Junction, 29
16
Mass. App. Ct. 122, 127 (1990) (detailed charges formed a
sufficient basis for review).
4. Parole violations. Doucette claims that the board
acted in an arbitrary and capricious manner and violated his
right to due process when it revoked his parole on the basis of
the arrest on charges of which he was ultimately acquitted, and
that the board abused its discretion in revoking his parole
based on certain violations of his parole conditions.
a. Certiorari review. Decisions of the board are not
subject to review under G. L. c. 30A. See G. L. c. 30A, § 1C.
Certiorari review is available where there is "(1) a judicial or
quasi judicial proceeding (2) from which there is no other
reasonably adequate remedy (3) to correct substantial error of
law apparent on the record (4) that has resulted in manifest
injustice to the plaintiff or an adverse impact on the real
interests of the general public." State Bd. of Retirement v.
Woodward, 446 Mass. 698, 703-704 (2006). See, e.g., Ciampi v.
Commissioner of Correction, 452 Mass. 162, 163 (2008)
(certiorari action to challenge validity of Department of
Correction regulations and disciplinary actions taken pursuant
to the regulations).8 "On certiorari review, the Superior
8
Certiorari is the appropriate method of review of parole
revocation decisions in a number of States. See, e.g., Sellers
v. State, 586 So. 2d 994, 995 (Ala. Crim. App. 1991) (in absence
of statutory right to review of administrative decisions,
17
Court's role is to examine the record . . . and to 'correct
substantial errors of law apparent on the record adversely
affecting material rights.'" Firearms Records Bureau v. Simkin,
466 Mass. 168, 180 (2013), quoting from Cambridge Hous. Authy.
"certiorari is the appropriate remedy for review of [revocation]
actions"). Other States imply a right of judicial review of
parole revocation decisions under the State administrative
procedure act by means of administrative procedures available to
review any agency decision. See Loach v. Pennsylvania Bd. of
Probation & Parole, 57 A.3d 210, 212 (Pa. Commw. Ct. 2012);
Pisano v. Shillinger, 835 P.2d 1136, 1138-1140 (Wyo. 1992).
Some States entertain a writ of habeas corpus. See People ex
rel. Maggio v. Casscles, 28 N.Y.2d 415, 418 (1971); Wright v.
Ghee, 74 Ohio St. 3d 465, 466-467 (1996). Among those States
that have allowed certiorari review of a parole revocation
decision, the standard of review has been articulated in various
but similar ways. See Alabama Bd. of Pardons & Paroles v.
Williams, 935 So. 2d 478, 484 (Ala. Crim. App. 2005), cert.
denied, 547 U.S. 1181 (2006) ("The limited function of
[certiorari] review is to determine whether the act in question
was supported by any substantial evidence, or whether findings
and conclusions are contrary to uncontradicted evidence, or
whether there was an improper application of the findings viewed
in a legal sense") (quotations omitted); Pfister v. Iowa Dist.
Ct. for Polk County, 688 N.W.2d 790, 794 (Iowa 2004), quoting
from State Pub. Defender v. Iowa Dist. Ct. for Black Hawk
County, 633 N.W.2d 280, 282 (Iowa 2001) ("A writ of certiorari
lies where a lower board . . . has acted illegally . . . .
Illegality exists when the court's findings lack substantial
evidentiary support, or when the court has not properly applied
the law"); Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn.
2012) ("review under the common law writ of certiorari is
limited to determining whether the 'inferior tribunal, board, or
officer,' Tenn. Code Ann. § 27-8-101, exceeded its jurisdiction
or acted illegally, arbitrarily, or fraudulently"); State ex
rel. Thorson v. Schwarz, 274 Wis. 2d 1, 7 (2004) ("Our review of
a parole revocation by certiorari is limited to four inquiries:
(1) whether the agency stayed within its jurisdiction; (2)
whether it acted according to law; (3) whether its action was
arbitrary, oppressive, or unreasonable, representing its will,
not its judgment; and (4) whether the evidence was such that
[the agency] might reasonably make the order or determination in
question").
18
v. Civil Serv. Commn., 7 Mass. App. Ct. 586, 587 (1979). In
cases reviewing the decisions of administrative bodies which,
like the parole board, are accorded considerable deference, see
Barriere v. Hubbard, 47 Mass. App. Ct. 79, 83 (1999), the
arbitrary and capricious standard of review applies.9 See Doe v.
Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 (2002);
Firearms Records Bureau v. Simkin, 466 Mass. at 179. See also 2
Cohen, Law of Probation and Parole § 29:17, at 29-18 (2d ed.
1999) ("most courts subscribe to the view that a parole
board['s] . . . decisions are entitled to great deference by the
courts"). We review the administrative record provided by the
parties.10
9
In this respect certiorari review of administrative
decisions for which G. L. c. 30A review is unavailable is
substantially similar to c. 30A review. See, e.g., Hoffer v.
Board of Registration in Med., 461 Mass. 451, 458 n.9 (2012).
Compare Rivas v. Chelsea Hous. Authy., 464 Mass. at 334.
10
Because the board responded to the complaint by filing a
rule 12(b)(6) motion, the board did not answer the complaint or
file the administrative record, and no motion for judgment on
the pleadings was filed pursuant to Mass.R.Civ.P. 12(c), 365
Mass. 754 (1974), as required by Superior Court Standing Order
1-96, as amended (2002). The parties did, however, submit
certain portions of the administrative record, and the Superior
Court judge had a near complete record upon which to make his
decision. At oral argument the parties agreed that this court
should conduct its review based on the administrative record as
submitted, and expanded the record by agreement to include a
complete copy of the parole conditions. In future cases,
certiorari review should be conducted under rule 12(c), in
accordance with Superior Court Standing Order 1-96, and not
under rule 12(b)(6). Compare Northborough Inn, LLC v. Treatment
Plant Bd. of Westborough, 58 Mass. App. Ct. 670, 673 n.5 (2003).
19
b. New arrest. Noting that he was acquitted of the
charges resulting from his girlfriend's allegations, Doucette
argues that the board violated his right to due process by
revoking his parole solely on the basis of an arrest, without
regard to whether the events leading up to the arrest actually
took place as charged. At this final stage of the process the
board must find by a preponderance of the evidence that the
violation took place. 120 Code Mass. Regs. § 303.23(4) (1997).
See Commonwealth v. Holmgren, 421 Mass. 224, 225-226 (1995) ("In
a criminal case . . . the Commonwealth must prove the elements
of each crime charged beyond a reasonable doubt. In a [final]
probation revocation hearing . . . it is proof by a
preponderance of the evidence"). The finding of probable cause
associated with the preliminary revocation decision, see 120
Code Mass. Regs. § 303.13 (1997), is no longer sufficient, nor
is probable cause to arrest. See Stefanik v. Board of Parole,
372 Mass. at 729. Thus, Doucette argues, the decision was also
arbitrary and capricious, warranting certiorari relief.11
The findings of the hearing examiner regarding the arrest
are cryptic, and were not explicitly adopted by the board. The
board's final revocation decision, which merely lists the
11
To the extent Doucette maintains that the board's
determination was arbitrary or capricious, it was his obligation
to provide an adequate record, including the trial transcript,
to the board.
20
violations and the board's vote, offers no explanation for its
conclusions. The board did not address the reliability of the
hearsay reports in its final decision. See Commonwealth v.
Henderson, 82 Mass. App. Ct. 674, 676 (2012) (outlining factors
to be considered in determining the reliability of hearsay
evidence in probation revocation proceedings). Although a
jury's not guilty finding at trial does not mean that the same
evidence may not be considered and weighed by the board, it is
indeed impossible to discern whether the board found by a
preponderance of the evidence that Doucette committed the
assault and made the threats with which he was charged, or
whether the board simply found that he was arrested. See Stokes
v. Commissioner of Correction, 26 Mass. App. Ct. 585, 587 (1988)
("While it may be implicit in the [disciplinary] board's
disposition, it is impossible to tell from the face of the
decision in any particular instance whether the board believed
all, some, or none [of] the contents of the officer's report").
The failure of the board to make clear findings thus
frustrates the purpose of the due process protections afforded
by Morrissey. We need not reach the question of the validity of
this ground for revocation, however, because the other bases
21
upon which the board rested its decision, including Doucette's
admissions, were sufficient to warrant revocation of parole.12
c. Remaining violations. Doucette maintains that the
evidence of the other violations was insufficient to warrant
revocation. The board maintains that it was entitled to revoke
parole based upon these violations, noting that "nothing
requires the [board] to ignore parole violations or impose less
severe sanctions."
The conditions of Doucette's parole required him to obey
all special conditions, heed the requests of his parole officer,
and avoid irresponsible conduct. Doucette admits that he failed
to regularly attend AA meetings, even though attending three AA
meetings per week was an explicit condition of his parole.13 As
to the relationship with his girlfriend, it is uncontested that
his parole officer specifically warned him to end the
relationship due to the woman's struggles with alcohol use, and
that Doucette engaged in irresponsible conduct to the extent
12
Our review of the board's decision leads us to conclude
that the board based its revocation decision on Doucette's
overall pattern of irresponsible behavior, without regard to the
arrest. In future cases in which multiple grounds for
revocation are presented, review of the board's decision would
be aided by a clear designation by the board of the reasons for
revocation, and a statement as to which grounds form a separate
and adequate ground for revocation.
13
In his written submission to the board Doucette admitted
that he frequently signed into AA meetings and left, stating
that he was tired after working in construction during the day.
22
that he maintained the relationship. It was this relationship
which led to Doucette's arrest outside a bar and the related
charges that triggered the issuance of the parole violation
detainer.14 Finally, Doucette does not contest that he allowed a
person to live in his residence without notifying or gaining the
approval of his parole officer, despite the condition that his
parole officer must approve any such changes.15
Doucette offered explanations and mitigating factors with
respect to each of the violations. The board, however, was
entitled to weigh the evidence, assess credibility, and make the
final determination on whether to revoke parole or consider
other alternatives. See Greenman v. Massachusetts Parole Bd.,
405 Mass. 384, 387 (1989). We cannot say the board's
determination that Doucette violated his parole was arbitrary or
capricious. These violations alone, without reference to the
arrest or restraining order, are sufficient to support the
14
It is undisputed that Doucette remained involved with the
woman who, according to him, had a serious drinking problem. He
testified that he resolved to end the relationship, packed up
her belongings and brought them to a bar and left them on her
vehicle. He was arrested during the ensuing confrontation. The
hearing examiner's rationale for revocation relied primarily on
the fact that Doucette had maintained this relationship at a
time when he also failed to attend AA meetings.
15
The board also found that Doucette failed to pay his
mandatory parole supervision fee of eighty dollars per month.
This violation was uncontested, and evidence was sufficient to
show that Doucette so violated his parole. We do not rely upon
this violation in affirming the judgment.
23
board's determination by a preponderance of the evidence that
Doucette violated conditions of his parole. See Commonwealth v.
Holmgren, 421 Mass. at 226.16
Judgment affirmed.
16
Doucette also argues that revoking parole on the basis of
these violations is barred by the doctrines of waiver, res
judicata, and collateral estoppel, since (he argues) this
conduct was already addressed by his parole officer. The
defenses of collateral estoppel (issue preclusion) and res
judicata (encompassing both issue preclusion and claim
preclusion) require a final judgment on the merits. See Kobrin
v. Board of Registration in Med., 444 Mass. 837, 843 (2005)
(claim preclusion); Dowd v. Morin, 18 Mass. App. Ct. 786, 793-
794 & n.15 (1984). The advice of a parole officer does not
constitute a judgment.
The doctrine of waiver is also inapplicable. The fact that
the parole officer (or parole board) chose not to seek to
violate Doucette's parole at the first opportunity does not
constitute a waiver of the board's authority to make parole
violation determinations. See G. L. c. 27, § 5 (granting
revocation powers to the board). Finally, Doucette's claims
under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12,
§ 11H, were properly dismissed because the Commonwealth and its
agencies are not persons within the meaning of the MCRA.
Williams v. O'Brien, 78 Mass. App. Ct. 169, 173 (2010).