Blake v. Massachusetts Parole Bd.

• Decision Date: 11 February 1976
• Citation: 341 N.E.2d 902,369 Mass. 701
• Parties: Albert J. BLAKE v. MASSACHUSETTS PAROLE BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 902

341 N.E.2d 902

369 Mass. 701

Albert J. BLAKE

v. MASSACHUSETTS PAROLE BOARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1975.

Decided Feb. 11, 1976.

Michael D. Cutler, Boston, for plaintiff.

Michael C. Donahue, Asst. Dist. Atty., for the Massachusetts Parole Bd.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER and KAPLAN, JJ.

KAPLAN, Justice.

On June 27, 1969, the plaintiff Albert J. Blake was convicted on three counts of armed robbery (G.L. c. 265, § 17) and was sentenced to three concurrent eight-to-ten year terms of imprisonment at the Massachusetts Correctional Institution at Walpole. Armed robbery is one of a number of offenses for which strict parole eligibility standards are set by G.L. c. 127, § 133. ¹ Thus the plaintiff would first become automatically eligible for parole only after he had served two-thirds of his minimum sentence. The strict rule, however, is relaxed to some extent by the same § 133: on the recommendation of the superintendent of the prison and of the commissioner of correction, and with the approval of a majority of the parole board, the plaintiff could be made eligible for parole consideration at the same time as inmates not in the strict class, that is, after serving only one-third of his minimum term.

The plaintiff filed an application for early parole eligibility on June 8, 1972, and written recommendations were submitted to the parole board by the superintendent and the commissioner. The board refused, despite the plaintiff's repeated requests, to permit him to appear personally before it or a panel of its members. On November 3, 1972, the board denied his application by a vote of four to zero. Thereupon the plaintiff commenced the instant action in the Superior Court against the parole board praying for a declaration of his right to appear personally in support of his application for early eligibility. The plaintiff failed in the action on the merits: the judge found that a right to a personal appearances was not granted by statute, or required by the equal protection or due process guaranty. The plaintiff appealed to the Appeals Court. We took the case pursuant to G.L. c. 211A, § 10(A).

The plaintiff contends here that the parole board denied him due process of law by refusing him an opportunity to appear before it. But there is a question at the threshold whether the appeal is moot; for on September 19, 1974, during the pendency of the appeal, the plaintiff was discharged from custody on the basis of time served and good-conduct credits accrued. ²

1. Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome. See, e.g., vigoda v. Superintendent of Boston State Hosp., 336 Mass. 724, 725--726, 147 N.E.2d 794 (1958); Henderson v. Mayor of Medford, 321 Mass. 732, 733--735, 75 N.E.2d 642 (1947). That seems plainly to have occurred here. The plaintiff argues otherwise because, he says, the allegedly improper denial of eligibility for early parole might influence bail, sentencing, or parole consideration in his possible future involvements with the criminal justice system. Of course, the plaintiff's appearance before the parole board would by no means have assured favorable action by the board. But passing that, the influence of denial of early parole on later encounters must be considered insignificant, especially by comparison with the conviction and sentence, the action of the parole board on parole applications, if any, made by the plaintiff after he became eligible, and his actual prison record. ³

The present case is thus quite different from the cases of parole or probation revocation cited by the plaintiff. ⁴ These decided that the revocations could have future consequences serious enough to warrant judicial attention to challenges to their legality even though custody pursuant to the revocation had terminated. A parole revocation in itself implies a failure of the parolee to satisfy the obligations of conditional liberty; it has a far greater bearing on future administrative or judicial decisions than denial of early eligibility, especially since the latter denial may reflect a judgment on the seriousness of the underlying crime rather than about rehabilitative progress or suitability for parole.

Practice in United States courts on similar issues of mootness is revealing. In the recent case of Weinstein v. Bradford, --- U.S. ---, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam), the Supreme Court held that a controversy concerning a parole board's obligation to accord an inmate certain procedural rights had been mooted by his complete release from custody: '(f)rom (the date of such release) forward it is plain that respondent can have no interest whatever in the procedures followed by petitioners in granting parole.' Id. at ---, 96 S.Ct. at 348. Prior cases have gone further to suggest that similar challenges to procedures on consideration of parole should be held mooted when the inmate secures (or is about to secure) parole, short of entire release from custody. See the Scarpa and Johnson sequences of decisions: Scarpa v. United States Bd. of Parole, 477 F.2d 278 (5th Cir.), ⁵ cert. granted, judgment vacated, case remanded, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, case dismissed as moot, 501 F.2d 992 (5th Cir. 1973). United States ex rel. Johnson v. Chairman of N.Y. State Bd. of Parole, 500 F.2d 925 (2d Cir.), cert. granted, judgment vacated, case remanded with directions to dismiss as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974). ⁶ See also United States Bd. of Parole v. Merhige, 487 F.2d 25, 28 (4th Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974), where the court said, with regard to an action by an inmate for injunctive and declaratory relief against an allegedly improper denial of parole, that '(the inmate's) release on parole unquestionably mooted the issues raised in his complaint.' ⁷ Cf. Marchand v. Director, United States Probation Office, 421 F.2d 331 (1st Cir. 1970) (termination of sentence moots attack on failure to release alleged parole violator on bail pending parole revocation hearing). Against the background of the cases just cited, the plaintiff's unconditional release from custody seems a plainly proper ground for mooting his challenge to the denial of early eligibility for parole.

Besides contending--erroneously, as we have tried to show--that he has a sufficient remaining stake or interest in the litigation, the plaintiff quarrels with the general rule that insists that litigants have such a stake. We may grant the plaintiff his point that it is possible to overrate the strength of a justification sometimes offered for the rule (see, e.g., Marchand v. Director, United States Probation Office, supra at 332), namely, that the parties will not be motivated to develop the issues thoroughly unless they have genuine, live, conflicting self-interests. ⁸ But there is more to the rule than that. See Wolf v. Commissioner of Pub. Welfare, --- Mass. ---, ---, 327 N.E.2d 885 (1975). ^a It seeks such values as may derive from saving questionable expenditures of judicial resources; ⁹ preserving the courts' intrinsic character as dispute-solvers and correspondingly avoiding intrusion by the courts upon fields reserved to other branches of government; ¹⁰ and exercising 'judicial restraint,' especially regarding purported constitutional claims. ¹¹ These and other considerations appear with varying strengths and consequences in cases where mootness is asserted; we need say here only that we are not prepared to abandon or compromise the general rule.

2. Next, the plaintiff attempts to take shelter in one or another stated 'exception' to the conventional doctrine. In some instances courts have been willing to resolve dead disputes if there was a good likelihood that the same disputes would recur between the same parties. See Reilly v. School Comm. of Boston, 362 Mass. 689, 694--695, 290 N.E.2d 516 (1972); Marchand v. Director, United States Probation Office, 421 F.2d 331, 333--334 (1st Cir. 1970); cf. McLaughlin v. Board of Appeals of Harwich, 359 Mass. 416, 419, 269 N.E.2d 244 (1971); Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). Where this probability is found, there is some assurance that judicial economy may be served by prompt rather than deferred decision, and the parties may be relieved of a burden of relitigation that could prove unfair. We are told that the plaintiff has been indicted for several offenses within the strict category of § 133. Argument on this basis falls incongruously from the plaintiff's lips, but we may point out that he can hardly be sure of convictions or of the nature of the sentences or of the parole determinations that may eventuate.

Another 'exception' exists for controversies 'capable of repetition, yet evading review' (see, e.g., Roe v. Wade, 410 U.S. 113, 124--125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 (1972)), a necessary exception if we are unwilling to see questions suitable for judicial settlement barred from all such examination. See Wolf v. Commissioner of Pub. Welfare, --- Mass. ---, --- - ---, ^b 327 N.E.2d 885 (1975); Karchmar v. Worcester, 364 Mass. 124, 136, 301 N.E.2d 570 (1973); Tsongas v. Secretary of the Commonwealth, 362 Mass. 708, 713--714, 291 N.E.2d 149 (1972). But the controversy over the procedure on early parole need not evade review if parties show even minimal resoluteness in carrying on litigation. We may note that inmates subject to the challenged procedure include those convicted of the more serious crimes and serving the longer sentences which allow for prolonged periods during which the eligibility question can come up and be litigated to a conclusion. ¹²

In accord with past practice when a case becomes moot on...