Crowell v. Mass. Parole Bd.

• Decision Date: 15 May 2017
• Docket Number: SJC–12203
• Citation: 74 N.E.3d 618,477 Mass. 106
• Parties: Richard CROWELL v. MASSACHUSETTS PAROLE BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 106

74 N.E.3d 618

Richard CROWELL

v.MASSACHUSETTS PAROLE BOARD.

SJC–12203

Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 6, 2017

Decided May 15, 2017

Tabitha Cohen (John D. Fitzpatrick, Cambridge, also present) for the plaintiff.

Todd M. Blume, Assistant Attorney General, for the defendant.

James R. Pingeon, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

BUDD, J.

On April 2, 2014, the plaintiff, Richard Crowell, filed a complaint in the nature of certiorari in the Superior Court, alleging that, in denying his petition for parole, the Parole Board (board) had violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and cognate State provisions, art. 114 of the Amendments to the Massachusetts Constitution and G. L. c. 93, § 103. A judge of that court allowed the board's motion to dismiss and denied the plaintiff's motion for reconsideration. We reverse and remand for further development of the record.¹ Further, we conclude that, contrary to the plaintiff's assertion, his commuted life sentence remains a "life sentence" within the meaning of 120 Code Mass. Regs. § 301.01(5) (1997).

Background . The limited record before us, presented in the form of exhibits to the plaintiff's complaint, includes the following facts, which are undisputed by the parties.

1. Prior parole proceedings . The plaintiff pleaded guilty to murder in the second degree in 1962 in connection with an armed robbery that resulted in a homicide.² He was sentenced to life imprisonment with the possibility of parole pursuant to G. L. c. 265, § 2.³ In 1974 the plaintiff's life sentence was commuted to one that was from "[thirty-six] years to life." He was paroled in November, 1975. Between 1975 and 1990 the plaintiff was returned to custody on five occasions (1977, 1980, 1982, 1989, and 1990) for failing to adhere to his conditions of parole, including repeated problems with alcohol and assaultive behavior. In 1987 he sustained a traumatic brain injury (TBI), which caused deficiencies in his memory, speech, and cognition. He attributes the loss of his job while on parole as well as an exacerbation of his alcohol problems to TBI.

The plaintiff was denied parole following review hearings before the board in 1991, 1994, and 1997. In 2003, he was again paroled on the condition that he complete a long-term residential program and attend Alcoholics Anonymous meetings at least three times per week. Less than one month later, his parole was revoked for failure to complete the residential program. He has been incarcerated since that time.

2. 2012 parole hearing and decision . In August, 2012, the plaintiff had a review hearing before the board. During that hearing, one of the board members noted that TBI had "caused cognitive functioning [and] emotional functioning deficits," resulting in uncooperative behavior that was "secondary to [the plaintiff's] brain injury." The board member stated that this was a chronic, life-long condition that "might get worse ... [s]o [the plaintiff] would need to be in some sort of setting where [he] could be managed and cooperate with people forever." She also expressed concern about the fact that the programs the plaintiff's counsel had looked into were voluntary programs that would require his full cooperation.

Ultimately the board issued its decision denying the plaintiff parole, stating that the plaintiff "was unable to offer any concrete, viable release plan that could assure the [b]oard that he would be compliant on parole after his history of defiance and non-compliance" and that he "has not sought or achieved the rehabilitation necessary to live safely in the community." The board also stated, "Crowell was unable to address the concerns related to his combative attitude and ... gave the clear impression that he feels entitled to parole...." The board denied the plaintiff's request for reconsideration.

3. Certiorari action . On April 2, 2014, the plaintiff timely filed a complaint seeking certiorari review of the board's decision by way of G. L. c. 249, § 4, alleging that the board's denial was a violation of his rights under the ADA and cognate State provisions, and that the board's decision to grant him a review hearing only every five years (rather than annually) was unlawful. He sought immediate release or a hearing at which the board would be prohibited from considering his disability as a reason to prevent him from being paroled. The plaintiff further asked the court to direct the board to use its resources to find an appropriate placement for him in the community.

The judge allowed the board's motion to dismiss, concluding that the board had not discriminated against the plaintiff in its decision denying him parole because it considered many factors, only one of which was his disability related to the TBI. The plaintiff appealed and obtained a brief stay of the appeal to pursue an unsuccessful motion for reconsideration on the limited issue whether he is serving a life sentence or a sentence for a term of years. We transferred the case from the Appeals Court on our own motion.

Discussion . 1. The motion to dismiss . We review a judge's order granting a motion to dismiss de novo.

Boston Med. Ctr. Corp . v. Secretary of the Exec. Office of Health & Human Servs ., 463 Mass. 447, 450, 974 N.E.2d 1114 (2012). The plaintiff asserts that the motion judge erroneously allowed the board's motion to dismiss because the board failed first to file the administrative record pursuant to a standing order of the Superior Court. Superior Court Standing Order 1–96(2) applies to actions in the nature of certiorari under G. L. c. 249, § 4, and requires the agency to file its administrative record within ninety days of service of the complaint.⁴ It also extends the deadline for certain motions, including those brought under Mass. R. Civ. P. 12 (b) and (e), 365 Mass. 754 (1974), to twenty days after service of the record. The board contends that it complied with both Superior Court Standing Order 1–96 and rule 12 (b) ("A motion making any of these defenses shall be made before pleading ..."). Although the board was free to file a motion to dismiss, it was error for the judge to allow it as the plaintiff had stated a claim upon which relief could be granted. That is, he alleged in his complaint that the result of the parole board hearing (a quasi judicial administrative proceeding) was arbitrary or capricious, unsupported by substantial evidence, or otherwise an error of law. See Hoffer v. Board of Registration in Med ., 461 Mass. 451, 458 n.9, 961 N.E.2d 575 (2012) (discussing what plaintiff must show to obtain certiorari review).⁵

Given the plaintiff's allegations, the only appropriate way for the court to evaluate the claim is through a review of the administrative record upon a motion for judgment on the pleadings. See School Comm. of Hudson v. Board of Educ ., 448 Mass. 565, 575–576, 863 N.E.2d 22 (2007), citing St. Botolph Citizens Comm., Inc . v. Boston Redev. Auth ., 429 Mass. 1, 7, 705 N.E.2d 617 (1999) ("Certiorari is a limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi-judicial tribunal"). Requiring a defendant agency to file the administrative record as a matter of course is an implicit acknowledgement of that fact.⁶ See Firearms Records Bur . v. Simkin , 466 Mass. 168, 180, 993 N.E.2d 672 (2013), citing Cambridge Hous. Auth . v. Civil Serv. Comm'n , 7 Mass.App.Ct. 586, 587, 389 N.E.2d 432 (1979). For this reason, we vacate the dismissal and remand for further proceedings.

2. The disability claim . In his Superior Court complaint, the plaintiff asserted that the board's decision to deny his parole petition was unlawful to the extent that the decision relied on his disability and faulted him for failing to seek out an appropriate release plan. He claimed that the decision violated the ADA,⁷ as well as art. 114⁸ and G. L. c. 93, § 103.⁹ Because we vacate the dismissal on procedural grounds, we need not reach the merits of the plaintiff's disability claim. That being said, it is clear from the limited information we have—i.e., a partial transcript and the board's written decision—that the board's decision to deny the parole petition does not appear to have considered adequately the application of the ADA and our own relevant constitutional and statutory provisions. We therefore make the following observations.

The ADA and State provisions "prohibit the same conduct: disabled persons may not be 'excluded from participation in or be denied the benefits of' services, programs, or activities [of a public entity], and they may not 'be subjected to discrimination' " (citation omitted). Shedlock v. Department of Correction , 442 Mass. 844, 854, 818 N.E.2d 1022 (2004). The plaintiff alleges, and the board clearly assumed (both during the review hearing and in its decision denying his petition for parole), that the plaintiff suffers from a disability: cognitive and behavioral limitations resulting from TBI. The plaintiff also alleges that he has been denied the benefits of a State program, i.e., a fair hearing and parole review decision process, to which he was statutorily entitled. See 42 U.S.C. § 12131(1)(B) (2012) ("public entity" includes State agencies); Pennsylvania Dep't of Corrections v. Yeskey , 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (ADA applies to prisoners); Thompson v. Davis , 295 F.3d 890, 896–897 (9th Cir. 2002), cert. denied, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003) (ADA applies to parole proceedings, including substantive decision-making).¹⁰ Therefore, the only open question is whether the plaintiff was excluded from the program, or discriminated against in the form of denial of parole, by reason of his disability. See Thompson , supra at 896, 898 n.4 (describing this...