Doe v. Mass. Parole Bd., 10–P–1383.

Citation979 N.E.2d 226
Decision Date05 December 2012
Docket NumberNo. 10–P–1383.,10–P–1383.
Parties John DOE v. MASSACHUSETTS PAROLE BOARD & another.
CourtAppeals Court of Massachusetts

Stephen R. Kaplan, Northampton, for the plaintiff.

Amy L. Karangekis, Assistant Attorney General, for the defendants.

Present: RAPOZA, C.J., CYPHER, & SULLIVAN, JJ.

SULLIVAN, J.

This is an appeal from decisions of the Superior Court concerning a parolee's constitutional and statutory challenges to the conditions of parole imposed on sex offenders. Among the conditions John Doe challenges is the requirement that he wear a global positioning system (GPS) monitoring device. We vacate the portion of the judgment that dismissed Doe's constitutional challenge to the imposition of GPS monitoring. In all other respects the judgment is affirmed.

Background. 1. Doe's parole and parole revocation. Doe was convicted of kidnapping and rape in 1988, and was sentenced to a term of thirty years at the Massachusetts Correctional Institution at Concord. He was paroled in 1992. His parole was revoked in 1994 when he was charged with threatening to commit murder, making threatening telephone calls, and assault and battery by means of a dangerous weapon, to wit, repeatedly ramming his girlfriend's car with his half-ton pickup truck. Doe admitted to the charges, stating that he had been under the influence of alcohol, and was returned to custody. He was paroled again on August 13, 1998. At that time, the Massachusetts Parole Board (parole board) imposed special conditions of parole, including a "stay away" order, completion of the phase 4 sex offender program, supervision for drug use and liquor abstinence, attendance at mandatory sex offender group counselling, and mandatory Alcoholics Anonymous (AA) counselling.

In November of 2000, the parole board added periodic polygraph testing to Doe's conditions of parole. In 2002, with the passage of the Sex Offender Registry Law, G.L. c. 6, §§ 178I, 178J, 178K(2)(B), the Sex Offender Registry Board (SORB) classified Doe as a level 2 sex offender.2 See generally Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 882 N.E.2d 298 (2008) (Doe No. 8725 ). In time, this classification triggered additional special conditions of parole.

2. Intensive parole conditions for sex offenders. In June of 2004 the parole board added sex offender (SEXA) conditions to its policies governing the parole of sex offenders. In November of 2006 the parole board promulgated the intensive parole for sex offenders (IPSO) policy, 120 par. 606. The IPSO policy provided that all sex offenders under IPSO supervision also would be subject to the SEXA conditions specified in 120 par. 360.3 The IPSO policy provided that level 1, 2, or 3 sex offenders automatically were subject to the IPSO conditions. The nature of the conditions varied according to whether the parolee was a level 1, 2, or 3 sex offender. Because Doe had been designated a level 2 sex offender, the parole board, at Doe's parole officer's request, imposed the IPSO conditions in October of 2006. Under the IPSO policy, the parole board retains the right to modify the IPSO conditions for parolees. It did so on October 24, 2006, modifying the level 2 sex offender condition barring out-of-State travel to permit Doe to travel to Connecticut for his job as a construction worker.

Thereafter, the General Court adopted G.L. c. 127, § 133D 1/2, effective December 20, 2006, which required the imposition of GPS tracking on all parolees under "court ordered parole supervision" for a sex offense, as defined in G.L. c. 6, § 178C. St. 2006, c. 303, § 7. As a result of this legislation, the parole board required Doe to wear a GPS monitor, but did not impose any geographic delineation of exclusion zones.

While this appeal was pending, Doe was reclassified as a level 1 sex offender, and certain parole conditions were modified.4

The following IPSO conditions remain relevant to this appeal: (1) GPS monitoring; (2) polygraph testing at six-month intervals; (3) a ban on using the Internet or computer programs without the permission of a parole officer; and (4) a waiver consenting to the release of all treatment records and polygraph tests to the parole board, the Attorney General, the appropriate district attorney, and law enforcement.

3. Superior Court litigation. Doe's complaint, filed on February 13, 2007, challenged G.L. c. 127, § 133D 1/2, and the constitutionality of the IPSO conditions, both on their face and as applied to him, and on ex post facto, double jeopardy, and due process grounds. This complaint was brought against the parole board, SORB, and the Attorney General pursuant to G.L. c. 12, § 11I (civil rights); G.L. c. 231A, § 6 (declaratory judgment); G.L. c. 212, § 4 (equity); and G.L. c. 214, § 1B (privacy). He also challenged the authority of the parole board to issue the IPSO conditions without formal rulemaking. A Superior Court judge dismissed the claims against SORB and the Attorney General, and the nonconstitutional claims against the parole board on a motion to dismiss. Subsequently, a second judge ruled that the GPS monitoring system was not punishment, but a permissible term of parole, and allowed summary judgment in favor of the parole board on the remaining claims.

4. Postjudgment proceedings. After judgment had entered in the Superior Court, and while Doe's appeal was pending, the Supreme Judicial Court held that wearing a GPS device was "punitive in effect," and created a "substantial burden on liberty." Commonwealth v. Cory, 454 Mass. 559, 572, 911 N.E.2d 187 (2009). The court further held that the automatic retroactive application of G.L. c. 265, § 47 (requiring GPS monitoring) to probationers, and the automatic retroactive application of G.L. c. 127, § 133D ½, to parolees, violated the Federal and the State Constitutional prohibitions against ex post facto laws. See ibid. (probation); Doe v. Chairperson of the Mass. Parole Bd., 454 Mass. 1018, 1019, 911 N.E.2d 204 (2009) (parole) (Chairperson ). However, the court also held that a sentencing judge retained the "discretionary power in an individual case" to require that a probationer wear a GPS monitor when setting the terms of probation. Cory, supra.

In response to these cases, the parole board initiated a review of parolees subject to the GPS monitoring and exclusion zone requirements. The parole board reviewed each file, the written recommendation of the parole officer, and the perceived risk. It did not notify Doe of this review. On September 23, 2009, the parole board reimposed the GPS monitoring condition on Doe "because of the crimes he committed while on parole," a reference to the 1994 charges and subsequent conviction.

Around this time, Doe filed a motion for relief from judgment and a renewed motion for a preliminary injunction, challenging both G.L. c. 127, § 133D ½, and the IPSO conditions. The second judge denied the motion on the grounds, among others, that a parolee does not have a liberty interest in parole, and that even if a liberty interest existed, a parolee has no right to a hearing in advance of the imposition of additional conditions. The judge also found that an individualized determination had been conducted.

On September 17, 2010, after Doe's motion for relief from judgment and for a preliminary injunction was heard and decided, the Supreme Judicial Court decided Commonwealth v. Goodwin, 458 Mass. 11, 933 N.E.2d 925 (2010). Goodwin held that the addition of GPS monitoring, coupled with exclusion zones, to the terms of probation created a "substantial burden on liberty" in the absence of a material change in circumstances, and violated the Commonwealth's common-law prohibition against double jeopardy. Id. at 22–23, 933 N.E.2d 925, quoting from Cory, supra.5

Discussion. 1. Administrative procedure. Doe maintains that the adoption of the IPSO conditions without formal rulemaking violates G.L. c. 30A, § 5, and that the dismissal of this claim was error. Our review of the allowance of a motion to dismiss is de novo. Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011).

The parole board acknowledges that it did not follow rulemaking procedures, and argues that it need not have done so. The parole board is authorized by statute to set the terms and conditions of parole. See G.L. c. 30, § 1 ; G.L. c. 127, § 130. General Laws c. 127, § 131, requires that parolees adhere to the dictates of the parole board. Moreover, the parole board has adopted comprehensive regulations concerning parole supervision that permit the parole board to set conditions of parole in accordance with the authority granted to it under G.L. c. 27, § 5. See 120 Code Mass. Regs. § 300.07 (2000). In the absence of other statutory or constitutional limitations, the parole board retains broad discretion in setting the conditions of parole. G.L. c. 127, § 130. Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 385–386, 540 N.E.2d 1309 (1989).

The parole board's IPSO conditions set forth a series of conditions to be considered for all sex offenders. The IPSO conditions are internal guidelines, directed to parole board employees to assist them in the performance of their duties, not regulations.6 See Massachusetts Gen. Hosp. v. Rate Setting Commn., 371 Mass. 705, 706–707, 359 N.E.2d 41 (1977) ; Commonwealth v. Trumble, 396 Mass. 81, 88–89, 483 N.E.2d 1102 (1985).7 The IPSO policy also provides that the parole board may vary the IPSO conditions in individual cases, as it did here by lifting the out-of-State travel restriction. The IPSO conditions therefore are not rules of general application within the meaning of G.L. c. 30A, § 5. See Associated Indus. of Mass. v. Commissioner of Ins., 356 Mass. 279, 282–284, 249 N.E.2d 593 (1969) ; Construction Indus. of Mass. v. Commissioner of Labor & Indus., 406 Mass. 162, 171, 546 N.E.2d 367 (1989). This claim properly was dismissed.

2. GPS monitoring. Doe...

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