Doucette v. Mass. Parole Bd.

• Decision Date: 29 October 2014
• Docket Number: No. 13–P–149.,13–P–149.
• Parties: Charles DOUCETTE v. MASSACHUSETTS PAROLE BOARD.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 531

18 N.E.3d 1096

Charles DOUCETTE

v.MASSACHUSETTS PAROLE BOARD.

No. 13–P–149.

Appeals Court of Massachusetts, Essex.

Argued April 4, 2014.

Decided Oct. 29, 2014.

Eitan Goldberg for the plaintiff.

Christopher Hurld, Assistant Attorney General, for the defendant.

Present: BERRY, KATZMANN, & SULLIVAN, JJ.

Opinion

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 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 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, 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 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, 448 N.E.2d 756 (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, 998 N.E.2d 793 (2013)

(comments posted by hearing officer on social media indicative of bias constituted due process violation). We reject the board's argument that 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, 998 N.E.2d 793

. “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 [131 N.E. 213 (1921) ], and cases cited. Donoghue v. Holyoke Street Railway, 246 Mass. 485, 494 [141 N.E. 278 (1923) ].” Thomajanian v. Odabshian, 272 Mass. 19, 23, 172 N.E. 232 (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 Mass. 1, 7 n. 7, 604 N.E.2d 1301 (1992). See Rivas v. Chelsea Hous. Authy., 464 Mass. 329, 336, 982 N.E.2d 1147 (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, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)

(Morrissey ); Doe v. Massachusetts Parole Bd., 82 Mass.App.Ct. 851, 858, 979 N.E.2d 226 (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, 92 S.Ct. 2593

. 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) 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...