Jones v. Bailey, 2017-SC-000203-DG AND 2017-SC-000604-DG
| Citation | 576 S.W.3d 128 |
| Decision Date | 13 June 2019 |
| Docket Number | 2017-SC-000203-DG AND 2017-SC-000604-DG |
| Court | United States State Supreme Court (Kentucky) |
| Parties | Shannon JONES, Kentucky Parole Board, and Justice & Public Safety Cabinet Appellants/Cross-Appellees v. David Wayne BAILEY, Appellee/Cross-Appellant |
COUNSEL FOR APPELLANTS/CROSS-APPELLEES: Angela Turner Dunham, Justice and Public Safety Cabinet, Office of Legal Services.
COUNSEL FOR APPELLEE/CROSS-APPELLANT: Timothy G. Arnold, Director, Post Trial Division, Department of Public Advocacy.
In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United States Supreme Court established that individuals with conditional freedom privileges – parolees and probationers – are entitled to due process when faced with revocation of their freedom. Minimally, a two-stage process is required, beginning with a preliminary hearing at which a hearing officer determines whether probable cause exists that the offender committed the alleged violation(s), followed by a final revocation hearing which goes beyond a probable cause determination to a final evaluation of contested facts and ultimate decision. The overarching issue in this case is whether an offender placed on post-incarceration supervision — a status treated like parole in Kentucky — receives a constitutionally sufficient final revocation hearing before the Kentucky Parole Board (Parole Board or Board) under the current procedures. We conclude the Kentucky Parole Board’s final revocation hearing procedures do not meet the minimal due process required by Morrissey and Gagnon.
The Board does not conduct a final evidentiary hearing that extends beyond the initial probable cause determination nor does it inform the offender of his right to request counsel for that final revocation hearing. While Kentucky currently employs a two-stage process, it fails to satisfy federal constitutional standards. Due process requires that the Parole Board inform the offender of his right to request counsel to represent him at the final hearing; conduct the constitutionally-required final evidentiary hearing prior to revocation; provide the offender timely notice of the time and place of that final hearing; consider the evidence and determine pursuant to the preponderance of the evidence standard whether the offender committed the alleged violation(s); and timely inform the offender in writing of the Board’s decision, including the evidence relied on and reasons for the decision. The facts of this case illustrate the constitutional shortcomings in the current supervision revocation process.
Appellee/Cross-Appellant David Wayne Bailey was convicted of first-degree sexual abuse. After serving a five-year sentence for that crime, he was released from the Department of Corrections' custody to a five-year period of post-incarceration supervision (supervision).1 A condition of the supervision was successful completion of a sex offender treatment program (SOTP). Bailey enrolled in a SOTP but did not complete the program, a fact that Bailey does not dispute. The SOTP clinician reported that Bailey was terminated for failure to comply with two program provisions: he was not making efforts to accept responsibility for his sexual convictions and he was disrupting his therapy group.
Shortly thereafter, Bailey received notice that due to his failure to complete sex offender treatment as directed, a preliminary revocation hearing would be held on July 16, 2013. The portion of that written notice relevant to the issues presented in this matter is set forth in the accompanying footnote.2
An administrative law judge (ALJ) conducted the preliminary hearing at which Bailey was represented by counsel and was allowed to present witnesses and evidence, including mitigating testimony. Bailey strongly disputed the reasons given for his SOTP termination, contending that he was actually terminated from the program due to his expression of his anti-abortion views, views that conflicted with the clinician’s. The ALJ found probable cause to believe that Bailey had violated his supervision conditions by being terminated from the SOTP. Bailey was subsequently served with a violation warrant and remained in custody pending the final hearing before the Parole Board.
Bailey was not provided notice of the time and place of the final revocation hearing, did not have counsel to represent him at that hearing, and was not able to present witnesses or further testimony on the alleged violations. After the hearing, the Parole Board revoked Bailey’s post-incarceration supervision. The Board declined Bailey’s request for reconsideration, finding no misconduct or significant procedural error and no significant new evidence that was not available at the preliminary hearing.
Bailey, pro se, filed a petition for a writ of mandamus in Franklin Circuit Court challenging the Board’s procedures on due process grounds. He particularly stated that he was denied due process because at the final hearing stage he did not have assistance of counsel, he was not allowed to present mitigating factors, and he was not allowed to call witnesses. The trial court granted the Board’s CR 3 12.02 motion to dismiss for failure to state a claim. On appeal, the Court of Appeals concluded Bailey was not denied due process in the final revocation hearing when he was not permitted to introduce evidence. However, the Court of Appeals held that KRS 31.110(2)(a) creates a statutory right to counsel for offenders at post-incarceration supervision final revocation proceedings.4 Consequently, the Court of Appeals reversed the trial court’s dismissal of Bailey’s petition and remanded the case for further proceedings.
This Court granted the Parole Board’s motion for discretionary review to resolve whether KRS 31.110 creates a right to counsel and Bailey’s cross-motion for discretionary review to resolve whether the Kentucky Parole Board denied Bailey due process by failing to afford him an opportunity at his final revocation hearing (1) to present witnesses or other evidence of mitigating factors or (2) to cross-examine the evidence against him. We conclude that Bailey’s procedural due process rights, including potentially a right to counsel, were violated at the final revocation hearing, but also conclude that KRS 31.110(2)(a) does not create a statutory right to counsel for offenders at post-incarceration supervision final revocation proceedings. Accordingly, we affirm in part and reverse in part the Court of Appeals' reversal of the circuit court.5
We begin our review with the observation that during the appellate process, Bailey’s post-incarceration supervision term expired.6 Although the issues presented could be regarded as moot, the Parole Board has not raised that issue. "The general rule is ... that ‘where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed.’ " Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (citations omitted). However, as explained in Morgan, the general rule has a "public interest" exception. "The public interest exception allows a court to consider an otherwise moot case when (1) the question presented is of a public nature; (2) there is a need for an authoritative determination for the future guidance of public officers; and (3) there is a likelihood of future recurrence of the question." Id. at 102.
These three elements are present in this matter as to the due process issues presented. First, the provision of procedural due process pertaining to the revocation of conditional freedom is a matter of public interest. Second, as one of the Parole Board’s regular and primary duties is deciding whether those alleged to have violated a term of their conditional freedom should have their post-incarceration supervision revoked, a determination whether the revocation procedures meet constitutional demands will assist the Board in the exercise of its official duties. Third, because the employment of current administrative procedures is a recurrent event in the revocation process, it is highly likely that these procedural due process questions will again arise. With all three elements of the public interest exception being present here, we are satisfied that guidance from the Court as to the due process issues is proper and a matter of urgency.
Before turning to the merits, we note that Bailey raises one issue which does not meet an exception to the mootness doctrine. Bailey initiated this action in the Franklin Circuit Court challenging the Board’s revocation decision. He sought a new, legally proper revocation hearing and requested the trial court to compel the Parole Board to reinstate his post-incarceration supervision and to allow him to reapply to SOTP. Claiming that the trial court erred when it dismissed his petition for failure to state a claim, Bailey thus asks this Court to vacate the trial court’s judgment and to remand this case with instructions to find in his favor. Bailey’s personal claim that the trial court erred by dismissing his petition is now moot, however, and does not meet the "collateral consequences," "voluntary cessation," "capable of repetition, yet evading review," or the "public interest" exceptions to the mootness doctrine. See id. at 99-100. Consequently, this Court will not review this claim of error although it will address the due process issues raised, all of which are properly preserved for our review unless otherwise noted.
Bailey does not complain about the sufficiency of the first hearing, the probable cause...
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...'public interest' exception[]" and applied this exception to consider due process concerns involving parole revocation. Jones v. Bailey, 576 S.W.3d 128, 135 (Ky. 2019)."The public interest exception allows a court to consider an otherwise moot case when (1) the question presented is of a pu......
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B.B. v. Commonwealth
...Procedure9 Both revocation hearings and DNA petitions have the same burden of proof—preponderance of the evidence. See Jones v. Bailey , 576 S.W.3d 128, 146 (Ky. 2019) ; KRS 620.100(3).10 RCr 5.24(1) states that "all persons present during any part of the proceedings of a grand jury shall k......
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..., 441 S.W.3d at 102 (citing In re Alfred H.H. , 233 Ill.2d 345, 331 Ill.Dec. 1, 910 N.E.2d 74, 80 (2009) ); see also Jones v. Bailey , 576 S.W.3d 128, 135 (Ky. 2019). We are satisfied that the first and third elements are met in this case because KRS 533.040(3) and KRS 533.060(2) concern lo......