Teachey v. Carver

• Decision Date: 26 August 1999
• Docket Number: No. 98-SP-503, No. 98-SP-556., No. 98-SP-472
• Citation: 736 A.2d 998
• Parties: Larry TEACHEY, et al., Appellants, v. John A. CARVER, et al., Appellees.
• Court: D.C. Court of Appeals

736 A.2d 998

Larry TEACHEY, et al., Appellants, v. John A. CARVER, et al., Appellees.

Nos. 98-SP-472, 98-SP-503, 98-SP-556.

District of Columbia Court of Appeals.

Argued April 14, 1999.

Decided August 26, 1999.

Hastings Jones, Public Defender Service, for appellants.

Susan B. Menzer, Assistant United States Attorney, with whom, Wilma A. Lewis, United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Robert D. Okun, Assistant United States Attorneys, were on the brief, for appellees John A. Carver, Margaret Quick, Polly Nelson and Marcelino Cruces.

Charles Reischel, Deputy Corporation Counsel, and Mary L. Wilson, Asst. Corporation Counsel, filed a response to appellants brief on behalf of appellee Margaret Moore.

Before TERRY and SCHWELB, Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge:

The principal question presented in these consolidated appeals is whether the District of Columbia Trustee for Offender Supervision¹ exceeded his legal authority by unilaterally promulgating a "directive" requiring the District of Columbia Board of Parole ("BOP" or "the Board") to issue parole violator warrants in situations in which the Board's regulations render that decision discretionary. The Trustee had reason to believe that prior to the issuance of Directive No. 001, prisoners whose parole should have been revoked had been allowed to remain on the streets and had committed additional violent crimes. The Directive was obviously issued to remedy this situation, and the procedures that it ordains may well be a long overdue step in the right direction. Nevertheless, we are compelled to conclude that the Revitalization Act, see note 1, supra, does not authorize the Trustee to override the Board's validly issued regulations without following the appropriate statutory procedures. We therefore reverse the trial judge's orders upholding Directive No. 001.

I.

The District of Columbia parole statute authorizes the BOP, inter alia, to "determine if and when to terminate parole or conditional release or to modify the terms or conditions of parole or conditional release." D.C.Code § 24-201.2(a) (1996). The statute further provides that if the Board, or any member of the Board, has reliable information that a prisoner has violated his parole, then the "said Board, or any member thereof, ... may issue a warrant to any officer hereinafter authorized to execute the same for the retaking of such prisoner." D.C.Code § 24-205.

Pursuant to its authority under D.C.Code § 24-201.3, the Board has provided by duly promulgated regulation as follows:

The Board or a member of the Board may elect to issue a violator warrant in those cases where the only violation of parole is the alleged new offense for which the parolee has been arrested. The Board shall make a written determination as to whether there is probable cause to believe that the parolee has committed the crime for which he or she was arrested and as to the following:

(a) Risk to the community if the parolee is allowed to remain on parole;

(b) History of the parolee while under supervision;

(c) Whether the parolee has other outstanding criminal charges; and

(d) Seriousness of the offense for which the parolee has been arrested.

28 DCMR § 217.3 (1987).

The Board's regulations further provide that where there is probable cause to believe that a parolee has committed or attempted to commit one or more of certain enumerated criminal offenses the Board "shall issue a violator warrant." 28 DCMR § 217.7 (emphasis added).² Where such probable cause relates to an offense not enumerated in § 217.7, however, the issuance of a warrant is discretionary, and the Board is required to base its decision on the criteria set forth in 28 DCMR §§ 217.3 and 217.6.³

On October 28, 1997, the Trustee issued Directive No. 001, which provides in pertinent part that if a parolee is charged with a criminal offense while under parole supervision, then "[i]n any such case in which a judicial officer finds probable cause that a parolee has committed a new crime, the Board of Parole will adopt that finding of probable cause and within one business day issue a parole [violator] warrant." The requirement that a warrant be issued upon a judicial finding of probable cause is not limited to cases in which that finding relates to one of the offenses enumerated in 28 DCMR § 217.7. The Directive thus purports to make issuance of a warrant mandatory under circumstances in which it was previously discretionary.

Appellants Larry Teachey, Vernon Powell, and Brian A. Ellison were all on parole at the time Directive No. 001 was promulgated. Each appellant was thereafter rearrested for an offense as to which issuance of a warrant was discretionary under the Board's existing regulations. In conformity with the requirements of Directive No. 001, the Board issued parole violator warrants against all three appellants. By separate petitions for writs of habeas corpus,⁴ the appellants challenged the Trustee's authority to issue Directive No. 001 and the Board's authority to issue warrants pursuant to that Directive. The trial judge summarily denied each appellant's petition, ruling that the Directive was a permissible exercise of the Trustee's authority under the Revitalization Act "to direct the actions of ... the Board of Parole." See D.C.Code § 24-1232(b)(2). These timely appeals followed.

II.

By the time these appeals were argued, none of the appellants was being detained on a parole violator warrant issued by the Board. Teachey had entered a guilty plea to a new offense, and his parole had been revoked. After considering the new charges against Powell and Ellison, the Board decided that each man should remain on parole.⁵ Arguing that "there are no collateral consequences flowing from their pre-hearing detention and [that] the issues are not capable of repetition, yet evading review with respect to these particular appellants" (emphasis added), the appellees ask us to dismiss these appeals as moot.

In Tyler v. United States, 705 A.2d 270 (D.C.1997) (en banc), we reversed a pretrial detention order in spite of the fact that, while the appeal was pending, the defendant had entered a plea of guilty to the offense for which he had been detained. We thus decided the merits of the issue even though the defendant would not personally benefit from a reversal of the detention order. We stated in Tyler:

There is no doubt that even if Tyler were to prevail on the merits of his appeal, the result would have no impact on him in this case because he is no longer being detained pretrial, but is serving the sentence imposed as a result of his guilty plea. However, we do not apply a strict rule of mootness to dismiss a case because it no longer affects the particular appellant, if it presents a matter of importance that is likely to recur, yet evade review with respect to others similarly situated. Lynch v. United States, 557 A.2d 580, 582 (D.C. 1989) [en banc]; contra, Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).⁶ Specifically as concerns issues arising from pretrial detention, notwithstanding the defendant's right to expedited consideration by way of a motion for summary reversal, we have recognized that it is altogether probable that the limited period during which a person may be detained pretrial could expire before an appeal is heard on the merits. See United States v. Edwards, 430 A.2d 1321, 1324 n. 2 (D.C. 1981) (en banc).

Id. at 273.

The issue presented in these appeals is just as capable of repetition as was the question that we considered in Tyler. It would likewise be as difficult in this type of case as it was in Tyler to obtain effective judicial review during the period of detention that precedes the parole revocation hearing. The appellees' claim that these appeals are moot is thus at odds with our en banc decision in Tyler.

Indeed, this case presents more compelling reasons than Tyler did for declining to dismiss the appeals as moot. In Tyler, the dissenting judges argued that "the chance of recurrence of the events presented here is slim." Id. at 281. The two concurring judges agreed that the precise issue was unlikely to arise again in the same form. Id. at 279. In this case, on the other hand, recurrence of the issue here presented is inevitable. If we were to dismiss the present appeals as moot, then pursuant to Directive No. 001, parole violator warrants could, and probably would, be issued automatically, and without the exercise of BOP discretion, even in cases in which, under the regulations, the issuance of such a warrant is discretionary. If, as we conclude below, the Trustee lacked the authority to override the Board's regulations, then it is appropriate for this court so to hold in this case, in order to ensure that, in the future, the Board eschews the automatic issuance of a warrant upon a judicial finding of probable cause, and instead exercises its discretion where the regulations require it to do so.

III.

The Trustee and the BOP next contend that the orders appealed from should be affirmed because the Board's issuance of parole violator warrants against the appellants was consistent with its regulations. Focusing on the sequence of the first two sentences of 28 DCMR § 217.3 (quoted at page 1001, supra), the appellees assert that the regulations permit the Board, or a member of the Board, to issue a parole violator warrant before exercising discretion as directed in § 217.3 and before issuing the required written determination. The detention of the appellants was therefore proper, according to the appellees, notwithstanding the lack of a prior written determination, and in spite of the lack of any showing that the Board in fact exercised discretion as required by §§ 217.3 and 217.6.

The premise on which the Trustee and the BOP predicate this contention is questionable. We do not believe that the sequence of the sentences in §...