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Jones v. Bailey

Supreme Court of Kentucky

June 13, 2019



          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 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (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 hearing. Instead he contends that his due process rights were violated by the Parole Board's[7] failure to conduct a constitutionally sufficient final hearing prior to revocation of his supervision. Foremost, Bailey challenges the constitutionality of the Parole Board's procedures which deny an alleged post-incarceration supervision violator the right to a final hearing where he can present evidence and be represented by counsel before his supervision is revoked.

         Although Bailey does not complain about the sufficiency of his preliminary probable cause hearing, the procedures employed in that hearing are relevant for comparison to the procedures employed in the final revocation hearing during which the Board must decide the truth of the violation allegations. Also, as described below, the Board relies upon the preliminary hearing procedure to argue its administrative structure for supervision revocation satisfies due process requirements. We begin by reviewing the requirements the United States Supreme Court has deemed necessary to satisfy the Fourteenth Amendment's Due Process Clause and then consider Kentucky's current revocation procedures.

         A. Morrissey v. Brewer & Gagnon v. Scarpelli: Minimum Due Process

         Two United States Supreme Court landmark probation and parole cases issued in the early 1970s, Morrissey, 408 U.S. 471, and Gagnon, 411 U.S. 778, outline the procedures required in a conditional freedom revocation hearing. In its 1972 decision in Morrissey, the Supreme Court recognized that parolees have a protected liberty interest in the conditional freedom offered by parole and the state could not take away that freedom without affording the offender appropriate procedural safeguards. Gagnon followed in 1973 and instructed that the due process rights afforded parolees likewise protect the liberty interest of probationers.[8]

         These two cases remain the United States Supreme Court's primary guidance on the procedural due process rights involved in the parole or probation revocation process. The Supreme Court explained that the revocation process consists of two important stages. The first encompasses the offender's arrest and probable cause hearing. Morrissey, 408 U.S. at 485-87; see also Gagnon, 411 U.S. at 786. The second stage is the final revocation hearing. Morrissey, 408 U.S. at 487-90; see also Gagnon, 411 U.S. at 786.

         Although Morrissey and Gagnon establish guidance as to the minimal process due when an individual parolee's or probationer's conditional freedom may be revoked, the parties here do not dispute that these cases are also applicable to the "akin" post-incarceration supervision[9] revocation process at issue in this case. Like parole and probation revocation, post-incarceration supervision revocation results in a loss of liberty and the Parole Board's revocation procedure requires both a preliminary and a final hearing. As previously noted, the substance of the final hearing is at issue here but a full understanding of the procedure must begin with the preliminary or probable cause hearing.

         1. The probable cause hearing

         The Morrissey Court conceptualized the revocation probable cause hearing to be one of "minimal inquiry," Morrissey, 408 U.S at 485, 487. This minimal inquiry is to determine if probable cause or reasonable grounds exist to believe that the offender did in fact commit the acts that constitute a violation, with the probable cause determination being sufficient to hold the parolee for the Parole Board's final revocation decision. Id.

         Morrissey identified certain requirements to minimally satisfy due process at the probable cause hearing. First, the hearing must be promptly conducted at or near the place of the alleged violation or arrest "and as promptly as convenient after arrest while information is fresh and sources are available." Id. at 485. Second, the probable cause determination "should be made by someone not directly involved in the case," id., and "[t]his independent officer need not be a judicial officer," id. at 486. Third, the offender should be given notice 1) that the hearing will take place, 2) that its purpose is to determine whether there is probable cause to believe he has committed a violation, 3) with the alleged violation(s) specifically identified. Id. at 486-87. Fourth, the offender is entitled to be present and speak on his own behalf. Id. at 487. Fifth, he may present letters, documents, and witnesses who can provide relevant information. Id. Sixth, if he requests it, and if a risk of harm is not created by disclosure of the informant's identity, he is entitled to have the witness upon whose statements the revocation notice is based to appear "for questioning in his presence." Id. Seventh, the hearing officer has the duty to summarize what occurs at the hearing in terms of the offender's responses and the substance of the evidence presented. Id. And eighth, the officer should determine whether there is probable cause to hold the offender for the final revocation hearing. The hearing officer should state the reasons for his determination and the evidence relied upon, but since this is not a final revocation determination, formal findings of fact and conclusions of law are not required. Id.

         2. The final revocation hearing

         Whereas the preliminary hearing is one of minimal inquiry, Morrissey instructs:

[The final revocation] hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The [offender] must have [a timely] opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.

Id. at 488 (emphasis added).

         Tasked with deciding the minimum due process requirements and noting that writing a procedure code is the responsibility of each state, the Morrissey Court held that the final, fact-finding hearing must be held within a reasonable time after the offender is taken into custody, and then summarized the final hearing minimum requirements as including:

(a) written notice of the claimed violations of parole [or probation];
(b) disclosure to the parolee [or probationer] 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 [or probation].

408 U.S. at 489. Although, as noted in Gagnon, it is readily apparent that these elements are similar to the preliminary hearing's minimal requirements, the "final hearing is a less summary one [and 'somewhat more comprehensive'] because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause." 411 U.S. at 782, 786. "The first step in a revocation decision . . . involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole." Id. at 784 (citing Morrissey, 408 U.S. at 479).

         B. Kentucky's Written Procedure for Post-Incarceration Supervision Revocation

         Kentucky Revised Statutes Chapter 439 provides authority for the Parole Board to conduct hearings when a person is charged with violations of parole and post-incarceration supervision, KRS 439.330(e), and to adopt administrative regulations regarding the conduct of parole and parole revocation hearings and all other matters that come before it, KRS 439.340(3)(b). However, KRS 439.341 prescribes that "[preliminary revocation hearings of probation, parole, and post[-]incarceration supervision violators shall be conducted by hearing officers" who must be attorneys appointed by the Board and admitted to practice in Kentucky. Kentucky Administrative Regulation (KAR) 501 KAR 1:070, entitled "Conducting sex offender post[-]incarceration supervision revocation hearings, "[10] and Kentucky Parole Board Policy and Procedures (KYPB) 30-01, Revocation of Post-incarceration Supervision: Preliminary Hearings, and 30-02, Revocation of Post-Incarceration Supervision: Final Hearings, contain the procedures at issue in this case. Unless indicated otherwise, the material aspects of the post-incarceration supervision revocation procedure at issue here are the same as the parole revocation procedure.[11]

         1. Initiation of the revocation process

         An offender may have his post-incarceration supervision revoked when he violates a term of his supervision. KRS 532.043(5). The revocation process is initiated when a Department of Corrections' parole officer provides notice of the violation(s) to the Parole Board and the offender. Along with setting forth the alleged violation(s), the written Notice of Preliminary Hearing contains the time and place of the hearing. KRS 532.043(5); 501 KAR 1:070 Section 1; KYPB 30-01 Sections A and B. The notice also informs the offender of his right to:

(a) Present evidence and favorable witnesses;
(b) Disclosure of evidence introduced at the hearing for purposes of proving the alleged grounds for revocation, except that that disclosure shall not be required of records or information: (i) protected from disclosure pursuant to KRS 439.510; (ii) if disclosure would reveal confidential informants or sources of information; or (iii) if disclosure would create or constitute a threat to safety or security of the participants in the hearing or any other person;
(c) Confront adverse witnesses, unless the witness is subject to a risk of harm or unless it would create or constitute a threat to safety or security of the participants in the hearing or any other person;
(d) Have counsel present; and
(e) Request postponement of the hearing for good cause. KYPB 30-01 Section B(1).

         2. The probable cause hearing

         The preliminary hearing, conducted by an ALJ, 501 KAR 1:070 Section 1(5), KYPB 30-01 Section A, is an evidentiary hearing conducted on the record, 501 KAR 1:070 Section 1(4), KYPB 30-01 Section E. During this hearing the offender must "present all evidence the offender desires to make part of the administrative record." 501 KAR 1:070 Section 1(4)(c), KYPB 30-01 Section E(3). This includes evidence offered in mitigation of his conduct. 501 KAR 1:070 Section 1(5)(g). The record is not "supplemented with any new or additional evidence after the conclusion of the preliminary hearing," 501 KAR 1:070 Section 1(4)(d), KYPB 30-01 Section E(4), unless the new evidence or information is submitted by the offender in writing before the final revocation hearing, 501 KAR 1:070 Section 3(3)(a), KYPB 30-01 Section E(4), [12] or unless the Board grants a special hearing for introducing new or different evidence or information relevant to the proceeding that could not have been presented at the preliminary hearing, 501 KAR 1:070 Section 3(3)3, KYPB 30-02 Section C(2)(c)(m). Unlike 501 KAR 1:040 Section 6 (regarding final parole revocation hearings) this regulation does not state that when a special hearing is granted, a short continuance may be granted so the offender may secure counsel.

         During the hearing, the ALJ may take judicial notice of acts of the Parole Board, 501 KAR 1:070 Section 1(5)(a), KYPB 30-01 Section F(1). Witnesses testify under oath and, unless good cause is shown, may be examined by the other party or the ALJ. 501 KAR 1:070 Section l(5)(b), KYPB 30-01 Section F(2). The parole officer bears the burden of proof to show the offender violated a condition of release, 501 KAR 1:070 Section l(5)(d), KYPB 30-01 Section F(4), and presents evidence first, 501 KAR 1:070 Section 1(5)(e), KYPB 30-01 Section F(5). The offender is then given the opportunity to present evidence in defense or mitigation. Id. If mitigation evidence is presented, the parole officer may rebut it. 501 KAR 1:070 Section 1(5)(g), KYPB 30-01 Section F(7). Any further proceedings are conducted at the ALJ's discretion. 501 KAR 1:070 Section 1(5)(f), KYPB 30-01 Section F(6). Although parole regulation 501 KAR 1:040 Section 6 states that the offender shall be notified at the preliminary revocation hearing of his right to request a special hearing, neither post-incarceration supervision regulation 501 KAR 1:070, KYPB 30-01, nor KYPB 30-02 contains a like statement.

         At the conclusion of the preliminary hearing or within a reasonable time afterward, the ALJ makes a determination whether probable cause exists to believe the offender committed any or all of the violations alleged in the preliminary hearing notice. 501 KAR 1:070 Section 1(6). The ALJ issues a written decision within twenty-one (21) calendar days after the hearing. 501 KAR 1:070 Section 1(6)(a)2, KYPB 30-01 Section G(1). The offender's case is not referred to the Board unless the ALJ finds probable cause. 501 KAR 1:070 Section l(6)(a)l, KYPB 30-01 Section G(1)(c). When the case is referred but without a recommendation otherwise, the Parole Board issues a violation warrant causing the offender to be brought before the Parole Board for a final revocation hearing. 501 KAR 1:070 Section 1(6)(a)1, KYPB 30-01 Section G(2)(a). If, based upon mitigating factors, the ALJ's non-binding recommendation to the Board is to not return the offender as a post-incarceration supervision violator, 501 KAR 1:070 Section 1(6)(b), the Board votes on the issuance of the violation warrant, 501 KAR 1:070 Section 1(6)(b)1, KYPB 30-01 Section G(2)(b). If a warrant is issued, the offender is brought before the Board for a final revocation hearing. 501 KAR 1:070 Section 1(6)(b)2, KYPB 30-01 Section G(2)(b)(n).

         3. The final revocation hearing

         At the final revocation hearing, the charges contained in the violation warrant are explained to the offender who may then admit or deny them. 501 KAR 1:070 Section 3(2), KYPB 30-01 Section C(1). Unless the Board has received new evidence or information submitted in writing in advance of the final revocation hearing or a special hearing is held at the Board's discretion, and unless an exception is met, the Parole Board considers only the evidence in the administrative record made before the ALJ to determine what action should be taken, i.e., whether the offender should be reincarcerated as a supervision violator. 501 KAR 1:070 Section 3(1) and (3), KYPB 30-02 Section C(2) and (4).[13], [14]

         If a special final hearing is held, it proceeds much like the preliminary hearing, but the Board rather than the ALJ conducts the hearing.[15] The Board presents a short statement of the charges against the offender. 501 KAR 1:070 Section 3(4)(c)2, KYPB 30-02 Section C(3)(c)(i'i). Witnesses testify under oath. 501 KAR 1:070 Section 3(4)(c)l, KYPB 30-02 Section C(3)(c)(i). The parole officer presents evidence to substantiate the charges and the offender may cross-examine him. 501 KAR 1:070 Section 3(4)(c)3, KYPB 30-02 Section C(3)(c)(ni). The offender may offer rebuttal evidence, subject to the parole officer's rebuttal evidence and testimony. 501 KAR 1:070 Section 3(4)(c)4, KYPB 30-02 Section C(3)(c)(iv). The parole officer's rebuttal proof is subject to cross-examination. 501 KAR 1:070 Section 3(4)(c)5, KYPB 30-02 Section C(3)(c)(y). The Parole Board may question the offender, the parole officer, and any witness. 501 KAR 1:070 Section 3(4)(c)6, KYPB 30-02 Section C(3)(c)(w).

         At the conclusion of the final hearing, the Parole Board makes a determination to return the offender to supervision or to revoke the supervision, 501 KAR 1:070 Section 3(5), [16] due to the violation of one or more conditions of supervision, KYPB 30-02 Section C(4). The determination is normally communicated verbally at the conclusion of the hearing. KYPB 30-02 Section C(4)(b). The written notice of the determination and a brief statement identifying the reasons for the decision and the evidence relied upon are to be provided no later than twenty-one (21) days from the date of the decision. 501 KAR 1:070 Section 3(5), KYPB 30-02 ...

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