Kentucky Parole Board v. Timothy Shane

• Court: Kentucky Supreme Court
• Decided: March 19, 2026
• Docket: 2023-SC-0364
• Status: Published

Opinion

RENDERED: MARCH 19, 2026 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0091-DG

DOUGLAS HODGE APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2021-CA-1512 KENTON CIRCUIT COURT NO. 21-CI-00814

KENTUCKY PAROLE BOARD APPELLEE

AND

2023-SC-0364-DG

KENTUCKY PAROLE BOARD APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0135 FRANKLIN CIRCUIT COURT NO. 20-CI-00834

TIMOTHY SHANE APPELLEE

OPINION OF THE COURT BY JUSTICE BISIG

REVERSING HODGE V. PAROLE BOARD AFFIRMING PAROLE BOARD V. SHANE

This Opinion combines two appeals involving the Kentucky Parole Board

and the procedures it uses to revoke parole. After parole was revoked for

Douglas Hodge and Timothy Shane, two separate Court of Appeals panels

reached conflicting conclusions regarding whether the Kentucky Parole Board is constitutionally and statutorily authorized to delegate its responsibility of

conducting final evidentiary hearings to Administrative Law Judges (ALJs) prior

to revoking parole.

Having granted discretionary review and considered oral arguments, we

conclude that the Parole Board is authorized to delegate the final hearing

requirement to ALJs.

FACTS AND PROCEDURAL HISTORY

Douglas Hodge

In 2012, Douglas Hodge was convicted of a variety of non-violent offenses

and sentenced to twenty years in prison. The Parole Board recommended him

for parole in February 2020 and six months later, Hodge became noncompliant

with his parole requirements. Hodge was paroled to his father’s home, but due

to difficulties living together, Hodge moved in with his cousin. Hodge’s parole

officer attempted to visit him at the address he provided, but he was not there.

She left a tag on the door instructing Hodge to report to her office. It was later

revealed that the parole officer visited the wrong apartment.

Later that day, the parole officer received a call from the resident of that

apartment who informed her that he did not know Hodge and that Hodge did

not live there. Hodge called the parole officer later that day, but he would not

tell her where he was living. The parole officer directed him to report to her in

person the next morning, but Hodge told her he would report to her several

days later instead. Ultimately, Hodge failed to report to her at either time. A

2 counselor of a treatment program Hodge was enrolled in informed the parole

office that Hodge stated he was in Ohio.

The parole officer obtained a parole violation report on August 31 due to

Hodge’s refusal to inform her of his current residence. The warrant charged

Hodge with violating parole by absconding, failing to report a change in his

home address, and leaving the state without permission.

ALJ Cynthia Elliot conducted a preliminary hearing and heard testimony

from Hodge, his parole officer, and Hodge’s treatment center counselor. Hodge

was represented by counsel and given the opportunity to testify, submit

evidence, and to call and cross-examine witnesses. The ALJ made numerous

findings of facts in concluding there was probable cause that Hodge absconded

and failed to report his change of address. However, ALJ Elliot did not find

that probable cause supported the contention that Hodge violated his parole by

failing to report a change in address.

The final evidentiary hearing was conducted by a different ALJ, John

Marcus Jones, who made extensive findings of fact regarding the parole

violations. The ALJ also considered mitigating evidence Hodge presented. In

his written findings, ALJ Jones concluded that Hodge absconded by a

preponderance of the evidence, but that the evidence did not support the

alleged violation of failing to report a change in home address. At the request

of Hodge’s counsel, the ALJ left the record open for Hodge to submit a

3 treatment plan in mitigation. 1 ALJ Jones referred the matter to the Parole

Board for a final decision.

The Parole Board issued written findings on December 17, 2020.

Without taking any evidence of its own, and relying entirely on the record

created by the ALJs, the Parole Board found, by a preponderance of the

evidence, that Hodge violated the conditions of supervision by absconding and

that, per Kentucky Revised Statute (KRS) 439.3106(1), Hodge’s failure to

comply constituted a significant risk to the community and that he cannot be

appropriately managed in the community. In reaching its decision, the Parole

Board noted that Hodge had been on parole supervision twice before and was

aware of the requirements to make himself available for supervision and report

to his parole officer when directed. The Parole Board also acknowledged that

during the final hearing, Hodge testified to concerns about his supervising

officer and what he claimed were inaccuracies in her testimony.

Hodge filed a petition for declaration of rights in Kenton Circuit Court.

The Circuit Court granted the Parole Board’s motion to dismiss the petition,

holding that the two-hearing process, followed by review of the ALJ findings by

the Parole Board, complied with the dictates of Morrissey v. Brewer, 408 U.S.

471 (1972), a major Supreme Court decision that delineates the minimum due

process requirements for the parole revocation process. The Court of Appeals

1 Hodge notes that it is unclear from the record whether the Parole Board ever

saw the treatment plan Hodge submitted, and asserts that, in making its final determination, the Board either completely ignored or was unaware of the fact that Hodge needed mental health treatment and had already secured placement for that treatment prior to the conclusion of the revocation proceedings. 4 affirmed, determining that adequate due process was provided and that the

final revocation hearing did not need to be before the Parole Board itself. The

Court of Appeals further found the Parole Board did not abuse its discretion in

finding that revocation was appropriate. Hodge filed a motion for discretionary

review in this Court.

Timothy Shane

Timothy Shane was convicted of first-degree rape, second-degree

robbery, and first-degree unlawful imprisonment. Shane was released on

parole subject to a variety of conditions, including a prohibition on the use of

alcohol. While released on parole, Shane was pulled over for a seatbelt

violation and admitted to consuming alcohol. Police found an open container

of alcohol in his center console and his breathalyzer result was a 0.16, twice

the legal limit. He was charged with driving under the influence and with

violating his parole.

Shane waived the probable cause hearing. During the final evidentiary

hearing conducted by an ALJ rather than the Board itself, Shane’s parole

officer testified as to the conditions of his parole and the officer who conducted

the traffic stop testified as to the circumstances of Shane’s arrest, including his

admission to the consumption of alcohol. Shane, represented by counsel,

presented mitigating information, but ultimately the ALJ determined, by a

preponderance of the evidence, that Shane violated the conditions of his parole.

The Parole Board adopted the ALJ’s findings and revoked Shane’s parole.

5 Shane submitted a request for reconsideration and argued that the

Parole Board violated due process by failing to conduct a hearing and instead

relying exclusively on the ALJ’s recommendations, and that this error was

exacerbated by his inability to present mitigating evidence directly to the

Board. The Board granted partial reconsideration, rejecting Shane’s due

process claims but finding there were “numerous” letters submitted in

mitigation that had not been reviewed. The matter was submitted to the full

Parole Board for consideration. Ultimately, the Parole Board sent Shane a

letter stating it had reviewed additional documents but voted to uphold its

revocation decision.

Shane filed a declaratory judgment action in Franklin Circuit Court

arguing the Parole Board’s procedure was improper because his case was never

heard “by the Board” as required by Jones v. Bailey, 576 S.W.3d 128 (Ky.

2019), a decision which assessed the constitutional validity of the Parole

Board’s revocation procedures. Additionally, he argued the revocation order

did not contain the requisite findings pursuant to KRS 439.3106, and there

was not sufficient evidence to support revocation. The circuit court denied

relief, concluding that the Parole Board’s procedures met the standards set

forth in Jones and that the Parole Board was permitted to delegate the final

evidentiary hearing process to an ALJ.

On appeal, the Court of Appeals reversed the trial court. The appellate

court first concluded that although Shane’s appeal was moot because he was

released on parole while his appeal was pending, the public interest exception

6 applied and thus the court retained jurisdiction. The Court of Appeals agreed

that Jones and KRS Chapter 439 mandate that the Parole Board conduct final

revocation hearings. Because of the mootness of Shane’s claims, given that he

was on parole at the time the appellate court rendered its decision, it declined

to address Shane’s other arguments, namely that the ALJ’s and Parole Board’s

orders did not make the requisite findings and that there was insufficient

evidence supporting revocation.

We granted discretionary review in both cases to determine whether the

Parole Board’s procedure allowing an ALJ to conduct a final evidentiary

revocation hearing satisfies both constitutional and statutory requirements.

ANALYSIS

I. The Kentucky Parole Revocation Process.

The parole process is an integral part of our penological system. Not only

does it serve to help individuals constructively reintegrate into society, but it

also serves to alleviate the costs of keeping an individual in prison. To

accomplish the purposes of parole, released individuals are subject to various

conditions that generally restrict their activities beyond the ordinary

restrictions imposed on citizens. When a person violates those conditions, a

parole officer can take steps to have parole revoked when necessary, thus

triggering the parole revocation procedures generated by the Parole Board.

When parole is allegedly violated, the Parole Board issues a parole

violation warrant and a notice to the parolee regarding the probable cause

hearing. The notice explains that the parole revocation process contains

7 multiple steps, including a hearing before an ALJ to determine probable cause,

a final revocation hearing where a parolee is given an opportunity to be heard

and show that they did not violate the conditions of parole, and a final decision

by the Parole Board based on the findings of fact as determined at the final

revocation hearing or the Parole Board’s own review of the record.

The notice for the probable cause hearing informs the individual that

they have an opportunity to present witnesses and documents, and to question

witnesses that testify against them, unless disallowed by the hearing authority.

This preliminary hearing is conducted by an ALJ. Based on the evidence

produced at the hearing or any evidence for which judicial notice is taken, the

ALJ must determine whether probable cause exists to believe that the offender

has committed any or all of the violations alleged in the notice of probable

cause hearing. If probable cause is found, the matter is referred to the Board

for a final revocation hearing.

A parolee then receives notice of the final revocation hearing, which

includes much of the information contained in the probable cause hearing

notice. However, it informs the individual that the standard of proof is a

preponderance of the evidence. According to the Board’s regulations, an

offender can present evidence in defense and mitigation of the charges.

While the notice regarding the final revocation hearing contemplates the

possibility that the hearing may occur before members of the Parole Board,

Hodge asserts that these hearings are held exclusively before ALJs.

Additionally, 501 Kentucky Administrative Regulations (KAR) 1:040 defines

8 “factfinder” as “the person or entity that determines the facts at a hearing and

includes the administrative law judge or the Parole Board depending on which

conducts the hearing and issues findings of fact.” 501 KAR 1:040 Section 1(2).

Generally, the first time the Board is involved in the parole revocation

process is to make the final determination as to whether parole should be

revoked. The Board can review the findings of the ALJ in making its

determination or conduct its own review of the record.

II. Although portions of Shane’s case are moot, the public interest exception applies.

Shane argues that the Parole Board is constitutionally and statutorily

prohibited from delegating final evidentiary hearings to ALJs, and that the

Board failed to make required findings in revoking his parole. While his appeal

was pending, in April 2022 the Board recommended Shane for parole. He was

subsequently discharged from custody and placed back on supervision in May

2022. As a result, the Parole Board moved the Court of Appeals to dismiss the

appeal as moot. We agree that Shane’s argument regarding the specific

findings made by the Parole Board is now moot, since he was discharged from

custody, but find that an exception to mootness allows his improper delegation

arguments to proceed.

“[A] ‘moot case’ is one which seeks to get a judgment . . . upon some

matter which, when rendered, for any reason, cannot have any practical legal

effect upon a then existing controversy.” Morgan v. Getter, 441 S.W.3d 94, 98-

99 (Ky. 2014) (citation omitted). Generally, “where, pending an appeal, an

event occurs which makes a determination of the question unnecessary or 9 which would render the judgment that might be pronounced ineffectual, the

appeal should be dismissed.” Id. at 99 (citation omitted).

One commonly recognized exception, the public interest exception,

“allows a court to consider an otherwise moot case when (1) the question

presented is of public nature; (2) there is a need for an authoritative

determination for future guidance of public officers; and (3) there is a likelihood

of future recurrence of the question.” Id. at 102 (citation omitted). As to the

first element, the question of whether due process is guaranteed by the current

revocation procedures utilized by the Parole Board is undoubtedly a question of

public nature. In Jones, this Court reasoned that “procedural due process

pertaining to the revocation of condition freedom” was a matter of public

interest. 576 S.W.3d at 135.

After the Jones decision, the Parole Board revised its revocation

procedures to allow the Parole Board to delegate final revocation hearings to

ALJs. This indicates that “there is a need for an authoritative determination

for the future guidance of public officers” on these issues. 2 Morgan, 441

S.W.3d at 102 (citation omitted). In addition, the separate Court of Appeals

panels that rendered decisions in Shane and Hodge reached different

conclusions, further necessitating a decision by this Court on these issues.

Finally, given the volume of cases the Parole Board must hear, these

questions will undoubtedly arise again in the future. In 2022, the Parole Board

2 In fact, during oral argument Hodge’s counsel stated that he was aware of

eight other cases currently being held in abeyance pending the resolution of these appeals. 10 considered 2,904 revocation cases. 3 As the Jones Court noted, “the

employment of current administrative procedures is a recurrent event in the

revocation process.” 576 S.W.3d at 135. Therefore, we are satisfied that the

public interest exception to mootness applies in Shane’s case and permits us to

determine the legality of the Parole Board’s revocation procedures.

III. The use of ALJs to conduct final revocation hearings does not violate due process.

Hodge and Shane argue that they are entitled to a final evidentiary

hearing before the Parole Board prior to the revocation of parole. We must

determine whether the Parole Board’s delegation of the final revocation hearing

to an ALJ violates a parolee’s constitutional due process rights. “[T]he

revocation of parole is not part of a criminal prosecution and thus the full

panoply of rights due a defendant in such a proceeding does not apply to

parole revocations.” Morrissey, 408 U.S. at 480.

In Morrissey, the Supreme Court determined the minimum process

required before a state may revoke the conditional liberty of a parolee. Id. at

489. The Court examined whether the Due Process Clause of the Fourteenth

Amendment requires states to afford individuals an opportunity to be heard

before revoking parole. Id. at 472. When two parolees violated their release

conditions, the Iowa Parole Board revoked their parole, having only read

reports from their parole officers. Id. at 472-73. The Court explained there are

3 Ky. Dep't of Corr., Ky. Parole Bd. 2022 Calendar Year Report (2023),

https://justice.ky.gov/BoardsCommissions/pb/Documents/Annual%20Reports/2022 %20CY%20Report.pdf. 11 two important stages in a typical parole revocation process. First, an informal

preliminary hearing before an independent officer to determine whether there is

probable cause for the parole revocation. Id. at 485. A parolee should be given

notice of the hearing which includes the alleged parole violations and the

purpose of the hearing. Id. at 486-87. During this hearing, the parolee should

be permitted to speak on his own behalf and present evidence. Id. at 487. The

hearing officer must determine whether there is probable cause to hold the

parolee pending a final revocation decision. Id.

The second stage is the revocation hearing that leads to a final

determination of whether parole should be revoked. Id. at 487-88. This

hearing must give a parolee an opportunity to show that he did not violate the

conditions of parole and to offer mitigating circumstances. Id. at 488. The

final revocation hearing “must lead to a final evaluation of any contested

relevant facts and consideration of whether the facts as determined warrant

revocation.” Id.

As noted by the Court, states are tasked with creating the procedure for

the parole revocation process, but Morrissey dictates the minimum

requirements of due process during a final revocation hearing. Id. at 488-89.

These requirements include:

(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);

12 (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.

Id. at 489. The Court also emphasized that these basic requirements “should

not impose a great burden on any State’s parole system.” Id. at 490. One year

later, in Gagnon v. Scarpelli, the Court adopted the criteria established in

Morrissey and made it applicable to probation revocation. 411 U.S. 778 (1973).

The Court further held that states are not constitutionally obligated to provide

counsel but emphasized the importance of legal representation. Id. at 790.

The Kentucky Parole Board’s revocation procedures underwent changes

after this Court rendered its decision in Jones, in which this Court addressed a

lack of any final revocation hearing and whether such process was supported

by Kentucky law. 576 S.W.3d 128. After failing to complete a condition of his

post-incarceration supervision, 4 Bailey received notice of a preliminary

revocation hearing. Id. at 133. While Bailey received a preliminary hearing,

conducted by an ALJ, at which he was represented by counsel and allowed to

present witnesses and evidence, he did not receive notice of a final revocation

hearing. Id. at 134. As a result, he did not have counsel to represent him nor

was he able to present witnesses or further testimony regarding the alleged

violations. Id. Rather, the Board revoked Bailey’s parole solely based on the

record created at the preliminary hearing. Id.

4 Post-incarceration supervision is treated like parole. Jones, 576 S.W.3d at 133. 13 Bailey filed a petition for writ of mandamus in circuit court asserting that

his due process rights were violated by the Board’s failure to conduct a

constitutionally sufficient final hearing prior to revocation of his supervision.

Id. On discretionary review, this Court concluded that Bailey’s procedural due

process rights were violated at the final revocation hearing. Id. at 135. The

Board conceded that the “final hearing” is not an actual “hearing,” but was

more appropriately termed a “final adjudication” since the Board only reviews

the record to determine that the ALJ’s probable cause finding is correct. Id. at

143. Since Bailey “was not afforded an evidentiary final revocation hearing

where he could present evidence and confront witnesses,” he was denied due

process. Id. at 144.

Further, the Court held that the Board’s sole reliance on the

administrative record created at the probable cause hearing did not satisfy due

process requirements. Id. at 133. The Court explained that an evidentiary

final hearing is a minimal due process requirement, as dictated by Morrissey,

that is not satisfied by the decisionmaker simply reviewing the preliminary

hearing record—it must be an actual hearing. Id. Supervised individuals have

a constitutional right to procedure beyond a single probable cause hearing and

must be afforded the opportunity to present evidence and be heard. Id. at 144.

Hodge and Shane argue that Jones dictates that the Board itself, not

ALJs, must conduct final evidentiary hearings prior to parole revocation. In

Jones, Bailey was not provided notice of the time and place of the final

revocation hearing, did not have counsel to represent him, and was not able to

14 present witnesses or further develop testimony regarding the alleged violations,

resulting in a constitutionally deficient final hearing prior to the revocation of

his release. Id. at 136. The Court explained:

the Board is the body charged with determining the ultimate findings of fact. Because the conclusion that a supervision violation has occurred is one where “a wide variety of information may be deemed relevant, and issues of witness credibility and veracity are often critical to the decision making process,” reviewing the administrative record is only minimally reliable and a “wholly unsatisfactory basis for [a revocation] decision.” Mathews v. Eldridge, 424 U.S. 319, 343-44, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Bailey had a constitutional right to a hearing pursuant to procedures that enabled him to make his case to the Board, who would then have full awareness of all the evidence presented and would be able to decide whether there were any mitigating factors in his favor.

Id. at 144. Jones is distinguishable because Bailey effectively was not afforded

a final revocation hearing, given that he was unable to present witnesses or

testimony regarding the violations. A single probable cause hearing is

insufficient to create a record upon which a revocation can be based. Bailey

was unable to further develop the evidentiary record.

However, neither Morrissey nor Jones explicitly state that an ALJ cannot

conduct the final hearing. In fact, Morrissey explicitly recognizes that it is a

state’s responsibility to devise parole revocation procedures. 408 U.S. at 488.

Morrissey explains that due process requires “a ‘neutral and detached’ hearing

body.” Id. at 489. While the Court mentioned that the “traditional parole

board” would satisfy this requirement, it did not require that the hearing be

conducted by the Board itself for purposes of a final revocation hearing.

Indeed, to the contrary, in summarizing appropriate final revocation hearing

15 procedures, the Morrissey Court referred to such proceedings being conducted

by a “hearing officer,” plainly separate from the parole agency itself. Id. (noting

that confrontation must be allowed “unless the hearing officer specifically

finds good cause for not allowing confrontation.”) (emphasis added).

The Court further noted that the due process requirements it mandated

“should not impose a great burden on any State’s parole system.” Id. at 490.

Using ALJs as hearing officers is both practical and pragmatic. The Parole

Board is statutorily constrained to nine members. According to the Parole

Board, if it were tasked with personally conducting parole revocation hearings

it would add thousands of additional hearings to the Board’s already packed

docket. The Board is unable to add additional members to address that kind of

increased workload. Further, in its briefing the Board explained that Parole

Board members are currently tasked with their regular weekly meeting, victim

hearings, face-to-face hearings for parole-eligible inmates, file reviews on

inmates for whom a face-to-face hearing is not required, votes on cases brought

before the full Board, reconsideration requests, parole revocation warrants,

specialty early release requests, and revocations.

Here, Hodge and Shane were given the opportunity to make their case to

the ALJ during the final revocation hearing. In parole revocation proceedings,

ALJs serve as agents of the Board specifically charged to make findings of fact

and develop the evidentiary record. ALJs have no decision-making authority

whatsoever, but rather they serve as neutral and detached hearing officers. By

making their cases to the ALJs, they were effectively able to make their case to

16 the Board, who then had “full awareness of all the evidence presented and

[was] able to decide whether there were any mitigating factors in [their] favor.”

Jones, 576 S.W.3d at 144.

In issuing written findings of fact, an ALJ does not make a

recommendation as to whether revocation is appropriate. Rather, the ALJ is

tasked with determining whether an offender committed the alleged violations

by a preponderance of the evidence. The Board then makes a final written

decision regarding whether parole should be revoked. 501 KAR 1:040(13)(2)(d)

provides:

[t]he board shall issue a decision in writing to determine whether parole is revoked or not: 1. Based on the findings of fact determined at the final revocation hearing; or 2. Based on its own review of the facts and reasoning; and 3. The Board's decision shall include an analysis of whether the offender's violation constitutes a significant risk to the offender’s victim or the community at large and whether the offender can be appropriately managed in the community.

Notably, the Board is permitted to base its revocation decision on the findings

of fact determined at the final revocation hearing or based on its own review.

Id.

Currently, parolees receive two full hearings before an independent ALJ

prior to a third review and final decision by the Parole Board. But importantly,

the Board retains the ultimate decision-making power regarding whether to

revoke parole. In sum, the Board’s use of ALJs to conduct final revocation

hearings is reasonable, practical, and, most importantly, does not violate the

guarantees of due process or the dictates set forth by Morrissey and Jones.

17 Despite the overarching validity of the delegation process, we nonetheless

cannot uphold the procedures utilized in these cases in their entirety because

Hodge and Shane were not given the opportunity to file, with the Board,

exceptions to the ALJ’s findings for consideration. While we acknowledge that

Parole Board hearings are specifically exempt from KRS Chapter 13B, see KRS

13B.020(3)(c)(2)(a), 13B-like procedures that allow the filing of exceptions

would completely satisfy the mandates of due process.

KRS Chapter 13B provides respondents in administrative hearings with

due process safeguards that are both necessary and legally adequate for

various matters, ranging as far as professional licensure to employment. KRS

13B.110(4) allows parties disagreeing with a hearing officer’s recommendation

to file written exceptions, which would direct the Parole Board’s attention to

any perceived inadequacies in the ALJ’s findings. Ky. Bd. of Med. Licensure v.

Strauss, 558 S.W.3d 443, 456 (Ky. 2018). As we noted in Rapier v. Philpot, 130

S.W.3d 560, 563 (Ky. 2004), the filing of exceptions provides the means for

“preserving and identifying issues for review” by the agency head. If a provision

for filing exceptions were made applicable to the Parole Board revocation

process, it would further ensure that due process rights of parolees are

maintained.

In utilizing the present procedures, it appears in some instances the

Board may not review anything other than the ALJ’s findings of fact, which are

drafted solely by the ALJ while serving as factfinder. As explicitly required by

501 KAR 1:040(13)(2)(d), the Board must make the ultimate determination as

18 to whether an individual has violated parole and retains the ability to render

the final decision as to revocation. Along with this express duty, the

procedures utilized by the Parole Board must ensure that the Board apprises

itself of the full facts and issues in the matter before rendering its final

decision, which can undoubtedly be accomplished through a parolee’s ability to

file exceptions to the Parole Board.

IV. Statutes do not prohibit the Parole Board from delegating parole revocation hearings to ALJs.

In rendering the Shane decision, the Court of Appeals held that Kentucky

statutory law requires the Board to conduct the final revocation hearing. 5

Generally, KRS Chapter 439 provides authority for the Parole Board to conduct

hearings when a person is charged with parole and post-incarceration

supervision violations. These statutes also grant the Parole Board authority to

establish regulations regarding the conduct of revocation hearings.

Specifically, KRS 439.340(3)(b) directs the Parole Board to

adopt administrative regulations with respect to the eligibility of prisoners for parole, the conduct of parole and parole revocation hearings and all other matters that come before it, or conditions to be imposed upon parolees. . . .

Thus, by its plain language, KRS 439.340(3)(b) requires the Parole Board to

adopt regulations to control the parole revocation hearing process.

5 While Hodge did not raise statutory arguments in his initial brief to this Court,

the Parole Board, in response, argued the Parole Board procedures were compliant with Kentucky statutes. The Court of Appeals did not address statutory arguments in its decision in Hodge. Nevertheless, the same analysis and conclusions we adopt here equally apply to Hodge’s case. 19 The Supreme Court of the United States has long recognized that the

rule-making power of an administrative agency “may itself be an adequate

source of authority to delegate a particular function, unless by express

provision of the Act or by implication it has been withheld.” Fleming v. Mohawk

Wrecking & Lumber Co., 331 U.S. 111, 121 (1947). Kentucky law similarly

recognizes the existence of implied, as opposed to inherent, powers relative to

administrative agencies. See Humana of Ky., Inc., v. NKC Hosps., Inc., 751

S.W.2d 369, 372-73 (Ky. 1988) (“[A]dministrative agencies ‘possess the powers

reasonably necessary and fairly appropriate to make effective the express

powers granted to or duties imposed on them.”).

In Ashland-Boyd City-County Health Department v. Riggs, 252 S.W.2d

922, 923 (Ky. 1952), this Court held that

[p]owers of administrative boards and agencies are those conferred expressly or by necessary or fair implication. It is a general principle of law that where the end is required, the appropriate means are implied.

The legislature has explicitly directed the Parole Board to develop regulations to

control the conduct of parole revocation hearings, and the power to delegate

the hearing functions is appropriately implied from the ability to control those

proceedings. Further,

express statutory authority may support but is not necessarily required for an administrative agency or officer to subdelegate its authority, and the omission by the legislature of any specific grant of, or grounds for, the power to delegate is not to be construed as a denial of that power. If there is a reasonable basis to imply the power to delegate the authority of an administrative agency, such an implication may be made, and the power to delegate may be implied.

20 73 C.J.S. Public Administrative Law & Procedure § 160 (2025) (footnotes

omitted). As such, the delegation of non-binding factfinding duties to a hearing

officer is impliedly within the scope of the Parole Board’s authority.

The Parole Board promulgated 501 KAR 1:040 § 1(2) to specifically

include an administrative law judge within the definition of “fact finder.” 501

KAR 1:040 § 13(2)(a)-(c) contemplates the conduct of final hearings by an ALJ

as the factfinder. However, 501 KAR 1:040 § 13(2)(d) explicitly reserves the

final decision-making authority to the Parole Board. Because the Parole Board

has retained the final decision-making authority on revocation, the power to

delegate advisory factfinding duties to an ALJ may be fairly implied from its

express power to “adopt administrative regulations with respect to . . . the

conduct of parole and parole revocation hearings[.]” KRS 439.340(3)(b). By

delegating final hearings to an ALJ, while reserving its final decision-making

authority, the Parole Board has satisfied its statutory duty to “conduct” parole

revocation hearings.

The Court of Appeals relied on KRS 439.440, which provides that “[a]ny

prisoner returned to state custody for violation of his or her release shall be

heard by the board within sixty (60) days on the propriety of his or her

rerelease.” While the statute does reference the Board, the primary purpose of

this statute is to dictate the time in which a prisoner must be heard regarding

the alleged violations of release. As with all statutes, KRS 439.440 “must be

read as a whole and in context with other parts of the law.” Lewis v. Jackson

Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005). A basic interpretive canon

21 of statutory construction is that “[a] statute should be construed so that effect

is given to all its provisions, so that no part will be inoperative or superfluous,

void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009)

(citation omitted).

The appellate court also pointed to KRS 439.330(1)(e), which states that

one of the Board’s duties is to “[i]ssue warrants for persons charged with

violations of parole and postincarceration supervision and conduct hearings on

such charges . . . .” But the Court of Appeals omitted the last clause of the

statute, which adds that the Board shall “conduct hearings on such charges,

subject to the provisions of KRS 439.341, 532.043, and 532.400 . . . .” As

explained above, KRS 439.341 permits hearing officers to perform any other

duties assigned by the Board, including the duties set forth in KRS

439.330(1)(e). As a result, delegation of final revocation hearings to ALJs is

consistent with KRS 439.330(1)(e).

Finally, the Court of Appeals cited KRS 439.320(5), which states

[p]arole and final parole revocation hearings may be done by panels of the board, subject to the following requirements: (a) A panel shall consist of not less than three (3) and not more than six (6) members; and (b) All members of the panel shall agree on a decision or the matter shall be referred to the full board.

The Court of Appeals reasoned that, implicit in this statute is that the Board,

not a hearing officer, conducts final revocation hearings. However, 501 KAR

1:040(1)(2) defines factfinder as an ALJ or the Parole Board, depending on

which conducts the hearing and issues the findings of fact. The statute states

that final revocation hearings may be done by panels of the Board. So the 22 statute, like the regulation, leaves open the possibility that the final revocation

hearing may be conducted by the Board, or delegated to an ALJ. KRS 439.320

simply describes how the Board may divide its work, allowing for decisions to

be made from panels of members.

In sum, the Parole Board is well within the authority granted by KRS

439.340(3)(b) to delegate fact finding duties to an ALJ through its promulgation

of administrative regulations that govern the conduct of parole and parole

revocation hearings. However, because there is no procedure for the parolee to

file exceptions regarding the ALJ’s findings directly to the Parole Board, we

must ultimately reverse the Court of Appeals in Hodge’s case and affirm the

Court of Appeals in Shane’s case, but not because of any lack of statutory

authority of the Board.

CONCLUSION

Without an avenue for parolees to present evidence and arguments

directly to the Parole Board via exceptions, the present revocation procedures

do not satisfy due process, to which parolees are constitutionally entitled. For

the foregoing reasons, we reverse the Court of Appeals and the Kenton Circuit

Court’s order dismissing Hodge’s declaration of rights actions. In Shane’s case,

we affirm the Court of Appeals and reverse the Franklin Circuit Court’s

dismissal of Shane’s declaration of rights action.

All sitting. Lambert, C.J.; and Thompson, J., concur. Bisig, J., also

concurs in part and dissents in part by separate opinion which Nickell, J.,

23 joins. Goodwine, J., dissents by separate opinion which Conley and Keller, JJ.,

join. Keller, J., dissents by separate opinion.

BISIG, J., CONCURRING IN PART, DISSENTING IN PART: I concur with

the majority’s determination that, generally, the Parole Board is entirely within

its authority to delegate fact-finding functions to ALJs. However, while

allowing parolees to file exceptions to ALJs reports may provide an additional

layer of review, I would find the defendants’ due process rights were protected

by the current process.

Further, there was sufficient evidence to revoke Hodge’s parole pursuant

to KRS 439.3106, which required the Board to determine that Hodge could not

be appropriately managed in the community. In its revocation order, the

Board specifically noted that, given that Hodge had been on parole twice before,

he clearly understood that he was required to make himself available for

supervision and report to his parole officer. Because there was evidence that

Hodge refused to provide his location to his parole officer and failed to appear

when she directed him to do so, the requirements of KRS 439.3106 were met.

Therefore, I would affirm the Court of Appeals and the Kenton Circuit Court’s

order dismissing Hodge’s declaration of rights action, and reverse the Court of

Appeals and affirm the Franklin Circuit Court’s dismissal of Shane’s action for

declaratory relief.

Nickell, J., joins.

GOODWINE, J., DISSENTING: I agree with the majority’s analysis of

Kentucky’s parole revocation process and that the public interest exception to

24 the mootness doctrine applies to Shane’s case. However, I disagree with the

majority’s view on the legality of the Board’s revocation procedures. Delegating

final parole revocation hearings to ALJs violates due process and is prohibited

by statute. Therefore, respectfully, I dissent.

I. The use of ALJs to conduct final revocation hearings violates due process.

First, the majority holds that using ALJs to conduct final revocation

hearings does not violate due process. I disagree. In Morrissey v. Brewer, the

Supreme Court of the United States determined the minimum due process

required before a state may revoke the conditional liberty of a parolee. 408 U.S.

471 (1972). The Court examined whether the Due Process Clause of the

Fourteenth Amendment requires states to afford an individual an opportunity

to be heard before revoking parole. Id. at 472.

The Court explained there are “two important stages in a typical parole

revocation process.” Id. at 485. The first stage is a preliminary hearing before

an independent officer to determine whether there is probable cause to revoke

parole. Id. at 485. During the initial hearing, “the parolee should be given

notice that the hearing will take place and that its purpose is to determine

whether there is probable cause to believe he has committed a parole

violation.” Id. at 486-87. The parolee should be permitted to “speak on his own

behalf; he may bring letters, documents, or individuals who can give relevant

information to the hearing officer.” Id. at 487. The hearing officer must

25 determine “whether there is probable cause to hold the parolee for the final

decision of the parole board on revocation.” Id.

The second stage of the parole revocation process is the final revocation

hearing, which results in a decision on whether to revoke parole. The final

revocation hearing must meet the following requirements:

This 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 parolee must have an 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. The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody.

Id. at 488.

In sum, due process under Morrissey requires:

(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.

Id. at 489.

The Parole Board’s revocation procedures were revised after this Court

issued its decision in Jones v. Bailey, which addressed the absence of a final

revocation hearing, contrary to Morrissey, and whether such a process was

supported by Kentucky law. 576 S.W.3d 128 (Ky. 2019). In Jones, the Board

revoked Bailey’s parole solely based on the record from the preliminary

hearing. Id. at 143. 26 On discretionary review, this Court concluded “that Bailey’s procedural

due process rights . . . were violated at the final revocation hearing.” Id. at 135.

The Board conceded that “the final hearing is not an actual ‘hearing’ but may

be more appropriately termed a ‘final adjudication’ since the Board only reviews

the record to determine that the ALJ’s probable cause finding is correct.” Id. at

143 (footnote omitted). Since “Bailey was not afforded an evidentiary final

revocation hearing where he could present evidence and confront witnesses, we

must conclude he was denied due process.” Id. at 144 (footnote omitted).

Further, the Court held that the Board’s sole reliance on the

administrative record created at the preliminary probable cause hearing did not

satisfy due process requirements. Id. The Court explained that an evidentiary

final hearing is a minimum due process requirement, as dictated by Morrissey,

that is not satisfied by the decisionmaker simply reviewing the preliminary

hearing record—it must be an actual hearing. Id. at 143. Supervised

individuals have “a constitutional right to a hearing pursuant to procedures

that enabled him to make his case to the Board, who would then have full

awareness of all the evidence presented and would be able to decide whether

there were any mitigating factors in his favor.” Id. at 144.

We agree that Morrissey does not require the Board to be the “hearing

body”—that is a decision left to state legislatures. However, the requirement

that the factfinder make written findings regarding the evidence relied on and

the reasons for revoking parole is not met by the Board’s current procedure,

which allows ALJs to conduct the final revocation hearing. Although not

27 explicitly stated, Morrissey and Jones indicate that the “hearing body” serves as

both factfinder and decision-maker.

Against that legal backdrop, we examine the specific facts of Hodge and

Shane. In Hodge, after a preliminary hearing, the ALJ found there was probable

cause to believe Hodge violated his parole by absconding and failing to report a

change of address. A final revocation hearing was then held before a different

ALJ, who determined that the evidence showed, by a preponderance, that

Hodge had violated his parole only by absconding. Without hearing new

evidence, the Board upheld the ALJ’s finding and concluded that, based on

Hodge’s failure to inform his parole officer of his whereabouts, he had indeed

absconded. The Board decided Hodge could not be effectively supervised and

posed a significant risk to the community, so it deferred reconsideration of his

parole for twenty-four months.

In his petition for review to the circuit court, Hodge alleged that the

procedures employed by the Board in determining whether his parole should

be revoked did not meet minimal due process standards. Hodge complained

that because the full Board relied on the record developed by the ALJs at the

two hearings and did not itself receive evidence or arguments concerning the

allegations, the procedure failed to provide him adequate due process.

However, Hodge didn’t offer any evidence that the Board failed to consider. The

circuit court held that the two-hearing process, conducted by ALJs and

followed by a review of the ALJ’s decisions by the full Board, complied with

Morrissey. The Court of Appeals agreed and held that the minimum due

28 process requirements of Morrissey and Jones were met, noting that neither

requires a final hearing before the Board. For reasons set forth below, I

disagree.

Shane was charged with a parole violation for using alcohol while on

parole for a thirty-year sentence, and he waived the probable cause hearing. An

ALJ conducted a final revocation hearing. Shane did not testify at the hearing,

but he submitted letters as mitigating evidence. The ALJ made findings of fact

and legal conclusions that Shane had violated his parole conditions by using

alcohol. The ALJ’s report did not mention the mitigating evidence Shane had

submitted. The Board adopted the ALJ’s findings without reviewing additional

evidence and revoked Shane’s parole. Shane claims the Board only reviewed

the ALJ’s report and not the hearing video because they were unaware of the

letters Shane submitted until he pointed them out during a reconsideration

request, which was unsuccessful.

Shane filed a petition for review in the circuit court, arguing it was

improper for the ALJ to conduct the final revocation hearing. The circuit court

denied Shane’s petition and dismissed the action. Shane appealed to the Court

of Appeals and argued that the Board’s final revocation hearing procedure in

his case violated due process and Kentucky’s statutory law. The court agreed.

While Shane’s appeal was pending, he was released from parole.

The Court of Appeals held that Jones and KRS 439.440 required the

Board to conduct the final hearing, acknowledging that a different panel had

recently reached the opposite holding in Hodge. The court opined that

29 Jones held it was constitutionally insufficient for the Board to base its revocation decision on a simple review of the administrative record. We read Jones as requiring the Board to conduct the final revocation hearing so it may make an informed decision as to revocation, having heard all the evidence.

Shane v. Ky. Parole Bd., No. 2022-CA-0135-MR, 2023 WL 4535569, at *3

(Ky. App. July 14, 2023). I agree.

Hodge and Shane argue that Jones dictates that the Board itself, not

ALJs, must conduct final evidentiary hearings prior to parole revocation. The

majority attempts to distinguish Jones, arguing that Bailey was not afforded a

final revocation hearing to further develop the evidentiary record because he

was unable to present witnesses or testimony regarding the violations, and that

a single probable cause hearing is insufficient to create a record upon which a

revocation can be based.

Although the facts in Hodge and Shane are distinguishable from each

other and the procedure in Jones, Shane is a prime example of why one

hearing body needs to serve as both factfinder and final decision-maker for

revocation. The Board must have “full awareness” of all the evidence presented

at the final hearing to make a fully informed decision to satisfy minimum due

process requirements. Jones, 576 S.W.3d at 144.

The Board clearly lacked this “full awareness” because the ALJ provided

a “bare bones” report to the Board. It did not include any arguments made by

Shane’s counsel, any of the favorable testimony from the parole officer, or any

discussion of the factual issues raised during the parole officer’s cross-

examination, or letters Shane submitted from loved ones and two employers.

30 Shane argues that the Board must have relied solely on the ALJ’s report rather

than reviewing the hearing video because it was unaware of the letters until

Shane pointed them out in his reconsideration request. This is far from the

“full awareness” Jones requires. Id.

Though the Board argues that its current procedures comply with this

Court’s mandate in Jones, the Board continues to impermissibly rely on the

administrative record rather than hearing testimony when making final

revocation decisions. Though Hodge does not allege the Board overlooked

mitigating evidence in his case, the Board’s unconstitutional delegation of the

final hearing is statutorily prohibited and could result in the Board overlooking

mitigating evidence in any case because it lacks “full awareness.” Thus, I would

hold that the Board’s unconstitutional delegation of the final revocation

hearing constitutes a violation of the minimum due process requirements in

Morrissey and Jones.

II. KRS 439.341 does not authorize the Board to delegate final parole revocation hearings to an ALJ.

I disagree with the majority’s holding that KRS 439.341 authorizes the

Board to delegate final parole revocation hearings to an ALJ. Though I

acknowledge that “we must look first to the plain language of a statute,” our

inquiry does not end there because KRS 439.341 concerns preliminary

matters, and other sections of KRS Chapter 439 more specifically address final

revocation hearings. Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky.

2017) (quoting Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005)).

31 KRS 439.341 is titled “Probable cause revocation hearings of

probation, parole, and [post-incarceration] supervision violators” and provides:

Probable cause revocation hearings of probation, parole, and [post- incarceration] supervision violators shall be conducted by hearing officers. These hearing officers shall be attorneys, appointed by the board and admitted to practice in Kentucky, who shall perform the aforementioned duties and any others assigned by the board.

This statute concerns initial probable cause hearings. To interpret “any

other duties” as broadly as the majority does would allow the Board to assign

all duties to ALJs. It is unclear what the legislature intended “any other duties”

to apply to, but, contextually, said duties pertain to initial probable cause

hearings.

A review of the statutory scheme and the Board’s administrative

regulations provides an antithetical viewpoint. KRS 439.320(5) allows the board

to use three-member panels to conduct final hearings:

Parole and final parole revocation hearings may be done by panels of the board, subject to the following requirements:

(a) A panel shall consist of not less than three (3) and not more than six (6) members; and

(b) All members of the panel shall agree on a decision or the matter shall be referred to the full board.

The majority’s interpretation of this section leaves open the possibility

that the final revocation may be conducted by the Board or delegated to an

ALJ. I disagree, interpreting this section as allowing the Board to choose to

conduct hearings with the full Board or use panels of its members.

Additionally, KRS 439.440 provides: “Any prisoner returned to state custody for

violation of his or her release shall be heard by the board within sixty (60) 32 days on the propriety of his or her rerelease.” (emphasis added). Thus, I am

convinced that the Board is statutorily mandated to conduct final revocation

III. The Board’s administrative regulations belie its position that it may delegate final revocation hearings to ALJs.

Two sections of 501 KAR 1:040 require ALJs to refer matters to the

Board for final hearings:

Section 6. Probable Cause Determination.

(5) If probable cause is found by the administrative law judge, the matter shall be referred to the board for issuance of a parole violation warrant, if one has not been issued, and a final revocation hearing.

Section 7. Referral for Parole Violation Warrant.

(1) If probable cause is determined to exist, the case shall be referred to the board for issuance of a parole violation warrant and a final revocation hearing.

(emphasis added).

Although it is unclear which duties the phrase “any other duties” in KRS

439.341 refers to, the clear language of the statutes and regulations governing

final revocation hearings mandates that the Board conduct these hearings.

While the due process standards in Morrissey could be met if an ALJ handled

both fact-finding and decision-making, KRS Chapter 439 does not permit the

delegation of decision-making authority. Therefore, both Hodge’s and Shane’s

due process rights were violated when the Board delegated their final

revocation hearings to an ALJ.

33 Though I reach this conclusion, permitting parolees to file exceptions 6 to

an ALJ’s report would ensure the Board is aware of any mitigation evidence,

would give the Board “full awareness” of the evidence to make its final

revocation decision, and would likely satisfy the due process requirements in

IV. The record is devoid of any evidence that the Board conducting final revocation hearings would overburden the parole system.

Finally, I consider the majority’s view that requiring the Board to conduct

parole revocation hearings would add thousands of extra hearings to its

already busy schedule, overburdening the parole system. Shane argues that

the Board’s claims about its workload and the risk of overloading the system by

holding its own final hearings are not preserved. The Board did not address

Shane’s preservation argument in its reply brief, instead responding that its

workload argument is relevant to prevent an unreasonable outcome. Despite

our precedent on preservation, the majority opinion neither addresses Shane’s

preservation argument nor explains why the issue should receive our attention.

Because the record lacks evidence on the number of final revocation

hearings held each year, it is impossible to fully understand the Board’s

6 KRS 13B.120 (1)-(2) provides in pertinent part that, “once a hearing officer has

issued a recommended order, the agency heads must ‘consider the record, including the recommended order and any exceptions duly filed to a recommended order and determine whether to accept the officer’s recommendation . . . (emphasis added). Parole Board hearings are currently exempt from the mandates of KRS 13B. See KRS 13B.020(3)(c)(2)(a). Thus, we suggest “13B-like” procedures. The General Assembly should amend the statute accordingly and permit the delegation of the final revocation hearing to ALJs, and then the Board could amend its regulations to adopt KRS 13B- like procedures to include a right for a parolee to request exceptions. 34 workload without definitive numbers. The Board states, without supporting

documentation, that its members are currently responsible for, at a minimum,

their regular weekly meetings, victims’ hearings, face-to-face hearings for

parole-eligible inmates, file reviews for inmates not requiring a face-to-face

hearing, voting on cases presented to the full board, reconsideration requests,

parole revocation warrants, specialty early release requests, and revocations.

Even if the Court accepts as true that these responsibilities are the Board’s, I

have no information on how much time these tasks consume on a weekly,

monthly, or annual basis.

Shane contends that the Board’s position is merely a “parade of

horribles,” unpreserved and lacking support in the record, and that no effort

was made in the lower court to make this argument or to establish the facts

they rely on. Shane further argues that the Court cannot consider the Board’s

policy concerns because they fall outside its “bailiwick.”

Given that this issue is unpreserved, I decline to address it. I rely on our

preservation principle that “our jurisprudence will not permit an appellant to

feed one kettle of fish to the [circuit court] and another to the appellate court.”

See Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012). Even if the Board

believed that conducting its own final revocation hearings was burdensome,

the appropriate course of action would be to petition the legislature for a policy

change and to change its administrative regulations.

35 V. Conclusion.

Based on the foregoing, I, too, would reverse the Court of Appeals

decision in Hodge and affirm its decision in Shane. Though the majority

reaches this same conclusion, I cannot concur in the result only because the

majority reaches its due process decision by virtue of its 13B analysis, which,

by its own admission, exempts the Parole Board from its application. Thus,

there is no current 13B mechanism in place for the Parole Board to use to

adopt exceptions. The current regulatory scheme would have to be rewritten to

adopt such procedures.

As currently written, the statutory and regulatory schemes of the Parole

Board do not allow for ALJs to conduct final revocation hearings. And there is

no mechanism in place to allow for exceptions, even if ALJs were allowed to

conduct said hearings. Thus, both Hodge and Shane’s due process rights were

violated.

Without the proper statutory and regulatory mechanisms in place, what

is the Parole Board supposed to do, considering the majority’s opinion? As

noted, several cases are currently held in abeyance pending the decision in this

case. The majority appears to advocate for a 13B-like procedure that is

currently absent from the statutory and regulatory schemes. That is not

proper, and the majority opinion does not resolve the Parole Board’s current

dilemma of how to resolve these issues. The better course of action is to

interpret the current statutes and regulations as written, as I have done in this

dissent, and allow the legislature and the regulatory agency to make the

36 necessary amendments to allow ALJs to conduct both preliminary and final

revocation hearings and adopt a method by which parolees may file exceptions

to the ALJ’s written findings with the Board, which will accomplish the stated

goal. Absent this process, I respectfully dissent.

Conley and Keller, JJ., join.

KELLER, J., DISSENTING: I agree with the majority’s opinion that the

use of ALJs to conduct final revocation hearings does not violate due process,

given that the parolee is permitted the meaningful opportunity to submit

exceptions to the Board, and the Board does not delegate its responsibility to

make the final determination regarding revocation. The Board is afforded the

ability to reach “full awareness” of the facts by the ALJ’s fact finding

accompanied by the parolee’s obligations to make exceptions to an incomplete

report. See Jones v. Bailey, 576 S.W.3d 128, 144 (Ky. 2019). To this end, I

concur in part.

However, where I diverge from the majority opinion and concur with

Justice Goodwine’s dissenting opinion is regarding the statutory analysis.

Parole Board hearings are exempted from KRS Chapter 13B procedures. KRS

13B.020(3)(c)2.a. Yet, nothing bars the Parole Board from borrowing from

Chapter 13B, as long as it adheres to the constraints of the Parole Board’s

enabling statute — KRS Chapter 439. Indeed, I find that the statutory analysis

is subject to multiple interpretations, and both the majority opinion and the

dissenting opinions make compelling arguments as to how each arrive at their

respective conclusions. I need not repeat these arguments in detail here, but

37 the argument I find most compelling is that pertaining to KRS 439.320(5).

While not explicitly forbidding a delegation to an ALJ of a final parole

revocation hearing, it does seem telling that the General Assembly thought to

give procedural guidance as it pertains to hearings by the Board but not as it

pertains to hearings held by an ALJ. Had the legislature intended to give the

Board wide discretion as to when it can delegate its fact-finding duties such

that the Board has the statutory authority to delegate this role to a statutorily

uncontemplated ALJ, it is suspect that the legislature nonetheless cabins the

Board’s discretion when those hearings are held by panels of the Board itself.

Lastly, while the argument may not have been preserved by the Board

and the record lacks evidence indicating the potential extent of the potential

impact, we cannot ignore the practical reality that barring the Parole Board

from delegating some of its duties will necessarily increase the Parole Board’s

workload burden. It has been no secret that parole hearings have already been

rushed, and taking away the assistance of an ALJ in the process will only

detract from the time each case can be given and will have a deleterious effect

on due process. While I cannot join either the majority or dissenting opinion in

full, they are both well-written and well-reasoned opinions in this important

area. Therefore, I take this opportunity to encourage the General Assembly to

either provide clarity if it intends to permit the Parole Board to delegate its fact-

finding responsibilities to ALJs, or to consider expanding the statutory cap on

the Board’s members.

38 COUNSEL FOR APPELLANT, DOUGLAS HODGE:

Timothy G. Arnold Joshua R. Bolus Assistant Public Advocates

COUNSEL FOR APPELLEE, TIMOTHY SHANE

Timothy G. Arnold Assistant Public Advocate

COUNSEL FOR APPELLANT / APPELLEE, KENTUCKY PAROLE BOARD:

Edward A. Baylous II Leah Cooper Boggs Angela T. Dunham Justice and Public Safety Cabinet