Timothy Shane v. Kentucky Parole Board

• Court: Court of Appeals of Kentucky
• Decided: July 13, 2023
• Docket: 2022 CA 000135
• Status: Unknown

Opinion

RENDERED: JULY 14, 2023; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0135-MR

TIMOTHY SHANE APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 20-CI-00834

KENTUCKY PAROLE BOARD APPELLEE

OPINION REVERSING

** ** ** ** **

BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Timothy Shane (“Shane”) appeals from the Franklin Circuit

Court’s order denying his motion for summary judgment and dismissing his

declaratory judgment action. Because we hold the Kentucky Parole Board

(“Board”) improperly delegated Shane’s final revocation hearing, we reverse.

Shane was charged with a parole violation for use of alcohol while

paroled on a thirty-year sentence. A final revocation hearing was held before an administrative law judge (“ALJ”) on April 22, 2020. According to the evidence

presented at the hearing, Shane was pulled over for a seatbelt violation and

admitted to consuming alcohol. Police found an open container of alcohol in the

center console and Shane’s breathalyzer result was a .16.1 He was then charged

with driving under the influence.2 Shane did not testify at the hearing but

submitted letters as mitigating evidence.

Following the hearing, the ALJ entered findings of fact and

conclusions of law finding Shane had violated the conditions of his parole by using

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

Shane filed a declaratory judgment action in Franklin Circuit Court, arguing the

Board had improperly delegated the final revocation hearing to the ALJ, the orders

did not contain the requisite findings pursuant to KRS3 439.3106, and there was

not sufficient evidence to support revocation. He further sought an injunction

requiring the Board to reinstate him to parole. Shane filed a motion for summary

judgment, which was denied, and the trial court dismissed Shane’s petition. This

appeal followed.

1 At the hearing, the police officer testified that Shane blew a .16. However, the citation states .016. According to the officer, this was a clerical error. 2 This charge is still pending. 3 Kentucky Revised Statutes.

-2- A final order in a declaratory judgment action is reviewable by this

Court. However, “a trial court’s order denying summary judgment is not

immediately reviewable on appeal since such an order is considered

interlocutory.” Ervin Cable Constr., LLC v. Lay, 461 S.W.3d 422, 423 (Ky. App.

2015), overruled on other grounds by Sheets v. Ford Motor Co., 626 S.W.3d 594

(Ky. 2021). “[A]n exception to this rule . . . applies where: ‘(1) the facts are not in

dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of

the motion, and (4) there is an entry of a final judgment with an appeal

therefrom.’” Hazard Coal Corp. v. Knight, 325 S.W.3d 290, 298 (Ky.

2010) (quoting Transp. Cabinet, Bureau of Highways, Commonwealth of Kentucky

v. Leneave, 751 S.W.2d 36, 37 (Ky. App. 1988)). Here, these conditions are met

therefore we proceed with the review. Our standard of review of a final order in a

declaratory judgment action is whether the trial court’s factual findings were

clearly erroneous. Baze v. Rees, 217 S.W.3d 207, 210 (Ky. 2006), aff’d, 553 U.S.

35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008). We review its conclusions of law

de novo. Id. at 209.

As a matter of this court’s jurisdiction, we must first address whether

the appeal is moot as Shane is now released on parole. See Veith v. City of

Louisville, 355 S.W.2d 295, 297 (Ky. 1962) (emphasis omitted) (“It has been held

that a court does not have jurisdiction to decide a question unless there is a real or

-3- justiciable controversy involving specific rights of particular parties.”).

“[M]ootness is a threshold matter for a reviewing court to resolve.” Kentucky Bd.

of Nursing v. Sullivan Univ. Sys., Inc., 433 S.W.3d 341, 343 (Ky.

2014) (citing Kentucky High Sch. Athletic Ass’n v. Edwards, 256 S.W.3d 1, 4 (Ky.

2008)). “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) (internal quotation

marks and citations omitted).

However, the “public interest” exception to the general rule “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 (citation omitted). We are satisfied the first and third

elements are met in this case. See Jones v. Bailey, 576 S.W.3d 128, 135 (Ky.

2019) (determining that “procedural due process pertaining to the revocation of

conditional freedom” was a matter of public interest and that since “the

employment of current administrative procedures is a recurrent event in the

revocation process” questions pertaining to such were likely to arise again).

-4- As to the second element, in Commonwealth v. Collinsworth, 628

S.W.3d 82, 87 (Ky. 2021), our Supreme Court clarified that the public interest

exception must be used only where a demonstrated need justifies a court’s ruling,

for example, issues of first impression. While the question of whether the Board

itself must conduct final revocation hearings was arguably answered in Jones, 576

S.W.3d at 135, the fact that the Board’s revised revocation procedure following the

issuance of that opinion allows the Board to delegate the final revocation hearing

to an ALJ suggests “there is a need for an authoritative determination for the future

guidance of public officers” on the issue.4 Therefore, we find the “public interest”

exception to mootness applies and proceed to the merits of the appeal.

Shane first argues that Jones and KRS 439.440 mandate the Board

conduct his final revocation hearing. We agree.5 In Jones, the Kentucky Supreme

Court determined the Board’s prevailing final revocation hearing procedure did not

4 We would note that Jones concerned the minimal due process requirements of final revocation hearings whereas Shane argues that the Board’s final revocation hearing procedure in his case not only violated due process, but also Kentucky statutory law. Therefore, our consideration of that issue is one of first impression. 5 We acknowledge a panel of this Court recently held Jones does not require final parole revocation hearings to be conducted by the Board. See Hodge v. Kentucky Parole Board, No. 2021-CA-1512-MR, ___ S.W.3d ___, 2023 WL 453138, at *3 (Ky. App. Jan. 27, 2023). Hodge was ordered published on March 24, 2023. A motion for discretionary review is currently pending before the Kentucky Supreme Court.

-5- meet minimal due process.6 Defendant had received a preliminary hearing before

an ALJ where he was allowed to present witnesses and evidence, including

mitigating testimony. The ALJ found probable cause that defendant had violated

the conditions of his supervision and referred the matter to the Board. At the final

hearing, defendant was not represented by counsel and was denied the opportunity

to present witnesses or other evidence on the alleged violations. Based upon the

record created before the ALJ, the Board revoked defendant’s supervision.

On discretionary review, the Supreme Court held the Board’s final

revocation hearing procedure which consisted of merely reviewing the

administrative record was constitutionally inadequate. Because “the Board is the

body charged with determining the ultimate findings of fact[,]” Jones, 576 S.W.3d

at 144, a simple review of the administrative record is a “wholly unsatisfactory

basis for [a revocation] decision.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319,

343-44, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). The Court concluded that

defendant “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

6 While Jones technically concerned the propriety of the Board’s post-incarceration supervision revocation procedure, its holding applies equally to parole revocation procedures. See Jones v. Bailey, 576 S.W.3d 128, 137 (Ky. 2019) (citing Jones v. Commonwealth, 319 S.W.3d 295, 298 (Ky. 2010)) (noting that parole and post-incarceration supervision revocation procedures are “akin”).

-6- all the evidence presented and would be able to decide whether there were any

mitigating factors in his favor.” Id. (emphasis added).

Thus, 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. “Due

process requires that the Parole Board . . . conduct the constitutionally-required

final evidentiary hearing prior to revocation[.]” Jones, 576 S.W.3d at 133. The

Board’s delegation of Shane’s final revocation hearing to an ALJ denied him due

process.

Kentucky statutory law similarly requires the Board to conduct the

final revocation hearing. Shane cites KRS 439.440 which states, “[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.” (Emphasis

added.) Contrast this with KRS 439.341 which requires the probable cause hearing

to be held before a hearing officer. Presumably, this distinction is relevant, as the

legislature could have written “heard by the board or hearing officer” or similar

language. Further, KRS 439.330(1)(e) provides that one of the Board’s duties is to

“[i]ssue warrants for persons charged with violations of parole and

-7- postincarceration supervision and conduct hearings on such charges . . . .”

(Emphasis added.)

Most relevant to our analysis is KRS 439.320(4) which provides:

The organization of the board shall be determined by the chairperson and shall be consistent with administrative regulations promulgated pursuant to KRS 439.340. For policy and procedural matters, five (5) members shall constitute a quorum. Parole and final parole revocation hearings may be done by panels of the board, subject to the following requirements:

(a) If a two (2) member panel is utilized, both members of the panel shall agree on the decision or the matter shall be referred to the full board;

(b) If a three (3) member panel is utilized, two (2) of the three (3) members of the panel shall agree on a decision or the matter shall be referred to the full board; and

(c) If a panel of four (4) or more members is utilized, a majority of the panel shall agree on a decision or the matter shall be referred to the full board.

Thus, final parole revocation hearings may be conducted by less than

a full panel of the Board, subject to certain restrictions. However, in no instance

may they be held by less than two members of the Board. Implicit in the statute is

that the Board, not a hearing officer, conducts final revocation hearings. The

statute is specific under what circumstances and to whom final parole revocation

hearings may be delegated. The legislature could have provided for delegation to

-8- an ALJ, but it did not. We interpret KRS 439.320(4) as requiring the Board to

conduct final parole revocation hearings. The Board’s procedure of delegating

Shane’s final revocation hearing to the ALJ violated Kentucky statutory law.

In finding the Board’s procedure sufficient, the trial court relied upon

Kentucky Board of Medical Licensure v. Strauss, 558 S.W.3d 443 (Ky 2018);

however, we find this reliance misplaced. Strauss considered whether KRS

Chapter 13B and KRS Chapter 311 require the Kentucky Medical Licensure Board

to independently review the administrative record before issuing a final order. But,

as noted by the trial court, KRS Chapter 13B does not apply to parole revocation

proceedings. KRS 13B.020(3)(c)2.a. Further, KRS Chapter 311 explicitly

provides that hearing officers may conduct hearings on behalf of the Medical

Licensure Board. The controlling statutes in this case, specifically KRS

439.320(4), provide only for the Parole Board (or a panel of the Board) to conduct

parole final revocation hearings.

Having found that the Board’s final revocation hearing procedure

violated Shane’s due process rights and Kentucky law, and due to the mootness of

his claims since he is currently on parole, we decline to address Shane’s other

arguments, namely that the ALJ’s and Board’s orders did not make the requisite

findings pursuant to KRS 439.3106, and that there was insufficient evidence that

he was a danger to or could not be appropriately managed in the community.

-9- For the foregoing reasons, we reverse the judgment of the Franklin

Circuit Court. However, as in Jones, it is unnecessary to remand this case as

Shane is currently on parole.

JONES, JUDGE, CONCURS.

CETRULO, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.

CETRULO, JUDGE, CONCURRING IN RESULT: I concur with the

majority, and I appreciate Judge McNeill’s clarity in an area of Kentucky law with

unharmonious precedent.

In Hodge v. Kentucky Parole Board, No. 2021-CA-1512-MR, ___

S.W.3d ___, 2023 WL 453138 (Ky. App. Jan. 27, 2023), a panel of this Court

determined that two hearings by ALJs, followed by a review by the full Parole

Board, were sufficient to meet due process standards. Id. at *2. First, an ALJ

determined probable cause had been established and that Hodge (the parolee) was

in violation for absconding and failing to report a change in address. Id. The

second ALJ determined that a preponderance of the evidence supported the

conclusion that Hodge violated only by absconding. Id. Finally, the Parole Board

agreed – relying on the ALJs’ findings – that Hodge indeed absconded. Hodge

challenged that second ALJ determination. This Court found that the second

hearing need not be conducted by the Parole Board, but that an ALJ could conduct

the hearing as long as “it [was] conducted with proper notice and procedures.” Id.

-10- at *3. This Court found that “so long as the procedures employed give the parolee

adequate notice of the allegations against him, and an opportunity to respond

thereto, adequate due process is provided. That [second] hearing does not have to

be before the full [Parole] Board.” Id.

Just a few months later, this Court again addressed a similar question

in Ivy v. Kentucky Parole Board, No. 2022-CA-0369-MR, 2023 WL 2439676 (Ky.

App. Mar. 10, 2023). I was on the Ivy panel that determined, consistent with

Hodge, that there was nothing constitutionally deficient in the Parole Board

incorporating the ALJ’s fact-finding. Id. at *4. In Ivy, the parolee waived the

initial probable cause hearing but testified on his own behalf at the second hearing

(conducted by an ALJ). Id. at *1. The ALJ determined by a preponderance of the

evidence that the parolee violated conditions of his parole. Id. At the final

revocation hearing, the Parole Board incorporated by reference the factual findings

found by the ALJ. Id. The Ivy panel determined that the Parole Board was not

prohibited “from delegating fact finding to an ALJ and then incorporating those

findings of facts in its ultimate decision.” Id. at *3.

Here, the majority strays from that unpublished Ivy decision, and upon

further review, I am persuaded by the present legal analysis. While KRS 439.3417

7 “Probable cause revocation hearings of probation, parole, and postincarceration supervision violators shall be conducted by hearing officers. These hearing officers shall be attorneys,

-11- – as relied upon in Ivy – allows for the Parole Board to assign duties to the ALJs in

the revocation process, KRS 439.4408 – as relied upon here – suggests that the

final revocation hearing is not one of those permissible allocations. Stated another

way, despite KRS 439.341 allowing some duties to be assigned by the Parole

Board, it appears the legislature intended for the final revocation hearing to be

conducted by the Parole Board. The Ivy Court interpreted KRS 439.440 as merely

setting a time restriction for a final hearing, but here, the panel reads this statute to

also mandate that the hearing specifically needs to be in front of the Parole Board.

Upon further reading of the statute in its entirety and looking at the plain meaning

of all the words used, I agree with the majority. See Jefferson Cnty. Bd. of Educ. v.

Fell, 391 S.W.3d 713, 718 (Ky. 2012) (citing Shawnee Telecom Resources, Inc. v.

Brown, 354 S.W.3d 542, 551 (Ky. 2011)) (“We presume that the General

Assembly intended for the statute to be construed as a whole, for all of its parts to

have meaning, and for it to harmonize with related statutes.”). This current

interpretation of KRS 439.440 seems consistent with the intent of the Kentucky

Supreme Court in Jones, 576 S.W.3d 128. Jones states that “the [Parole] Board

must decide the truth of the violation allegations.” Id. at 136. As the majority

appointed by the board and admitted to practice in Kentucky, who shall perform the aforementioned duties and any others assigned by the board.” KRS 439.341 (emphasis added).

8 “Any 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.” KRS 439.440.

-12- points out, “the [Parole] Board is the body charged with determining the ultimate

findings of fact.” Id. at 144. As such, I concur with this majority’s emphasis of

KRS 439.440 over KRS 439.341 for the factual situation before us. Since a motion

for discretionary review is currently pending before our Supreme Court on Hodge,

further clarity in this matter may thankfully be coming soon.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Timothy G. Arnold Edward A. Baylous, II Frankfort, Kentucky Frankfort, Kentucky

-13-