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13-P-149                                            Appeals Court

       CHARLES DOUCETTE    vs.   MASSACHUSETTS PAROLE BOARD.


                           No. 13-P-149.

           Essex.      April 4, 2014. - October 29, 2014.

            Present:   Berry, Katzmann, & Sullivan, JJ.


Parole. Administrative Law, Adjudicatory proceeding, Decision,
     Evidence, Failure to raise issue before agency, Hearing,
     Regulations. Constitutional Law, Delay in rendering
     decision, Impartial tribunal, Parole. Due Process of Law,
     Administrative hearing, Delay in rendering decision,
     Hearing, Parole. Practice, Civil, Action in nature of
     certiorari, Failure to raise issue, Hearsay, Motion to
     dismiss, Relief in the nature of certiorari, Review of
     administrative action, Waiver. Waiver. Evidence, Absence
     of witness, Administrative proceeding, Hearsay, Police
     report.



     Civil action commenced in the Superior Court Department on
May 18, 2012.

    A motion to dismiss was heard by Richard E. Welch, III, J.


     Eitan Goldberg for the plaintiff.
     Christopher Hurld, Assistant Attorney General, for the
defendant.
                                                                    2


    SULLIVAN, J.   Charles Doucette appeals from the dismissal

of his complaint challenging the decision of the Massachusetts

Parole Board (board) revoking his parole.   Doucette proceeds on

two fronts -- a civil rights claim asserting that the board

violated due process in the conduct of the revocation

proceedings, and a claim in the nature of certiorari seeking

review of the merits of the board's decision.   See 42 U.S.C.

§ 1983; G. L. c. 249, § 4.   We conclude that the procedural

irregularities in the revocation proceedings do not rise to the

level of a due process violation, and that the revocation

decision was not arbitrary or capricious.   Accordingly, we

affirm.

    Background.    On February 20, 2007, Doucette was released on

parole from a life sentence for murder in the second degree.

According to the conditions of parole, Doucette was required,

among other things, to conduct himself responsibly and obey all

laws, attend Alcoholics Anonymous (AA) meetings three times per

week, notify and seek permission from his parole officer

regarding any change in residence or living situation, avoid

persons known to have violated the law, comply with all special

instructions given by his parole officer, and pay a monthly

supervision fee.

    Four years later, Doucette was arrested and charged with

assault with a dangerous weapon, intimidation of a witness, and
                                                                   3


threats, charges which arose from an incident with his then

girlfriend.   A parole violation detainer issued, listing

violations based on this incident, as well as other violations

previously noted by his parole officer.   These violations

included the failure to attend AA meetings, notify his parole

officer and seek permission before allowing his landlord's

daughter to live in his apartment, follow the advice of his

parole officer to end the relationship with his girlfriend, and

pay his monthly supervision fee.

    In accordance with 120 Code Mass. Regs. § 303.06 (1997), a

hearing examiner conducted a preliminary revocation hearing

within fifteen days of the arrest.   The hearing examiner

recommended revocation in a written decision.   He found that

Doucette had violated various provisions of his parole by (1)

engaging in irresponsible conduct by virtue of the new arrest,

by having a restraining order issued against him, by failing to

end the relationship with his former girlfriend as advised by

his parole officer, and by permitting his landlord's daughter to

stay in his residence without his parole officer's permission;

and (2) violating special conditions of parole by failing to

attend AA meetings and failing to pay supervision fees.      A

decision revoking parole for these reasons was signed by the
                                                                    4


board's chair on March 23, 2011.1    However, neither the hearing

examiner's decision nor the chair's written decision was

provided to Doucette.

     On May 26, 2011, after a jury trial, Doucette was acquitted

of all charges.   By agreement, the final revocation hearing,

which normally must be held sixty days from the date of service

of a parole violation warrant, was postponed until after the

trial.   See 120 Code Mass. Regs. § 303.18 (1997).    The final

revocation hearing was held on July 20, 2011, fifty-five days

after the trial concluded.     In accordance with the board's

regulations, the hearing was held before a panel of the board,

but was referred to the full board for a vote.     See 120 Code

Mass. Regs. § 303.17(2) (1997) (full board vote required in

revocation proceeding involving a life sentence).     The full

board voted unanimously to revoke Doucette's parole on November

10, 2011, but did not notify Doucette.

     Doucette filed a writ of mandamus to compel a final

decision on January 9, 2012.     The final decision, which simply

recited by title the violations found in the preliminary

revocation decision, was signed by the board's chair on January

13, 2012.   The hearing examiner's findings, the March 23, 2011,


     1
       The hearing examiner had also found that the landlord's
daughter had a criminal record, and, therefore, that Doucette
had violated parole by associating with a person with a criminal
record. The board did not sustain this violation.
                                                                      5


preliminary decision, and the January 13, 2012, final decision

were provided to Doucette on January 13, 2012.     Doucette's

subsequent appeal and motion for reconsideration were denied by

the board without further explanation, whereupon he filed the

present action in Superior Court, which entered judgment for the

board.   On appeal, Doucette argues that the board demonstrated

bias against him; his rights to due process were violated; and

the board's decision to revoke his parole was arbitrary and

capricious.

     Discussion.   1.   Standard of review.   Although the case was

decided on a motion filed pursuant to Mass.R.Civ.P. 12(b)(6),

365 Mass. 754 (1974), both parties relied on matters outside the

pleadings, and the motion judge appears to have considered them

as well.2   Accordingly, we treat Doucette's due process claims

brought pursuant to 42 U.S.C. § 1983 as though they had come

before us on the record pursuant to Mass.R.Civ.P. 56, 365 Mass.

824 (1974).   See rule 12(b) ("If, on any motion asserting the

defense numbered [6], to dismiss for failure of the pleading to

state a claim upon which relief can be granted, matters outside

the pleading are presented to and not excluded by the court, the


     2
       The parties agree on appeal that discovery as to the due
process claims has concluded and that the record on those claims
is complete except for Doucette's request for additional
discovery related to his claim of bias. As is discussed more
fully infra, the bias claim was properly dismissed for reasons
unrelated to this factual inquiry.
                                                                    6


motion shall be treated as one for summary judgment and disposed

of as provided in Rule 56"); Cousineau v. Laramee, 388 Mass.

859, 860 n.2 (1983).    Certiorari review of the merits of the

board's decision pursuant to G. L. c. 249, § 4, is based on

general principles of certiorari review and the administrative

record.   See notes 8, 10, infra.

     2.   Bias.   Doucette asserts that he was denied a neutral

and detached hearing body free from bias against him because the

Boston Globe reported that shortly after his arrest in February,

2011, the chair of the board said to a reporter that the

revocation proceeding "gives us the opportunity to return Mr.

Doucette to prison for life."3   This, Doucette maintains,

indicates that the chair had prejudged the case.    We agree that

this type of statement, if made, would be improper.    See Doe,

Sex Offender Registry Bd. No. 29481 v. Sex Offender Registry

Bd., 84 Mass. App. Ct. 537, 539-543 (2013) (comments posted by

hearing officer on social media indicative of bias constituted

due process violation).    We reject the board's argument that




     3
       Because there was no discovery on this claim, we consider
the statements attributed to the chair not for their truth, but
for the fact that the article placed Doucette on notice of the
bias claim.
                                                                     7


extrajudicial influence is the sole form of bias warranting

relief.    See ibid.4

     While these allegations are material, the claim of bias is

waived.    As Doucette's complaint makes clear, the newspaper

report was sufficient to place him on notice of a bias claim.

Doucette did not move to recuse the chair at either of his

revocation hearings, in his appeal to the board, or in his

motion for reconsideration before the board.    There is no

suggestion in the record that the evidence of bias is newly

discovered.    Compare id. at 539.   "A party having knowledge of

facts possibly indicating bias or prejudice on the part of an

arbitrator, referee, juror or other person having similar

functions cannot remain silent and thereafter on that ground

successfully object to the decision.     Fox v. Hazelton, 10 Pick.

275 [1830].    Hallock v. Franklin, 2 Met. 558, 560 [1841].

Commonwealth Tobacco Co. v. Alliance Ins. Co., 238 Mass. 514,

516 [1921], and cases cited.    Donoghue v. Holyoke Street

Railway, 246 Mass. 485, 494 [1923]."     Thomajanian v. Odabshian,

272 Mass. 19, 23 (1930).    "To preserve an issue for appeal from

an agency's decision, a party must raise the issue before the

agency."    Catlin v. Board of Registration of Architects, 414

     4
       The board's regulations require that a member of the board
"withdraw from participating and abstain from voting in any case
on the basis of personal involvement in the case or for any
other reason which might prevent that member from making an
impartial decision." 120 Code Mass. Regs. § 300.02(4) (1997).
                                                                      8


Mass. 1, 7 n.7 (1992).     See Rivas v. Chelsea Hous. Authy., 464

Mass. 329, 336 (2013) ("arguments not made before an

administrative agency generally cannot be raised on appeal").

To the extent that Doucette now claims a general bias against

him or against his release on the part of the entire board, that

claim also was not raised before the board.

       3.   Due process.   Because parole revocation results in the

loss of liberty, the manner in which parole is revoked must

comport with due process.      See Morrissey v. Brewer, 408 U.S.

471, 480-482 (1972) (Morrissey); Doe v. Massachusetts Parole

Bd., 82 Mass. App. Ct. 851, 858 (2012).      The minimum

requirements of due process in a parole revocation proceeding

are:

       "(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."

Morrissey, 408 U.S. at 489.      Doucette claims that he (a) was

denied the opportunity to confront an adverse witness at the

preliminary hearing, (b) was not provided written notification

of the reasons for revocation in a timely manner, (c) was not

provided with discovery in advance of the final hearing, and (d)
                                                                    9


was not provided an adequate written statement of the reasons

for the denial of his administrative appeal.

     a.   Adverse witness.   In making the initial recommendation

to revoke parole, the hearing examiner at the preliminary

hearing relied, in part, on parole officer reports, police

reports, and affidavits filed in connection with an application

for an abuse prevention order summarizing the allegations of

Doucette's former girlfriend.    Doucette maintains that the use

of the police reports and other documents deprived him of the

opportunity to confront and cross-examine his former girlfriend

at the preliminary hearing.5

     Morrissey did not "write a code of procedure," 408 U.S. at

488, for preliminary revocation proceedings, which are intended

to explore whether there is "probable cause or reasonable ground

to believe that the arrested parolee has committed acts that

would constitute a violation."    Id. at 485.   The board's

regulations do provide, however, that the parolee "may request

that the Hearing Examiner obtain the presence of persons who

have given information upon which revocation may be based," and

that the "Examiner shall request the attendance of such adverse

witnesses at the preliminary parole revocation hearing unless

     5
       Doucette alleges in the complaint that he requested her
presence, and the board denied his request through its counsel.
The board has treated this allegation as true both below and on
appeal, and we therefore address it. We note, however, that the
hearing examiner's report states that no such request was made.
                                                                   10


. . . the Hearing Examiner finds good cause for the witness'

non-attendance."   120 Code Mass. Regs. § 303.11(6) (1997).    See

Morrissey, supra at 487, 489.

    Because both probation and parole revocation proceedings

involve the potential loss of liberty, see Morrissey, 408 U.S.

at 482; Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973);

Commonwealth v. Thissel, 457 Mass. 191, 195 (2010), we may look

to the cases involving probation revocation for guidance as to

how the "good cause" requirement may be satisfied.   The Supreme

Judicial Court has held that reliable hearsay satisfies the good

cause requirement.   See Commonwealth v. Bukin, 467 Mass. 516,

522 (2014) (in probation revocation proceedings, "substantial

reliability" of hearsay satisfies the "good cause" standard).

See also Commonwealth v. Durling, 407 Mass. 108, 116 (1990)

(detailing the administrative burdens of holding full

evidentiary hearings in all probation violation cases);

Commonwealth v. Negron, 441 Mass. 685, 691 (2004) ("if reliable

hearsay is presented, the good cause requirement is satisfied").

The use of police reports has long been recognized as

appropriate in probation revocation proceedings, provided that

the reports bear indicia of reliability.   See Commonwealth v.

Durling, 407 Mass. at 117-118; Commonwealth v. Bukin, 467 Mass.

at 520-521.
                                                                     11


    Doucette, who denied all wrongdoing, argues that his former

girlfriend's accusations were demonstrably unreliable, as

evidenced by the jury verdict and her testimony at trial.     This

argument overlooks the fact that the preliminary hearing

occurred before the trial, and that the hearing examiner was

required to assess reliability as of that time.     Moreover, the

burdens of proof at a criminal trial and a preliminary

revocation hearing are substantially different.     At a

preliminary hearing, the standard is not reasonable doubt, but

probable cause to conclude a violation was committed.      See 120

Code Mass. Regs. § 303.13 (1997); Stefanik v. Board of Parole,

372 Mass. 726, 728-729 (1977).

    Neither the hearing examiner who conducted the preliminary

hearing nor the panel that conducted the final hearing made an

express finding regarding the reliability of the police reports.

As is discussed more fully below, it is also unclear on this

record whether the hearing examiner or the board credited the

reports or found a violation based simply on the fact of the

arrest.   However, in the final analysis, we discern no prejudice

on this record.   See generally Commonwealth v. Pariseau, 466

Mass. 805, 810-812 (2014) (requiring a showing of prejudice to

sustain a due process claim).    Doucette did not request the

presence of the witness at his final revocation hearing, nor did

he provide the trial transcript to the board.     By failing to
                                                                     12


renew his request at the final hearing, Doucette waived this due

process issue as it pertains to the final hearing and the final

decision to revoke his parole, thus undercutting any claim of

prejudice.    See Commonwealth v. Morse, 50 Mass. App. Ct. 582,

589 (2000); Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 23 n.12

(2014).

    b.      Timely service of decision.   Doucette claims that the

board's considerable delay in sending him written notice of its

decision was a violation of due process, and that he is

therefore entitled to release.     By agreement, the final

revocation hearing was held within sixty days after the

conclusion of Doucette's trial.    See 120 Code Mass. Regs.

§ 303.18 (1997).     Delay between a revocation hearing and the

distribution of a written decision is not a per se due process

violation.    See Morrissey, supra at 488; People ex rel. Haskins

v. Waters, 87 A.D.2d 657 (N.Y. App. Div. 1982).      A delay

constitutes a due process violation only if it is "fundamentally

unfair."    Commonwealth v. Blake, 454 Mass. 267, 277 (2009)

(Ireland. J., concurring).     A showing of prejudice is required.

See Commonwealth v. Pariseau, 466 Mass. at 812.

    The board's regulations require that it send a written

notice and summary of reasons within twenty-one days of the

decision.    120 Code Mass. Regs. § 303.26 (1997).    Here, in

violation of the board's regulations, the written decision was
                                                                   13


issued 177 days after the hearing, and sixty-four days after the

decision dated November 10, 2011.    We "do[] not condone the

length of delay in this case," but conclude that it did not

"amount to legal prejudice that permits a conclusion that a due

process violation . . . occurred."   Commonwealth v. Blake, 454

Mass. at 280 (Ireland, J., concurring).    Doucette has pointed to

no discernable prejudice warranting release.    See ibid.

(Ireland, J., concurring); Commonwealth v. Pariseau, 466 Mass.

at 810-812.   See also Commonwealth v. Imbruglia, 377 Mass. 682,

688 (1979); Commonwealth v. McInerney, 380 Mass. 59, 68 (1980)

("[D]isappointment . . . does not amount to legal prejudice").

In the absence of prejudice, the appropriate remedy is to seek a

prompt decision, which Doucette did by filing an action in the

nature of mandamus.   Compare Commonwealth v. Pariseau, supra at

814.6


        6
       In his complaint and on appeal, Doucette frames his
argument concerning the violation of the regulation solely as a
due process argument. We recognize that we have, in other
contexts, decided analogous cases by reference to a regulation
rather than reach the due process question. See, e.g., Royce v.
Commissioner of Correction, 390 Mass. 425 (1983) (complaint for
declaratory relief). In the absence of sustained appellate
argument, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921
(1975), we decline to decide whether certiorari relief may be
had concerning the violation of a regulation without a showing
of prejudice. See generally State Bd. of Retirement v. Bulger,
446 Mass. 169, 173 (2006) ("Certiorari allows a court to correct
only a substantial error of law, evidenced by the record, which
adversely affects a material right of the plaintiff")
(quotations omitted). Compare Haverty v. Commissioner of
Correction, 437 Mass. 737, 740 (2002), S.C., 440 Mass. 1 (2003)
                                                                     14


     c.     Discovery.   Doucette claims that the board failed to

provide him with discovery in advance of the final hearing, in

violation of his right to due process of law and the board's

regulations.    See 120 Code Mass. Regs. § 303.22.    On June 29,

2011, before the final revocation hearing, Doucette's counsel

sent a letter to the board listing the documents that had been

provided to him and requesting any additional evidence that

"will be presented or relied upon" by the board at the final

hearing.     The board responded, and sent a copy of the hearing

examiner's report to Doucette's counsel.      Doucette was given a

complete response to his request.     Based on questions that he

claims were asked during the final revocation hearing, Doucette

now contends that his entire criminal and psychiatric history

should have been produced.     The transcript of the final hearing

contains significant gaps (inaudible portions), and the record

before us is insufficient to support Doucette's claim in this

respect.7    So far as we can tell, no request was made at hearing

for additional documents.     No claim of prejudice was made at

that time.    Doucette answered the questions posed to him.    See

Mass.R.A.P. 16(a)(4) (argument in brief shall cite to "parts of

the record relied on"); Arch Med. Assocs. v. Bartlett Health


(affirming summary judgment on behalf of a class of prisoners
held in segregation; decision based on regulatory violation
rather than due process claim).
     7
         There was no request to reconstruct the record.
                                                                    15


Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992) ("Errors

that are not disclosed by the record offer no basis for

reversal").   To the extent he argues that the board looked to

his past criminal history, Doucette cannot have been surprised

by the inquiry, and was fully aware of his own criminal history.

No due process violation has been shown, and even if it were, we

discern no prejudice.

    d.   Written statement.    The minimum requirements of due

process include "a written statement by the factfinders as to

the evidence relied on and reasons for revoking . . . parole."

Commonwealth v. Durling, 407 Mass. at 113, quoting from Gagnon

v. Scarpelli, 411 U.S. at 786.    See 120 Code Mass. Regs.

§ 303.26 (1997).   Doucette does not challenge the adequacy of

the statement of reasons given in connection with the

preliminary or final revocation decisions.     Rather, he asserts

that he was denied due process because his appeal to the board

and motion for reconsideration were denied without a statement

of reasons.   These assertions are unaccompanied by citation to

authority, and we have found none to suggest that once written

findings were issued, due process requires further findings and

rulings with respect to administrative appeals filed after the

final revocation decision has been made.     See 120 Code Mass.

Regs. § 304 (1997).     See generally McLellan v. Acting

Superintendent, Mass. Correctional Inst., Cedar Junction, 29
                                                                    16


Mass. App. Ct. 122, 127 (1990) (detailed charges formed a

sufficient basis for review).

     4.   Parole violations.    Doucette claims that the board

acted in an arbitrary and capricious manner and violated his

right to due process when it revoked his parole on the basis of

the arrest on charges of which he was ultimately acquitted, and

that the board abused its discretion in revoking his parole

based on certain violations of his parole conditions.

     a.   Certiorari review.    Decisions of the board are not

subject to review under G. L. c. 30A.     See G. L. c. 30A, § 1C.

Certiorari review is available where there is "(1) a judicial or

quasi judicial proceeding (2) from which there is no other

reasonably adequate remedy (3) to correct substantial error of

law apparent on the record (4) that has resulted in manifest

injustice to the plaintiff or an adverse impact on the real

interests of the general public."     State Bd. of Retirement v.

Woodward, 446 Mass. 698, 703-704 (2006).     See, e.g., Ciampi v.

Commissioner of Correction, 452 Mass. 162, 163 (2008)

(certiorari action to challenge validity of Department of

Correction regulations and disciplinary actions taken pursuant

to the regulations).8   "On certiorari review, the Superior


     8
       Certiorari is the appropriate method of review of parole
revocation decisions in a number of States. See, e.g., Sellers
v. State, 586 So. 2d 994, 995 (Ala. Crim. App. 1991) (in absence
of statutory right to review of administrative decisions,
                                                                 17


Court's role is to examine the record . . . and to 'correct

substantial errors of law apparent on the record adversely

affecting material rights.'"   Firearms Records Bureau v. Simkin,

466 Mass. 168, 180 (2013), quoting from Cambridge Hous. Authy.


"certiorari is the appropriate remedy for review of [revocation]
actions"). Other States imply a right of judicial review of
parole revocation decisions under the State administrative
procedure act by means of administrative procedures available to
review any agency decision. See Loach v. Pennsylvania Bd. of
Probation & Parole, 57 A.3d 210, 212 (Pa. Commw. Ct. 2012);
Pisano v. Shillinger, 835 P.2d 1136, 1138-1140 (Wyo. 1992).
Some States entertain a writ of habeas corpus. See People ex
rel. Maggio v. Casscles, 28 N.Y.2d 415, 418 (1971); Wright v.
Ghee, 74 Ohio St. 3d 465, 466-467 (1996). Among those States
that have allowed certiorari review of a parole revocation
decision, the standard of review has been articulated in various
but similar ways. See Alabama Bd. of Pardons & Paroles v.
Williams, 935 So. 2d 478, 484 (Ala. Crim. App. 2005), cert.
denied, 547 U.S. 1181 (2006) ("The limited function of
[certiorari] review is to determine whether the act in question
was supported by any substantial evidence, or whether findings
and conclusions are contrary to uncontradicted evidence, or
whether there was an improper application of the findings viewed
in a legal sense") (quotations omitted); Pfister v. Iowa Dist.
Ct. for Polk County, 688 N.W.2d 790, 794 (Iowa 2004), quoting
from State Pub. Defender v. Iowa Dist. Ct. for Black Hawk
County, 633 N.W.2d 280, 282 (Iowa 2001) ("A writ of certiorari
lies where a lower board . . . has acted illegally . . . .
Illegality exists when the court's findings lack substantial
evidentiary support, or when the court has not properly applied
the law"); Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn.
2012) ("review under the common law writ of certiorari is
limited to determining whether the 'inferior tribunal, board, or
officer,' Tenn. Code Ann. § 27-8-101, exceeded its jurisdiction
or acted illegally, arbitrarily, or fraudulently"); State ex
rel. Thorson v. Schwarz, 274 Wis. 2d 1, 7 (2004) ("Our review of
a parole revocation by certiorari is limited to four inquiries:
(1) whether the agency stayed within its jurisdiction; (2)
whether it acted according to law; (3) whether its action was
arbitrary, oppressive, or unreasonable, representing its will,
not its judgment; and (4) whether the evidence was such that
[the agency] might reasonably make the order or determination in
question").
                                                                   18


v. Civil Serv. Commn., 7 Mass. App. Ct. 586, 587 (1979).    In

cases reviewing the decisions of administrative bodies which,

like the parole board, are accorded considerable deference, see

Barriere v. Hubbard, 47 Mass. App. Ct. 79, 83 (1999), the

arbitrary and capricious standard of review applies.9   See Doe v.

Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 (2002);

Firearms Records Bureau v. Simkin, 466 Mass. at 179.    See also 2

Cohen, Law of Probation and Parole § 29:17, at 29-18 (2d ed.

1999) ("most courts subscribe to the view that a parole

board['s] . . . decisions are entitled to great deference by the

courts").    We review the administrative record provided by the

parties.10


     9
       In this respect certiorari review of administrative
decisions for which G. L. c. 30A review is unavailable is
substantially similar to c. 30A review. See, e.g., Hoffer v.
Board of Registration in Med., 461 Mass. 451, 458 n.9 (2012).
Compare Rivas v. Chelsea Hous. Authy., 464 Mass. at 334.
     10
       Because the board responded to the complaint by filing a
rule 12(b)(6) motion, the board did not answer the complaint or
file the administrative record, and no motion for judgment on
the pleadings was filed pursuant to Mass.R.Civ.P. 12(c), 365
Mass. 754 (1974), as required by Superior Court Standing Order
1-96, as amended (2002). The parties did, however, submit
certain portions of the administrative record, and the Superior
Court judge had a near complete record upon which to make his
decision. At oral argument the parties agreed that this court
should conduct its review based on the administrative record as
submitted, and expanded the record by agreement to include a
complete copy of the parole conditions. In future cases,
certiorari review should be conducted under rule 12(c), in
accordance with Superior Court Standing Order 1-96, and not
under rule 12(b)(6). Compare Northborough Inn, LLC v. Treatment
Plant Bd. of Westborough, 58 Mass. App. Ct. 670, 673 n.5 (2003).
                                                                     19


     b.   New arrest.    Noting that he was acquitted of the

charges resulting from his girlfriend's allegations, Doucette

argues that the board violated his right to due process by

revoking his parole solely on the basis of an arrest, without

regard to whether the events leading up to the arrest actually

took place as charged.     At this final stage of the process the

board must find by a preponderance of the evidence that the

violation took place.    120 Code Mass. Regs. § 303.23(4) (1997).

See Commonwealth v. Holmgren, 421 Mass. 224, 225-226 (1995) ("In

a criminal case . . . the Commonwealth must prove the elements

of each crime charged beyond a reasonable doubt.    In a [final]

probation revocation hearing . . . it is proof by a

preponderance of the evidence").     The finding of probable cause

associated with the preliminary revocation decision, see 120

Code Mass. Regs. § 303.13 (1997), is no longer sufficient, nor

is probable cause to arrest.     See Stefanik v. Board of Parole,

372 Mass. at 729.   Thus, Doucette argues, the decision was also

arbitrary and capricious, warranting certiorari relief.11

     The findings of the hearing examiner regarding the arrest

are cryptic, and were not explicitly adopted by the board.     The

board's final revocation decision, which merely lists the


     11
       To the extent Doucette maintains that the board's
determination was arbitrary or capricious, it was his obligation
to provide an adequate record, including the trial transcript,
to the board.
                                                                   20


violations and the board's vote, offers no explanation for its

conclusions.    The board did not address the reliability of the

hearsay reports in its final decision.    See Commonwealth v.

Henderson, 82 Mass. App. Ct. 674, 676 (2012) (outlining factors

to be considered in determining the reliability of hearsay

evidence in probation revocation proceedings).    Although a

jury's not guilty finding at trial does not mean that the same

evidence may not be considered and weighed by the board, it is

indeed impossible to discern whether the board found by a

preponderance of the evidence that Doucette committed the

assault and made the threats with which he was charged, or

whether the board simply found that he was arrested.    See Stokes

v. Commissioner of Correction, 26 Mass. App. Ct. 585, 587 (1988)

("While it may be implicit in the [disciplinary] board's

disposition, it is impossible to tell from the face of the

decision in any particular instance whether the board believed

all, some, or none [of] the contents of the officer's report").

    The failure of the board to make clear findings thus

frustrates the purpose of the due process protections afforded

by Morrissey.   We need not reach the question of the validity of

this ground for revocation, however, because the other bases
                                                                   21


upon which the board rested its decision, including Doucette's

admissions, were sufficient to warrant revocation of parole.12

     c.   Remaining violations.    Doucette maintains that the

evidence of the other violations was insufficient to warrant

revocation.   The board maintains that it was entitled to revoke

parole based upon these violations, noting that "nothing

requires the [board] to ignore parole violations or impose less

severe sanctions."

     The conditions of Doucette's parole required him to obey

all special conditions, heed the requests of his parole officer,

and avoid irresponsible conduct.     Doucette admits that he failed

to regularly attend AA meetings, even though attending three AA

meetings per week was an explicit condition of his parole.13     As

to the relationship with his girlfriend, it is uncontested that

his parole officer specifically warned him to end the

relationship due to the woman's struggles with alcohol use, and

that Doucette engaged in irresponsible conduct to the extent


     12
       Our review of the board's decision leads us to conclude
that the board based its revocation decision on Doucette's
overall pattern of irresponsible behavior, without regard to the
arrest. In future cases in which multiple grounds for
revocation are presented, review of the board's decision would
be aided by a clear designation by the board of the reasons for
revocation, and a statement as to which grounds form a separate
and adequate ground for revocation.
     13
       In his written submission to the board Doucette admitted
that he frequently signed into AA meetings and left, stating
that he was tired after working in construction during the day.
                                                                  22


that he maintained the relationship.   It was this relationship

which led to Doucette's arrest outside a bar and the related

charges that triggered the issuance of the parole violation

detainer.14   Finally, Doucette does not contest that he allowed a

person to live in his residence without notifying or gaining the

approval of his parole officer, despite the condition that his

parole officer must approve any such changes.15

     Doucette offered explanations and mitigating factors with

respect to each of the violations.   The board, however, was

entitled to weigh the evidence, assess credibility, and make the

final determination on whether to revoke parole or consider

other alternatives.   See Greenman v. Massachusetts Parole Bd.,

405 Mass. 384, 387 (1989).   We cannot say the board's

determination that Doucette violated his parole was arbitrary or

capricious.   These violations alone, without reference to the

arrest or restraining order, are sufficient to support the


     14
       It is undisputed that Doucette remained involved with the
woman who, according to him, had a serious drinking problem. He
testified that he resolved to end the relationship, packed up
her belongings and brought them to a bar and left them on her
vehicle. He was arrested during the ensuing confrontation. The
hearing examiner's rationale for revocation relied primarily on
the fact that Doucette had maintained this relationship at a
time when he also failed to attend AA meetings.
     15
       The board also found that Doucette failed to pay his
mandatory parole supervision fee of eighty dollars per month.
This violation was uncontested, and evidence was sufficient to
show that Doucette so violated his parole. We do not rely upon
this violation in affirming the judgment.
                                                                23


board's determination by a preponderance of the evidence that

Doucette violated conditions of his parole.   See Commonwealth v.

Holmgren, 421 Mass. at 226.16

                                   Judgment affirmed.




     16
       Doucette also argues that revoking parole on the basis of
these violations is barred by the doctrines of waiver, res
judicata, and collateral estoppel, since (he argues) this
conduct was already addressed by his parole officer. The
defenses of collateral estoppel (issue preclusion) and res
judicata (encompassing both issue preclusion and claim
preclusion) require a final judgment on the merits. See Kobrin
v. Board of Registration in Med., 444 Mass. 837, 843 (2005)
(claim preclusion); Dowd v. Morin, 18 Mass. App. Ct. 786, 793-
794 & n.15 (1984). The advice of a parole officer does not
constitute a judgment.

     The doctrine of waiver is also inapplicable. The fact that
the parole officer (or parole board) chose not to seek to
violate Doucette's parole at the first opportunity does not
constitute a waiver of the board's authority to make parole
violation determinations. See G. L. c. 27, § 5 (granting
revocation powers to the board). Finally, Doucette's claims
under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12,
§ 11H, were properly dismissed because the Commonwealth and its
agencies are not persons within the meaning of the MCRA.
Williams v. O'Brien, 78 Mass. App. Ct. 169, 173 (2010).
