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SJC-12203

        RICHARD CROWELL    vs.   MASSACHUSETTS PAROLE BOARD.



            Suffolk.      January 6, 2017. - May 15, 2017.

 Present:    Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.


Parole. Practice, Criminal, Parole. Americans with
     Disabilities Act. Practice, Civil, Action in nature of
     certiorari, Motion to dismiss.



     Civil action commenced in the Superior Court Department on
April 2, 2014.

     A motion to dismiss was heard by Raffi N. Yessayan, J., and
a motion for reconsideration was considered by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Tabitha Cohen (John D. Fitzpatrick also present) for the
plaintiff.
     Todd M. Blume, Assistant Attorney General, for the
defendant.
     James R. Pingeon, for American Civil Liberties Union of
Massachusetts & others, amici curiae, submitted a brief.


     BUDD, J.   On April 2, 2014, the plaintiff, Richard Crowell,

filed a complaint in the nature of certiorari in the Superior
                                                                      2


Court, alleging that, in denying his petition for parole, the

Parole Board (board) had violated the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and cognate

State provisions, art. 114 of the Amendments to the

Massachusetts Constitution and G. L. c. 93, § 103.    A judge of

that court allowed the board's motion to dismiss and denied the

plaintiff's motion for reconsideration.    We reverse and remand

for further development of the record. 1   Further, we conclude

that, contrary to the plaintiff's assertion, his commuted life

sentence remains a "life sentence" within the meaning of 120

Code Mass. Regs. § 301.01(5) (1997).

     Background.    The limited record before us, presented in the

form of exhibits to the plaintiff's complaint, includes the

following facts, which are undisputed by the parties.

     1.    Prior parole proceedings.   The plaintiff pleaded guilty

to murder in the second degree in 1962 in connection with an

armed robbery that resulted in a homicide. 2   He was sentenced to

life imprisonment with the possibility of parole pursuant to




     1
       We acknowledge the amicus brief of the American Civil
Liberties Union of Massachusetts, the Center for Public
Representation, the National Disability Rights Network, and
Prisoners' Legal Services.
     2
         The plaintiff was the getaway vehicle's driver.
                                                                        3


G. L. c. 265, § 2. 3    In 1974 the plaintiff's life sentence was

commuted to one that was from "[thirty-six] years to life."        He

was paroled in November, 1975.      Between 1975 and 1990 the

plaintiff was returned to custody on five occasions (1977, 1980,

1982, 1989, and 1990) for failing to adhere to his conditions of

parole, including repeated problems with alcohol and assaultive

behavior.     In 1987 he sustained a traumatic brain injury (TBI),

which caused deficiencies in his memory, speech, and cognition.

He attributes the loss of his job while on parole as well as an

exacerbation of his alcohol problems to TBI.

     The plaintiff was denied parole following review hearings

before the board in 1991, 1994, and 1997.      In 2003, he was again

paroled on the condition that he complete a long-term

residential program and attend Alcoholics Anonymous meetings at

least three times per week.      Less than one month later, his

parole was revoked for failure to complete the residential

program.      He has been incarcerated since that time.

         2.   2012 parole hearing and decision.   In August, 2012,

the plaintiff had a review hearing before the board.      During

that hearing, one of the board members noted that TBI had


     3
       The plaintiff was also sentenced to serve from fifteen to
twenty years for assault with intent to rob or murder, from
three to five years for assault by means of a dangerous weapon,
and from fifteen to twenty years for armed robbery, all to be
served concurrently with his life sentence.
                                                                     4


"caused cognitive functioning [and] emotional functioning

deficits," resulting in uncooperative behavior that was

"secondary to [the plaintiff's] brain injury."    The board member

stated that this was a chronic, life-long condition that "might

get worse . . . [s]o [the plaintiff] would need to be in some

sort of setting where [he] could be managed and cooperate with

people forever."    She also expressed concern about the fact that

the programs the plaintiff's counsel had looked into were

voluntary programs that would require his full cooperation.

     Ultimately the board issued its decision denying the

plaintiff parole, stating that the plaintiff "was unable to

offer any concrete, viable release plan that could assure the

[b]oard that he would be compliant on parole after his history

of defiance and non-compliance" and that he "has not sought or

achieved the rehabilitation necessary to live safely in the

community."    The board also stated, "Crowell was unable to

address the concerns related to his combative attitude and . . .

gave the clear impression that he feels entitled to parole

. . . ."    The board denied the plaintiff's request for

reconsideration.

     3.    Certiorari action.   On April 2, 2014, the plaintiff

timely filed a complaint seeking certiorari review of the

board's decision by way of G. L. c. 249, § 4, alleging that the

board's denial was a violation of his rights under the ADA and
                                                                     5


cognate State provisions, and that the board's decision to grant

him a review hearing only every five years (rather than

annually) was unlawful.     He sought immediate release or a

hearing at which the board would be prohibited from considering

his disability as a reason to prevent him from being paroled.

The plaintiff further asked the court to direct the board to use

its resources to find an appropriate placement for him in the

community.

       The judge allowed the board's motion to dismiss, concluding

that the board had not discriminated against the plaintiff in

its decision denying him parole because it considered many

factors, only one of which was his disability related to the

TBI.    The plaintiff appealed and obtained a brief stay of the

appeal to pursue an unsuccessful motion for reconsideration on

the limited issue whether he is serving a life sentence or a

sentence for a term of years.     We transferred the case from the

Appeals Court on our own motion.

       Discussion.   1.   The motion to dismiss.   We review a

judge's order granting a motion to dismiss de novo.       Boston Med.

Ctr. Corp. v. Secretary of the Exec. Office of Health & Human

Servs., 463 Mass. 447, 450 (2012).     The plaintiff asserts that

the motion judge erroneously allowed the board's motion to

dismiss because the board failed first to file the

administrative record pursuant to a standing order of the
                                                                   6


Superior Court.   Superior Court Standing Order 1-96(2) applies

to actions in the nature of certiorari under G. L. c. 249, § 4,

and requires the agency to file its administrative record within

ninety days of service of the complaint. 4   It also extends the

deadline for certain motions, including those brought under

Mass. R. Civ. P. 12 (b) and (e), 365 Mass. 754 (1974), to twenty

days after service of the record.   The board contends that it

     4
       The relevant portions of Superior Court Standing Order 1-
96 provide:

          "2. The administrative agency whose proceedings
     are to be judicially reviewed shall, by way of answer,
     file the original or certified copy of the record of
     the proceeding . . . within ninety (90) days after
     service upon it of the [c]omplaint. . . .

          "3. The following motions raising preliminary
     matters must be served . . . not later than twenty
     (20) days after service of the record by the
     administrative agency.

          "(a) Motions authorized by Mass. R. Civ. P. 12(b)
     or 12(e).

          ". . . .

          "Any party failing to serve such a motion within
     the prescribed time limit, or within any court-ordered
     extension, shall be deemed to have waived any such
     motion . . . and the case shall proceed solely on the
     basis of the record. . . .

          "4. A claim for judicial review shall be
     resolved through a motion for judgment on the
     pleadings, Mass. R. Civ. P. 12(c), . . . except as
     otherwise provided by this [s]tanding [o]rder, unless
     the [c]ourt's decision on any motion specified in part
     3 above has made such a resolution inappropriate. . .
     ."
                                                                   7


complied with both Superior Court Standing Order 1-96 and rule

12 (b) ("A motion making any of these defenses shall be made

before pleading . . .").   Although the board was free to file a

motion to dismiss, it was error for the judge to allow it as the

plaintiff had stated a claim upon which relief could be granted.

That is, he alleged in his complaint that the result of the

parole board hearing (a quasi judicial administrative

proceeding) was arbitrary or capricious, unsupported by

substantial evidence, or otherwise an error of law.   See Hoffer

v. Board of Registration in Med., 461 Mass. 451, 458 n.9 (2012)

(discussing what plaintiff must show to obtain certiorari

review). 5

     Given the plaintiff's allegations, the only appropriate way

for the court to evaluate the claim is through a review of the

administrative record upon a motion for judgment on the

pleadings.   See School Comm. of Hudson v. Board of Educ., 448

Mass. 565, 575-576 (2007), citing St. Botolph Citizens Comm.,

Inc. v. Boston Redev. Auth., 429 Mass. 1, 7 (1999) ("Certiorari

is a limited procedure reserved for correction of substantial

errors of law apparent on the record created before a judicial

     5
       A motion to dismiss may be appropriate, however, where a
plaintiff has not met the time limitations for certiorari
review, where the claim is moot, where a plaintiff lacks
standing, or where certiorari review is not otherwise proper.
See, e.g., Indeck v. Clients' Sec. Bd., 450 Mass. 379, 380-381
(2008).
                                                                      8


or quasi-judicial tribunal").     Requiring a defendant agency to

file the administrative record as a matter of course is an

implicit acknowledgement of that fact. 6   See Firearms Records

Bur. v. Simkin, 466 Mass. 168, 180 (2013), citing Cambridge

Hous. Auth. v. Civil Serv. Comm'n, 7 Mass. App. Ct. 586, 587

(1979).   For this reason, we vacate the dismissal and remand for

further proceedings.

     2.   The disability claim.    In his Superior Court complaint,

the plaintiff asserted that the board's decision to deny his

parole petition was unlawful to the extent that the decision

relied on his disability and faulted him for failing to seek out

an appropriate release plan.    He claimed that the decision

violated the ADA, 7 as well as art. 114 8 and G. L. c. 93, § 103. 9


     6
       Although it did not explain its reasoning, the Appeals
Court came to the same conclusion in Doucette v. Massachusetts
Parole Bd., 86 Mass. App. Ct. 531, 541 n.10 (2014). There, the
Superior Court judge had a "near complete record" before him by
the time he considered the board's motion to dismiss for failure
to state a claim, and the Appeals Court affirmed the judge's
decision, citing the parties' agreement to proceed on a partial
record. Id. The court cautioned, however, that "[i]n future
cases, certiorari review should be conducted under [Mass. R.
Civ. P.] 12(c), in accordance with Superior Court Standing Order
1-96, and not under rule 12(b)(6)." Id.
     7
       Title II of the Americans with Disabilities Act (ADA)
provides: "[N]o qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity." 42 U.S.C. § 12132 (2012).
                                                                   9


Because we vacate the dismissal on procedural grounds, we need

not reach the merits of the plaintiff's disability claim.   That

being said, it is clear from the limited information we have --

i.e., a partial transcript and the board's written decision --

that the board's decision to deny the parole petition does not

appear to have considered adequately the application of the ADA

and our own relevant constitutional and statutory provisions.

We therefore make the following observations.

     The ADA and State provisions "prohibit the same conduct:

disabled persons may not be 'excluded from participation in or

be denied the benefits of' services, programs, or activities [of

a public entity], and they may not 'be subjected to

discrimination'" (citation omitted).   Shedlock v. Department of

Correction, 442 Mass. 844, 854 (2004).   The plaintiff alleges,

and the board clearly assumed (both during the review hearing

and in its decision denying his petition for parole), that the


     8
       Article 114 of the Amendments to the Massachusetts
Constitution provides: "No otherwise qualified handicapped
individual shall, solely by reason of his handicap, be excluded
from the participation in, denied the benefits of, or be subject
to discrimination under any program or activity within the
commonwealth."
     9
       General Laws c. 93, § 103, provides in relevant part that
"[a]ny person within the commonwealth, regardless of handicap
. . . shall, with reasonable accommodation, have the same rights
as other persons . . . to the full and equal benefit of all laws
and proceedings . . . , including, but not limited to, the
rights secured under [art. 114]."
                                                                  10


plaintiff suffers from a disability:   cognitive and behavioral

limitations resulting from TBI.   The plaintiff also alleges that

he has been denied the benefits of a State program, i.e., a fair

hearing and parole review decision process, to which he was

statutorily entitled.   See 42 U.S.C. § 12131(1)(B) (2012)

("public entity" includes State agencies); Pennsylvania Dep't of

Corrections v. Yeskey, 524 U.S. 206, 210 (1998) (ADA applies to

prisoners); Thompson v. Davis, 295 F.3d 890, 896-897 (9th Cir.

2002), cert. denied, 538 U.S. 921 (2003) (ADA applies to parole

proceedings, including substantive decision-making). 10

Therefore, the only open question is whether the plaintiff was

excluded from the program, or discriminated against in the form

of denial of parole, by reason of his disability.

See Thompson, supra at 896, 898 n.4 (describing this inquiry as


     10
       See also United States Department of Justice, Civil
Rights Division, Examples and Resources to Support Criminal
Justice Entities in Compliance with Title II of the Americans
with Disabilities Act (Jan. 2017), https://www.ada.gov/cjta.html
[https://perma.cc/4W6S-9T5N] (DOJ Examples) (State programs may
include "determining whether to revoke probation or parole,
. . . parole and release programs, and re-entry planning"). The
guidance document further explains that State entities must
"[e]nsure that people with mental health disabilities . . . have
an equal opportunity to participate in and benefit from the
entities' programs, services, and activities." Id. To provide
equal opportunities, State entities must "[m]ake reasonable
modifications in policies, practices, or procedures when
necessary to avoid disability discrimination in all interactions
with people with mental health disabilities . . . , unless the
modifications would fundamentally alter the nature of the
service, program, or activity." Id.
                                                                         11


asking whether prisoner was "otherwise qualified").

       The board's decision to grant parole is limited by statute;

it may only do so where it finds, "after consideration of a risk

and needs assessment, that there is a reasonable probability

that, if the prisoner is released with appropriate conditions

and community supervision, the prisoner will live and remain at

liberty without violating the law and that release is not

incompatible with the welfare of society."      G. L. c. 127,

§ 130. 11     No prisoner is entitled to parole, Deal v. Commissioner

of Correction, 475 Mass. 307, 322 (2016), and we give the

board's determination "considerable deference," Greenman

v. Massachusetts Parole Bd., 405 Mass. 384, 387 (1989).

       However, this deference is not without limits.       First, the

board clearly may not categorically exclude any prisoner by

reason of his or her disability.      See Thompson, 295 F.3d at 898

n.4.    Second, both the ADA and the parole statute, G. L. c. 127,

§ 130, require the board to take some measures to accommodate

prisoners with disabilities.      Where the board is aware that a

       11
            General Laws c. 127, § 130, further provides:

            "In making this determination, the parole board shall
       consider whether, during the period of incarceration, the
       prisoner has participated in available work opportunities
       and education or treatment programs and demonstrated good
       behavior. The board shall also consider whether risk
       reduction programs, made available through collaboration
       with criminal justice agencies would minimize the
       probability of the prisoner re-offending once released."
                                                                     12


mental disability may affect a prisoner's ability to prepare an

appropriate release plan in advance of a parole hearing, the

board should make reasonable modifications to its policy, for

example, by providing an expert or other assistance to help the

prisoner identify appropriate postrelease programming.      See 28

C.F.R. § 35.130(b)(7) (2016); 12 28 C.F.R. § 35.130(b)(8) (2016). 13

In accommodating prisoners with mental disabilities, the board

should also consider whether there are risk reduction programs

designed to reduce recidivism in those who are mentally

disabled.    See G. L. c. 127, § 130.

     These provisions do not require the board to make

modifications that would "fundamentally alter" the nature of

parole.    28 C.F.R. § 35.130(b)(7).    See 28 C.F.R. § 35.139


     12
          Title 28 C.F.R. § 35.130(b)(7) (2016) provides:

          "A public entity shall make reasonable modifications
     in policies, practices, or procedures when the
     modifications are necessary to avoid discrimination on the
     basis of disability, unless the public entity can
     demonstrate that making the modifications would
     fundamentally alter the nature of the service, program, or
     activity."
     13
          Title 28 C.F.R. § 35.130(b)(8) (2016) provides:

          "A public entity shall not impose or apply eligibility
     criteria that screen out or tend to screen out an
     individual with a disability or any class of individuals
     with disabilities from fully and equally enjoying any
     service, program, or activity, unless such criteria can be
     shown to be necessary for the provision of the service,
     program, or activity being offered."
                                                                    13


(2016).   To the contrary, those who would pose a danger to

society even with risk reduction programs should not be released

on parole.   G. L. c. 127, § 130.    In addition, the board's

important role in protecting society from the early release of

dangerous persons means that the board must be able to consider

whether the symptoms of a prisoner's disability mean that he or

she has a heightened propensity to commit crime while released

on parole.   See Thompson, 295 F.3d at 898 n.4.

     The interaction of these requirements means that once the

board became aware that the plaintiff's disability could

potentially affect his ability to qualify for parole, it had the

responsibility to determine whether reasonable modifications

could enable the plaintiff to qualify, without changing the

fundamental nature of parole. 14    Here, the board indicated its


     14
       In interpreting art. 114 and the ADA, we have previously
examined whether the disabled individual requested reasonable
accommodations from a State prison. See Shedlock v. Department
of Correction, 442 Mass. 844, 856-859 (2004). In that case,
however, we noted that prison officials, while aware of the
prisoner's disability, might have been unaware that he needed
further accommodation. Id. at 856-857. Here, the board -- as
reflected in the board member's comments and in the board's
written decision -- was clearly aware of the plaintiff's
disability and that he would need further accommodation if
parole were to work. As a result, the board had an obligation
to consider whether reasonable modifications could mitigate any
risk that the plaintiff would pose were he released on parole.
See DOJ Examples, supra ("The reasonable modification obligation
applies when an agency employee knows or reasonably should know
that the person has a disability and needs a modification
. . .").
                                                                   14


awareness both of the plaintiff's disability and of how symptoms

stemming from that disability could affect his behavior both in

the parole hearing and on parole.   In addition, while one board

member discussed the possibility that the plaintiff would need

to be in a "very structured setting" while on parole, there is

no indication in the limited record before us whether the board

actually considered any such modification and whether it would

make him a more qualified candidate for parole.   Further, the

board negatively considered the plaintiff's attitude during the

parole hearing and his own failure to identify what the board

considered to be appropriate parole programs, without

considering whether these behaviors were the result of his TBI.

     In short, while the judge correctly noted that in its

decision, the board had considered a broad set of factors,

including the plaintiff's behavior before his TBI, the record

before us shows no consideration of how the plaintiff's

limitations affect his parole eligibility, whether these

limitations could be mitigated with reasonable modifications, 15

and whether other factors would nevertheless disqualify him from




     15
       To the extent that the plaintiff's disability prevents
him from seeking out such reasonable modifications himself, it
may be inappropriate for the board to place the burden on him to
put forward his own parole programming proposal.
                                                                        15


parole. 16    More importantly, it is impossible to determine the

weight the board gave to the disability and associated

limitations relative to other factors in its analysis.      Once the

board has submitted the administrative record, upon a motion for

judgment on the pleadings, the motion judge will have a better

basis for considering the plaintiff's claims. 17

     3.      Frequency of parole review.   General Laws c. 127,

§ 133A, governs parole eligibility for "[e]very prisoner who is

serving a sentence for life," with limited exceptions.      It

provides for an initial hearing fifteen years into a life term,

and rehearings every five years if parole is not granted.         Id.

120 Code Mass. Regs. § 301.01(5).     In contrast, with limited

     16
       In this case, at least with respect to the plaintiff's
limitations due to TBI and how those limitations interact with
the criteria for parole, it is difficult to see how the board
could proceed without a professional evaluation of the
plaintiff's condition and recommendation regarding a postrelease
plan that might diminish the risk of recidivism. See 28 C.F.R.
§ 35.130(h) (2016) (assessment whether safety requirements that
exclude persons with disabilities are nevertheless legitimate
must be "based on actual risks, not on mere speculation,
stereotypes, or generalizations about individuals with
disabilities"); 28 C.F.R. § 35.139(b) (2016) (assessment of
whether individual poses "direct threat" must rely "on current
medical knowledge or on the best available objective evidence
. . . to ascertain" nature of risk and whether it could be
reasonably mitigated).
     17
       We note that, even if the plaintiff is successful in
demonstrating a violation of the ADA upon a motion for judgment
on the pleadings, he is not automatically entitled to the relief
he seeks (release on parole), but rather to a parole hearing and
decision that considers reasonable modifications in light of his
disability.
                                                                    16


exceptions not relevant here, all other prisoners denied parole

are entitled to a rehearing on an annual basis.    120 Code Mass.

Regs. § 301.01(2) (1997).    The plaintiff argues that the

commutation of his original sentence from life with the

possibility of parole to thirty-six years to life reduced his

sentence to an indeterminate one, such that it is no longer

governed by § 133A, and that he is entitled to review on an

annual basis. 18   We disagree.

     The case to which the defendant cites undermines his

argument, as the court held that the nature of a prisoner's

sentence depends on the maximum term, which sets "the maximum

amount of time that the prisoner will serve in prison if he

. . . is not granted parole," whereas the minimum term "serves

     18
       The plaintiff also argues that because his commuted
sentence is similar to that described in the home invasion
statute, G. L. c. 265, § 18C ("for life or for any term of not
less than twenty years"), his sentence should be governed by
G. L. c. 127, § 133 (annual review), rather than G. L. c. 127,
§ 133A (review every five years). He reasons that in
Commonwealth v. Brown, 431 Mass. 772, 774-777 (2000), we
mentioned that a defendant convicted under the home invasion
statute was subject to § 133. However, the plaintiff ignores
the fact that unlike himself, the defendant in Brown was not
sentenced to life, but instead to from twenty years to twenty
years and one day. Id. at 773.

     The plaintiff further argues that we should adopt
California's rule, citing three decisions in which that State's
highest court held that a sentence of from a term of years to
life is not a life sentence. These decisions are
distinguishable from the plaintiff's case, however, as all three
involved crimes committed when the defendants in question were
minors.
                                                                   17


as a base for determining his parole eligibility date."     Connery

v. Commissioner of Correction, 33 Mass. App. Ct. 253, 254

(1992), S.C., 414 Mass. 1009, 1011 (1993), citing Commonwealth

v. Hogan, 17 Mass. App. Ct. 186, 189 (1983), and Commonwealth

v. Haley, 23 Mass. App. Ct. 10, 18 (1986).   Because judges

sentencing on convictions for murder in the second degree now

must fix a minimum term as a parole eligibility date, G. L.

c. 279, § 24, if we adopted the defendant's view it would

essentially mean that no sentences other than a life sentence

without the possibility of parole would be a "life sentence."

This would render § 133A meaningless.   See Boston Police

Patrolmen's Ass'n v. Boston, 435 Mass. 718, 721 (2002),

quoting Victory Distribs., Inc. v. Ayer Div. of the Dist. Court

Dep't, 435 Mass. 136, 140 (2001) ("We interpret statutes so as

to avoid rendering any part of the legislation meaningless").

Instead, the board has determined that § 133A and the associated

regulations govern parole hearings for all "individuals serving

a sentence that contains life as the maximum term of the

sentence."   120 Code Mass. Regs. § 100.00 (2001).   Therefore,

the plaintiff's sentence remains a "life sentence," and his

parole is governed by § 133A.

     Conclusion.   We reverse the dismissal of the complaint and

remand for further proceedings consistent with this opinion.

                                    So ordered.
