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.
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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
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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).
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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.
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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”).
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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
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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.
(Emphasis added.)
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
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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.
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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.
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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,
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– 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.
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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
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