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CORRECTED
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
RICHARD CROWELL, Plaintiff-Appellant
v.
NO. SJC-12203
THE MASSACHUSETTS PAROLE BOARD, Defendant-Appellee
ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT
BRIEF FOR THE PLAINTIFF-APPELLANT
John D. Fitzpatrick BBO# 550059 Supervising Attorney and Senior Clinical Instructor Harvard Prison Legal Assistance Project 6 Everett Street, Suite 5107 Cambridge, MA 02138 Phone: (617) 495-3969 Fax : ( 61 7 ) 4 9 5-2 6 4 4 Email: [email protected]
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................. 3
ISSUES PRESENTED ...................................... 5
STATEMENT OF THE CASE ................................. 5
STATEMENT OF FACTS .................................... 8
ARGUMENT
I. THE TRIAL COURT ERRED IN HOLDING THAT, IN A CERTIORI ACTION UNDER G.L. C. 249 § 4, AN AGENCY MAY FILE A 12(B) (6) MOTION BEFORE FILING THE ADMINISTRATIVE RECORD ........... 13
II. THE TRIAL COURT ERRED IN GRANTING THE PAROLE • BOARD'S MOTION TO DISMISS WITH RESPECT TO
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CROWELL'S DISABILITIES CLAIM ............... 17
III. THE TRIAL COURT ERRED IN HOLDING THAT CROWELL'S COMMUTED SENTENCE OF "36 YEARS TO LIFE" UNAMBIGUOUSLY FALLS UNDER THE PAROLE REHEARING PROVISION FOR PRISONERS CONVICTED OF SECOND-DEGREE MURDER WITH STATUTORY SENTENCES .................................. 2 4
CONCLUSION ........................................... 37
ADDENDUM ............................................. 3 8
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• TABLE OF AUTHORITIES
• CASES
Alcantara v. Bakery & Confectionary Union & Indus. Int'l Pension Fund Pension Plan, 751 F.3d 71 (2d Cir. 2014) .............................................. 15
Ashcroft v. Iqbal, 556 U.S. 662 (2008) .............. 20 • Barlow v. Collins, 397 U.S. 159 (1970) .............. 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..... 17 City of Lawrence v. State Bd. Of Educ., 357 Mass. 200
(1970) ............................................. 15 Cobble v. Comm'r of Dep't of Soc. Servs., 430 Mass. • 385 (1999) ......................................... 16 Commonwealth v. Brown, 431 Mass. 772 (2000) ........ 28 Commonwealth v. Carrion, 431 Mass. 44 (2000) .... 29, 31 Commonwealth v. Constantino, 443 Mass. 521 (2005) ... 29 Commonwealth v. Crosscup, 369 Mass. 228 (1975) ...... 31 Commonwealth v. Devlin, 366 Mass. 132 (1974) ........ 29 • Commonwealth v. Roucoulet, 413 Mass. 647 (1992) ..... 29 Connery v. Commissioner of Correction, 33 Mass. App.
Ct. 253 (1992) ..................................... 26 Educadores Puertorriquenos en Accion v. Hernandez, 367
F.3d 61 (1st Cir. 2004) ............................ 18 • Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) ..... 21 Harris v. County of Orange, 682 F.3d 1126 (9th Cir.
2012) .............................................. 15 Herrick v. Essex Reg'l Ret. Bd., 77 Mass. App. Ct. 645
(2010) ............................................. 35 Iannachino v. Ford Motor Company, 451 Mass. 623 (2008) • ................................................... 17 In reD., 28 Cal. 3d 210 (Cal. 1980) ................ 29 Klapprott v. United States, 335 U.S. 601 (1949) ..... 34 Manickavasagar v. Virginia Commonwealth University
School of Medicine, 667 F.Supp.2d 635 (E.D. Va. • 2009) .......................................... 22, 23 Mary Jo C. v. New York State and Local Retirement
System, 707 F.3d 144 (2d Cir. 2013) ................ 21 Massey v. Ojaniit, 759 F.3d 343 (4th Cir. 2014) ...... 15 Occidental Chem. Corp. v. Power Auth. of State of
N.Y., 758 F. Supp. 854 (W.D.N.Y. 1991) ............. 16 • Or. Nat. Res. Council v. Mohla, 895 F.2d 627 (9th Cir. 1990) .............................................. 16
Farrell v. Keenan, 389 Mass. 809 (1983) ............. 34 People v. Bustos, 23 Cal. App. 4th 1747 (Cal. App. 2d
Dist. 1994) ........................................ 28 • People v. King, 5 Cal. 4th 59 (Cal. 1993) ............ 28
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Reed v. Airtran Airways, 531 F.Supp.2d 660 (D. Md. 2008) .............................................. 19
Rezendes v. Rezendes, 46 Mass. App. Ct. 438 (1999) .. 35 Rodriguez-Reyes v. Molina Rodriguez, 711 F.3d 49 (1st
Cir. 2013) ......................................... 19 Shedlock v. Department of Correction, 442 Mass. 844
(2004) ......................................... 18, 23 Swenson v. Lincoln County School Dist. No. 2, 260
F.Supp.2d 1136 (D. Wyo. 2003) ...................... 23 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) .... 18 Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002) .20, 23 Wood v. Comm'r of Correction, 363 Mass. 79 (1973) ... 29 Woods v. Executive Office of Communities & Dev., 411
Mass . 59 9 ( 19 9 2 ) ................................... 3 6
STATUTES AND RULES
Rehabilitation Act, 29 U.S.C. §794 .................. 22 42 u.s.c. §12101 .................................... 18 42 u.s.c. § 12131 ................................... 21 25 C.F.R. § 35.130 .................................. 21 Art. 114 of the Mass. Declaration of Rights ......... 19 G. L. c. 93 §103 .................................... 18 G. L. c. 127 § 133A .............................. 5, 27 G. L. c. 127 § 133 .................................. 27 G. L. c. 249 § 4 ................................. 5, 13 G. L. c. 265 §18C ................................... 26 120 C.M.R. 301.01. .......................... 24, 25, 26 120 C.M.R. 304.02 ................................... 18 Mass. R. Civ. P. 12 (b) .......................... passim Mass . R . C i v . P . 12 ( c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Standing Order 1-96 ............................. passim
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ISSUES PRESENTED
1. Whether the Trial Court erred in holding that, in a
certiorari action under G.L. c. 249 § 4, an agency
may file a 12(b) (6) motion before filing the
administrative record, when the plain text of
Standing Order 1-96 establishes that agencies must
file the administrative record in actions such as
this one, where such actions are meant to allow for
meaningful judicial review of the administrative
record forming the basis for agency action.
2. Whether the Trial Court erred in granting the Parole
Board's ("the Board's") Motion to Dismiss with
respect to Crowell's disabilities claim, where the
Board failed to comply with its obligation to
reasonably accommodate Crowell's disability.
3. Whether the Trial Court erred in holding that
Crowell's commuted sentence of 36 years to life
unambiguously falls under G.L. c. 127 § 133A, the
parole rehearing provision for prisoners convicted
of second-degree murder with life sentences.
STATEMENT OF THE CASE
On April 2, 2014, the Plaintiff in the underlying
action, Richard Crowell ("Crowell") filed his
Complaint against Defendant, the Massachusetts Parole
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Board ("the Board") . Record Appendix (hereinafter
"R.A.") at 4-17. On August 21, 2014, the Parole Board
responded with its Motion to Dismiss. R.A. at 18-080.
On September 30, 2014, Crowell filed an Opposition to
Defendant's Motion to Dismiss and a Cross-Motion for
Judgment on the Pleadings. R.A. at 81-100. The Parole
Board subsequently submitted an Opposition to the
Plaintiff's Cross-Motion on December 19, 2014. R.A. at
101-124 .
On March 3, 2015, the Trial Court held a hearing
on the Motion to Dismiss and Cross-Motion for Judgment
on the Pleadings, and the matter was taken under
advisement by the Trial Court. Post-hearing briefing
was allowed and undertaken by Crowell and the Board.
The Court subsequently issued a Memorandum of Decision
and Order in April 2015: granting the Board's Motion
to Dismiss and denying Crowell's Cross-Motion for
Judgment on the Pleadings. R.A. at 145-151. Crowell
timely appealed to this Court.
In October 2016 Crowell's counsel forwarded
material to the Board's appellate counsel that had
come to his attention after the foregoing. These
materials were relevant to the issue of whether
Crowell's commuted 36 years- life sentence was
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unambiguously a life sentence, subject to parole
review as of right only every five years, rather than
annually as with sentences for terms of years. The
papers included a 1992 memo from the Board's (Acting)
General Counsel concluding that Crowell was correct
and should be seen by the Board annually (the Memo),
an Attorney General's Opinion dated September 3, 1963
(close in time to the appellant's original sentencing
for his underlying crime) and a letter from Attorney
James Pingeon (of what was then Massachusetts
Correctional Legal Services) .
Crowell's counsel forwarded these materials to
the Board's counsel in October to determine whether in
light of the documents the Board might change its
position as to this issue. R.A. at 156. In early
December 2015 the Board's counsel indicated that the
Board would not change its position. R.A. at 157.
Thereafter, on December 11, Crowell, through counsel,
served a Motion for Reconsideration (the "Motion") on
the Board. The Board responded with its Opposition on
January 15, 2016. The Motion and the Board's
Opposition were mailed to the Trial Court on February
1, and docketed on February 16, 2016. R.A. at 189. On
February 12 [sic], the Trial Court denied the Motion,
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with a marginal endorsement citing to the Board's
Opposition. R.A. at 190. This decision was docketed
and mailed to counsel on February 22. R.A. at 190.
STATEMENT OF THE FACTS
Crowell is in his seventies and serving a life
sentence for second-degree murder, confined by the
Massachusetts Department of Correction ("DOC") . He is
presently housed at the Massachusetts Correctional
Institution - Shirley.
Crowell was originally convicted and sentenced to
life imprisonment in 1962 after entering a guilty plea
to second-degree murder and associated charges for his
role as a teenaged getaway driver during a robbery
that resulted in homicide. R.A. at 9-11. The three
other robbery participants, including the shooter,
have all been released for years. R.A. at 11, nn. 2-4.
In 1974, Crowell's sentence was commuted to a
term of "36 years to life," and he was initially
paroled in November 1975. R.A. at 11. In 1987, while
out on parole, Crowell sustained a traumatic brain
injury ("TBI"). R.A. at 13, n. 5. Symptoms from his
TBI include memory lapses, issues with impulse
control, inappropriate laughing, a tangential
conversational style, confusion, stuttering, and an
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odd affect. R.A. at 4. After a series of challenges,
including alcohol abuse, the Board revoked Crowell's
parole in 1990. R.A. at 12. Other than a 20-day period
in 2003, Crowell has been incarcerated ever since. Id.
Crowell appeared in parole hearings in 1991, 1994,
1997, 2003, 2007, and 2012. Id. Since returning to
custody, Crowell has participated in what he could
avail himself of from the limited rehabilitative and
therapeutic programming offered by the DOC, including
Al-Anon, alcohol counseling, 12 Step, AA/NA, Relapse
Prevention, and Reentry. R.A. at 5. There do not
appear to be any rehabilitative TBI programs run by
the DOC.
On August 28, 2012, the Board held a hearing on
Crowell's eligibility for parole. During the hearing,
Board member Charlene Bonner ("Bonner") specifically
discussed "the difficulties in managing Crowell in
light of his traumatic brain injury" and posited that
he would require a "structured setting." R.A. at 13.
Through his student counsel, Crowell identified such a
program: living at the Charlestown Recovery House
while receiving technical assistance from the
Statewide Head Injury Program ("SHIP"). R.A. at 14.
Bonner acknowledged that Crowell's brain had "been
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injured twice, traumatically," causing "functioning
deficits [and] emotional deficits" that are "chronic"
and "life-long" problems. R.A. at 14; see also R.A. at
13. Not only did the Board concede the extent of
Crowell's severe brain injury and resulting
disability, Bonner stated that Crowell has behavioral
issues "because in part, or maybe completely related
to [his] head injury." R.A. at 14.
Bonner appeared to compare TBI unfavorably to
other forms of mental illness, calling TBI not "even
in the same ballpark" with schizophrenia. R.A. at 15.
Bonner stated that there was no chance for improvement
in Crowell's mental condition and that his limitations
"might get worse." Id. Bonner stated that Crowell
would need a "specialized treatment program forever
because of [his] limitations secondary to [his] head
injury" and that Crowell "[hasn't] been able to
function on [his] own." Id. Bonner concluded her
discussion of Crowell's limitation and his TBI by
stating that it was her "primary consideration" at the
hearing. Id .
The Board's paper decision on August 30, 2013
limits its reasoning for denying Crowell parole to two
paragraphs. R.A. at 13. Despite the fact that Crowell
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has continuously been in the custody of the DOC since
2003, and has spent only 20 days out of DOC custody
since 1990, the Board found that Crowell had a
"lengthy history of parole violations, returns to
custody, substance abuse while on parole, program
failures, new crimes on parole, and an overall
uncooperative attitude." See R.A. at 13. It was this
history, based on facts that happened more than 23
years prior to the Board's decision, that led the
Board to conclude that "he was not sufficiently
rehabilitated to live in the community." Id.
The Board ends its cursory rationale in its
decision with a boilerplate recitation of its standard
for decision under 120 C.M.R. 300.04. Id. Without any
discussion or explanation, the Board set Crowell's
next parole hearing to be in the maximum time allowed,
five years' time. See id. The final sentence in the
decision casually acknowledges that "[Crowell's]
situation might be aided by an evaluation of the
possible mental deficits associated with his head
injury," but makes no referral or recommendation to
accomplish this end in the context of the meager
resources available from the DOC. Id.
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The Board denied Crowell's appeal on February 3,
2014. R.A. at 17. Crowell timely appealed Board's
final decision to the Superior Court under G. L. c.
249, §4 .
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I.
ARGUMENT
THE TRIAL COURT ERRED IN HOLDING THAT, IN A CERTIORARI ACTION UNDER G.L. C. 249 § 4 SUBJECT TO SUPERIOR COURT STANDING ORDER 1-96, AN AGENCY MAY FILE A 12(B) (6) MOTION BEFORE AND IN LIEU OF FILING THE ADMINISTRATIVE RECORD.
The Trial Court ruled that despite the mandate in
the applicable Standing Order that the Board file its
administrative record as its Answer to Crowell's
Complaint, that nonetheless the Board's Mass. R. Civ.
P. 12(b) motion could be filed prior to service of the
administrative record. R.A. at 146-47. A claim such as
Crowell's filed under G. L. c. 249 § 4 requires the
administrative agency whose proceedings are to be
judicially reviewed to follow the procedures set forth
in Standing Order 1-96 ("the Standing Order").
Standing Order 1-96 (3) (a) states that "[m] otions
authorized by Mass. R. Civ. P. 12(b) or 12(e)" "must
be served . . . not later than twenty (20) days after
service of the record by the administrative agency."
Reading this deadline as a tacit allowance to dispense
with filing the administrative record, the Trial Court
found this does not limit the agency's ability to file
a 12(b) motion in lieu of the administrative record.
Standing Order 1-96(2) states that the agency
"shall, by way of answer" file its administrative
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record with the Court. This is an unambiguous
requirement. Standing Order 1-96(1) details the
requirements for filing a claim, immediately followed
by the provision for filing the record in Standing
Order 1-96(2) and, finally, Standing Order 1-96(3)
follows regarding 12(b) motions. In following the
logical, sequential order of the Standing Order, the
context of this language requires that the record must
be filed prior to making a 12(b) motion .
In justifying its approval of the Board's
bypassing the requirement to file the administrative
record, the Trial Court noted that Rule 12(b) (6)
motions must be made before the responsive pleading.
However, under the Standing Order, the administrative
agency "shall . . file the original or certified
copy of the record." This requirement is consistent
with the purpose of the certiorari statute, codified
in its modern form in 1836, with origins predating
that time to colonial days, for informed judicial
review of government action where the petitioner is
without other recourse. Permitting the Board to
obviate this review by filing a Rule 12(b) (6) motion
is unsupported in light of the statute's salutary
purpose and Standing Order's straightforward command.
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Moreover, the Board's position is fallacious in
ignoring the central organizing principle of the
Standing Order: that a case such as the one at bar is
to be disposed of by means of Rule 12 (specifically,
Rule 12 [c]) after, not before, the administrative
record is filed for review. Rule 12 (c) and Rule 12
(b) (6) are functional equivalents. Massey v. Ojaniit,
759 F.3d 343, 347 (4th Cir. 2014); Alcantara v. Bakery
& Confectionary Union & Indus. Int'l Pension Fund
Pension Plan, 751 F.3d 71, 75 (2d Cir. 2014); Harris
v. County of Orange, 682 F.3d 1126, 1131 (9th Cir.
2012). Therefore, it makes no sense for the Trial
Court to interpret these functionally co-equal
sections of Rule 12 as so different under the Standing
Order that filing a dispositive motion brought under
one requires the agency to file its administrative
record, but not filing a dispositive motion under the
other. Analogous cases under the Administrative
Procedure Act (APA) highlight the untenable nature of
the Trial Court's approach. See City of Lawrence v.
State Bd. Of Educ., 357 Mass. 200, 202 (1970) (error to
deny petitioners' motion to require the agency to file
a record of hearing; without "the transcript of the
proceedings before the Board, the court was not in a
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position to make a determination whether there had
been a full and fair hearing and, if so, whether in
fact the hearing was adjudicatory") .
Other courts have shown a strong presumption in
favor of judicial review of administrative agencies
and their actions, as reviewability is the general
rule and prohibitions are narrowly construed against
judicial review. See e.g., Or. Nat. Res. Council v.
Mohla, 895 F.2d 627, 629 (9th Cir. 1990); Occidental
Chem. Corp. v. Power Auth. of State of N.Y., 758 F.
Supp. 854, 859 (W.D.N.Y. 1991); Barlow v. Collins, 397
U.S. 159, 166 (1970). Moreover, the record is an
integral part of judicial review under Standing Order
1-96. See, e.g., Standing Order 1-96(3) ("[T]he case
shall proceed solely on the basis of the record.");
Standing Order 1-96(5) ("[T]he review shall be
confined to the record."). Without the record, the
process of reviewing the agency's action is
meaningless. Without the record, a court could not
determine whether the challenged agency action is
supported by substantial evidence, or is arbitrary or
capricious. 120 C.M.R. 304.02(3); see also Cobble v.
Comm'r of Dep't of Soc. Servs., 430 Mass. 385, 390
(1999) ("[T]o determine whether an agency's decision
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is supported by substantial evidence, we examine the
entirety of the administrative record and take into
account whatever in the record fairly detracts from
the supporting evidence's weight."). And the filing of
the record allows a plaintiff to correct or add to the
record, per Standing Order 1-96(3).
The Trial Court erred in concluding that the
compelling legislative purpose underlying c. 249, §4,
reflected in the Standing Order, could be defeated by
permitting an agency to use Rule 12 (b) (6) to bypass
its obligation to file the administrative record. The
Trial Court's decision should be vacated and the Board
ordered to file its record in support of its adverse
action against Crowell for proper review.
II. THE TRIAL COURT ERRED IN GRANTING THE PAROLE BOARD'S DISMISSAL MOTION WITH RESPECT TO CROWELL'S DISABILITIES CLAIM.
The Trial Court used incorrect standards and
misapplied apposite law when it dismissed Crowell's
disabilities discrimination claim. First, the Trial
Court should not have judged Crowell's pleadings on
the heightened pleading standard of Iannachino v. Ford
Motor Company, 451 Mass. 623 (2008), and Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007). The Trial Court
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also misapplied and/or overlooked apposite precedent
in dismissing Crowell's discrimination claim.
a. The Trial Court Applied the Incorrect Pleading Standard to Crowell's Disability Claim .
Crowell's claim of disability discrimination was
brought not only under the federal Americans with
Disabilities Act, 42 U.S.C. §12101 et seq. (the
"ADA"), but also under cognate state provisions such
those contained in Article 114 of the Massachusetts
Declaration of Rights and G. L. c. 93 §103. R.A. at
6. Such state provisions are applied in consonance
with the manner in which federal courts have construed
the ADA. See Shedlock v. Department of Correction, 442
Mass. 844, 854 - 56 (2004). Accordingly, the Trial
Court's decision on this point will be assessed in
light of relevant judicial construction of the ADA .
In a discrimination lawsuit, a plaintiff's
complaint "need not contain specific facts
establishing a prima facie case of discrimination
. but instead must contain only a 'short and plain
statement of the claim showing that the pleader is
entitled to relief.'" Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002). See Educadores Puertorriquenos en
Accion v. Hernandez, 367 F.3d 61, 66 n. 1 (1st Cir .
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2 004) ( "Swierkiewicz is fully applicable to all civil
rights actions"). Even after the Supreme Court
articulated heightened pleading standards for civil
cases in Twombly and Ashcroft v. Iqbal, 556 U.S. 662
(2008), the Swierkiewicz rule continues to apply to
discrimination cases. See Rodriguez-Reyes v. Molina
Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (holding
that, even after Twombly and Iqbal, "the Swierkiewicz
holding remains good law"); see also Reed v. Airtran
Airways, 531 F.Supp.2d 660, 666 (D. Md. 2008) ("The
Twombly Court made clear that its holding did not
contradict the Swierkiewicz rule that a 'complaint in
an employment discrimination lawsuit [need] not
contain specific facts establishing a prima facie case
of discrimination.'") (citation omitted). By ignoring
Swierkiewicz, the Trial Court failed to give Crowell's
Complaint consideration under the correct standard of
review.
Properly construed under the correct standard of
review, with all factual inferences being drawn
favorably (and not, as suggested in the Board's
Superior Court filings, unfavorably) to Crowell, the
Complaint was sufficient to withstand a Rule 12 (b)
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(6) challenge and the Board's Motion should have been
denied.
b. The Trial Court Erred in Ruling that Crowell's Disability Claim Did Not Contain All of the Elements of a Proper Claim .
A plaintiff must allege four elements to state a
Title II ADA claim:
"(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entities services, programs, or activities, or was otherwise discriminated against; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability."
- Thompson v. Davis, 295 F.3d 890, 895 (9th Cir . 2002).
The first and third elements are uncontested. The
Board has acknowledged Crowell has a disability. Since
Crowell has been denied parole, he has been "excluded
from participation in or denied the benefits of," id.,
the privilege of parole .
The Trial Court's standard for whether Crowell
was "otherwise qualified" under Title II of the ADA
was too narrow. The statute defines a "qualified
individual with a disability" as "an individual with a
disability who, with or without reasonable
modifications to rules, policies, or practices
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meets the essential eligibility requirements for the
receipt of services or the participation in programs
or activities provided by a public entity." 42 U.S.C.
§ 12131(2). See also Mary Jo C. v. New York State and
Local Retirement System, 707 F.3d 144, 156-157 (2d
Cir. 2013) (" [T] he term 'essential eligibility
requirements' does not refer to all formal eligibility
requirements") . 1
Under the statute's proper meaning, Crowell is a
"qualified individual." In Thompson v. Davis, supra,
the prisoner "[p]laintiffs allege[d] that [the]
[d]efendants [had] violated Title II of the [ADA] by
denying them full and fair consideration for parole
based on their disability." Thompson, 295 F.3d at 894.
The Ninth Circuit held that because plaintiffs
"allege[d] that they [were] statutorily eligible for
1 The federal regulations implementing the "qualified individual" section of the ADA, see Hargrave v. Vermont, 340 F.3d 27, 38 (2d Cir. 2003), require "[a] public entity [to] 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 . " 2 5 C . F . R . § 3 5 . 13 0 (b) ( 7 ) . Because it was not shown the Parole Board could not make a reasonable modification to its policies to grant Crowell parole, he satisfies the "qualified individual" element of the statute. The Trial Court improperly overlooked this requirement.
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parole," they had sufficiently "pled that they are
otherwise qualified for the public benefit they seek,
consideration for parole." Id. at 896. Just like the
Thompson plaintiffs, Crowell is statutorily eligible
for parole. And therefore, he has sufficiently pled
that he is "otherwise qualified" under Title II.
The Trial Court held that while categorical
denials of parole are discriminatory, the Board may
consider Crowell's disability as "an additional
regulatory factor." R.A. at 150. This interpretation
of the ADA incorrectly conflates it with the narrower
but similar standard of the federal Rehabilitation
Act, 29 U.S.C. §794 (the "RA"). The vital difference
between the two standards has been described as
follows:
While the general requirements of a disability discrimination claim under the ADA and the Rehabilitation Act are the same, the standard of causation is not. Rehabilitation Act plaintiffs must demonstrate that the discrimination in question occurred 'solely by reason of' their disability. 29 U.S.C. § 794(a). ADA plaintiffs, on the other hand, need only demonstrate that their disability played a motivating role in the discriminatory action.
- Manickavasagar v. Virginia Commonwealth University School of Medicine, 667 F.Supp.2d 635, 643 n. 4 (E.D. Va. 2009) (emphasis added)
One Board member stated that her belief that
Crowell's disability would never improve was a
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"primary consideration." Complaint, Exhibit B at 2.
This statement at minimum demonstrates that Crowell's
disability played a "motivating role" in the Board's
denial of his parole. Manickavasagar v. Virginia
Commonwealth, supra at 643 n. 4.
c. The Trial Court Erred in Failing to Consider the Parole Board's Lack of Accommodation Discrimination.
Under the ADA, failing to make a reasonable
accommodation to someone who is denied access to a
program or services can constitute discrimination. See
Shedlock v. Dep't of Corr., supra at 854, 858;
Swenson v. Lincoln County School Dist. No. 2, 260
F.Supp.2d 1136, 1144 (D. Wyo. 2003) ("Three theories
of discrimination are available to a plaintiff
alleging a violation of Title II of the ADA: (1)
intentional discrimination; (2) discriminatory impact;
and (3) refusal to make a reasonable modification") .
In Shedlock, the Court held that, viewing the
facts in the most favorable light to the prisoner
plaintiff, a jury could find that the defendant prison
system violated inter alia the ADA, for failing to
grant his reasonable request - for a first floor cell
to accommodate his mobility disability.
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The striking similarities between Shedlock and
this case show that the Trial Court erred in
dismissing Crowell's Complaint. Just as the Shedlock
plaintiff requested that he be given a first floor
cell to accommodate his disability, at his parole
hearing, Crowell presented a plausible reintegration
program as a reasonable accommodation for his
disability that could allow for his parole. Not only
did the Board fail to grant this accommodation, it
failed to even consider it. In so doing the Board
violated the ADA, and cognate state antidiscrimination
law .
III. THE TRIAL COURT ERRED IN HOLDING THAT CROWELL'S COMMUTED SENTENCE OF 36 YEARS TO LIFE UNAMBIGUOUSLY FALLS UNDER THE PAROLE REHEARING PROVISION FOR PRISONERS CONVICTED OF SECONDDEGREE MURDER WITH LIFE SENTENCES .
The default period of time between a parole
hearing and a subsequent hearing is one year. See 120
C.M.R. 301.01(2). In situations other than a
postponement, the time between hearings can be raised
to a maximum of five years only if the prisoner is:
(1) a habitual criminal, 120 C.M.R. 301.01(3), (2) a
sexually dangerous person, 120 C.M.R. 301.01(4), or
(3) a person serving a "life sentence with parole
24
eligibility," 120 C.M.R. 301.01(5). It is undisputed
that Crowell does not fall into either of the first
two categories. The only issue here is whether
Crowell's commuted sentence qualifies as a ~life
sentence with parole eligibility."
The Trial Court ruled that ~crowell is very
clearly serving a life sentence as evidenced by the
maximum length of his sentencing being 'to life'",
thus falling within the meaning of 120 C.M.R.
301.01(5) and this only entitles him to parole
hearings every five years. R.A. at 151. In support
of its ruling, the Trial Court reasoned that ~[t]he
mere fact that there is a specific number of years
attached to Crowell's parole eligibility in no way
alters the nature of his sentence or reduces the
amount of time he will serve if not granted parole."
The Trial Court's conclusion was in error because 120
C.M.R. 301.01(5) is inapplicable to Crowell's case;
and even if there exists ambiguity regarding the
meaning of Crowell's sentence, the rule of lenity
shall apply in Crowell's favor.
a. 120 C.M.R. 301.01(5) Is Inapplicable Since Crowell's Sentence Is Not A Life Sentence.
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Parole eligibility for a sentence to a state
prison containing a minimum and a maximum term is
governed by G.L. c. 127, § 133. By contrast, 120
C.M.R. 301.01(5)'s statutory basis is clear: G. L. c .
127 § 133A. 2 Since § 133A only applies to prisoner who
is serving a sentence for life, it is inapplicable to
Crowell's case, as does the every five years parole
review provision in 120 C.M.R. 301.01(5). Accordingly,
Crowell's sentence (as reduced from his prior life
sentence by the Governor's commutation) should revert
to the annual hearing review requirement generally
applicable to other prisoners .
"The maximum sentence is just that, the maximum
amount of time that the prisoner will serve in prison
if he . is not granted parole . . The minimum
sentence serves as a base for determining his parole
eligibility date." Connery v. Commissioner of
Correction, 33 Mass. App. Ct. 253, 254 (1992), S. C.,
4 14 Mas s . 1 0 0 9 ( 1 9 9 3 ) .
A statute providing for a sentence similar to
Crowell's is G. L. c. 265, §18C, imposing a maximum
2 120 C.M.R. 301.01(5) states: "In cases involving inmates serving life sentences with parole eligibility, a parole review hearing occurs five years after the initial parole release hearing, except where the Parole Board Members act to cause a review at an earlier time. M.G.L. c. 127, § 133A."
26
sentence as life and a minimum sentence as twenty
years. This statute has been construed as allowing for
parole eligibility to be determined by G. L. c. 127, §
133. Commonwealth v. Brown, 431 Mass. 772, 774 - 77
(2000). The Court in Brown observed that as to the
years to life sentence there, "as in any case with a
mandatory minimum, parole eligibility would occur
after the minimum term of the sentence, here twenty
years." Id. at n. 7. Similarly, Crowell's sentence is
an indeterminate sentence with the maximum sentence as
life and the minimum as thirty-six years, G. L. c.
127, § 133, not § 133A, applying for purposes of
parole eligibility.
Moreover, when faced with a similar issue,
California courts have consistently held that a term
of years to life sentence is not a life sentence.
When deciding the case In re D., the Supreme Court of
California held that the punishment for first-degree
murder of "25 years to life" is not a life sentence.
28 Cal. 3d 210, 213 (Cal. 1980). The court noted that
the terminology "25 years to life" in Pen. Code, §
190, signifies an indeterminate sentence with a
minimum possible term of 25 years and a maximum
potential term of life imprisonment, and that there is
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nothing in the language of the statute or its
legislative history to support an interpretation that
it prescribes a determinate life sentence. Id. at 216.
Citing this case, the California Supreme Court in
People v. King affirmed this proposition. 5 Cal. 4th
59, 65 (Cal. 1993). See also People v. Bustos, 23 Cal.
App. 4th 1747, 1757 (Cal. App. 2d Dist. 1994) (25
years to life is "distinguished from a so-called
'straight life' sentence") . Though this analysis was
made within the context of a different state's
statutory framework, the issue and logic employed in
these cases is apposite to the circumstances of
Crowell's case.
b. The Rule of Lenity Compels An Outcome In Crowell's Favor On This Issue.
The Board has argued somewhat paradoxically that
"even though the commutation lightened his punishment,
it did not alter the Plaintiff's sentence from life."
(emphasis in original). R. A. at 137. The Board also
urged that its own interpretation of the applicable
statutes and whether Crowell should be allowed annual
parole consideration was a matter of the Board's legal
interpretation to which substantial deference should
be given by the Court. R.A. at 138 .
28
Crowell argued, inter alia, that because this
issue was ambiguous, he should have the benefit of a
doubt and prevail under the rule of lenity. R. A. at
96-97. The rule of lenity provides that: ~[i]f the
statutory language [could] plausibly be found to be
ambiguous, the rule of lenity requires the [criminal]
defendant be given the benefit of the ambiguity."
Commonwealth v. Constantino, 443 Mass. 521, 525 (2005)
(quoting Commonwealth v. Carrion, 431 Mass. 44, 45-46
[ 2000] ) (alterations in original) (quotation marks
omitted). The rule of lenity is a longstanding and
central principle of penal statutory interpretation in
Massachusetts. See, e.g., id. at 524-26 (applying
rule of lenity to hit-and-run statute and finding that
ambiguity in statute allowed only one crime per
accident rather than per death); Carrion, 431 Mass. at
45-46; Commonwealth v. Roucoulet, 413 Mass. 647, 652
(1992); Commonwealth v. Crosscup, 369 Mass. 228, 234
(1975); Commonwealth v. Devlin, 366 Mass. 132, 137-138
(1974); Wood v. Comm'r of Correction, 363 Mass. 79, 81
(1973). The Trial Court disagreed, summarily
concluding Crowell is ~very clearly serving" a life
sentence. R.A. at 151.
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After the Trial Court's decision and the filing
of Crowell's appeal, it came to the attention of
Crowell's counsel that in 1992 the Board's (Acting)
General Counsel concluded that Crowell was correct and
should be seen by the Board annually.
Specifically, the Board's General Counsel
rendered this opinion in a legal memorandum to the
Board dated December 18, 1992 (the Memo). R.A. at
160. In the Memo, the General Counsel referenced three
documents: (i) an Attorney General's Opinion dated
September 3, 1963 (close in time to the appellant's
original sentencing for his underlying crime) R.A. at
161-62(Attorney General's Opinions for 1963- 1964,
Public Document [P.D.] 12); (ii) a letter from
Attorney James Pingeon (of Massachusetts Correctional
Legal Services) R.A. at 165; and (iii) a letter from
the appellant, Richard Crowell (which has not been
located) .
The gist of the Board's General Counsel's Memo is
that Crowell's contention that the Board should review
his parole status annually, rather than with five year
"set backs," is correct. The Memo also contains at its
bottom the handwritten notations "New A.G. Opinion"
and "No Action." R.A. at 160.
30
This interpretation of the Board's General
Counsel in 1992 (that by virtue of commutation,
Crowell is serving a term of years, not a life
sentence) is consistent with the formal public record
of Crowell's commutation. R.A. at 142 - 44; 167 - 69.
This record expressly refers to reducing Crowell's
sentence "from Life to a term of 36 years to Life."
(emphasis added) . Ibid. The foregoing strongly
suggests Crowell's position on this issue is
unambiguously correct and should prevail, or, at very
minimum, that this is an ambiguous situation such that
Crowell should prevail under the rule of lenity. As
related in the procedural history of this case, the
foregoing was the basis for Crowell's Motion for
Reconsideration, denied by the Trial Court in February
2016.
The Board's Opposition implied either possibly
dubious motives or means in how the foregoing
documents were obtained, and/or that Crowell's counsel
was impermissibly late bringing them to the Trial
Court's attention. R.A. at 172-73. In addition, in a
tautological rebuttal to its own General Counsel's
prior opinion, The Board maintained it could
successfully argue its differing position before and
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therefore it should prevail now, even with the
disclosure of the subject documents. R.A. at 172-74.
Regardless of whatever length of time Crowell or
his counsel had these documents, the Board had them in
its possession for over 20 years. Yet, while
repeatedly litigating against an often confused, brain
damaged, pro se aging prisoner during all that time,
the Board failed to disclose this exculpatory
information to any court. Instead, the Board
successfully dismissed Crowell's clumsy, poorly
phrased efforts to win his freedom in ways that at
times approached derision. More should have been
expected from the Board, especially where Crowell's
liberty was at stake. This was not right.
Putting aside the fundamental inequity of the
position taken by the Board, and contrary to the
Board's opposing argument, Crowell's Motion for
Reconsideration was properly brought on the basis of
changed circumstances, change of law, and plain error
of law and fact. The Attorney General's Opinion of
over 50 years ago was not a readily or reasonably
located legal reference. As to the means by which the
Board's General Counsel's opinion Memo was obtained
32
and revealed to the Trial Court and to this Court, it
had to have originated at some point from the Board.
As to the timing of Crowell's Motion for
Reconsideration, it was not brought at an unreasonably
late stage of these proceedings such as to have
Crowell's chance for annual parole reviews denied on
that basis. In October 2015 Crowell's counsel
forwarded the subject documents to the Board's
appellate counsel to determine its intentions with
regard to same, and inquire about the handwritten
notation on the bottom of the Memo i.e., whether there
was indeed a "New A. G. Opinion." Thereafter the
Board's appellate counsel indicated in early December
2015 that the Board had responded that its position on
Crowell's eligibility for parole review issue remained
unchanged despite the Memo. Further requests that the
Board explain why this was so went unanswered. R.A. at
157.
Crowell's counsel was not unreasonable in
attempting to resolve this issue with the Board in
October 2015 before pursuing the Motion for
Reconsideration after being informed that the Board
would not yield or otherwise compromise on this point
in December 2015. Regarding the Board's posited
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rhetorical question as to when Crowell's counsel first
learned of the Memo (R.A. at 172), he is obliged to
avoid sliding down the slippery attorney-client
privilege slope of revealing the particular challenges
he, his students and Crowell face in communicating
given Crowell's incarcerated status and the nature and
extent of Crowell's traumatic brain injury. Moreover,
it would have made no sense for Crowell's counsel to
have been sitting on documents such as these that
could have decisively persuaded the Trial Court to
rule in Crowell's favor while the proceedings were
still ongoing in the Trial Court .
The Board's reliance on what amounts to a laches
argument is also misplaced in that it ignores the
central rule of our ordered system of civil law: To
ensure form does not trump substance if the result
would be unjust. Instead, courts should reconsider
prior rulings if doing so will ensure a just result,
amend or vacating a prior ruling ~'whenever such
action is appropriate to accomplish justice.'" Farrell
v. Keenan, 389 Mass. 809, 815 (1983), quoting
Klapprott v. United States, 335 U.S. 601, 615 (1949)
(affirming allowance of motion for relief from
judgment brought 14 months later); see also Rezendes
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v. Rezendes, 46 Mass. App. Ct. 438, 440 - 41
(1999) (affirming allowance of motion for relief from
judgment five years later, while noting the
overarching importance of doing substantial justice) .
It is no small irony that the Board successfully
argued below that its view (as stated in court) of
when Crowell could be seen for parole consideration
should be given substantial deference. If so, the
Board is hard pressed to reconcile its view with the
revelation of the view of its prior General Counsel.
Even if the Board argues, as appears, that it is not
its prior (and undisclosed), but its current, contrary
stance that should be afforded deference, this does
not carry the day. Administrative deference to the
Board's view of what constitutes a life sentence is
not appropriate in a case such as this. Deference is
granted when the agency has particular "experience,
technical competence, and specialized knowledge."
Herrick v. Essex Reg'l Ret. Bd., 77 Mass. App. Ct.
645, 647 (2010). There is no reason to expect the
Board to have particular expertise over that of this
or any other Court in interpreting Governor Sargent's
commutation of "36 years to life" or the statutory
provision of "[e]very prisoner who is serving a
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sentence for life" found in G. L. c. 127 § 133A, the
language at issue in this case. Certainly a court has
no obligation to stand idly by in the face of an
"erroneous interpretation of a statute by an
administrative agency." Woods v. Executive Office of
Communities & Dev., 411 Mass. 599, 606 (1992).
an interpretation is not entitled to deference.
Such
See
id. Ultimately, the Board's posture on this issue is
fatally undercut by the hitherto undisclosed internal
disagreement within the Board itself over whether
Crowell should be seen annually for parole
consideration. It should be difficult to give credence
to the Board's deference arguments on this score under
such circumstances.
It is plain there has been confusion, even within
the Board, over whether Crowell is entitled to annual
parole review under his commuted sentence. Especially
given the newly disclosed circumstances, the rule of
lenity should allow Crowell to prevail on this point .
36
CONCLUSION
Based on the foregoing, Crowell respectfully
requests that this Honorable Court (1) vacate the
Trial Court's decision allowing the Board's Motion to
Dismiss and denying Crowell's Cross-Motion under Mass.
R. Civ. P. 12 (c), and (2) order the Trial Court to
enter judgment for Crowell as requested in his Rule 12
(c) Cross-Motion.
Respectfully Submitted, RICHARD CROWELL By his attorney,
Joh Fitzpatrick, BBO# 550059 Supervising Attorney and Senior Clinical Instructor Harvard Prison Legal Assistance Project 6 Everett Street, Suite 5107 Cambridge, MA 02138 Phone: ( 617) 4 95-3969 Fax: (617)495-2644
Dated: i/j~/? Email: [email protected]
Certification of Counsel
I certify pursuant to Rule 16(k) of the Massachusetts Rules of Appellate Procedure that the foregoing brief complies with the rules of court that pertain to the filing of briefs.
. Fitzpatrick, BBO# 550059
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• INDEX TO ADDENDUM
• 29 u.s.c. § 794 A. 1-2
42 u.s.c. § 12101 A. 2-3
42 u.s.c. § 12131 A. 3-4
• 25 C.F.R 35.130 A . 4-6
Article 114, Massachusetts Declaration of Rights A. 6
G. L. c. 93, § 103 A. 6-7
G. L. c . 127, § 133 A. 7
• G. L. c. 127, § 133A A. 7-9
G. L. c. 24 9' § 4 A. 9
G. L. c. 265, § 18C A. 9-10
120 CMR 301.01 A . 10
• 120 CMR 304.02 A. 10-12
Mass. R. Civ. P. 12 (b) A. 12-13
Mass. R. Civ. P. 12 (c) A. 13
• Standing Order 1-96 A . 13-15
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29 u.s.c. §794:
(a) Promulgation of rules and regulations No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.
(b) "Program or activity" defined For the purposes of this section, the term "program or
activity" means all of the operations of-(1) (A) a department, agency, special purpose district, or
other instrumentality of a State or of a local government; or (B) the entity of such State or local government that
distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2) (A) a college, university, or other postsecondary institution, or a public system of higher education; or
(B) a local educational agency (as defined in section 7801 of title 20), system of vocational education, or other school system;
(3) (A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship-
(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
A. 1
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(4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assistance.
(c) Significant structural alterations by small providers Small providers are not required by subsection (a) of this
section to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on March 22, 1988.
(d) Standards used in determining violation of section The standards used to determine whether this section has been
violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510,l of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment .
42 u.s.c. §12101 (a) Findings
The Congress finds that-(1) physical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional
A. 2
-------------------------------------------,
exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
(7) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals; and
(8) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.
(b) Purpose It is the purpose of this chapter-
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.
42 U.S.C. §12131 As used in this subchapter: (1) Public entity
The term "public entity" means-(A) any State or local government; (B) any department, agency, special purpose district, or
other instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) l of title 49) 0
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(2) Qualified individual with a disability The term "qualified individual with a disability" means an
individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
25 C.F.R 35.130 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis of 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 public entity. (b) ( 1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability -- (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others; (v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program; (vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards; (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or
A. 4
opportunity enjoyed by others receiving the aid, benefit, or service. (2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities. (3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or (iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State. (4) A public entity may not, in determining the site or location of a facility, make selections --(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or (ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities. (5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability. (6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part. (7) 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.
A. 5
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(8) 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. (c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part. (d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. (e) (1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept. (2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual. (f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part. (g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.
Article 114, Massachusetts Declaration of Rights:
No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth .
General Laws, Chapter 93, Section 103: (a) Any person within the commonwealth, regardless of handicap or age as defined in chapter one hundred and fifty-one B, shall, with reasonable accommodation, have the same rights as other persons to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real and personal property, sue, be parties,
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give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, including, but not limited to, the rights secured under Article CXIV of the Amendments to the Constitution. (b) Any person whose rights under the provisions of subsection (a) have been violated may commence a civil action for injunctive and other appropriate equitable relief, including, but not limited to, the award of compensatory and exemplary damages. Said civil action shall be instituted either in the superior court for the county in which the conduct complained of occurred, or in the superior court for the county in which the person whose conduct complained of resides or has his principal place of business. (c) A violation of subsection (a) shall be established if, based upon the totality of circumstances, it is shown that any individual is denied any of the rights protected by subsection (a) .
(d) An aggrieved person who prevails in an action authorized by subsection (b), in addition to other damages, shall be entitled to an award of the costs of the litigation and reasonable attorneys' fees in an amount to be determined by the court.
General Laws, Chapter 127, Section 133: Parole permits may be granted by the parole board to prisoners subject to its jurisdiction at such time as the board in each case may determine; provided, however, that no prisoner sentenced to the state prison shall be eligible for such permit until such prisoner shall have served the minimum term of sentence, pursuant to section twenty-four of chapter two hundred and seventy-nine, as such minimum term of sentence may be reduced by deductions allowed under section one hundred and twenty-nine D. Where an inmate is serving two or more consecutive or concurrent state prison sentences, a single parole eligibility shall be established for all such sentences. Prisoners who are granted parole permits shall remain subject to the jurisdiction of the board until the expiration of the maximum term of sentence or, if a prisoner has two or more sentences to be served otherwise than concurrently, until the aggregate maximum term of such sentence, unless earlier terminated by the board under the provisions of section one hundred thirty A. Sentences of imprisonment in the state prison shall not be suspended in whole or in part.
General Laws, Chapter 127, Section 133A: Every prisoner who is serving a sentence for life in a correctional institution of the commonwealth, except prisoners confined to the hospital at the
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Massachusetts Correctional Institution, Bridgewater, except prisoners serving a life sentence for murder in the first degree who had attained the age of 18 years at the time of the murder and except prisoners serving more than 1 life sentence arising out of separate and distinct incidents that occurred at different times, where the second offense occurred subsequent to the first conviction, shall be eligible for parole at the expiration of the minimum term fixed by the court under section 24 of chapter 279. The parole board shall, within 60 days before the expiration of such minimum term, conduct a public hearing before the full membership unless a member of the board is determined to be unavailable as provided in this section. Notwithstanding the previous sentence, the board may postpone a hearing until 30 days before the expiration of such minimum term, if the interests of justice so require and upon publishing written findings of the necessity for such postponement. For the purposes of this section, the term unavailable shall mean that a board member has a conflict of interest to the extent that he cannot render a fair and impartial decision or that the appearance of a board member would be unduly burdensome because of illness, incapacitation, or other circumstance. Whether a member is unavailable for the purposes of this section shall be determined by the chair. Board members shall appear unless said chair determines them to be unavailable. Under no circumstances shall a parole hearing proceed pursuant to this section unless a majority of the board is present at the public hearing. Unless a board member is unavailable due to a conflict of interest, any board member who was not present at the public hearing shall review the record of the public hearing and shall vote in the matter. Said board shall at least thirty days before such hearing notify in writing the attorney general, the district attorney in whose district sentence was imposed, the chief of police or head of the organized police department of the municipality in which the crime was committed and the victims of the crime for which sentence was imposed, and said officials and victims may appear in person or be represented or make written recommendations to the board, but failure of any or all of said officials to appear or make recommendations shall not delay the paroling procedure; provided, however, that no hearing shall take place until the parole board has certified in writing that it has complied with the notification requirements of this paragraph, a copy of which shall be included in the record of such proceeding; and provided further, that this paragraph shall also apply to any parole hearing for an applicant who was convicted of a crime listed in clause (i) of subsection (b) of section 25 of chapter 279 and
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sentenced and committed to prison for 5 or more years for such crime and does not show that a pardon has been issued for the crime. After such hearing the parole board may, by a vote of two-thirds of its members, grant to such prisoner a parole permit to be at liberty upon such terms and conditions as it may prescribe for the unexpired term of his sentence. If such permit is not granted, the parole board shall, at least once in each ensuing five year period, consider carefully and thoroughly the merits of each such case on the question of releasing such prisoner on parole, and may, by a vote of two-thirds of its members, grant such parole permit. Such terms and conditions may be revised, altered and amended, and may be revoked, by the parole board at any time. The violation by the holder of such permit or any of its terms or conditions, or of any law of the commonwealth, may render such permit void, and thereupon, or if such permit has been revoked, the parole board may order his arrest and his return to prison, in accordance with the provisions of section one hundred and forty-nine.
General Laws, Chapter 249, Section 4: A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, bylaws or regulations, in the land court or, if the matter involves fence viewers, in the district court. Such action shall be commenced within sixty days next after the proceeding complained of. Where such an action is brought against a body or officer exercising judicial or quasi-judicial functions to prevent the body or officer from proceeding in favor of another party, or is brought with relation to proceedings already taken, such other party may be joined as a party defendant by the plaintiff or on motion of the defendant body or officer or by application to intervene. Such other party may file a separate answer or adopt the pleadings of the body or officer. The court may at any time after the commencement of the action issue an injunction and order the record of the proceedings complained of brought before it. The court may enter judgment quashing or affirming such proceedings or such other judgment as justice may require.
General Laws, Chapter 265, Section 18C: Whoever knowingly enters the dwelling place of another knowing or having reason to know
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that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years.
120 CMR 301.01: Scheduling of Initial Parole Release Hearing and Subsequent Review Hearings
(1) The parole hearing panel conducts a parole hearing prior to the parole eligibility date. Such hearings are conducted at the inmate's place of incarceration except for offenders serving a life sentence. Where an inmate is serving a life sentence, the parole release hearing and subsequent review hearings are public and are generally held in a place easily accessible by the public.
(2) If parole is not granted at the initial parole release hearing, a parole review hearing occurs one year thereafter, and annually thereafter, except where the Parole Board Members act to cause a review at an earlier time or as noted in 120 CMR 301.01(3), (4) and (5), or where the hearing has been postponed under 120 CMR 301.02.
(3) In cases involving offenders sentenced as "habitual criminals" a parole review hearing occurs two years after the initial parole release hearing and every two years thereafter. M.G.L. c. 127, § 133B.
(4) In cases involving offenders civilly committed as sexually dangerous persons who are also serving concurrent house of correction, reformatory, and/or state prison sentences, a parole review hearing occurs three years after the initial parole release hearing on the criminal imprisonment except where the Parole Board Members act to cause a review at an earlier time.
(5) In cases involving inmates serving life sentences with parole eligibility, a parole review hearing occurs five years after the initial parole release hearing.
120 CMR 304.02: Appeal of Decision of Hearing Panel
(1) An inmate may appeal a decision of a parole hearing panel to deny, rescind or revoke parole. An inmate may also appeal the
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grant of parole when such release is granted on a date other than the initial parole eligibility date, and/or the imposition of special conditions of parole. Any appeal must be made in writing and within 30 days of the subject's receipt of written notice of the decision. (a) Where the hearing panel was made up entirely of Parole Board
Members, these same Members shall vote on the appeal unless the Members are unavailable or disqualified. As needed, additional Board Members will be asked to vote until at least two Board Members agree on the appeal decision. (b) Where the hearing panel was composed of one or more hearing examiners and reviewed by a single Board Member, the hearing examiner(s) and the Board Member shall vote on the appeal. If there is unanimity on the vote, that vote shall be the decision of the appeal hearing panel. If there is no unanimity, then other Parole Board Members shall be asked to vote in succession on the appeal. When two Board Members agree, their vote shall determine the decision on the appeal. (c) The appeals panel may render its decision without conducting a hearing on the appeal.
(2) If an appeal is denied by the hearing panel the inmate may further appeal to the Full Board within 30 days of receiving notice of the appeal. The further appeal is precluded if the Full Board made the initial decision to deny the appeal. (a) The Parole Board may vote to: deny the appeal; to overturn the decision of the parole hearing panel and render another decision; or to overturn the decision of the parole hearing panel and schedule the inmate for another parole hearing. (b) A decision of the Full Board is final. An inmate may not file a petition for reconsideration upon grounds previously reviewed as an appeal.
(3) Appeals under 120 CMR 304.02 are based upon one or more of the following grounds: (a) That the decision was not supported by the reasons or facts as stated. (b) That the decision was based on erroneous information and the actual facts justify a different decision. (c) That the hearing panel did not follow correct procedure in deciding the case, and a different decision would have resulted if the error had not occurred. (d) There was significant relevant information in existence but not known to the parole hearing panel at the time of the hearing. (e) The special conditions of parole are unfair and cannot be obeyed under the circumstances, and should be amended by the
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Parole Board Members .
(4) The inmate must submit any appeal to the Inst~tutional Parole Officer in writing and must specifically cite one or more reasons noted in 120 CMR 304.02(3), as a basis for the appeal. Any appeal not meeting the requirements of 120 CMR 304.02(3) will be returned to the inmate with an explanation as to why the appeal was not processed. The inmate may correct any noncompliance with 120 CMR304.02(3)and resubmit the appeal within 30 days after receiving notice that the appeal did not meet with the requirements of that subsection.
(5) The institutional parole staff notifies the inmate in writing of any appeal decision.
Mass. R. Civ. P. 12 (b):
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter; (2) Lack of jurisdiction over the person; (3) Improper venue; (4) Insufficiency of process; (5) Insufficiency of service of process; (6) Failure to state a claim upon which relief can be granted. (7) Failure to join a party under Rule 19; (8) Misnomer of a party; (9) Pendency of a prior action in a court of the Commonwealth; (10) Improper amount of damages in the Superior Court as set forth in G. L. c. 212, §3 or in the District Court as set forth in G. L. c. 218, §19 .
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. 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 motion shall be
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treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. A motion, answer, or reply presenting the defense numbered (6) shall include a short, concise statement of the grounds on which such defense is based.
Mass. R. Civ. P. 12 (c): (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Standing Order 1-96:
In order to facilitate and clarify the orderly processing and hearing of Complaints for Judicial Review of Administrative Agency Proceedings, it is ORDERED, effective February 1, 2015 that: 1. Claims filed in the Superior Court seeking judicial review of administrative agency proceedings on the administrative record pursuant to the standards set forth in G.L. c. 30A, § 14 , G.L. c. 249, § 4 , or similar statutes, whether joined with a claim for declaratory relief under G.L. c. 231A , or any other claim, shall be heard in accordance with the following procedures. 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 under review (the record) within ninety (90) days after service upon it of the Complaint. Such record "shall consist of (a) the entire proceedings, or (b) such portions thereof as the agency and the parties may stipulate, or (c) a statement of the case agreed to by the agency and the parties." G.L. c. 30A, § 14(4) . Upon service of a Complaint, the agency shall notify all parties of procedures for acquiring a transcript of the hearing testimony. The agency shall also inform the parties of their obligation to provide a transcript, or portions thereof, to the court if alleging that an agency's decision is not supported by substantial evidence or is arbitrary or capricious, or is an abuse of discretion. A request for a copy of the transcript must be made by a party within thirty (30) days after service of the
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Complaint, and such transcript or portion thereof shall be made part of the record. The Agency's certified record shall include any transcript that has been prepared but need not include a transcript of any untranscribed proceeding or portion thereof in the absence of a timely transcript request. The court may assess the expense of preparing the record as part of the costs in the case. G. L. c. 30A, § 14(4) . Additionally, "the court may, regardless of the outcome of the case, assess any one unreasonably refusing to stipulate to limit the record, for the additional expenses of preparation caused by such refusal." G. L. c. 30A, § 14(4) . The court may require or permit subsequent corrections or additions to the record when deemed desirable. G. L. c. 30A, § 14(4) . The time for filing the record may be enlarged, for good cause shown, upon allowance of an appropriate motion. 3. The following motions raising preliminary matters must be served in accordance withSuperior Court Rule 9A 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) (b) Motion for leave to present testimony of alleged irregularities in procedure before the agency, not shown in the record (G.L. c. 30A, § 14 (5) ) . (c) Motion for leave to present additional evidence (G.L. c . 30A, § 14(6) ) .
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 (unless relating to jurisdiction) and the case shall proceed solely on the basis of the record. Any such motion shall be promptly resolved in accordance with Superior Court Rule 9A. If the motion specified in (c) is allowed, all further proceedings shall be stayed until the administrative agency has complied with the provisions of G.L. c. 30A, § 14(6) 4. A claim for judicial review shall be resolved through a motion for judgment on the pleadings, Mass. R. Civ. P. 12(c) in accordance with Superior Court Rule 9A except as otherwise provided by this Standing Order, unless the Court's decision on any motion specified in part 3 above has made such a resolution inappropriate. A plaintiff's Rule 12(c)motion and supporting memorandum shall be served within thirty (30) days of the service of the record or of the Court's decision on any motion specified in part 3 above, whichever is later. A defendant's response shall be deemed to include a cross-motion for judgment on the pleadings pursuant to Mass. R. Ci v. P. 12 (c) (which should be noted in the caption of the response) and shall be served within thirty (30) days after service of the plaintiff's
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motion and memorandum. The plaintiff shall then promptly file the motion materials in accordance with Superior Court Rule 9A. The Court may grant an extension of time to file for good cause shown. Memoranda shall include specific page citations to matters in the record. 5. The Clerk or her/his designee will schedule a hearing date after receiving the motion materials. No pre-trial conference will be held, and no pre-trial memorandum filed, unless specifically ordered by the Court. No testimony or other evidence shall be presented at the hearing, and the review shall be confined to the record. A party may waive oral argument and submit on the brief by filing a written notice. Such waiver by a party shall not affect the right of any other party to appear and present oral argument.
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