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13-P-149 Appeals Court

CHARLES DOUCETTE vs. MASSACHUSETTS PAROLE BOARD.

No. 13-P-149.

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

Present: Berry, Katzmann, & Sullivan, JJ.

Parole. Administrative Law, Adjudicatory proceeding, Decision, 

Evidence, Failure to raise issue before agency, Hearing, 

Regulations. Constitutional Law, Delay in rendering 

decision, Impartial tribunal, Parole. Due Process of Law, 

Administrative hearing, Delay in rendering decision, 

Hearing, Parole. Practice, Civil, Action in nature of 

certiorari, Failure to raise issue, Hearsay, Motion to 

dismiss, Relief in the nature of certiorari, Review of 

administrative action, Waiver. Waiver. Evidence, Absence 

of witness, Administrative proceeding, Hearsay, Police 

report.

Civil action commenced in the Superior Court Department on 

May 18, 2012.

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

Eitan Goldberg for the plaintiff.

Christopher Hurld, Assistant Attorney General, for the 

defendant.
2

SULLIVAN, J. Charles Doucette appeals from the dismissal

of his complaint challenging the decision of the Massachusetts 

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

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

violated due process in the conduct of the revocation 

proceedings, and a claim in the nature of certiorari seeking 

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

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

irregularities in the revocation proceedings do not rise to the 

level of a due process violation, and that the revocation 

decision was not arbitrary or capricious. Accordingly, we 

affirm.

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

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

According to the conditions of parole, Doucette was required,

among other things, to conduct himself responsibly and obey all 

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

week, notify and seek permission from his parole officer 

regarding any change in residence or living situation, avoid 

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

instructions given by his parole officer, and pay a monthly 

supervision fee.

Four years later, Doucette was arrested and charged with 

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

threats, charges which arose from an incident with his then 

girlfriend. A parole violation detainer issued, listing 

violations based on this incident, as well as other violations 

previously noted by his parole officer. These violations 

included the failure to attend AA meetings, notify his parole 

officer and seek permission before allowing his landlord's 

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

parole officer to end the relationship with his girlfriend, and

pay his monthly supervision fee.

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

hearing examiner conducted a preliminary revocation hearing 

within fifteen days of the arrest. The hearing examiner

recommended revocation in a written decision. He found that 

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

engaging in irresponsible conduct by virtue of the new arrest, 

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

end the relationship with his former girlfriend as advised by 

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

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

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

attend AA meetings and failing to pay supervision fees. A

decision revoking parole for these reasons was signed by the 
4

board's chair on March 23, 2011.

1 However, neither the hearing 

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

provided to Doucette.

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

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

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

of a parole violation warrant, was postponed until after the 

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

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

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

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

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

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

revocation proceeding involving a life sentence). The full 

board voted unanimously to revoke Doucette's parole on November 

10, 2011, but did not notify Doucette.

Doucette filed a writ of mandamus to compel a final 

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

recited by title the violations found in the preliminary 

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

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

 

1 The hearing examiner had also found that the landlord's 

daughter had a criminal record, and, therefore, that Doucette 

had violated parole by associating with a person with a criminal 

record. The board did not sustain this violation.
5

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

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

subsequent appeal and motion for reconsideration were denied by 

the board without further explanation, whereupon he filed the 

present action in Superior Court, which entered judgment for the 

board. On appeal, Doucette argues that the board demonstrated 

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

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

capricious.

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

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

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

pleadings, and the motion judge appears to have considered them 

as well.

2 Accordingly, we treat Doucette's due process claims 

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

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

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

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

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

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

 

2 The parties agree on appeal that discovery as to the due 

process claims has concluded and that the record on those claims

is complete except for Doucette's request for additional 

discovery related to his claim of bias. As is discussed more 

fully infra, the bias claim was properly dismissed for reasons 

unrelated to this factual inquiry.
6

motion shall be treated as one for summary judgment and disposed 

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

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

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

general principles of certiorari review and the administrative 

record. See notes 8, 10, infra.

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

and detached hearing body free from bias against him because the 

Boston Globe reported that shortly after his arrest in February, 

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

revocation proceeding "gives us the opportunity to return Mr. 

Doucette to prison for life."

3 This, Doucette maintains, 

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

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

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

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

hearing officer on social media indicative of bias constituted 

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

 

3 Because there was no discovery on this claim, we consider 

the statements attributed to the chair not for their truth, but 

for the fact that the article placed Doucette on notice of the 

bias claim.
7

extrajudicial influence is the sole form of bias warranting 

relief. See ibid.

4

While these allegations are material, the claim of bias is

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

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

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

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

motion for reconsideration before the board. There is no 

suggestion in the record that the evidence of bias is newly 

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

facts possibly indicating bias or prejudice on the part of an 

arbitrator, referee, juror or other person having similar 

functions cannot remain silent and thereafter on that ground 

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

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

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

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

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

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

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

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

 

4 The board's regulations require that a member of the board 

"withdraw from participating and abstain from voting in any case 

on the basis of personal involvement in the case or for any 

other reason which might prevent that member from making an 

impartial decision." 120 Code Mass. Regs. § 300.02(4) (1997).
8

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

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

administrative agency generally cannot be raised on appeal"). 

To the extent that Doucette now claims a general bias against 

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

claim also was not raised before the board.

3. Due process. Because parole revocation results in the 

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

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

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

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

requirements of due process in a parole revocation proceeding 

are:

"(a) written notice of the claimed violations of parole; 

(b) disclosure to the parolee of evidence against him; (c) 

opportunity to be heard in person and to present witnesses 

and documentary evidence; (d) the right to confront and 

cross-examine adverse witnesses (unless the hearing officer 

specifically finds good cause for not allowing 

confrontation); (e) a 'neutral and detached' hearing body 

such as a traditional parole board, members of which need 

not be judicial officers or lawyers; and (f) a written 

statement by the factfinders as to the evidence relied on 

and reasons for revoking parole."

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

denied the opportunity to confront an adverse witness at the 

preliminary hearing, (b) was not provided written notification 

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

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

was not provided an adequate written statement of the reasons

for the denial of his administrative appeal.

a. Adverse witness. In making the initial recommendation 

to revoke parole, the hearing examiner at the preliminary 

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

reports, and affidavits filed in connection with an application 

for an abuse prevention order summarizing the allegations of 

Doucette's former girlfriend. Doucette maintains that the use 

of the police reports and other documents deprived him of the 

opportunity to confront and cross-examine his former girlfriend 

at the preliminary hearing.5

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

488, for preliminary revocation proceedings, which are intended 

to explore whether there is "probable cause or reasonable ground 

to believe that the arrested parolee has committed acts that 

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

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

that the Hearing Examiner obtain the presence of persons who 

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

that the "Examiner shall request the attendance of such adverse 

witnesses at the preliminary parole revocation hearing unless 

 

5 Doucette alleges in the complaint that he requested her

presence, and the board denied his request through its counsel. 

The board has treated this allegation as true both below and on 

appeal, and we therefore address it. We note, however, that the 

hearing examiner's report states that no such request was made.
10

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

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

Morrissey, supra at 487, 489.

Because both probation and parole revocation proceedings 

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

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

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

to the cases involving probation revocation for guidance as to 

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

Judicial Court has held that reliable hearsay satisfies the good 

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

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

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

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

(detailing the administrative burdens of holding full 

evidentiary hearings in all probation violation cases); 

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

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

The use of police reports has long been recognized as 

appropriate in probation revocation proceedings, provided that 

the reports bear indicia of reliability. See Commonwealth v. 

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

at 520-521.
11

Doucette, who denied all wrongdoing, argues that his former

girlfriend's accusations were demonstrably unreliable, as 

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

argument overlooks the fact that the preliminary hearing 

occurred before the trial, and that the hearing examiner was 

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

burdens of proof at a criminal trial and a preliminary

revocation hearing are substantially different. At a 

preliminary hearing, the standard is not reasonable doubt, but 

probable cause to conclude a violation was committed. See 120 

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

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

Neither the hearing examiner who conducted the preliminary 

hearing nor the panel that conducted the final hearing made an 

express finding regarding the reliability of the police reports. 

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

record whether the hearing examiner or the board credited the 

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

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

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

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

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

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

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

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

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

decision to revoke his parole, thus undercutting any claim of 

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

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

(2014).

b. Timely service of decision. Doucette claims that the 

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

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

therefore entitled to release. By agreement, the final 

revocation hearing was held within sixty days after the

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

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

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

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

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

constitutes a due process violation only if it is "fundamentally 

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

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

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

The board's regulations require that it send a written 

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

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

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

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

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

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

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

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

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

no discernable prejudice warranting release. See ibid.

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

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

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

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

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

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

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

814.

6

 

6 In his complaint and on appeal, Doucette frames his 

argument concerning the violation of the regulation solely as a 

due process argument. We recognize that we have, in other 

contexts, decided analogous cases by reference to a regulation 

rather than reach the due process question. See, e.g., Royce v. 

Commissioner of Correction, 390 Mass. 425 (1983) (complaint for 

declaratory relief). In the absence of sustained appellate 

argument, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 

(1975), we decline to decide whether certiorari relief may be 

had concerning the violation of a regulation without a showing 

of prejudice. See generally State Bd. of Retirement v. Bulger,

446 Mass. 169, 173 (2006) ("Certiorari allows a court to correct 

only a substantial error of law, evidenced by the record, which 

adversely affects a material right of the plaintiff") 

(quotations omitted). Compare Haverty v. Commissioner of 

Correction, 437 Mass. 737, 740 (2002), S.C., 440 Mass. 1 (2003)
14

c. Discovery. Doucette claims that the board failed to 

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

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

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

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

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

provided to him and requesting any additional evidence that 

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

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

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

complete response to his request. Based on questions that he 

claims were asked during the final revocation hearing, Doucette 

now contends that his entire criminal and psychiatric history 

should have been produced. The transcript of the final hearing 

contains significant gaps (inaudible portions), and the record 

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

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

for additional documents. No claim of prejudice was made at 

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

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

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

 

(affirming summary judgment on behalf of a class of prisoners 

held in segregation; decision based on regulatory violation 

rather than due process claim).

7 There was no request to reconstruct the record.
15

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

that are not disclosed by the record offer no basis for

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

his past criminal history, Doucette cannot have been surprised 

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

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

discern no prejudice.

d. Written statement. The minimum requirements of due 

process include "a written statement by the factfinders as to 

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

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

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

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

the statement of reasons given in connection with the 

preliminary or final revocation decisions. Rather, he asserts 

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

and motion for reconsideration were denied without a statement 

of reasons. These assertions are unaccompanied by citation to 

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

findings were issued, due process requires further findings and 

rulings with respect to administrative appeals filed after the 

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

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

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

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

sufficient basis for review).

4. Parole violations. Doucette claims that the board 

acted in an arbitrary and capricious manner and violated his 

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

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

that the board abused its discretion in revoking his parole 

based on certain violations of his parole conditions.

a. Certiorari review. Decisions of the board are not 

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

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

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

reasonably adequate remedy (3) to correct substantial error of 

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

injustice to the plaintiff or an adverse impact on the real 

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

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

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

(certiorari action to challenge validity of Department of 

Correction regulations and disciplinary actions taken pursuant 

to the regulations).

8 "On certiorari review, the Superior 

 

8 Certiorari is the appropriate method of review of parole 

revocation decisions in a number of States. See, e.g., Sellers

v. State, 586 So. 2d 994, 995 (Ala. Crim. App. 1991) (in absence 

of statutory right to review of administrative decisions, 
17

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

substantial errors of law apparent on the record adversely 

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

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

 

"certiorari is the appropriate remedy for review of [revocation] 

actions"). Other States imply a right of judicial review of 

parole revocation decisions under the State administrative 

procedure act by means of administrative procedures available to 

review any agency decision. See Loach v. Pennsylvania Bd. of 

Probation & Parole, 57 A.3d 210, 212 (Pa. Commw. Ct. 2012);

Pisano v. Shillinger, 835 P.2d 1136, 1138-1140 (Wyo. 1992).

Some States entertain a writ of habeas corpus. See People ex 

rel. Maggio v. Casscles, 28 N.Y.2d 415, 418 (1971); Wright v. 

Ghee, 74 Ohio St. 3d 465, 466-467 (1996). Among those States 

that have allowed certiorari review of a parole revocation 

decision, the standard of review has been articulated in various 

but similar ways. See Alabama Bd. of Pardons & Paroles v. 

Williams, 935 So. 2d 478, 484 (Ala. Crim. App. 2005), cert. 

denied, 547 U.S. 1181 (2006) ("The limited function of 

[certiorari] review is to determine whether the act in question 

was supported by any substantial evidence, or whether findings 

and conclusions are contrary to uncontradicted evidence, or 

whether there was an improper application of the findings viewed 

in a legal sense") (quotations omitted); Pfister v. Iowa Dist. 

Ct. for Polk County, 688 N.W.2d 790, 794 (Iowa 2004), quoting

from State Pub. Defender v. Iowa Dist. Ct. for Black Hawk 

County, 633 N.W.2d 280, 282 (Iowa 2001) ("A writ of certiorari 

lies where a lower board . . . has acted illegally . . . . 

Illegality exists when the court's findings lack substantial 

evidentiary support, or when the court has not properly applied 

the law"); Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 

2012) ("review under the common law writ of certiorari is 

limited to determining whether the 'inferior tribunal, board, or 

officer,' Tenn. Code Ann. § 27-8-101, exceeded its jurisdiction 

or acted illegally, arbitrarily, or fraudulently"); State ex 

rel. Thorson v. Schwarz, 274 Wis. 2d 1, 7 (2004) ("Our review of 

a parole revocation by certiorari is limited to four inquiries:

(1) whether the agency stayed within its jurisdiction; (2) 

whether it acted according to law; (3) whether its action was 

arbitrary, oppressive, or unreasonable, representing its will, 

not its judgment; and (4) whether the evidence was such that 

[the agency] might reasonably make the order or determination in 

question").
18

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

cases reviewing the decisions of administrative bodies which, 

like the parole board, are accorded considerable deference, see

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

arbitrary and capricious standard of review applies.

9 See Doe v.

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

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

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

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

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

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

parties.

10

 

9 In this respect certiorari review of administrative 

decisions for which G. L. c. 30A review is unavailable is 

substantially similar to c. 30A review. See, e.g., Hoffer v. 

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

Compare Rivas v. Chelsea Hous. Authy., 464 Mass. at 334.

10 Because the board responded to the complaint by filing a

rule 12(b)(6) motion, the board did not answer the complaint or 

file the administrative record, and no motion for judgment on 

the pleadings was filed pursuant to Mass.R.Civ.P. 12(c), 365 

Mass. 754 (1974), as required by Superior Court Standing Order 

1-96, as amended (2002). The parties did, however, submit 

certain portions of the administrative record, and the Superior 

Court judge had a near complete record upon which to make his 

decision. At oral argument the parties agreed that this court 

should conduct its review based on the administrative record as 

submitted, and expanded the record by agreement to include a 

complete copy of the parole conditions. In future cases, 

certiorari review should be conducted under rule 12(c), in 

accordance with Superior Court Standing Order 1-96, and not 

under rule 12(b)(6). Compare Northborough Inn, LLC v. Treatment 

Plant Bd. of Westborough, 58 Mass. App. Ct. 670, 673 n.5 (2003).
19

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

charges resulting from his girlfriend's allegations, Doucette 

argues that the board violated his right to due process by 

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

regard to whether the events leading up to the arrest actually

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

board must find by a preponderance of the evidence that the 

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

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

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

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

probation revocation hearing . . . it is proof by a 

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

associated with the preliminary revocation decision, see 120 

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

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

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

arbitrary and capricious, warranting certiorari relief.

11

The findings of the hearing examiner regarding the arrest

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

board's final revocation decision, which merely lists the 

 

11 To the extent Doucette maintains that the board's 

determination was arbitrary or capricious, it was his obligation

to provide an adequate record, including the trial transcript,

to the board.
20

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

conclusions. The board did not address the reliability of the 

hearsay reports in its final decision. See Commonwealth v. 

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

to be considered in determining the reliability of hearsay 

evidence in probation revocation proceedings). Although a

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

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

indeed impossible to discern whether the board found by a 

preponderance of the evidence that Doucette committed the 

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

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

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

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

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

decision in any particular instance whether the board believed 

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

The failure of the board to make clear findings thus

frustrates the purpose of the due process protections afforded

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

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

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

admissions, were sufficient to warrant revocation of parole.12

c. Remaining violations. Doucette maintains that the

evidence of the other violations was insufficient to warrant 

revocation. The board maintains that it was entitled to revoke 

parole based upon these violations, noting that "nothing 

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

severe sanctions."

The conditions of Doucette's parole required him to obey 

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

and avoid irresponsible conduct. Doucette admits that he failed 

to regularly attend AA meetings, even though attending three AA 

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

to the relationship with his girlfriend, it is uncontested that 

his parole officer specifically warned him to end the 

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

that Doucette engaged in irresponsible conduct to the extent 

 

12 Our review of the board's decision leads us to conclude 

that the board based its revocation decision on Doucette's 

overall pattern of irresponsible behavior, without regard to the 

arrest. In future cases in which multiple grounds for 

revocation are presented, review of the board's decision would 

be aided by a clear designation by the board of the reasons for 

revocation, and a statement as to which grounds form a separate 

and adequate ground for revocation.

13 In his written submission to the board Doucette admitted

that he frequently signed into AA meetings and left, stating 

that he was tired after working in construction during the day.
22

that he maintained the relationship. It was this relationship 

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

charges that triggered the issuance of the parole violation 

detainer.

14 Finally, Doucette does not contest that he allowed a 

person to live in his residence without notifying or gaining the 

approval of his parole officer, despite the condition that his 

parole officer must approve any such changes.

15

Doucette offered explanations and mitigating factors with 

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

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

final determination on whether to revoke parole or consider 

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

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

determination that Doucette violated his parole was arbitrary or 

capricious. These violations alone, without reference to the 

arrest or restraining order, are sufficient to support the 

 

14 It is undisputed that Doucette remained involved with the 

woman who, according to him, had a serious drinking problem. He 

testified that he resolved to end the relationship, packed up 

her belongings and brought them to a bar and left them on her 

vehicle. He was arrested during the ensuing confrontation. The 

hearing examiner's rationale for revocation relied primarily on 

the fact that Doucette had maintained this relationship at a 

time when he also failed to attend AA meetings.

15 The board also found that Doucette failed to pay his 

mandatory parole supervision fee of eighty dollars per month. 

This violation was uncontested, and evidence was sufficient to 

show that Doucette so violated his parole. We do not rely upon 

this violation in affirming the judgment.
23

board's determination by a preponderance of the evidence that 

Doucette violated conditions of his parole. See Commonwealth v. 

Holmgren, 421 Mass. at 226.

16

Judgment affirmed.

 

16 Doucette also argues that revoking parole on the basis of 

these violations is barred by the doctrines of waiver, res 

judicata, and collateral estoppel, since (he argues) this 

conduct was already addressed by his parole officer. The 

defenses of collateral estoppel (issue preclusion) and res 

judicata (encompassing both issue preclusion and claim 

preclusion) require a final judgment on the merits. See Kobrin

v. Board of Registration in Med., 444 Mass. 837, 843 (2005) 

(claim preclusion); Dowd v. Morin, 18 Mass. App. Ct. 786, 793-

794 & n.15 (1984). The advice of a parole officer does not 

constitute a judgment.

The doctrine of waiver is also inapplicable. The fact that 

the parole officer (or parole board) chose not to seek to 

violate Doucette's parole at the first opportunity does not 

constitute a waiver of the board's authority to make parole 

violation determinations. See G. L. c. 27, § 5 (granting 

revocation powers to the board). Finally, Doucette's claims 

under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, 

§ 11H, were properly dismissed because the Commonwealth and its 

agencies are not persons within the meaning of the MCRA. 

Williams v. O'Brien, 78 Mass. App. Ct. 169, 173 (2010).