Pollock v. Patuxent Institution Board of Review

RODOWSKY, Judge. As of the time the record in this case closed, the petitioner, Michael Pollock (Pollock), was an inmate at the Patuxent Institution (Patuxent). Since 1991 there has been recurring litigation between Pollock and the respondent, the Patuxent Institution Board of Review (Board). The judgment now before us involves a feature of paroles from Patuxent whereby inmates may be conditionally released for a period of one year at a time, subject to annual reviews by the Board.

The Board asserts that its decision not to renew Pollock’s parole has ⁶⁵⁸ mooted Pollock’s challenge to the Board’s earlier attempt to revoke his parole. I Patuxent is a part of the Department of Public Safety and Correctional Services (Department). Maryland Code (1957, 1997 Repl.Vol.), Art. 31B, § 2(a). 1 The purpose of Patuxent “is to provide remediation programs and services to youthful eligible persons which shall include a range of program alternatives indicated by the current state of knowledge to be appropriate and effective for the population being served.” § 2(b). 2 Certain inmates of the general population of the Department, who meet eligibility criteria, may be referred to Patuxent for evaluation, examination, and possible transfer to Patuxent. §§ 8 and 9. Confinement at Patuxent offers the possibility of early release based on remediation. § 11(e).

Section 9(c) requires an individualized written remediation plan to be prepared and implemented for each eligible person. In addition, § 9(d) provides in part as follows: “A person’s status as an eligible person and his progress under his remediation plan shall be reviewed by the [Board] following a new evaluation by an evaluation team at least once a year. The [Board] shall make appropriate written ⁶⁵⁹ recommendations for the future remediation and status of the person following its review.” As an interim step toward release, the Board “may grant a parole from [Patuxent] for a period not exceeding one year” subject to certain conditions. § 11(b)(2). These aré that the Board must conclude “that (i) it will not impose an unreasonable risk on society; and (ii) it will assist in the remediation of the eligible person.” Id.

The Secretary of the Department is authorized to adopt regulations necessary to carry out the provisions of the Patuxent statute. § 4A. Among the regulations that have been adopted is one dealing with parole revocation. See Md. Regs. Code (COMAR) tit. 12, § 12.12.03.

Before the Board may order a parole revocation a retake warrant is issued, COMAR § 12.12.12.03.A, a preliminary hearing is held before an examiner “to determine whether probable cause exists to believe that the paroled inmate violated parole,” § 12.12.12.03.B, and the Board holds a revocation hearing, § 12.12.12.03.C. At both the preliminary hearing and the revocation hearing, the alleged parole violator has the right, inter alia, to call witnesses, to present documentary evidence, and to question adverse witnesses. § 12.12.12.03.B(2) & C(5). Revocation of parole is distinct from revocation of a Patuxent inmate’s eligible person status. Revocation of the latter is commenced by a recommendation of the treating unit. CO-MAR § 12.12.12.04B(2).

That unit’s report “shall confirm that the inmate no longer responds favorably to the programs and services provided at [Patuxent] and the reason that the inmate can no longer be better habilitated through these programs and services than by other incarceration.” Id. 3 The Department has also issued, from time to time, bulletins relating to procedures entitled “Patuxent Institution Regulations,” also known as “PIRs.” One of these, PIR 240-19 of ⁶⁶⁰ January 17, 1985, comes into play in the procedural history which we now set forth. II Pollock is serving sentences of life imprisonment for first degree murder and two years consecutive for escape. He was committed to Patuxent as an eligible person in April 1980. He was paroled in August 1990, but that parole was revoked in 1991, based on a report that a urinalysis was positive for marijuana.

That parole revocation was reversed by the Circuit Court for Howard County which, in turn, was affirmed by the Court of Special Appeals in 1993 in an unreported opinion. The basis for the reversal was that the Board had failed to comply with its notice provisions, as prescribed by PIR 240-19.V.C., 4 and its hearing requirements, as mandated by PIR 240-19.V.D. 5 Although Pollock’s status thereafter is not detailed in the record before us, it appears that he remained an eligible person. Pollock was again paroled in June 1996. The order of parole specified an expiration date of May 1997.

Pollock agreed to general and special conditions by signing the order of parole. The general conditions included that he would obey all laws and that he would not unlawfully possess any controlled dangerous substance. Pollock furnished a urine specimen, as required, on May 15, 1997, at Patuxent. The laboratory reported the specimen to ⁶⁶¹ be positive for marijuana and a parole revocation warrant was issued for Pollock on May 19.

He was returned to Patuxent by May 22, the date on which he was served with a notice of preliminary hearing and on which the preliminary hearing was held. In the written report, signed May 28, 1997, the hearing examiner found probable cause of a parole violation. The Board served Pollock on June 4, 1997, with notice of a revocation hearing. It commenced on June 19 and thereafter was resumed and concluded on July 17, 1997.

At that hearing Pollock objected to the introduction of the urinalysis report on, generally speaking, chain of custody grounds. According to its written decision, facially dated July 18, 1997, the Board revoked Pollock’s parole, found him “no longer eligible for the program,” and decided “to return [him] to the Division of Correction to serve the remainder of [his] sentence.” In August 1997 Pollock petitioned the Circuit Court for Howard County for judicial review. The Administrative Procedure Act, then and now, specifically excludes the Board “when acting on a parole request” from the contested case subtitle. See Md.Code (1984, 1999 RepLVoL), § 10-203(a)(3)(x) of the State Government Article (SG).

The petition for review, therefore, was founded on the common law jurisdiction of the circuit court to review an administrative action to determine whether it is arbitrary and capricious. See Bucktail, LLC v. County Council, 352 Md. 530, 542 , 723 A.2d 440, 445 (1999); Gisriel v. Ocean City Bd. of Sup’rs of Elections, 345 Md. 477, 500 , 693 A.2d 757, 768 (1997), cert. denied, 522 U.S. 1053 , 118 S.Ct. 702 , 139 L.Ed.2d 645 (1998); Silverman v. Maryland Deposit Ins. Fund Corp., 317 Md. 306, 324 , 563 A.2d 402, 411 (1989); Criminal Injuries Compensation Bd. v. Gould, 273 Md. 486, 500-01 , 331 A.2d 55, 64-65 (1975). The hearing on Pollock’s petition for review was held by the circuit court on April 2, 1998.

At the hearing and in a post-hearing memorandum Pollock argued, inter alia, that the Board violated PIR 240-19.V.C. in failing timely to serve him with the notice of the revocation hearing and that the urinaly ⁶⁶² sis report had been improperly admitted. At the hearing and in its memorandum the Board argued that the action was moot because Pollock’s parole had expired prior to the revocation proceeding. That is to say, when the June 19, 1997 revocation hearing commenced, Pollock’s one year parole that had begun on June 6, 1996, no longer existed. At the hearing before the circuit court, counsel for the Board argued that “it is also my position that for whatever reason the Board didn’t know it but it all didn’t matter because his parole had expired.” In the alternative, the Board argued that there was substantial evidence to establish a lawful chain of custody for the urine sample.

In a reply memorandum Pollock submitted that the revocation was not moot. One of the reasons advanced was that the Board’s construction of § 11(b)(2) would result in an unconstitutional denial of due process under Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), discussed infra. Pollock submitted that “[t]he State’s reading of the statute, that Patuxent can perform ‘stealth’ revocations of parole by simply letting the one-year term of parole expire, cannot be reconciled with Momssey." In a memorandum and order dated April 15, 1998, the circuit court reversed “the decision of the [Board] to revoke Mr. Pollock’s parole.” The circuit court agreed with Pollock’s procedural argument and held that the Board provided the requisite notice one day late. In its memorandum the court stated that “[t]he [Board’s] failure to comply [with PIR 240-19] requires that the Court dismiss the current parole revocation charges and reverse the Board’s decision.” The circuit court never addressed Pollock’s argument that challenged the use against him of the urinalysis report.

The habeas corpus petition that we have before us on this appeal was filed by Pollock on May 13, 1998. It was filed in the action for judicial review of the Board’s parole revocation and not as a separate action, apparently on the theory that the relief sought was enforcement of the circuit court’s order of reversal. The petition alleges that, in informal discussions ⁶⁶³ with the warden of Patuxent, Pollock was advised that he would be brought before the Board on May 21, 1998, for a hearing to determine whether his eligible person status should be revoked. Pollock contended that, based on the circuit court’s memorandum and order of April 15,1998, he should be restored to parole status under the same terms and conditions that theretofore applied to him.

On May 20, 1998, Pollock petitioned the circuit court to stay the hearing set for the next day. He described the imminent proceeding as an “eligible person hearing” and asserted that it would render the habeas corpus action moot. He further asserted that “[essentially, [the Board] may be able to circumvent [the circuit] court’s prior ruling before petitioner has a chance to be heard in court.” The circuit court denied the petition for stay by an order dated May 20, entered on the margin of the request for stay and reading, “The results of any [Board] hearing will not affect the habeas corpus hearing.” Whatever occurred before the Board on May 21, 1998, is not directly evidenced by any Patuxent documents in the record before us. The circuit court held a hearing on Pollock’s habeas corpus petition on June 2, 1998.

It is agreed that the Board answered the petition. 6 Based on the Board’s answer and its oral argument on June 2, the State’s position at that time was as follows: • Because of the one year limitation on parole from Patuxent under Article 31B, § 11(b)(2), the circuit court’s order of April 15, 1998, reversing the Board’s revocation of parole, did not restore Pollock to parole. ⁶⁶⁴ • The circuit court’s order of April 15,1998, undermined the validity of the Board’s revocation of eligible person status that was based upon the parole revocation. • The procedure that took place on May 21, 1998, was the 1998 annual review of Pollock’s status. At the May 21 annual review Pollock was “permitted to retain ‘eligible person’ status.” At that time, “[h]owever, because of the positive urine test, the parole that had expired was not renewed and [Pollock] was referred to drug treatment within the Patuxent program.” (The matters of fact set forth in this paragraph were averred in paragraph five of the Board’s answer.) • “[T]he positive urine test could be considered in conjunction with whether to grant parole for a new year or whether to refuse to renew the inmate’s parole” because “the infirmities in the parole revocation proceeding [as determined by the circuit court’s April 15, 1998 order] related to the proceeding itself, and not the validity of the urinalysis.” In essence, the Board contended that any challenge to the revocation determination of July 18, 1997, was moot because the Board had determined by its action on May 21, 1998, after the habeas corpus petition had been filed, that it would not renew Pollock’s parole. The Board also submitted to the circuit court that the non-renewal decision was not based upon the overturned order of parole revocation; rather, it was based upon the reported analysis of the specimen taken May 15,1997. At the habeas corpus hearing Pollock withdrew his allegations that the Board’s action on May 21, 1998, was an eligible person hearing, and he stipulated to the factual accuracy of the description of the Board’s action of May 21 as set forth in paragraph five of the State’s answer, namely that, the Board had decided that it would not renew Pollock’s parole.

But for this stipulation the evidentiary record would be bare of any description of the relevant events at Patuxent on May 21. ⁶⁶⁵ At the June 2 hearing Pollock again challenged the constitutionality of the Board’s construction