COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SUFFOLK, SS.
NO. SJC-12203
RICHARD CROWELL,
Plaintiff-Appellant
v.
THE MASSACHUSETTS, PAROLE BOARD,
Defendant-Appellee
ON APPEAL FROM A JUDGMENT
OF THE SUPERIOR COURT
REPLY 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: (617) 495-2644
Email: [email protected]
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TABLE OF CONTENTS
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TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT
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I.
THE PAROLE BOARD'S ARGUMENT IS MERITLESS,
IGNORING BOTH THE POLICY FAVORING JUDICIAL
REVIEW OF ADMINISTRATIVE ACTION, AND THE
PLAIN MEANING OF THE RELEVANT STANDING
ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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II.
THE BOARD MISAPPREHENDS THE STANDARD FOR
ASSESSING A DISABILITY CLAIM SUCH AS
CROWELL'S; CROWELL DID NOT HAVE TO
DEMONSTRATE THAT THE SOLE REASON FOR THE
BOARD'S ADVERSE DECISION WAS HIS DISABILITY,
NOR DID CROWELL HAVE TO SHOW THAT HE, AND
NOT THE BOARD, HAD FORMULATED A REASONABLE
ACCOMMODATION FOR HIS DISABILITY . . . . . . . . . . . 6
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III. THE BOARD'S ARGUMENT FAILS TO ESTABLISH THAT
CROWELL'S PRIOR LIFE SENTENCE WAS NOT
REDUCED TO A TERM OF YEARS BY PRIOR
GUBERNATORIAL COMMUTATION . . . . . . . . . . . . . . . . . . 9
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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TABLE OF AUTHORITIES
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CASES
Atlanticare Med. Ctr. v. Comm'r of Div. of Med.
Assistance, 349 Mass. 1, 6 (2003) . . . . . . . . . . . . . . . . . . 12
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) . . . . . . 7
City of Lawrence v. State Bd. Of Educ., 357 Mass. 200
(1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commonwealth v. Constantino, 443 Mass. 521 (2005) ... 10
Educadores Puertorriquenos en Accion v. Hernandez, 367
F.3d 61 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Engie Gas & LNG LLC v. Dep't of Pub. Utilities, 475
Mass . 191 , 19 7 ( 2 0 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Hicks v. Commissioner of Correction, 425 Mass. 1014
(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Iannachino v. Ford Motor Company, 451 Mass. 623 (2008)
.................................................... 6
Manickavasagar v. Virginia Commonwealth University
School of Medicine, 667 F.Supp.2d 635 (E.D. Va.
2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Moot v. Department of Environmental Protection, 448
Mass . 3 4 0 , 3 4 6 ( 2 0 0 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Rodriguez-Reyes v. Molina Rodriguez, 711 F.3d 49 (1st
Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ..... 6
Verdrager v. Mintz Levin, 474 Mass. 382 (2016) . . . . . . . 7
STATUTES AND RULES
Mass . R. C i v . P . 12 (b) . . . . . . . . . . . . . . . . . . . . . . 4 , 5, 6, 8 , 13
Mass . R. C i v . P . 12 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
Standing Order 1-96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
OTHER AUTHORITIES
Final Report of the Second Massachusetts Access to
Justice Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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ARGUMENT
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I.
THE PAROLE BOARD'S ARGUMENT IS MERITLESS,
IGNORING BOTH THE POLICY FAVORING JUDICIAL REVIEW
OF ADMINISTRATIVE ACTION, AND THE PLAIN MEANING
OF THE RELEVANT STANDING ORDER .
The Board argues it can evade judicial scrutiny
of the merits of its actions by moving under Mass. R.
Civ. P. 12 (b)
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(6) for dismissal of a complaint for
review before any substantive judicial examination of
the Board's decision-making occurs. In seeking to
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avoid being held accountable in this way, the Board
does not dispute the strong policy favoring such
judicial review of agency action. See City of Lawrence
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v. State Ed. Of Educ., 357 Mass. 200, 202
(1970) .
Indeed, the plain language of Standing Order 1-96 (2)
- mandating that the agency file its administrative
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record for judicial review - is a manifestation of
this pronounced policy.
In light of the principle favoring transparency
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and accountability for government agency action, it is
unsurprising that the Board also has no meaningful
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response to Crowell's point that the Standing Orderand indeed, the entire statutory regime of the
judiciary acting as a last recourse for a citizen
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aggrieved by agency action - would make no sense if
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Rule 12
(b)
(6) were permitted to be used as the Board
suggests. This is particularly so where Rules 12
(b)
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(6) and 12 (c) are functional equivalents.
Accordingly, the Standing Order's mandate that cases
for review of agency action be resolved after the
filing of the record and by means of a Rule 12
(c)
motion (rather than through an even more abbreviated
Rule 12 [b]
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[6] proceeding) demonstrates a justified
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codification of the rule endorsing judicial review on
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the merits.
The need for a policy favoring material judicial
examination of agency action is even more critical in
an era in which many citizens are unable to afford
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legal counsel and must petition the courts for redress
as unschooled pro se litigants. See Final Report of
the Second Massachusetts Access to Justice Commission
(2015) at 7
(~Increasingly,
more and more litigants in
our state court system do not have access to
lawyers.")
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Under these circumstances, the Board and
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other agencies should not be granted a carte blanche
to dodge scrutiny of the merits of the agency record
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by rebuffing citizen petitions at the courthouse steps
through artful employment of the often abstruse
procedural vehicle of Rule 12
(b)
(6). To allow the
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use of this rule as a means to obviate such judicial
review is not consistent with a fair system of ordered
justice, or with manifest legislative intent. The
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Board's position does not accord with the law or with
sound judicial policy, and it should be rejected.
II.
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THE BOARD MISAPPREHENDS THE STANDARD FOR
ASSESSING A DISABILITY CLAIM SUCH AS CROWELL'S;
CROWELL DID NOT HAVE TO DEMONSTRATE THAT THE SOLE
REASON FOR THE BOARD'S DECISION WAS HIS
DISABILITY, NOR DID CROWELL HAVE TO SHOW THAT HE,
AND NOT THE BOARD, HAD OFFERED THE BOARD A
REASONABLE ACCOMODATION FOR HIS DISABILITY .
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While arguing to affirm the dismissal of
Crowell's Complaint, the Board continues to misstate
the applicable standard for review under Rule 12 (b)
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(6), which the Board insists should be under the more
stringent standard of Iannachino v. Ford Motor
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Company,
451 Mass. 623 (2008) and Bell Atl. Corp. v .
Twombly,
550 U.S. 544
(2007). Defendant's Brief at 18
- 19. In doing so, the Board continues to ignore the
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less exacting pleading benchmark applicable to
discrimination plaintiffs. See Swierkiewicz v. Sorema
N.A.,
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534 U.S. 506 (2002)
(in a discrimination
lawsuit, a plaintiff's complaint
~need
not contain
specific facts establishing a prima facie case of
discrimination
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. . but instead must contain only a
'short and plain statement of the claim showing that
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the pleader is entitled to relief.'"); See RodriguezReyes v. Molina Rodriguez, 711 F.3d 49, 54
2013)
(1st Cir.
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(holding that, even after Twombly, "the
Swierkiewicz holding remains good law"); Educadores
Puertorriquenos en Accion v. Hernandez, 367 F.3d 61,
66 n. 1 (1st Cir. 2004)
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("Swierkiewicz is fully
applicable to all civil rights actions").
The Board is also mistaken in asserting that
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Crowell must show the denial of parole was solely on
the basis of his disability. Defendant's Brief at 31.
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This is not so. See Manickavasagar v. Virginia
Commonwealth University School of Medicine,
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F.Supp.2d 635, 643 n. 4 (E.D. Va. 2009). The Supreme
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Judicial Court recently reaffirmed in a gender
discrimination case that, because of the significant
evidentiary obstacles they face, civil rights
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plaintiffs are not held to such a demanding standard
of single causality. See Verdrager v. Mintz Levin, 474
Mass. 382, 402 - 03
(2016). Even if a discrimination
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defendant can articulate plausible, non-discriminatory
rationales for taking adverse action against the
plaintiff (as the Board claims here) that is not a
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dispositive defense where it appears discriminatory
factors
(such as gender, or, as here, disability)
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entered into the defendant's decision-making process .
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See Id.
("[ ] Popeo's explanation- that he fired the
plaintiff for taking [confidential] documents - is
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doubtless plausible. Nonetheless, there is evidence
that Popeo's decision was in fact motivated by other
considerations.")
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Here, the Board concedes - and indeed, from the
audio record, it cannot deny- that Crowell's
disability factored into its denial of his parole .
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That undisputed discriminatory motive was, at minimum,
enough to survive the Board's Rule 12 (b)
(6)
challenge to the Complaint .
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The Board denied Crowell parole on the basis of
his traumatic brain injury. It does not dispute that
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many of Crowell's adjustment issues in the past 30
years were attributable to the devastating damage to
his brain. As such, it was incumbent on the Board to
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demonstrate that it could not offer him any reasonable
accommodation for his disability. This the Board
failed to do. Moreover, in its Brief, the Board
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misconstrues its duty of reasonable accommodation,
somehow transmuting it instead into a duty reposed on
Crowell, the brain-damaged indigent prisoner, and his
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volunteer law student attorney, to produce a parole
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setting for Crowell that would be acceptable to the
Board. Defendant's Brief at 29- 30. But this turns
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the legal standard of the ADA on its head. The Board,
not Crowell or his volunteer law student attorney, had
the burden of showing that it could not find a
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reasonable accommodation for Crowell.
The Board's misapplication of the relevant law is
not a basis for affirming the Trial Court's dismissal
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Order. This also underscores why the judgment below
should be vacated and Crowell's Complaint should be
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reinstated and allowed to proceed.
III. THE BOARD'S ARGUMENT FAILS TO ESTABLISH THAT
CROWELL'S PRIOR LIFE SENTENCE WAS NOT REDUCED TO
A TERM OF YEARS BY PRIOR GUBERNATORIAL
COMMUTATION.
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The Board also posits an unavailing argument on
the issue of whether Crowell's prison sentence,
reduced over 40 years ago by gubernatorial commutation
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from life to a term of 36 years to life, is a "term of
years"
(entitling Crowell to annual parole review) or
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still a "life" term, despite its "reduction"
(requiring Crowell's case to be reviewed at least
every five years, an interval the Board, piqued at
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what it deemed to be Crowell's unacceptably "bitter"
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attitude, Defendant's Brief at 7, shows no inclination
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to lessen) .
The record demonstrates that all concerned - the
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Governor, the Attorney General in 1963, and the
Board's own prior General Counsel - considered the
Governor's commutation to be a reduction of a life
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sentence to some lesser sentence. Given the
contradictory positions that have been taken by the
Board and its prior General Counsel at various times,
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the language is clearly, at the very least, ambiguous.
In its Brief the Board fails to acknowledge that, as
such, the rule of lenity governs and requires that
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Crowell be given the benefit of this ambiguity. See
Commonwealth v. Constantino, 443 Mass. 521, 525
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(2005). Moreover, as a matter of logic and plain
meaning, the lesser of a life sentence is not still a
life sentence.
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In support of its dubious postulation that the
lesser of life is still life, the Board relies on a
case that does not address the issue in contest here.
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In Hicks v. Commissioner of Correction, 425 Mass. 1014
(1997), the prose prisoner plaintiff was seeking his
unconditional release by trying to obtain a new
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sentence altogether. That does not remotely resemble
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Crowell's claim, which is simply that, as reflected by
the reduction of his life sentence, Crowell is now
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serving a term of years that should entitle him to
annual review by the Board.
In like vein, the Board continues to engage in
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its unfortunate practice of citing to, in a way that
could be construed as bordering on taunting, Crowell's
prior unsuccessful pro se litigation efforts. That the
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Board was able to repeatedly prevail against pro se
suits brought by a brain damaged septuagenarian
prisoner is no surprise. In his prior pro se suits,
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Crowell, understandably confused about what the
applicable law was, sought to obtain his unconditional
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release. The Board cites these prior failed pro se
attempts as support for its current position.
Defendant's Brief at 34 - 36.
The Board's argument is
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not apposite. The prior Crowell cases cited by the
Board have nothing to do with the present issue at
bar, which is not whether Crowell should be released,
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but is limited to only whether Crowell has a right to
have his case reviewed by the Board annually, instead
of in five-year installments.
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The Board further seeks to dismiss the opinion of
its own prior General Counsel - who agreed that
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Crowell should be reviewed by the Board annually as a
prisoner serving a term of years - to be merely "the
opinion of one attorney who was advising the Board at
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that time." Defendant's Brief at 38. But dismissing
its own General Counsel's opinion in an off-handed
manner does not lend credence to the Board's stance.
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The General Counsel was not just a random attorney
with an opinion to offer. This was the Board's primary
legal advisor. The Board's failure to bring this issue
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to the attention of any of the various Courts it
appeared in over the past twenty plus years while
blocking Crowell's prior unsuccessful prose attempts,
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does not comport with that agency's charge to hold
itself accountable to the public and to see that
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justice is honorably done .
The Board's argument, as it argued in the Trial
Court, is essentially distilled to the notion that it
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is entitled to deference in its view of what a life
sentence is, and that because it views Crowell's
sentence as still being life, the matter is settled.
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But it is not. Administrative deference does not
amount to judicial abdication, for "[s]tatutory
interpretation is ... ultimately the duty of the
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courts." Engie Gas & LNG LLC v. Dep't of Pub.
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Utilities,
475 Mass. 191, 197 (2016); see also Moot v.
Department of Environmental Protection, 448 Mass. 340,
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346 (2007); Atlanticare Med. Ctr. v. Comm'r of Div. of
Med. Assistance, 439 Mass. 1, 6 (2003).
The Board's position on whether Crowell is still
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serving a life sentence does not conform to the plain
meaning of the Governor's prior commutation, nor to
the formal legal opinions of its own prior General
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Counsel and of a prior Attorney General for the
Commonwealth. The Board's mistaken arguments for
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refusing to allow Crowell annual reviews should be
rejected, and Crowell should be allowed to have his
case reviewed by the Board each year as of right.
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CONCLUSION
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Based on the foregoing, Plaintiff-Appellant
Crowell respectfully requests that this Honorable
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Court (1) vacate the Trial Court's decision allowing
the Defendant-Appellee's Motion to Dismiss and denying
Crowell's Cross-Motion under Mass. R. Civ. P. 12 (c)/
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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,
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/~
John . 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: (617)495-2644
Email: [email protected]
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Dated:
<fjl'j/G
Certification of Counsel
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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 .
J~D. Fitzpatrick~ BBO# 550059
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