by Douglas Ankney

Consolidating two appeals that had produced conflicting results in the Court of Appeals, the en banc Supreme Court of Kentucky held that the Kentucky Parole Board possesses both constitutional and statutory authority to delegate the conduct of final parole revocation hearings to Administrative Law Judges (“ALJs”). However, the Court further held that the Board’s current procedures are constitutionally deficient because they afford parolees no mechanism for filing exceptions to the ALJ’s findings directly with the Board before it renders a final revocation decision.

The Court reasoned that while ALJs may properly serve as neutral and detached hearing officers who develop the evidentiary record – consistent with the minimum due process requirements established in Morrissey v. Brewer, 408 U.S. 471 (1972), and the state Supreme Court’s own prior decision in Jones v. Bailey, 576 S.W.3d 128 (Ky. 2019) – the Board’s ultimate decision-making responsibility demands that parolees be afforded a procedural avenue to direct the Board’s attention to any perceived deficiencies in the ALJ’s factual findings before the Board acts on them. The Court recommended adoption of procedures modeled on KRS Chapter 13B, which permits parties in other administrative proceedings to file written exceptions to a hearing officer’s recommendations.

Background

These consolidated appeals arose from two separate parole revocation proceedings. In the first case, Douglas Hodge was convicted of non-violent offenses in 2012 and sentenced to 20 years in prison. After being paroled in February 2020, he became noncompliant approximately six months later. A parole officer attempted to visit Hodge at his reported address but went to the wrong apartment. When Hodge later contacted the officer by telephone, he refused to disclose his location and failed to report in person as instructed. A violation report charged him with absconding, failing to report a change of address, and leaving the state without permission.

An ALJ conducted a preliminary hearing at which Hodge was represented by counsel, testified, and was permitted to submit evidence and cross-examine witnesses. The ALJ found probable cause that Hodge absconded and failed to report a change of address. A different ALJ then conducted the final evidentiary hearing, determining by a preponderance of the evidence that Hodge absconded but that the evidence did not support the address-change violation. The Parole Board, without taking any additional evidence of its own, relied on the record the ALJs had developed and revoked Hodge’s parole. The Kenton Circuit Court dismissed Hodge’s petition for declaration of rights, and the Court of Appeals affirmed, concluding that the two-hearing process satisfied due process.

In the second case, Timothy Shane – convicted of first-degree rape, second-degree robbery, and first-degree unlawful imprisonment – was released on parole subject to a prohibition on alcohol use. He was pulled over for a seatbelt violation and admitted to consuming alcohol; his breathalyzer registered 0.16. Shane waived the probable cause hearing. An ALJ conducted the final evidentiary hearing, at which Shane was represented by counsel and presented mitigating evidence, including letters from family and employers. The ALJ found by a preponderance of the evidence that Shane violated his parole conditions. The Board adopted the ALJ’s findings and revoked Shane’s parole. When Shane requested reconsideration, the Board acknowledged that “numerous” mitigating letters had not been reviewed, but after considering them, it ultimately upheld the revocation.

Shane filed a declaratory judgment action in Franklin Circuit Court, which denied relief. The Court of Appeals reversed, holding that Jones and Kentucky statutory law required the Board itself to conduct final revocation hearings, directly conflicting with the Court of Appeals panel that had decided Hodge’s case.

The Supreme Court granted discretionary review in both cases to determine whether the Board’s delegation of final evidentiary hearings to ALJs satisfies constitutional and statutory requirements.

Analysis

Because Shane had been released on parole while his appeal was pending, the Court first addressed whether his claims remained justiciable. Applying the public interest exception to the mootness doctrine, the Court found all three required elements satisfied: (1) the constitutionality of the Board’s revocation procedures is undeniably a question of public nature, (2) the Board’s post-Jones revision of its procedures demonstrated a need for authoritative guidance for public officers, and (3) the volume of revocation cases, 2,904 in 2022 alone, ensured the question would recur. The Court therefore retained jurisdiction over Shane’s challenge to the delegation procedure while finding moot his arguments regarding the specific findings in his individual revocation order.

Constitutional Due Process
and the Delegation of Final Hearings to ALJs

The Court framed its due process analysis around the foundational requirements established by the Supreme Court of the United States in Morrissey, which identified two critical stages in the parole revocation process. The first is an informal preliminary hearing before an independent officer to determine whether probable cause supports the alleged violations. The second is a final revocation hearing that “must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.” Morrissey. The minimum due process safeguards for this final hearing include written notice of claimed violations, disclosure of evidence, an opportunity to be heard and present witnesses, the right to confront adverse witnesses, “a ‘neutral and detached’ hearing body such as a traditional parole board,” and a written factual statement supporting revocation. Morrissey.

The Court then examined Jones, the state Supreme Court decision that had precipitated the Board’s procedural reforms. In Jones, the Board had revoked Bailey’s parole based solely on the record from the preliminary hearing, without affording him a final evidentiary hearing at which he could present witnesses or further develop testimony. The Jones Court found the procedure constitutionally deficient, explaining that Bailey had “a constitutional right to a hearing pursuant to procedures that enabled him to make his case to the Board, who would then have full awareness of all the evidence presented and would be able to decide whether there were any mitigating factors in his favor.” Jones.

The Court distinguished Jones from the present cases, explaining that the defect in Jones was the absence of any final evidentiary hearing, not a requirement that the Board personally preside over one. Hodge received both a preliminary hearing and a final evidentiary hearing before ALJs, while Shane waived the preliminary hearing and then received a final evidentiary hearing before an ALJ before the Board made the final revocation decision.

The Court observed that neither Morrissey nor Jones expressly requires the Board itself to conduct the final hearing. Indeed, Morrissey contemplated proceedings before a “hearing officer,” as reflected in its statement that confrontation may be limited when “the hearing officer specifically finds good cause for not allowing confrontation.” Practical considerations reinforced that conclusion. The Board is statutorily limited to nine members and, if required to personally conduct all final revocation hearings, would face thousands of additional proceedings annually. The Morrissey Court itself cautioned that its due process requirements “should not impose a great burden on any State’s parole system.” Consequently, the Court viewed delegation to ALJs acting as neutral hearing officers as a reasonable and pragmatic exercise of the Board’s authority.

The Exceptions Requirement as a Due Process Safeguard

Despite validating the general delegation framework, the Court concluded that the present procedures remain constitutionally inadequate because parolees cannot file exceptions to the ALJ’s findings for the Board’s consideration. The Court cited KRS Chapter 13B, from which Parole Board hearings are expressly exempt, as a procedural model. Under that chapter, parties may file written exceptions to a hearing officer’s recommended order, thereby alerting the agency head to perceived errors. See KRS 13B.110(4). As the Court had previously recognized in Rapier v. Philpot, 130 S.W.3d 560 (Ky. 2004), the filing of exceptions serves as the means “for preserving and identifying issues for review” by the decision-making authority.

The Court identified a concrete risk inherent in the Board’s current approach. In some instances, the Board may review nothing beyond the ALJ’s written findings, which are drafted solely by the ALJ as factfinder. Shane’s case illustrated this danger; mitigating letters from family and employers went unreviewed until Shane himself flagged them during a reconsideration request. The Court reasoned that an exceptions procedure would ensure the Board apprises itself of the full facts and issues before rendering a decision, consistent with Jones’ requirement that the Board have “full awareness of all the evidence presented.”

Statutory Authority to Delegate

Turning to whether Kentucky statutory law prohibits delegation, the Court reversed the Court of Appeals’ determination in Shane’s case that the statutes require the Board to personally conduct final hearings. The Court’s analysis centered on KRS 439.340(3)(b), which directs the Board to “adopt administrative regulations with respect to … the conduct of parole and parole revocation hearings.” The Court explained that this rulemaking authority carries an implied power to delegate hearing functions – a principle the U.S. Supreme Court recognized in Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947), which held that an agency’s rulemaking power “may itself be an adequate source of authority to delegate a particular function, unless by express provision of the Act or by implication it has been withheld.” Kentucky law similarly recognizes that administrative agencies “possess the powers reasonably necessary and fairly appropriate to make effective the express powers granted to or duties imposed on them.” Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369 (Ky. 1988); see also Ashland-Boyd City-County Health Department v. Riggs, 252 S.W.2d 922 (Ky. 1952).

The Court also addressed two statutory provisions the Court of Appeals had relied upon in Shane’s case. Regarding KRS 439.440, which provides that a returned prisoner “shall be heard by the board within sixty (60) days,” the Court found its primary purpose is to establish a timeline rather than to prescribe who conducts the hearing. As to KRS 439.320(5), which allows final hearings to be conducted by panels of Board members, the Court interpreted this provision as permissive rather than exclusive, describing how the Board may divide its own work when it chooses to preside but not foreclosing delegation to ALJs.

Because the Board retained ultimate decision-making authority over revocation through 501 KAR 1:040(13)(2)(d), which requires the Board to issue a written decision determining whether parole is revoked, the delegation of advisory factfinding duties to ALJs falls within the implied scope of the Board’s regulatory power, the Court concluded.

Conclusion

Thus, the Court held that the Parole Board may constitutionally and statutorily delegate the conduct of final parole revocation hearings to ALJs but that the Board’s current procedures violate due process because they provide no mechanism for parolees to file exceptions to the ALJ’s findings before the Board renders its final revocation decision.

Accordingly, the Court reversed the Court of Appeals in Hodge’s case and affirmed the Court of Appeals in Shane’s case, while also reversing both circuit courts’ dismissals of the respective declaration of rights actions. See: Hodge v. Kentucky Parole Board, 2026 Ky. LEXIS 16 (2026) (en banc).  

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