Malarik v. Pennsylvania Board of Probation & Parole
25 A.3d 468
| Pa. Commw. Ct. | 2011Background
- Malarik was paroled on December 1, 2009, under conditions including 5(c) refraining from assaultive behavior.
- On July 7, 2007, Malarik admitted drafting a letter soliciting donations to kidnap and decapitate Judge Kwidis, alleging a hit squad would do so in Pakistan.
- He was arrested and charged with violating parole condition 5(c) based on the letter.
- On September 23, 2010, after a hearing where he again admitted writing the letter, the Board recommitted him to state prison for 5(c) violation.
- The Board’s November 29, 2010 determination affirmed the revocation; Malarik filed a petition for administrative appeal.
- The court held that Malarik waived the free speech issue for failure to raise it in the Board proceedings and in his appellate briefing, and this issue is not considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Free speech rights violated by revocation | Malarik alleges violation of constitutional free speech. | Board properly revoked for assaultive behavior under 5(c). | Waived; not considered on review. |
| Whether writing the letter constituted assaultive behavior | Letter-writing did not cause apprehension of bodily harm; not assaultive. | Threats to judge's life place others in apprehension of harm; constitutes assaultive behavior. | Yes; letters constituted assaultive behavior and violated 5(c). |
Key Cases Cited
- Moore v. Pa. Bd. of Prob. & Parole, 505 A.2d 1366 (Pa.Cmwlth. 1986) (assaultive behavior includes threats that evoke apprehension of bodily harm)
- Dunkleberger v. Pennsylvania Bd. of Prob. & Parole, 573 A.2d 1173 (Pa.Cmwlth. 1990) (parolee's threat can be assaultive even without direct victim perception)
- Butterfield v. Pennsylvania Board of Probation and Parole, 1030 C.D.2010 (Pa.Cmwlth. 2010) (verbal threats may be assaultive even when not received firsthand)
- Flowers v. Pennsylvania Bd. of Probation and Parole, 987 A.2d 1269 (Pa.Cmwlth. 2010) (assaultive behavior encompasses threat-based conduct not limited to crimes)
- Jackson v. Pennsylvania Bd. of Prob. & Parole, 885 A.2d 598 (Pa.Cmwlth. 2005) (Board deference in parole regulation interpretation; standard of review)
- Dear v. Pennsylvania Bd. of Probation and Parole, 686 A.2d 423 (Pa.Cmwlth. 1996) (issues not raised before the Board are waived on judicial review)