LaFaso v. Patrissi

• Decision Date: 24 September 1993
• Docket Number: No. 91-581,91-581
• Citation: 633 A.2d 695,161 Vt. 46
• Court: Vermont Supreme Court
• Parties: Matthew LaFASO, et al. v. Joseph PATRISSI, Commissioner, Department of Corrections.

Page 695

633 A.2d 695

161 Vt. 46

Matthew LaFASO, et al. v. Joseph PATRISSI, Commissioner, Department of Corrections.

No. 91-581.

Supreme Court of Vermont.

Sept. 24, 1993.

E.M. Allen, Defender Gen., and Jeffrey Dworkin, Prisoners' Rights Office, Montpelier, for plaintiffs-appellees.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Thomas J. Rushford, Asst. Atty. Gen., Waterbury, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiffs, an inmate of the Vermont prison system who was sanctioned for disciplinary violations and the class he represents, prevailed in their claims to the Washington Superior Court that the Vermont Department of Corrections (DOC) (1) failed to adopt regulations on prison discipline in accord with the requirements of the Vermont Administrative Procedure Act; (2) denied meritorious good time credits for minor rules infractions in violation of statute; and (3) applied too low an evidentiary standard in prison disciplinary hearings. Defendant, Commissioner of Corrections, appeals from the latter holding. Plaintiffs appeal the court's refusal to award retroactive class relief and to place a higher evidentiary burden on the Commissioner in disciplinary hearings. We affirm.

The lead plaintiff in this case is Matthew LaFaso, who was disciplined in February for a minor rules infraction. His suit was subsequently certified a class action on behalf of all past, present and future inmates subject to DOC Policies 1021 and 973, and the "some evidence" rule at prison disciplinary hearings. ¹ Plaintiffs claimed that DOC is required to comply with the rulemaking procedures of the Vermont Administrative Procedure Act (APA), 3 V.S.A. §§ 801-849, in promulgating its rules and regulations. They alleged that DOC failed to comply with the APA when it established Policies 1021 and 973, the rules that cover inmate discipline, and that those rules are therefore ineffective. Plaintiffs also claimed that DOC's denial of meritorious "good time" to inmates found to have committed minor disciplinary infractions contravenes 28 V.S.A. § 853(a), which limits this sanction to cases of "serious breach of the rules." Finally, plaintiffs challenged the validity of the "some evidence" standard under which DOC determined whether inmates committed disciplinary infractions, arguing that it violates due process.

In a series of three orders, the superior court ruled in favor of plaintiffs on each of the issues. On the last issue, the court held that the "some evidence" standard violates due process and that a "preponderance of the evidence" standard is required at prison disciplinary hearings. Defendant has appealed only this latter decision. Plaintiffs agree with the decision as a matter of federal law but argue that the Vermont Constitution requires that the infractions be proved by "clear and convincing" evidence.

Following these rulings, plaintiffs sought either full or partial retroactive relief, including expungement of disciplinary convictions against class members based on Policy 1021 or the "some evidence" standard, and the award of meritorious "good time" denied under Policy 973. The court found that retroactivity would produce substantial inequity by placing "severe and destructive" burdens on DOC, and consequently denied all retroactive relief. Plaintiffs appeal this conclusion and a number of the findings supporting it.

I.

We address first the evidentiary standard necessary to satisfy due process in prison disciplinary proceedings. Policy 1021 sets forth a detailed procedure for disciplining inmates for rules infractions, derived in part from statute. DOC Policy 1021; see also 28 V.S.A. § 852 (authorizing disciplinary committee and hearing procedures). The process starts with a disciplinary report and charge brought by the reporting officer. If a major rules violation is charged, the matter goes to a hearing officer for hearing. The hearing officer is an employee of DOC appointed for that purpose by the superintendent of the institution or the DOC district manager. Also appointed is a hearing assistant, to aid the inmate to present his or her case, and a presenting officer to present the case supporting the violation. The issue here involves the burden of proof placed on DOC to prove the charge. The rule specifies that "[i]n order to determine if the inmate is guilty, the Hearing Officer need only find some evidence in the record that supports that finding." DOC Policy 1021, § IV(E)(8)(i)(5).

The trial court determined that the rule denied plaintiffs due process because it did not require that the hearing officer find guilt based on a preponderance of the evidence. It is clear that the rule allows the hearing officer to impose discipline even if the officer concludes that it is more probable than not that the inmate did not violate the rules, as long as there is some evidence of a violation. Defendant claims that the trial court erred because the United States Supreme Court has already held, in Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), that prison authorities need only have "some evidence" that an inmate committed a disciplinary infraction in order to satisfy due process.

It is peculiar that there would be a difference of opinion on the nature of the constitutional mandate when there is a United States Supreme Court decision on point. In understanding how the difference arises, it is helpful to itemize what is not in dispute, as well as what is disputed. Both sides agree that an inmate can be disciplined when an independent observer, for example, this Court, finds "some evidence" supporting guilt. Plaintiffs argue, however, that in addition the hearing officer must find from that evidence that guilt is more probable than not. Defendant objects to this second requirement.

We conclude that Hill described the appropriate standard for judicial review of the actions of prison authorities, not the proof necessary for a fact-finder to find that an inmate violated a disciplinary rule. Thus, the decision resolved only the point on which the parties agree in this case--there must be some evidence of guilt as found by an independent observer. Hill did not resolve the point of disagreement.

Although the Hill opinion is not a model of clarity, several factors support this conclusion. First, the Court stated that "[t]he fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact." Id. at 456, 105 S.Ct. at 2774 (emphasis added). The Court's statement focuses on the level of due process required of a reviewing court, not that required of prison disciplinary officers. Allowing the reviewing court to employ such a highly deferential standard of review as "some evidence" may be justified by the lower levels of due process required in "the distinctive setting of a prison," see id. at 454-55, 105 S.Ct. at 2773, and the need for conservation of judicial resources. A deferential standard of review is necessary, "[o]therwise [courts] would assume the task of retrying all prison disciplinary disputes." Willis v. Ciccone, 506 F.2d 1011, 1018 (8th Cir.1974); see also Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.1981). We may fairly infer from the Supreme Court's analysis that disciplinary proceedings require more extensive evidentiary consideration than the "some evidence" rule for judicial review or at least that the Court left this question open.

Further, the Court stated that its "some evidence" standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Hill, 472 U.S. at 455, 105 S.Ct. at 2774. This statement shows that the Court was contemplating a standard of review. We find incredible the suggestion that a de novo proceeding intended to determine the guilt or innocence of any individual could dispense with these procedures and retain a semblance of "fundamental fairness."

Finally, the questions for which the Court granted certiorari in Hill concerned judicial review of prison disciplinary board findings, including "whether the standard of review applied by the [Massachusetts] court was more stringent than is required by the Due Process Clause." Id. at 449, 105 S.Ct. at 2771 (emphasis added). Despite some confusing language in the opinion, it is clear that the Court was not asked to determine the standard of proof the prison disciplinary board was required to meet when imposing discipline.

Consistent with our conclusion, a number of federal and state courts have explicitly recognized that Hill addressed only a standard of review question. See, e.g., Brown v. Fauver, 819 F.2d 395, 399 n. 4 (3d Cir.1987); Kodama v. Johnson, 786 P.2d 417, 420 (Colo.1990); Harper v. State, 397 N.W.2d 740, 743 (Iowa 1987). Similarly, our own case law has cited Hill in a review context. See In re Nash, 151 Vt. 1, 2, 556 A.2d 88, 89 (1988).

Defendant is correct in stating that the "some evidence" rule has widespread support in the case law, but he fails to recognize that virtually all of these cases address only the standard applied by the courts in reviewing facts found in a prison disciplinary hearing. We expressly decline to follow the small minority of decisions that appear to endorse the "some evidence" rule as an evidentiary standard of proof applicable to the fact-finder. ²

We disagree with defendant that Hill resolved the standard-of-proof issue in his favor. The safest reading of the Supreme Court's ambiguous analysis is that Hill does not purport to resolve the question one way or the other. Thus, we must ourselves perform the balancing that is required to determine the mandate of due process. In Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982), the United States Supreme Court stated that a...