Loveland v. Gorczyk

• Decision Date: 07 November 2001
• Docket Number: No. 00-495.,00-495.
• Court: Vermont Supreme Court
• Parties: Michael D. LOVELAND v. John GORCZYK and Kathleen Lanman.

786 A.2d 418

Michael D. LOVELAND v. John GORCZYK and Kathleen Lanman.

No. 00-495.

Supreme Court of Vermont.

November 7, 2001.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Plaintiff Michael Loveland appeals from a superior court grant of summary judgment to defendants, John Gorczyk and Kathleen Lanman, in a case involving review of a prison discipline decision. Plaintiff contends that defendant Lanman, superintendent of the Newport correctional facility, failed to notify him of her appeal decision within the 30 day limit set forth in Department of Corrections (DOC) Directive 410.01(I)(2), and, as a result, he is entitled to expungement of the disciplinary conviction. The superior court ruled that the directive does not require notice to the inmate within 30 days and denied relief on that basis. We affirm.

The relevant facts are undisputed. Plaintiff was found guilty of a major disciplinary infraction on October 18, 1999, and appealed to the superintendent, who denied his appeal on November 16, 1999, but did not notify him of her decision at that time. On December 13, 1999, plaintiff filed a "complaint for the review of governmental action" in accordance with V.R.C.P. 75 in superior court, alleging that the DOC violated Directive 410.01(1)(2) by failing to "respond" to his appeal within thirty days as the language of the directive requires. The parties filed cross summary judgment motions, and the superior court granted summary judgment for defendants. The superior court held that "respond" does not require receipt, and that plaintiff's argument to the contrary would alter the regulation. This appeal followed.

We review this case under V.R.C.P. 75. See Shuttle v. Patrissi, 158 Vt. 127, 131-32, 605 A.2d 845, 848 (1992). The controversy in this case centers on the definition of "respond" as used in DOC directive 410.01(I)(2). This directive commands, "[t]he Superintendent will respond to the appeal within 30 days from the date the appeal was delivered by the offender to a staff member." DOC Directive 410.01(I)(2). Failure to respond results in the action being dismissed and expunged from the inmate's file. Id. Plaintiff argues that "respond," as used in the directive, must include notification of the action of the superintendent. Defendants argue that the superintendent responded when she decided the appeal; the superior court accepted this construction.

For three interrelated reasons, we agree with the interpretation of the superior court. First, we must defer to the Department of Corrections interpretation "[a]bsent compelling indications of error." See In re Capital Investment, 150 Vt. 478, 482, 554 A.2d 662, 665 (1988).¹

Second, plaintiff is seeking an automatic expungement remedy for violation of a time limit, irrespective of the merits of his appeal. In the one comparable situation where such a remedy has been used in our law, "we have strictly construed the remedy to apply only when it clearly implements the ... purpose" of avoiding indecision and protracted deliberation. In re Newton Enterprises, 167 Vt. 459, 465, 708 A.2d 914, 918 (1998) (implementing 24 V.S.A. § 4470(a), which requires a zoning board to act on a permit application within 45 days, or the permit is deemed to have been approved). This case is a clear demonstration of why we must apply the same construction rule to this regulation. Plaintiff received notice of the adverse decision in time to appeal it on the merits, but is seeking to prevail solely on the technicality of untimely notice. There is no indecision or protracted deliberation, and plaintiff was not prejudiced by the lack of notice.

Third, the superior court decision best comports with the common meaning of the term in the regulation. The common definition of the word "respond" is "to reply or answer." Random House Unabridged Dictionary 1640 (2d ed. 1987). The term does not require receipt of the answer or reply. Plaintiff would have a stronger case that notice is implied in the term if the directive required the superintendent to respond to the grieving inmate within the time limit. Instead, it requires that the superintendent "respond to the appeal within thirty days." We believe that the common meaning of the words chosen is that the superintendent must answer the appeal by deciding it within 30 days. Accordingly, we cannot find a compelling indication of error in defendants' interpretation of the regulation, and defendants' interpretation involves a strict construction that does not apply the expungement remedy beyond its purpose.

Affirmed.

SKOGLUND, J., dissents and files opinion joined by JOHNSON, J.

SKOGLUND, J., dissenting.

The majority correctly holds that Department of Corrections (DOC) Directive 410.01(I)(2) requires the superintendent to decide an inmate's appeal of a disciplinary action within 30 days, but finds no ancillary obligation to communicate this decision to the inmate plaintiff. Because I believe that communication of the superintendent's decision to the inmate is a necessary element of the directive, I dissent.

The majority's opinion is based on three rationales. I fault all three. First, the majority opines that "[a]bsent compelling indications of error," interpretations of administrative regulations or statutes by the agency responsible for their execution will be sustained on appeal. See In re Agency of Administration, 141 Vt. 68, 74-75, 444 A.2d 1349, 1351-52 (1982). The DOC maintains that it has no obligation under Directive 410.01(I)(2) to communicate the superintendent's decision to the inmate. The majority finds no "compelling indications of error" in this interpretation of Directive 410.01(I)(2) and thus defers to the DOC's assertion. Because the DOC's own policies, directives and standardized forms contradict this assertion, I find "compelling indications" that the current position of the DOC is in error.

The DOC prescribes specific, well-defined disciplinary proceedings for an inmate charged with violating a rule of the facility. According to DOC Inmate Discipline Policy # 410, "[t]he report, findings, determination and recommendation of the hearing Officer shall be reviewed by the Disciplinary Committee and the Superintendent/District Manager and shall be given to the offender in a reasonable time after the hearing." Inmate Discipline # 410(2)(h). If the inmate wishes to file an appeal, he must obtain the "Disciplinary Appeal and Receipt" form and deliver the completed form to a DOC employee. The employee who receives the appeal fills in the appropriate signature, date and time lines on the form, forwards it to be included with the appeal package, and gives the offender a copy of the form as a receipt.

As noted above, the "Disciplinary Appeal and Receipt" form plaintiff used to file his appeal has signature, date and time lines for the department employee who accepts the appeal to indicate when it was received. It next has a section for the superintendent to indicate his or her decision. Specifically, the form contains a box that is checked for either of two results: "I have considered your appeal and my decision remains unchanged" or "I have considered your appeal and take the following action." The form then provides a list of possible options: dismissal, lower sanctions, reduce charge, order new investigation, order rehearing. Finally, the form contains a signature line for the "[e]mployee who returns this appeal response to offender" and space to indicate the date and time it was returned to the offender. The expectation that the superintendent's decision will be returned to the offender as part of the disciplinary process is apparent on this form and is evidence of the procedural expectations under the correlative DOC Directive 410.01(I)(2). The form alone provides compelling indication that the interpretation of the administrative regulation offered by DOC in this appeal is in error.

Further support for the above proposition is found in DOC Directive 410.01, which provides instructions to appropriate individuals on details and due process requirements in the disciplinary process. After defining the terms and personnel titles involved in a disciplinary process, the directive details the filing procedures for a disciplinary report and the hearing that follows, and describes the disciplinary committee's review "within two working days," of the hearing officer's determination and recommendation when there has been a finding of a major violation. Directive 410.01(F)(2). The directive also requires the superintendent/district manager's review of every disciplinary action, see Directive 410.01(H), and then goes on to describe the appeal process available to the offender. Directive 410.01(I). In subsection (I)(2) we find the language at issue:

The Superintendent/District Manager will respond to the appeal within 30 days from the date the appeal was delivered by the offender to a staff member. Failure to respond to the appeal within 30 days will result in the dismissal of the disciplinary action and expungement from the inmate/offender's file.

Finally, Directive 410.01(M), entitled "Disciplinary Reports," states: "[t]he offender shall be provided a copy of the Hearing Officer's report, the decision of the Disciplinary Committee and the final action of the Superintendent/District Manager within 72 hours after the Superintendent/District Manager's final action." Directive 410.01(M)(2).

Subsection M appears to answer the question presented in this appeal, though plaintiff did not make this argument to the court. Nor did the DOC mention this time constraint or explain why it did not apply. This overlooked section of the directive apparently sets a time limit on when an offender is to be provided with the documents that issued in his disciplinary action² and is another compelling indication that the DOC interpretation of its regulations in this case is error.³

The majority's second rationale for...