Watker v. Vermont Parole Bd.

• Citation: 596 A.2d 1277,157 Vt. 72
• Decision Date: 24 May 1991
• Docket Number: No. 89-083,89-083
• Court: United States State Supreme Court of Vermont
• Parties: Brian WATKER v. VERMONT PAROLE BOARD.

Page 1277

596 A.2d 1277

157 Vt. 72

Brian WATKER v. VERMONT PAROLE BOARD.

No. 89-083.

Supreme Court of Vermont.

May 24, 1991.

Motion for Reargument Denied June 20, 1991.

Walter M. Morris, Jr., Defender Gen., and Jeffrey Dworkin, Prisoners' Rights Office, Montpelier, for plaintiff-appellant.

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

Before ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

MORSE, Justice.

This appeal from a superior court judgment upholding a parole board decision finding plaintiff in violation of parole conditions and imposing new conditions causes us to reevaluate the standard of review. We reject plaintiff's claims that the board's ruling was not supported by substantial evidence and that his right to confrontation of witnesses was violated during the revocation hearing, and we therefore affirm.

On July 20, 1988, the Vermont Parole Board held a hearing to determine whether plaintiff violated two conditions of parole: (1) committing an act punishable under law, and (2) failing to lead an orderly and industrious life. The factual basis for the alleged violations was that plaintiff assaulted his cohabitant, Vicki Magoon, while they were living at 14 Foster Street, Barre, Vermont. The State's evidence consisted of a police officer's affidavit and testimony from a parole officer. Plaintiff testified on his own behalf.

The parole officer testified that he received the affidavit from the police officer. The affidavit stated that at about 1:15 a.m. on June 17, 1988, a dispatcher received two complaints about a couple fighting on Foster Street. When the officer arrived in the area, he found Magoon, who was eight-and-one-half-months pregnant, walking barefoot down Granite Street in the rain, while carrying a one-and-one-half-year-old child in her arms. Magoon was taken to the police station, where the officer observed a circular welt on her left cheek as well as scabbing and contusions extending around the front of her neck. An officer examined her back and found multiple bruise marks. Magoon stated that plaintiff had beaten her. The officer then went to 14 Foster Street and found plaintiff in bed. Plaintiff told the officer that he had been asleep all evening.

Plaintiff testified that he had reviewed his parole officer's report and the investigating officer's affidavit. He denied attacking Magoon and stated that she had been with a friend, Diane Gaylord, on the night of the incident, while he was at home in bed. He also testified that Magoon had visited his lawyer, Robert Paolini, and had told him that her allegation of assault that night was untrue. Plaintiff, however, did not call Magoon, Gaylord, or Attorney Paolini as witnesses at the parole violation hearing. Following plaintiff's testimony, the parole officer testified that he also interviewed Magoon and she had told him that plaintiff had beaten her.

The parole board found that plaintiff had violated the conditions of his parole as alleged. He sought review in the superior court under V.R.C.P. 75, arguing that the board's conclusion was not based on "sufficient, competent evidence." The superior court concluded that the hearsay evidence combined with the board's determination to "totally reject ... [plaintiff's] testimony" was sufficient to allow revocation of parole. It also found that plaintiff had not raised his constitutional right of confrontation below and therefore declined to consider it on appeal.

I. Substantial Evidence

The parole board may continue or revoke parole if "the alleged violation is established by substantial evidence." 28 V.S.A. § 552(b)(2). This Court has stated that "mere uncorroborated hearsay does not constitute substantial evidence" sufficient to support an administrative adjudication. Baxter v. Vermont Parole Board, 145 Vt. 644, 648, 497 A.2d 362, 365 (1985). In Baxter, we held that the parolee's failure to testify--that is, his silence in the face of hearsay charges--supplied the corroboration or substantial evidence needed to support a parole violation. Id. at 648-49, 497 A.2d at 365; see also State v. Schroeder, 149 Vt. 163, 163, 540 A.2d 647, 647 (1987) (per curiam) (adopting the Baxter rule for probation revocations, stating that "[w]hile uncorroborated hearsay evidence alone will not support a revocation," a defendant's failure to rebut the evidence will support the conclusion that he violated a probation condition). However, the underpinnings of the Baxter rule are weak, as this case demonstrates, and we now overrule it.

The Baxter maxim on uncorroborated hearsay is not based on logic; it is a legal fiction based on a policy disfavoring hearsay evidence. It derives from the so-called "residuum rule" created in Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 440-41, 113 N.E. 507, 509 (1916), adopted by the United States Supreme Court in Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938), and widely followed for a time by both federal and state courts. Under this rule, even though an administrative agency is not bound by the rules of evidence applicable in court proceedings, a reviewing court must set aside an administrative finding unless that finding is supported by a residuum of legal evidence, i.e., by at least some evidence that would be admissible in court. Throughout its history, the rule has been criticized. See 3 K. Davis, Administrative Law § 16.6 (2d ed. 1980) (documenting scholarly and judicial criticism of rule); C. McCormick, McCormick on Evidence § 354 (3d ed. 1984) (labelling rule "logically unsound"); 1 J. Wigmore, Evidence § 4b, at 119-22 (Tillers rev. 1983) (criticizing rule).

The key problem with the residuum rule is that it equates rules for admissibility of evidence in jury trials with weighing the reliability of evidence before an administrative agency. The rule does not distinguish between varying degrees of hearsay reliability; instead it creates a per se rule without regard to circumstances of a particular case. As one critic states:

Under the residuum rule a finding which is unsupported by evidence which would be admissible in a jury trial must be set aside, no matter how reliable the evidence may appear to the agency and to the reviewing court, no matter what the circumstantial setting may be, no matter what may be the evidence or lack of evidence on the other side, and no matter what may be the consequences of refusing to rely upon the evidence.

3 K. Davis, supra, § 16.6, at 239.

In Richardson v. Perales, 402 U.S. 389, 407-08, 91 S.Ct. 1420, 1430-31, 28 L.Ed.2d 842 (1971), the United States Supreme Court implicitly retreated from Consolidated Edison by stating that its concern with "mere uncorroborated hearsay" was directed, not at all evidence that would be formally inadmissible in judicial proceedings, but only at material "without a basis in evidence having rational probative force." This somewhat cursory statement in Perales caused some lower federal courts to discard the residuum rule. See, e.g., McKee v. United States, 500 F.2d 525, 528, 205 Ct.Cl. 303 (1974) (citing Perales for the proposition that, in an administrative hearing, hearsay can constitute "substantial evidence if sufficiently convincing to a reasonable mind"); School Board of Broward County, Fla. v. H.E.W., 525 F.2d 900, 906 (5th Cir.1976) ("Based on the Supreme Court's approach in Perales, we must reject any per se rule that hearsay cannot constitute substantial evidence."); Johnson v. United States, 628 F.2d 187, 190 (D.C.Cir.1980) ("This rule [the residuum] no longer controls. We have rejected a per se approach that brands evidence as insubstantial solely because it bears the hearsay label."); Bell Helicopter International, Inc. v. Jacobs, 746 F.2d 1342, 1344 (8th Cir.1984) ("hearsay evidence alone may ... support an agency determination.... A residuum of corroborating evidence of the type admissible in a jury trial is no longer required.") (citation omitted).

Although the rule has by no means been unanimously rejected, at least federal courts "are now much more inclined to allow findings to be based on hearsay than during the pre-Perales period." 3 K. Davis, supra, § 16.8, at 254. Moreover, "[i]ncreasingly the states refuse to apply it." C. McCormick, supra, § 354, at 1017; see, e.g., Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 526, 530, 517 N.E.2d 830, 832 (1988) (accepting the Perales interpretation of Consolidated Edison); Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 17-18 (Colo.1989) (en banc) (discussing Perales and holding that hearsay can constitute substantial evidence in reviewing administrative hearings unless the legislature mandates use of the residuum rule in particular type of case); see also C. McCormick, supra, § 354, at 1017 n. 9 (quoting 1981 Revised Model State Administrative Procedure Act § 4-215(d) and accompanying Commissioners' Comment, which explicitly reject the residuum rule). Even New York, which originated the residuum rule, has now abandoned it. 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 N.Y.2d 176, 180 n. *, 379 N.E.2d 1183, 1185 n. *, 408 N.Y.S.2d 54, 56 n. * (1978) ("legal residuum rule ... no longer obtain[s], regardless of whatever validity, if any, [it] may have once enjoyed").

In this case, plaintiff's contention that a parolee's act of testifying, regardless of content, rebuts the hearsay as a matter of law is wholly artificial and illogical. It also illustrates the weakness of the residuum rule as applied in Baxter. Although hearsay evidence is typically weak, its strength is not further diminished merely because the parolee speaks. The weight of evidence tending to establish a parole violation depends on the quality of the hearsay as well as any other evidence in the case. In short, resort to mechanical...