LaFaso v. Patrissi

LAFASO_V_PATRISSI.91-581; 161 Vt. 46; 633 A.2d 695

[Filed 24-Sep-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-581


 Matthew LaFaso, et al                        Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Joseph Patrissi, Commissioner,               December Term, 1992
 Department of Corrections


 Alan W. Cheever, J.

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

 Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
   Assistant Attorney General, Waterbury, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.


      DOOLEY, J.    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
 Procedures 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.(FN1) Plaintiffs claimed that DOC is required to comply
 with the rulemaking procedures of the Vermont Administrative Procedures 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 (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 (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, 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.  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
 (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); Kodoma 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.(FN2)

 

      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 (1982), the United States Supreme Court stated that a determination
 as to "whether a particular standard of proof in a particular proceeding
 satisfies due process" should be governed by the factors set forth in
 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).  Based on an application of
 the Mathews criteria to the present facts, but not limiting our holding to
 the federal constitution, we conclude that due process requires prison
 authorities to prove inmate disciplinary infractions by a preponderance of
 the evidence.
      The Mathews test specifies several factors that a court should balance
 in determining whether a given procedure satisfies due process.  Id.  The
 first factor is the private interest that will be affected by the state
 action; here, it is the prisoner's interest in not being unjustly
 disciplined.  This is a highly important interest, with both direct and
 indirect consequences.  The possible direct consequences are itemized in the
 regulation as "placement in disciplinary segregation, loss of good time,
 restitution, loss of privileges, reprimand, extra work, forfeiture of funds,
 apology, written essay or any combination of sanctions."  DOC
 Policy 1021, { IV(B).  The indirect consequences relate to the inmate's
 classification and programming, as well as the length of the sentence, as a
 discipline record may serve to deprive an inmate of any or all opportunity
 for early release or parole.

 

      The second factor is the risk of erroneous deprivation of the affected
 private interest through the procedures used.  See Mathews, 424 U.S.  at 335.
 Defendant's only relevant argument on this point is that DOC provides
 significant procedural protections for inmates accused of violating prison
 rules.  Although these procedures are indeed important, they are targeted
 largely at informing an inmate of the charge and subsequent basis for the
 decision, and assisting the inmate in presenting evidence at the hearing.
 See DOC Policy 1021, { V. (disciplinary process).  The procedures are of
 little help when prison authorities may impose discipline despite evidence
 whose cumulative force indicates the inmate's innocence.  We also note that
 the relaxed admissibility rules for prison disciplinary hearings mean that
 the "some evidence" may be nothing more than the reporting officer's report.
 See DOC Policy 1021, { V(E) (hearing officer to receive investigating
 officer's report, "as well as any other evidence in support of the
 violation").
      It is difficult to conceive of an aspect of disciplinary procedure with
 a greater impact on the accuracy of fact-finding than the evidentiary
 standard on which the ultimate conclusion must be based.  The standard
 adopted by defendant allows erroneous determinations as long as any evidence
 supports a violation.  We conclude there is a very significant risk of
 erroneous discipline of an innocent inmate under a "some evidence" standard
 of proof.
      The final Mathews factor is the government's interest in the process at
 issue.  See Mathews, 424 U.S.  at 335.  The state has an undeniably strong
 interest in the orderly administration of its prisons, including inmate
 discipline and rehabilitation.  Especially in the prison setting, the state

 

 has an interest in swift and certain punishment for violations of
 disciplinary rules.  See Wolff v. McDonnell, 418 U.S. 539, 563 (1974).  For
 these reasons, prisoners are not entitled to the full range of procedural
 protections afforded other citizens.  See id. at 569-70.
      We find it highly unlikely, however, that adherence to a preponderance-
 of-the-evidence standard will interfere with the enforcement of
 disciplinary regulations in Vermont prisons.  This standard will not impose
 an undue hardship on the state, and any burden created by the need to
 produce additional evidence in close cases will be offset by the benefit to
 the government, and to our society, of the greater assurance that
 disciplinary cases will be correctly decided.  See United States ex rel.
 Miller v. Twomey, 479 F.2d 701, 718 (7th Cir. 1973), cert. denied, 414 U.S. 1146 (1974) ("[N]either the state nor the inmate has any valid interest in
 treating the innocent as though he were guilty.").  Further, it is unlikely
 that a preponderance standard will impose any significant fiscal burden.  We
 find greatly overstated defendant's claim that a preponderance-of-the-
 evidence standard "would require increased staff resources in the
 investigation and prosecution of prison DR's" and the "discipline process
 would slow down measurably" given that the presenting officer is currently
 required to compile and present "all relevant, reasonably available"
 documentary and witness evidence.  DOC Policy 1021, { V(E)(7).
      We recognize fully the difficulties inherent in maintaining prison
 discipline, but these problems cannot justify our approval of a standard of
 proof -- already scaled far back from the "reasonable doubt" standard
 necessary for the original criminal conviction  -- that allows imposition of

 

 discipline in the face of probable innocence.  The one case that has given
 the state's interest sufficiently heavy weight to justify the lower
 standard, Goff v. Dailey, 991 F.2d 1437, 1442 (8th Cir. 1993), is
 unpersuasive.  The court's opinion focused almost exclusively on the state's
 interest and failed to consider all the Mathews factors; thus, its analysis
 is, at best, incomplete, and as the accompanying dissent points out, "has
 neither precedential nor academic support."  Id. at 1443 (Heaney, J.,
 dissenting in part).  Moreover, the state's approach may have a negative
 impact on society's legitimate interest in prisoner rehabilitation.  Respect
 for our system of justice is not enhanced by punishing innocent individuals,
 especially prisoners who have a heightened need to develop such respect.
      As noted above, inmates accused of violating prison rules may face
 serious consequences if the disciplinary proceedings result in an
 adjudication of guilt.  Nonetheless, we decline plaintiffs' invitation to
 require that such an adjudication be based on "clear and convincing"
 evidence.  As a general rule, the preponderance standard applies in
 administrative adjudications in this state.  See Harrington v. Department of
 Employment & Training, 152 Vt. 446, 448-49, 566 A.2d 988, 990 (1989).  In
 view of this general rule, we conclude that the Legislature adopted this
 standard in establishing the procedure for prison discipline adjudication.
 See 28 V.S.A. { 852(c) (discipline is imposed if charge "is sustained").
      The clear-and-convincing-evidence standard imposes a higher burden on
 the administrative agency than normal, and it shifts the balance of
 interests assessed under the Mathews test.  It might be justified by looking
 at the prisoner's interest alone because liberty is involved and serious
 consequences may result from the adjudication.  However, it intentionally

 

 errs on the side of avoiding discipline in some cases where the fact-finder
 determines that the prisoner violated the disciplinary rule.
      Although we have not always agreed with the United States Supreme Court
 in weighing the competing interests in a prison setting, see State v.
 Berard, 154 Vt. 306, 310-12, 576 A.2d 118, 120-21 (1990), we have recognized
 the great interest of the state in the "safe and orderly operation of
 Vermont's prisons."  Id. at 311, 576 A.2d  at 121.  The swiftness and
 certainty of punishment has a greater weight in this setting.  The
 disciplinary process involves "confrontations between inmates and authority
 and between inmates who are being disciplined and those who would charge or
 furnish evidence against them" such that "reasonable personal safety for
 guards and inmates may be at stake" and the fact-finding process becomes
 difficult.  Wolff, 418 U.S.  at 562.  On balance, we conclude that proof of a
 disciplinary violation by a preponderance of the evidence is appropriate.
      Prisoners accused of disciplinary infractions may not be punished for
 such actions unless their guilt can be shown by a preponderance of the
 evidence.  Anything less does not comport with the due process protections
 of the Fourteenth Amendment.  We also hold that, in this context, the
 concept of due process as embodied independently in Chapter I, Article 10 of
 the Vermont Constitution requires the preponderance rule. (FN3)
                                     II.
      We next address plaintiffs' claim that the trial court improperly
 denied the request of the plaintiff class for retroactive relief.  As set

 

 forth above, this action involves three separate claims: an improper
 standard of proof in disciplinary hearings, an illegal policy which provided
 that meritorious good time could be denied for minor disciplinary
 infractions, and failure to go through the Administrative Procedures Act
 procedures in issuing disciplinary regulations.  For each of these claims
 plaintiffs sought retroactive class relief in their complaint.  For
 example, plaintiffs sought "that all disciplinary convictions obtained under
 written policies . . . which were promulgated without compliance with the
 Administrative Procedures Act, be vacated and expunged from the files of
 those prison inmates, and that said inmates be relieved of all direct and
 collateral consequences of said disciplinary convictions."
      Following the court's decision that plaintiffs prevailed on the merits,
 and the issuance of an injunction reinstating the named plaintiff's
 meritorious good-time credits and prospectively invalidating the involved
 policies, plaintiffs proposed a limited retroactive relief order that would
 cover the 1024 currently incarcerated prisoners, approximately 200 prisoners
 in community settings, and 246 persons on parole.  The order would require
 the immediate restoration of statutory good time to each prisoner but would
 not affect classification until the next reclassification and would affect
 only future parole decisions.  Because of the lack of records on awarding of
 meritorious good time, the proposal made certain assumptions about how DOC
 may have acted in determining whether to increase the amount of meritorious
 good time in any month in which the inmate was disciplined.
      DOC calculated the cost of full retroactive relief for all past
 prisoners would be $758,000.  It opposed full or limited retroactive relief
 to the class.

 

      The trial court found the propriety of retroactive class relief to be
 governed by the test developed by the United States Supreme Court in Chevron
 Oil Co. v. Huson, 404 U.S. 97 (1971), for determining whether new law
 announced in civil decisions is to be applied retroactively.  See American
 Trucking Ass'ns v. Conway, 152 Vt. 383, 391-92, 566 A.2d 1335, 1339-40
 (1989); Solomon v. Atlantis Dev., Inc., 145 Vt. 70, 74-75, 483 A.2d 253,
 256-57 (1984).  That decision authorized the denial of retroactive relief
 if three considerations are present:  (1) the decision to be applied only
 prospectively establishes a new principle of law, either by overruling clear
 past precedent or by deciding an issue of first impression not clearly
 foreshadowed by precedent; (2) the purpose and effect of the rule of law
 will be furthered by nonretroactive application; and (3) retroactive
 application would cause substantial inequitable results.  Chevron, 404 U.S.  at 106-07.  The trial court held that the ruling on each of plaintiffs'
 claims decided an issue of first impression, the resolution of which was not
 clearly foreshadowed by prior decisions, and that retroactive relief would
 be inequitable.
      On appeal, plaintiffs argue that the court had no discretion to deny
 retroactive class relief, the Chevron test requires retroactive class
 relief, the trial court abused its discretion in failing to analyze
 plaintiffs' limited retroactive remedy proposal, and certain of the facts
 found by the court are clearly erroneous.  We take these claims in order.
      Plaintiffs' first claim is that retroactive relief is required because
 all of defendant's actions are based on regulations that were never
 promulgated in accordance with the Administrative Procedures Act.  Such a
 failure "shall prevent a rule from taking effect."  3 V.S.A. { 846(a).

 

 Since no rules took effect, plaintiffs argue that the consequences of
 application of the rules must be ineffective.
      Plaintiffs confuse the rights of class members with the remedies the
 court will provide for violation of those rights.(FN4) As set forth below, the
 remedy of retroactive class relief lies in the discretion of the trial
 court, subject to review for abuse of that discretion.
      Second, plaintiffs argue that the Chevron test requires retroactive
 relief in this case.  This issue has become more complicated because the
 United States Supreme Court has abandoned Chevron, in part, and required
 that federal constitutional decisions be given "full retroactive effect in
 all cases still open on direct review."  Harper v. Virginia Dep't of
 Taxation, 113 S. Ct. 2510, 2517 (1993).  We need not decide in this case the
 extent to which Harper has changed the applicable law on retroactivity for
 constitutional and non-constitutional questions.(FN5) We can assume that the
 ruling in this case for plaintiff Lafaso is fully retroactive to any other
 case which is properly before us.  The real question we must address is
 whether the claims of others are properly before us through the procedural
 device of a class action.

 

      Restated in terms by which it has been addressed by other courts, the
 question is whether the court should extend the equitable remedy of a
 mandatory injunction to a class of plaintiffs, and, if so, how that relief
 should be structured.  See, e.g., Shannon v. United States Civil Serv.
 Comm'n, 444 F. Supp. 354, 368-69 (N.D. Cal. 1977), modified on other
 grounds, 621 F.2d 1030 (9th Cir. 1980).  "[I]n wielding equity power, [the
 court] must weigh competing claims and determine where a preponderance of
 the equities lies."  Rothstein v. Wyman, 467 F.2d 226, 234 (2d Cir. 1972);
 see also Archer v. District of Columbia Dep't of Human Resources, 375 A.2d 523, 528 (D.C. 1977) (consideration of retroactive class relief results in
 "a delicate balancing of the equities").  The applicable principles were
 recently recognized by this Court in American Trucking Associations:
              Whether to fashion a remedy in a particular case so
         that it applies prospectively only is a decision within
         the discretion of the trial court.  The United States
         Supreme Court emphasized this in its decision in Lemon
         v. Kurtzman, 411 U.S. 192 (1973) . . . . The Court . . .
         noted that "[i]n shaping equity decrees, the trial court
         is vested with broad discretionary power; appellate
         review is correspondingly narrow." . . .  Moreover,
         "equitable remedies are a special blend of what is
         necessary, what is fair, and what is workable."

 152 Vt. at 378, 566 A.2d  at 1332 (citations omitted).
      We look at the equities on each of the substantive issues involved with
 the understanding that the standard of review is abuse of discretion.  See
 id. at 379, 566 A.2d  at 1333.  The trial court ruled that the governing
 statute did not permit meritorious good time to be denied as punishment for
 a minor disciplinary rule infraction.  The Department's Policy 973, however,
 provided that an inmate could not earn meritorious good time in any month
 that the inmate commits an act subject to disciplinary sanctions.  DOC

 

 Policy 973, V(E).  Thus, over the years DOC has improperly denied
 meritorious good time as a punishment for minor disciplinary infractions in
 months where it might otherwise be awarded.
      Meritorious good time is awarded only when the inmate has rendered
 special or unusual service.  28 V.S.A. { 811(b).  Any order of retroactive
 class relief for this violation must surmount DOC's lack of record keeping
 and show what meritorious good time the inmate would otherwise have
 received.  Plaintiffs suggested resolving the deficiency by awarding five
 days of meritorious good time, the maximum allowable, in any month in which
 the inmate earned the full amount of statutory good time, but earned no
 meritorious good time, if the inmate earned some meritorious good time in
 any of the six months preceding or following the month in question.
      Based on the evidence received, the court determined that a fair
 consideration of how much meritorious good time to award to each inmate
 would require four hours of work on each inmate file, and that the cost of
 this work for the entire caseload would be $116,000.  This expense would
 "have negative effects on the Department's budget, manpower and ability to
 achieve its statutory mandate."  Thus, the court ruled that retroactive
 relief would produce substantial inequitable results and work a hardship on
 DOC.
      We conclude that the ruling was within the court's discretion.  In
 balancing the equities, the court could consider the administrative burden
 of granting retroactive class relief.  See Wolff, 418 U.S.  at 574 (new
 procedural rules for prison disciplinary hearings not retroactive in part
 because of "significant impact . . . on the administration of all prisons in
 the country" and "burden [on] federal and state officials"); Cornell v.

 

 Cupp, 550 P.2d 1386, 1388 (Or. Ct. App. 1976) (declining to apply procedural
 due process requirements retroactively regarding segregation of prisoner
 because of burden on correctional system).  Also to be considered is the
 fairness of such relief in light of the inadequate records to show who
 should receive meritorious good time and in what amounts.  Plaintiffs'
 proposal would reduce somewhat the cost of compliance and respond to the
 record deficiencies by awarding the maximum amount of good time to some
 inmates who never would have received any meritorious good time or would not
 have received that amount.  The trial court certainly had the discretion to
 deny such a broad and overinclusive remedy.  See Klaips v. Bergland, 715 F.2d 477, 485 (10th Cir. 1983) ("administrative burdens and the uncertain
 efficacy of relief" are valid reasons for limiting retroactive class
 relief).
      The second substantive violation was the use of the "some evidence"
 standard for administrative fact-finding, as set forth in Part I of this
 opinion.  The court found that the policy was first introduced in 1989 but
 "[t]here is insufficient evidence that plaintiff was convicted on less than
 preponderance of the evidence at a DR hearing."  Plaintiffs seek relief that
 would expunge the results of any disciplinary hearing for current inmates or
 parolees since the standard-of-proof policy took effect.
      The extent of the administrative costs in correcting the records under
 plaintiffs' modified retroactive relief proposal is disputed.  Two
 additional considerations, however, support the denial of retroactive class
 relief in the manner proposed by plaintiffs.  Initially, the trial court
 concluded that Hill authorized the lower evidentiary standard.  In its

 

 August 3, 1990 decision, the court changed its mind and found the
 regulation improper but would not award plaintiffs relief because DOC
 asserted that the hearing officers actually used a preponderance-of-the-
 evidence standard.  The court issued a prospective injunction in February
 1991 but never was able to resolve the extent to which the lower evidentiary
 standard was actually used.
      As set forth above, the appropriate sanction for a major infraction is
 always determined after a hearing.  The extent to which there may be factual
 disputes in such a hearing will necessarily vary.  If any other inmate had
 brought suit seeking expungement of a disciplinary sanction issued as a
 result of a hearing, the court would have determined the extent to which the
 improper standard affected the outcome.(FN6) Plaintiffs' proposal avoided this
 step, assuming that the evidentiary standard determined the outcome in every
 case.  Thus, the relief sought was overbroad, and the court had the
 discretion to deny this relief.
      As more fully discussed infra, we are also concerned with the time-
 liness of the attack of the class members on the disciplinary sanction, as

 

 well as the finality of administrative adjudication.  Class members whose
 disciplinary hearings occurred before this case was filed could have
 appealed the result of the hearing to superior court pursuant to Rule 75 of
 the Vermont Rules of Civil Procedure.  They failed to do so.  Except for the
 possibility of a habeas corpus action, see Shuttle v. Patrissi, 3 Vt. L.W.
 50 (Feb. 14, 1992), the failure to act may foreclose them from relief.  See
 LD & MD, Inc. v. State, 154 Vt. 384, 387-88, 576 A.2d 1244, 1245 (1990)
 (plaintiffs may not use nullity of agency's substantive rule to avoid
 compliance with procedural rules governing appeals); see also Haynes v.
 State Commercial Fisheries Entry Comm'n, 746 P.2d 892, 894 (Alaska 1987)
 (administrative appeals not filed within thirty days will be dismissed).
 Although considerations of administrative finality may not control in every
 individual case, they do make inappropriate blanket relief for all class
 members in which finality is ignored.  See Merrilees v. Treasurer, ___ Vt.
 ___, ___, 618 A.2d 1314, 1316 (1992); Chittenden Trust Co. v. MacPherson,
 139 Vt. 281, 283-84, 427 A.2d 356, 358 (1981).
      The third violation was the failure to follow the procedures of the
 Administrative Procedures Act (APA) in promulgating the discipline policy.
 For this violation, plaintiffs seek the retroactive cancellation of all
 disciplinary action with respect to current prisoners or parolees if such
 action occurred after December 31, 1981, the date the policy was adopted.
 The court refused the relief for cost reasons and because it would make the
 classification system "chaotic," and necessitate changes in "custody levels,
 release dates, parole eligibility dates as well as involve transfer between
 the Department's six facilities" and the use of a subjective and
 inappropriate classification system.

  

      A number of considerations support the trial court's decision.  Putting
 aside the financial costs, about which there is dispute, the effect of the
 requested relief is to eliminate any consideration of acts of misconduct,
 whether serious or not serious, in deciding placement, programming, parole
 eligibility, and release date.  As the court found, DOC relies heavily on
 the inmates' track record within the institution in making these decisions.
 Plaintiffs' relief would destroy that classification system, leading to a
 wholly subjective replacement or to inappropriate decisions.  These negative
 consequences support the denial of relief.
      We must look closely at the rule of law involved in determining whether
 to give class retroactive relief.  The legal violation was the failure of
 DOC to go through a notice-and-comment process in proposing its regulations
 and to allow review by a legislative committee.  On the other hand, the
 Legislature has commanded that DOC adopt a code of disciplinary conduct and
 implement sanctions for its violation.  See 28 V.S.A. { 102(c)(5)
 (commissioner is charged with responsibility "[t]o prescribe rules and
 regulations for the maintenance of discipline and control at each
 correctional facility").  As a result, plaintiffs' relief would trade the
 violation of one legislative directive for the violation of another.
      We do not believe this is the kind of violation that warrants
 retroactive class relief.  It is entirely speculative whether any inmate
 would have avoided disciplinary sanctions if DOC had followed the APA
 procedures in adopting regulations.  Many of the decisions plaintiffs would
 reverse could have been taken in the absence of regulations either because
 they were directly authorized by statute, see 28 V.S.A. { 812 (good time
 may be denied for "any offense"), or because DOC or the Parole Board, see 28

 

 V.S.A. { 501(c) (in determining parole, board may consider "inmate's conduct
 and employment at the correctional facility"), had the broad authority to
 consider an inmate's actions, even in the absence of a specific conduct
 code.
      Retroactive class relief also offends principles of finality.  Many of
 the class members went through formal disciplinary proceedings, failed to
 raise the invalidity of the regulations and did not appeal.  Many of the
 class claims are stale.  This is an equity proceeding in which the doctrine
 of laches applies.(FN7) That doctrine bars relief where a plaintiff "has failed
 to assert his right for an unreasonable and unexplained period of time and
 where the delay has been prejudicial to the defending party."  American
 Trucking Ass'ns, 152 Vt. at 382, 566 A.2d  at 1334.  Claims that would be
 affected by plaintiffs' requested relief go back as much as eight years
 before the filing of this complaint.  If the matter had been litigated
 earlier, or any inmate had raised it on appeal of a disciplinary decision,
 many of the negative consequences of class relief would have been avoided.
      Other courts have refused to give retroactive class relief for defects
 in the adoption of disciplinary rules, stressing considerations like those
 discussed above.  See Guerrero v. Department of Corrections, 418 N.W.2d 685,

 

 687 (Mich. Ct. App. 1987)(FN8) (retroactive relief would severely disrupt
 correctional classification process, creating administrative chaos for
 prison officials); Department of Corrections v. McNeil, 506 A.2d 1291, 1294
 (N.J. Super. Ct. App. Div. 1986) (retroactive invalidation of disciplinary
 standards inappropriate because "many of these proceedings resulted in the
 loss of commutation time or otherwise reflected on suitability of numerous
 inmates for parole" so that retroactive relief would "trigger the early
 inappropriate release of large numbers of inmates").  We find these
 decisions to be well reasoned and they support our decision to affirm the
 trial court in this case.(FN9)
      In each of the above instances, we have stressed the considerations
 supporting the trial court's decision without discussing in detail those
 that point in the opposite direction.  We have done so because we are
 reviewing for abuse of discretion and the trial court could find these
 opposing considerations inadequate to carry the day.

 

      Finally, plaintiffs argue that the trial court gave insufficient
 consideration to their proposal to limit class relief and thereby reduce the
 administrative burden on DOC, and that many of the court's findings,
 particularly those related to cost, are clearly erroneous.  Much of
 plaintiffs' argument goes to the issue of the cost of compliance.  While we
 agree that cost is relevant to the availability of class relief,
 particularly in these days when it is well known that DOC has inadequate
 resources to fulfill its mandate, we have not stressed that consideration in
 affirming the trial court decision.(FN10) We believe that denial of retroactive
 class relief is supported even if such relief bore no direct financial cost.
      Similarly, a substantial part of the argument relates to the evaluation
 of evidence about legal advice defendant received on whether the
 Administrative Procedures Act applied to the disciplinary regulations.  We
 do not view the nature of the legal advice defendant received as a
 significant factor.
      The remaining findings plaintiffs dispute are not clearly erroneous and
 will stand.  See Klein v. Klein, 150 Vt. 466, 469, 555 A.2d 382, 384 (1988);
 V.R.C.P. 52(a)(2).  We find no error in the refusal of the court to accept
 plaintiffs' alternative proposal for relief.
      Affirmed.
                                         FOR THE COURT:




                                         Associate Justice
   



FN1.    The "some evidence" standard was contained in the version of Policy
 1021 that was in effect when the trial court issued its ruling on the
 evidentiary standard on October 11, 1990.  A new DOC Policy 1021, effective
 October 19, 1990, has superceded the version of the DOC policy referred to
 at trial and omitted any reference to an explicit evidentiary standard.
     For purposes of this opinion, all references to DOC Policy 1021 are to
 the policy in effect until the October 19, 1990 revision.

FN2.    One recent decision, Goff v. Dailey, 991 F.2d 1437, 1442 (8th Cir.
 1993), discusses Hill at length but does not hold that Hill mandates use of
 the "some evidence" standard at the fact-finding stage.  In fact, Goff
 essentially concedes that Hill was concerned with a standard of review.  See
 id. at 1441 ("Hill makes manifest that the balance of interests in prison
 disciplinary cases leads to minimal scrutiny of prison decisions by the
 federal courts.").  Therefore, we have considered the Goff decision in
 connection with the Mathews v. Eldridge, 424 U.S. 319 (1976), analysis,
 infra.

FN3.    In part, Article 10 states: "[N]or can any person be justly deprived
 of his liberty, except by the laws of the land, or the judgment of his
 peers."  We have held that this language is synonymous with "due process of
 law."  State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 743 (1985).

FN4.    To a similar end, plaintiffs argue that Chapter I, Article 4 of the
 Vermont Constitution (persons "ought to find a certain remedy . . . for all
 injuries or wrongs") requires retroactive class relief.  All of the class
 members have, or had, a remedy in individual proceedings.  We do not believe
 the provision requires an additional remedy.  See Rowe v. Brown, 158 Vt.
 373, 379, 599 A.2d 333, 337 (1991).

FN5.    Harper is inapplicable to this case because it does not appear that
 any of the class members had claims pending on direct review at the time of
 the trial court decision.  If claims were pending, they can be resolved in
 the proceeding in which they are raised, and there is no need to include
 them in the class.

FN6.    Plaintiffs argue that retroactive relief was particularly warranted
 on the evidentiary standard question because it goes to the heart of the
 truth-finding function.  They rely on Adams v. Illinois, 405 U.S. 278, 280
 (1972) and Hankerson v. North Carolina, 432 U.S. 233, 243 (1977), in which
 the Supreme Court indicated that criminal procedure protections intended to
 overcome serious impairments of the truth-finding process are normally given
 retroactive effect.  These precedents are, however, criminal cases.  Like
 Harper, these cases were pending when the substantive rule was announced and
 made retroactive, and in which the constitutional issue was preserved.  By
 contrast, the attack here is collateral and unpreserved, and the absence of
 a relevant record makes it impossible to judge the effect of the procedural
 rule in the individual cases.  More relevant is Wolff v. McDonnell, 418 U.S.  at 573-74, which overturned a lower court decision awarding class
 retroactive relief in a prison discipline case.  The Court acknowledged that
 the issues related to the "integrity of the fact-finding process" but noted
 that less is at stake than in criminal proceedings and that other factors
 overweighed.  Id.

FN7.     Plaintiffs assume that there are no time limits on when they can
 raise a claim for major noncompliance with the APA because the Legislature
 expressly exempted such claims from the one-year limitation period for
 attacking rules set forth in 3 V.S.A. { 846(d).  The limitation period is,
 however, a statute of repose that precludes an attack on a rule after one
 year, even if an individual does not become subject to it until after the
 period expires.  It does not suggest that individuals who are prejudiced by
 the application of a rule have an unlimited period to attack the rule and
 obtain retroactive relief.

FN8.    A minor split has developed among the panels of the Michigan Court
 of Appeals on this issue.  Some of them have granted a limited form of
 retroactivity, in which the decision was applicable to all cases pending on
 direct appeal at the time of the decision.  See Jahner v. Department of
 Corrections, 495 N.W.2d 168, 171 (Mich. Ct. App. 1992).  Those cases,
 however, were not class actions, and adopted a retroactivity standard that
 has been generally limited to criminal cases.  Either panel view supports
 the denial of class action relief to inmates who have no pending individual
 proceeding.

FN9.    Plaintiffs have cited one decision, People ex rel. Roides v. Smith,
 492 N.E.2d 1221, 1222, 501 N.Y.S.2d 805, 806 (1986), which they assert is to
 the contrary.  The issue of retroactivity is not discussed in Roides.  At
 most, the court applied an earlier decision on the invalidity of
 disciplinary rules for failure to go through an APA-type process to
 individual disciplinary cases pending on direct review.  Thus, the decision
 follows the Michigan Court of Appeals in Jahner and the United States
 Supreme Court decision in Harper and does not support retroactive class
 relief to inmates who have no pending proceeding or appeal.

FN10.     We have relied on the trial court's findings on the cost of
 awarding retroactive meritorious good time.  We conclude these findings are
 not clearly erroneous.