Conway v. Cumming
Annotate this Case
CONWAY_V_CUMMING.92-286; 161 Vt. 113; 636 A.2d 735
[Opinion Filed 09-Jul-1993]
[Motion for Reargument Denied 02-Nov-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. 92-286
Charles Conway Supreme Court
On Appeal from
v. Chittenden Superior Court
Georgia Cumming, Philip November Term, 1992
Fitzpatrick, Philip Scripture
and Joseph Patrissi
Alden T. Bryan, J.
Charles Conway, pro se, Swanton, plaintiff-appellant
Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
Assistant Attorney General, Waterbury, for defendants-appellees
PRESENT: Allen, C.J., Gibson, Dooley and Johnson, JJ., Peck, J. (Ret.)
Specially Assigned.
GIBSON, J. Plaintiff was convicted of sexual assault, sentenced to a
term of five to twenty years, and is now an inmate committed to the custody
of the Commissioner of Corrections. He appeals from a judgment of the
Chittenden Superior Court denying injunctive relief to direct the
Commissioner to restore plaintiff's furlough status. We affirm.
As an inmate, plaintiff participated in the Vermont Treatment Program
for Sexual Aggressors (VTPSA) as part of a rehabilitation effort. In
October 1989, the Commissioner began granting plaintiff furloughs to be in
the community for short visits. See 28 V.S.A. { 808(a). In September
1990, the Commissioner revoked plaintiff's participation in the furlough
program on the ground that plaintiff had engaged in negative behavior, the
specific nature of which is not before us. The Commissioner did not provide
plaintiff with a hearing or other process in which he could respond to the
reasons given for revoking his furlough status. Thereafter, plaintiff
sought an injunction challenging the Commissioner's decision on grounds that
a revocation without hearing violated his rights under the United States and
Vermont constitutions as well as under Vermont statutory law. (FN1) The trial
court denied the relief, concluding that plaintiff's furlough status was not
a protected liberty interest under the United States Constitution and that
Vermont law did not create a protected liberty interest in furloughs. This
appeal followed.
I.
The central issue on appeal is whether plaintiff's due process rights
were violated when his furlough status was terminated without a hearing.
Under the United States Constitution, "due process is flexible and calls
for such procedural protections as the particular situation demands."
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In the context of a prison
environment, those protections have been subject to the necessarily broad
discretionary authority of prison officials over prison administration.
Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 126 (1977).
"'Lawful incarceration brings about the necessary withdrawal or limitation
of many privileges and rights, a retraction justified by the considerations
of our penal system.'" Id. at 125 (quoting Price v. Johnston, 334 U.S. 266,
285 (1948)). The United States Supreme Court has "consistently refused to
recognize more than the most basic liberty interests in prisoners." Hewitt
v. Helms, 459 U.S. 460, 467 (1983). We must decide, therefore, whether
furlough status confers a liberty interest derived either from the federal
Constitution or from the Vermont statutory scheme.
Plaintiff cites Morrissey as support for the proposition that his
liberty interest is protected by the United States Constitution. In that
case, the Supreme Court held that the due process clause of the Constitution
protected the liberty interest of a person on parole. 408 U.S. at 482. But
the constitutional reach of Morrissey has generally stopped at the prison
walls. Thus, the Court has found no constitutional right in placement in
any particular prison, Meachum v. Fano, 427 U.S. 215, 224-25 (1976), state
of the Union, Olim v. Wakinekona, 461 U.S. 238, 245 (1983), or particular
section of a prison, Hewitt v. Helms, 459 U.S. at 468. Further, the Court
has held that the Constitution provides no guarantee or right to an inmate
in obtaining parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7
(1979),(FN2) or good-time credit for satisfactory behavior, Wolff v. McDonnell,
418 U.S. 539, 557 (1974). The issue then is whether plaintiff's furlough
status more closely resembles that of a parolee, whose liberty interest
Morrissey would protect, or that of an incarcerated person, in which case a
federal constitutional right is not guaranteed.
We hold that plaintiff's status under furlough more closely resembles
that of an inmate seeking a particular right or status within an institu-
tion, rather than that of a parolee. Supervision of plaintiff by the
Commissioner both under law and in practice was not diminished by his
furlough status. He not only remained incarcerated, but his enrollment in
VTPSA
imposed a number of behavioral mandates and restrictions that would not have
applied to him as an inmate under the usual rules and restrictions governing
inmates generally. Significantly, the law makes a clear distinction between
the consequences of absconding while on furlough, which would constitute the
crime of escape and could lead to an added prison term,(FN3) and the violation
of parole, for which an offender risks return to the custody of the
Commissioner for the unexpired term of the original sentence. 28 V.S.A. {
552(b)(2); see Asherman v. Meachum, 566 A.2d 663, 668 (Conn. 1989). In sum,
no liberty interest in furlough status may be asserted directly under the
United States Constitution. See Nash v. Black, 781 F.2d 665, 668 (8th Cir.
1986); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 845 (9th Cir.
1985); cf. Asherman, 566 A.2d at 668 (no constitutionally derived liberty
interest in home-release status); Jenkins v. Fauver, 528 A.2d 563, 570-71
(N.J. 1987)(no liberty interest implicated by reclassification of all
prisoners with prior homicide convictions to more restrictive custodial
category); People ex rel. Feliciano v. Waters, 472 N.Y.S.2d 455, 456 (N.Y.
App. Div. 1984) (loss of eligibility to participate in work-release program
not a violation of any cognizable right); Mitchell v. Meachum, 770 P.2d 887,
890 (Okla. 1988) (no liberty interest in situs of confinement).
Our analysis of claims arising directly under the federal Constitution
does not end the inquiry, however. We must next ask whether a protectible
interest in furlough status has been created by Vermont statute, and, if so,
whether that interest should be recognized under the federal Constitution.
See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989)
("state law may create enforceable liberty interests in the prison
setting"). Under both federal and state law, the answer depends on whether
the inmate asserting the right has "a legitimate claim of entitlement" to
the interest, id. at 460, rather than a mere "'unilateral hope.'" Id.
(quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465
(1981)). As the Court stated in Olim v. Wakinekona, 461 U.S. at 249:
[A] State creates a protected liberty interest by
placing substantive limitations on official discretion.
An inmate must show "that particularized standards or
criteria guide the State's decisionmakers."
Connecticut Board of Pardons v. Dumschat, 452 U.S. 458,
467 (1981) (Brennan, J., concurring). If the decision-
maker is not "required to base its decisions on
objective and defined criteria," but instead "can deny
the requested relief for any constitutionally permis-
sible reason or for no reason at all," ibid., the State
has not created a constitutionally protected liberty
interest.
In Thompson, the Supreme Court acknowledged that the prison visitation
regulations of the Kentucky Department of Corrections contained "substantive
predicates," which "undoubtedly are intended to guide the duty officer's
discretion in making the ultimate decision." 490 U.S. at 464. The Court
stressed, however, that state regulations would be read to create a liberty
interest entitled to the protections of the due process clause only if they
contained "the requisite relevant mandatory language." Id. It held that
the visitation regulations involved in Thompson "[stopped] short of
requiring that a particular result is to be reached upon a finding that the
substantive predicates are met." Id.
The trial court in the present case employed an essentially similar
analysis, citing the language in 28 V.S.A. { 808(a) that "[t]he commissioner
may extend the limits of the place of confinement of an inmate" (emphasis
added) and the language in { 808(c) that a grant of furlough status "shall
in no way be interpreted as a probation or parole of the inmate, but shall
constitute solely a permitted extension of the limits of the place of con-
finement." The statutes contain no limitations on the discretionary
authority granted to the Commissioner. Thus, although there are distinc-
tions between the visitation regulations in Thompson and the Vermont
statute before us, those distinctions are insufficient to remove this case
from the holding in Thompson. Consequently, the trial court's decision was
correct, as weighed against federal law. The United States Constitution not
only fails to provide a liberty interest in furlough status directly, but
Thompson instructs us that it would not recognize such right under existing
Vermont law as a state-created liberty interest.
II.
Plaintiff next argues that his termination from the furlough release
and sex-offender programs was "punishment" for alleged sexual activity with
an inmate and that but for charges of such sexual activity no basis would
have existed for termination. He contends that his statutory rights were
violated when proper disciplinary procedures were not followed. The
Legislature has established procedures to govern the discipline and control
of inmates. See 28 V.S.A. {{ 851-855. Section 851 provides in relevant
part that "[n]o inmate shall be punished except under the order of the
officer or of a deputy designated by him for the purpose, nor shall any
punishment be imposed otherwise than in accordance with the provisions of
this subchapter." In cases where disciplinary segregation or the loss of
good time might be involved, inmates have a right to a hearing, to notice of
the charge, to confront the person bringing the charge, to be present and be
heard, to examine witnesses, and to assistance from an employee of the
facility, if available. Id. { 852(b).
In considering what constitutes "punishment" generally under the
Constitution, the United States Supreme Court has held that three factors
are particularly relevant: (1) whether the intent of the government
officials is to punish, (2) whether the purpose of the restriction in
question is for some legitimate governmental purpose, and (3) whether the
restriction is excessive in relation to its purpose. Bell v. Wolfish, 441 U.S. 520, 538-39 (1979). In Bell, the Court concluded that, absent an
intent to punish, a government decision that is reasonably related to a
legitimate governmental purpose is not punishment. Id. at 539.
Plaintiff's contention that he has been punished must fail. He has no
liberty interest, as such, in a furlough program, as we have held in Part I,
nor has he pointed to any restriction he has suffered other than continu-
ation of the incarceration to which he was legally sentenced. See Thompson,
490 U.S. at 460-61 ("'As long as the conditions or degree of confinement to
which the prisoner is subjected is within the sentence imposed upon him and
is not otherwise violative of the Constitution, the Due Process Clause does
not in itself subject an inmate's treatment by prison authorities to
judicial oversight.'") (quoting Montanye v. Haymes, 427 U.S. 236, 242
(1976)). The Commissioner terminated plaintiff's furlough status as a
matter within his discretion. The Commissioner was not required to afford
plaintiff a due process hearing or explain why he believed plaintiff had
failed to comply with the requirements of the VTPSA. Plaintiff has failed
to describe a legal "punishment."
Affirmed.
FOR THE COURT:
____________________________
Associate Justice
FN1. Plaintiff invoked jurisdiction under 42 U.S.C { 1983 for violation
under color of state law of federally protected civil rights, including
rights guaranteed under the Eighth Amendment (guarantee against cruel and
unusual punishment) and Fourteenth Amendment (due process of law); for
violation of Chapter I, Article 4 of the Vermont Constitution; and for
violation of 28 V.S.A. { 851, relating to imposition of punishment upon
Corrections inmates. Plaintiff also recited the Vermont "Mental Distress
Statute" in his complaint, but relief was not pursued thereafter on this
ground. Nor has the applicability of the Vermont Constitution been
briefed; accordingly, we shall not consider this issue.
FN2. Four members of the Court, however, were of the view that inmates
may have a liberty interest in parole release, which is derived solely from
the existence of a parole system. See Board of Pardons v. Allen, 482 U.S. 369, 373 n.3 (1987).
FN3. 13 V.S.A. { 1501(a)(1) makes it a crime to escape or attempt to
escape from any correctional facility "while in lawful custody." An inmate
on furlough is still considered to be "in lawful custody." See 13 V.S.A. {
1501(b)(2); 28 V.S.A. { 808(c).
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Dissenting
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. 92-286
Charles Conway Supreme Court
On Appeal from
v. Chittenden Superior Court
Georgia Cumming, Philip November Term, 1992
Fitzpatrick, Philip Scripture
and Joseph Patrissi
Alden T. Bryan, J.
Charles Conway, pro se, Swanton, plaintiff-appellant
Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
Assistant Attorney General, Waterbury, for defendants-appellees
PRESENT: Allen, C.J., Gibson, Dooley and Johnson, JJ.
DOOLEY, J., dissenting. I disagree with the result reached by the
majority for two reasons. First, the trial court struck too soon and
failed to give plaintiff an opportunity to develop a factual record, and
second, the conclusion that plaintiff lacks a protected liberty interest is
inconsistent with our Vermont constitutional jurisprudence as most recently
explained in G.T. v. Stone, ___ Vt. ___, 622 A.2d 491 (1992). Accordingly,
I respectfully dissent.
A review of the facts available in the limited record will help
illustrate the reasons why the trial court ruled precipitously. Although it
is important to emphasize that the trial court granted defendants' motion to
dismiss without holding an evidentiary hearing, this first point of
disagreement with the majority is highlighted by its statement that the
reasons for revoking plaintiff's furlough are "not before us." In fact,
defendants attached internal memoranda and reports to their motion to
dismiss showing that plaintiff was dismissed from the Vermont Treatment
Program for Sexual Aggressors (VTPSA), thereby terminating the associated
furlough rights, because he engaged in sexual activity with two other
inmates on September 17, 1990. The corrections staff disbelieved
plaintiff's denial that the incident occurred.
As shown by the complaint, as well as the reports filed by defendants,
there is more at stake in this case than furlough status, despite the
exclusive focus of both the trial court and this Court on that issue.
Because of his removal from the VTPSA, plaintiff was transferred to another
correctional center. More important, he lost the expectation that he would
be paroled within 90 days, which accompanied his status in the treatment
program. Corrections personnel reclassified plaintiff, thereby excluding
him from eligibility for parole. Very likely, plaintiff will face a
significant lengthening of his sentence as a result of the sexual misconduct
found by the corrections staff. Moreover, plaintiff claims a contractual
right to a reduced sentence as part of the agreement under which he
participated in the VTPSA.
Given this context, therefore, it is important to note that this civil
rights action was filed pro se, and plaintiff did not have counsel either in
this Court or the trial court. In a similar case, the United States Supreme
Court has held:
Whatever may be the limits on the scope of inquiry of
courts into the internal administration of prisons,
allegations such as those asserted by petitioner,
however inartfully pleaded, are sufficient to call for
the opportunity to offer supporting evidence. We cannot
say with assurance that under the allegations of the pro
se complaint, which we hold to less stringent standards
than formal pleadings drafted by lawyers, it appears
"beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief."
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). We cannot say "beyond doubt" that plaintiff can
prove no set of facts to justify his claim. Even the limited information we
have reveals that the liberty interest implicated here is much greater than
the furlough status addressed by this Court and the trial court.
Further, it is likely that internal corrections regulations exist
regarding classification and eligibility for sexual abuse treatment. Such
regulations may be sufficient to create a protected liberty interest even
under the narrow United States Supreme Court precedents. As another case
pending in this Court shows, these regulations have not been promulgated
pursuant to the Administrative Procedures Act and must therefore be the
subject of evidentiary development.
In addition to meeting the Haines standard, defendants also faced
certain procedural requirements in filing their motion to dismiss. Where
matters outside the pleadings are presented with a motion to dismiss under
V.R.C.P. 12 and are "not excluded by the court," the motion to dismiss must
be treated as a motion for summary judgment and disposed of under Rule 56.
V.R.C.P. 12(c); Nash v. Coxon, 152 Vt. 313, 314-15, 565 A.2d 1360, 1361
(1989). Further, the court must notify the parties of the changed status.
Nash, 152 Vt. at 315, 565 A.2d at 1361. The trial court did not give notice
that it treated defendants' motion as made under Rule 56; nor did it
exclude the material filed by defendants. It appears to have relied on that
material in its decision, as shown by this excerpt:
Here, defendants determined that plaintiff's furlough
status should be revoked because of the termination of
his participation in the VTPSA resulting from his lack
of progress in the program. There is no evidence that
defendants intended to punish plaintiff. Furthermore,
defendants' decision to deny plaintiff furlough status
is reasonably related to his failure to meet the
requirements of community release.
The trial court's method of handling the motion violated the Nash
requirements.
My second point of disagreement goes to the heart of the majority
opinion. Even if this case had a proper evidentiary record showing that it
solely concerned furlough revocation, I cannot agree that we should adopt as
the Vermont constitutional standard the United States Supreme Court's ever-
narrowing analytical approach to prisoner liberty interests, most recently
reiterated in Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461
(1989). I believe that current federal jurisprudence in the area of inmate
due process rights misapprehends, and consequently diminishes, the nature
of the interests at stake. By relying on this approach, the majority
adopts for Vermont a view of due process that significantly dilutes an
essential safeguard against arbitrary state deprivation of personal
liberty.
Chapter I, Article 10 of the Vermont Constitution should be construed
to encompass a higher level of due process protection for prison inmates
than the eviscerated federal standard recognizes. (FN1) This Court already has
made clear its fundamental disagreement with the federal view of the
constitutional rights of prisoners. In State v. Berard, 154 Vt. 306, 310,
576 A.2d 118, 120 (1990), we rejected the Supreme Court's conclusion that
the constitutional prohibition against unreasonable searches and seizures
has no application in the prison context, holding that the Vermont
Constitution does not permit the complete eradication of this right upon
incarceration. We noted that the Supreme Court based its view on "implicit,
fixed assumptions about the nature of prison life and prison administration
that override the facts of particular cases and remove from the courts the
critical job of reviewing the facts." Id. We declined to adopt a standard
based on such assumptions because it necessarily results in the sanctioning
of "any official conduct whatsoever in the name of 'legitimate
institutional interests.'" Id. (quoting Hudson v. Palmer, 468 U.S. 517, 549
(1984) (Stevens, J., dissenting)). Our objection to this approach should
apply with equal force in the present case, as the Supreme Court's prison
due process analysis "tends to derogate the central role of the judiciary"
in our constitutional jurisprudence. Id.
For more than a decade, the Supreme Court has retreated from the view
of prison due process set forth in Morrissey v. Brewer, 408 U.S. 471 (1972).
In that case, the Court declared that:
[T]he liberty of a parolee, although indeterminate,
includes many of the core values of unqualified liberty
and its termination inflicts a 'grievous loss' on the
parolee and often on others. . . . By whatever name,
the liberty is valuable and must be seen as within the
protection of the Fourteenth Amendment. Its termination
calls for some orderly process, however informal.
Id. at 482. Although this decision was narrowly written, with an emphasis
on the conditional permission given to a parolee to live outside the prison,
the Court "necessarily held that the individual possesses a residuum of
constitutionally protected liberty while in legal custody pursuant to a
valid conviction. For release on parole is merely conditional, and it does
not interrupt the State's legal custody." Meachum v. Fano, 427 U.S. 215,
231-32 (1976) (Stevens, J., dissenting). Criminal conviction may reduce,
but cannot terminate all of a prisoner's liberty interests. Wolff v.
McDonnell, 418 U.S. 539, 555-56, (1974) (prisoners are not "wholly stripped"
of constitutional protections when imprisoned, and there "is no iron curtain
drawn between the Constitution and the prisons of this country").
Because inmates retain liberty interests independent of state laws or
regulations, "the relevant question is whether [any] change [in the
conditions of imprisonment] constitutes a sufficiently 'grievous loss' to
trigger the protection of due process." Olim v. Wakinekona, 461 U.S. 238,
252 (1983) (Marshall, J., dissenting). "Put another way, the retained
liberty interest protected by the Constitution encompasses the right to be
free from arbitrary governmental action affecting significant personal
interests." Thompson, 490 U.S. at 467-68 (Marshall, J., dissenting). The
Supreme Court's decisions have backed steadily away from these basic
principles, and have severely circumscribed the retained liberty interests
of prisoners. The Court now looks almost exclusively to state law to
"create" prisoner liberty interests.
This Court, however, has looked recently to Morrissey for the
principles on which it decided a case involving issues comparable to the
ones present here. In G.T. v. Stone, ___ Vt. ___, ___, 622 A.2d 491, 493
(1992), we held that the Vermont Constitution requires a mental health
patient, who had been conditionally discharged from the state mental
institution and placed in the community, to be given a hearing before that
discharge is revoked. The decision in G.T. is based in large part on the
analysis in Morrissey. See 408 U.S. at 481. In both Morrissey and G.T.,
the plaintiffs were granted conditional release, and both remained subject
to numerous restrictions on their personal liberty. We held that the
liberty interests involved in G.T. were similar to those in Morrissey, and
concluded that due process protections attached because "plaintiff makes a
convincing case that he is far freer outside of [Vermont State Hospital]
than inside it to form the 'enduring attachments of normal life' and enjoy
'many of the core values of unqualified liberty.'" G.T., ___ Vt. at ___,
622 A.2d at 493 (quoting Morrissey, 408 U.S. at 482). After so recently
endorsing the analytical framework of Morrissey, I fail to understand the
majority's refusal to apply it here.
Although the majority points to distinctions between parole and
furlough release, these differences, as was the case in G.T., are
overwhelmed by the substantial similarity of the interests involved. Like a
parolee, a prisoner on furlough release may be permitted to pursue
employment or education, enjoy more extended contact with family and
friends, and engage in shopping and recreational activities. A furloughed
inmate has a type of freedom that makes the prison experience qualitatively
different from that of inmates denied furlough release; there is little
doubt that termination of furlough status qualifies as a "grievous loss."
See Crafton v. Luttrell, 378 F. Supp. 521, 534-35 (M.D. Tenn. 1974) (because
of the magnitude of the loss, and because the inmate's interest in avoiding
the loss outweighed any interest of the state in summarily removing him from
the program, due process required procedural safeguards prior to termination
of inmate's participation in work release program).
The restrictive terms of furlough release do not negate the inmate's
liberty interest. Although the liberty granted through furlough release is
more limited than that given a parolee, the difference is one of degree
only. Durso v. Rowe, 579 F.2d 1365, 1371 (7th Cir. 1978). The crucial
factor is the nature, not the weight, of the affected interest. Morrissey,
408 U.S. at 481. The majority's assertion that the rationale of Morrissey
stops at the prison walls ignores the fact that a furloughed inmate does
not remain continuously behind those walls.
I also cannot accept the majority's adoption of the Thompson "mandatory
language" test. The Supreme Court's insistence that state laws cannot
"create" liberty interests unless they contain mandatory language champions
form over substance, and is a poor basis for determining whether particular
facts implicate due process concerns. In the context of the standards
commonly applied in prisons, it is illusory to condition the creation of a
liberty interest on the supposition that the decisions of prison
administrators will vary with the nature of the "mandatory" or "permissive"
language appended to a given standard of inmate conduct. Such a mechanistic
approach to rights creation insulates the court from an assessment of the
very factors that count most in traditional due process jurisprudence: the
inherent importance of the rights at issue and the potential grievousness of
the loss of those rights. Consideration of these factors should not be
shunted aside and replaced with an empty formula.
I also find the search for state-created liberty rights from mandatory
language impossible to administer in a fair and principled fashion. Some
federal courts following Thompson have expressed unease about the emphasis
on mandatory language. See Patchette v. Nix, 952 F.2d 158, 161 (8th Cir.
1991) (despite absence of the "usual mandatory form of words," court
concluded that "mandatory" language was used); Smith v. Shettle, 946 F.2d 1250, 1253 (7th Cir. 1991) ("We are skeptical about placing so much weight
on grammatical distinctions, such as those between the imperative and
declarative moods."). Even members of the Thompson majority have expressed
dissatisfaction with the emphasis on form over substance, where application
of the mandatory language standard yielded a result not to their liking.
See Board of Pardons v. Allen, 482 U.S. 369, 381 (1987) (O'Connor, J.,
dissenting) (majority opinion was improperly "[r]elying on semantics").
Reliance on a "mandatory language" test to locate liberty interests is
particularly misguided in a case like this. Plaintiff's furlough rights
were revoked because corrections' staff determined that he engaged in sexual
activity on a specific date at a specific place. We are not dealing here
with questions of professional judgment or discretion; the sole issue is
whether plaintiff committed the act that caused his furlough revocation.
Whether plaintiff has a clear legal right to a furlough is beside the point;
the drafting of the furlough statute will never have any effect on how a
case like this is handled within the institution, or the cause and effect
relationship. In these circumstances, the price of due process is small,
while the gain in protection against arbitrary action is great.
Not surprisingly, commentators have been critical of the Supreme Court
jurisprudence. See Herman, Prisoners and Due Process Litigation: An
Invitation to the State Courts, in 1 Prisoners and the Law 5-3 (I. Robbins
ed. 1993). Moreover, a number of state courts have recognized that the
Supreme Court's due process jurisprudence is unacceptably narrow and
provides insufficient protection for the citizens of their states. See,
e.g., McGinnis v. Stevens, 543 P.2d 1221, 1236-37 (Alaska 1975) (describing
additional procedural protections that Alaska constitution affords prisoners
above those recognized by federal courts), modified and remanded on other
grounds, 570 P.2d 735 (Alaska 1977); In re Jackson, 731 P.2d 36, 42, 233 Cal. Rptr. 911, 917-18 (Cal. 1987) (unlike federal approach, due process
analysis under California constitution involves assessment of the procedural
protections required in light of the interests at stake); Cooper v. Morin,
399 N.E.2d 1188, 1193-94, 424 N.Y.S.2d 168, 174-75 (N.Y. 1979) (state
constitution provides prisoners certain procedural protections not required
by federal due process); Watson v. Whyte, 245 S.E.2d 916, 918-19 (W. Va.
1978) (criticizing Supreme Court's approach to prisoner liberty interest
assessment). We should follow their lead in the specific circumstances
present here. I would reverse.
I am authorized to state that Justice Johnson joins in this dissent.
_______________________
Associate Justice
FN1. Article 10, while concerned largely with the rights of persons
accused of a crime, also states: "nor can any person be justly deprived of
his liberty, except by the laws of the land, or the judgment of his peers."
This Court has held that this language is synonymous with "due process of
law." State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 743 (1985).
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Motion for Reargument
ENTRY ORDER
SUPREME COURT DOCKET NO. 92-286
NOVEMBER TERM, 1992
Charles Conway } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
}
Georgia Cumming, Philip Fitzpatrick,}
Philip Scripture & Joseph Patrissi } DOCKET NO. S314-92CnC
In the above entitled cause the Clerk will enter:
Appellant's motion for reargument, filed July 23, 1993, fails to identify
points of law or fact misapprehended or overlooked by this Court. The motion
is therefore denied. V.R.A.P. 40.
The issue of appellant's right to counsel was not preserved. It was not
raised in the trial court; it was not briefed or argued before this Court.
This case is, therefore, distinguishable from our recent decision in Fletcher
v. Gorczyk, ___ Vt. ___, ___, 624 A.2d 1132, 1133 (1992), in which we held that
an inmate who requested counsel on a habeas petition was wrongfully denied it
on the grounds that the defender general's office was unable to handle the
case.
Moreover, in Fletcher, the inmate was involved in a habeas proceeding for
which counsel is expressly provided in 13 V.S.A. { 5232(2). No equivalent
statutory right exists for representation in disciplinary proceedings. See 28
V.S.A. {{ 851-902.
This Court has never held that trial courts must sua sponte assign
counsel to all actions involving inmates, regardless of the nature of the
action. To the contrary, we have stated that disciplinary proceedings are not
criminal in nature, and inmates involved in them do not receive "'the full
panoply of rights' of a criminal prosecution." In re Nash, 151 Vt. 1, 2, 556 A.2d 88, 89 (1958) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)).
Instead, we analogized prison disciplinary hearings to small claims proceed-
ings, "where the parties are encouraged to appear without counsel, and the
court is expected to conduct the questioning of witnesses," and held that
inmates do not have a right to retained or appointed counsel in disciplinary
hearings. Id. (citing Baxter v. Palmigiano, 425 U.S. 308, 315 (1976)); see
also In re Chapman, 155 Vt. 162, 167, 581 A.2d 1041, 1043 (1990) (no federal
constitutional right to counsel in post-conviction review because it is civil
proceeding).
Representation by counsel may have improved the quality of argument in
this case, but it is neither statutorily nor constitutionally required.
Requiring it at this juncture would, furthermore, create an overbroad precedent
both for appointment of counsel and for the standard for motions to reargue.
------------------------------------------------------------------------------
Dissenting
Dooley, J., dissenting. Plaintiff, now represented by counsel, has moved
for reargument raising as a ground, among others, that plaintiff should have
been assigned counsel below. The Court has rejected this ground on the ground
it was not preserved.
As defendant emphasizes, plaintiff appearing pro se never raised the
right to counsel point although he proceeded in forma pauperis both here and
in the trial court. Following the date of submission of this case without
argument, this Court decided in a factually similar case that an inmate was
entitled to appointed counsel under the Public Defender Act. See Fletcher v.
Gorczyk, ___ Vt. ___, 624 A.2d 1132 (1992).
Much of the difficulty in this case is caused by the fact it was
presented without the benefit of counsel. Most of plaintiff's other grounds
for reargument go to what counsel would have presented if he had appeared
earlier in the proceedings. As in Fletcher, and In re Morse, 138 Vt. 327, 415 A.2d 232 (1980) on which Fletcher relies, "plaintiff has alleged facts suffi-
cient to indicate that the court cannot properly rule on the petition until
assigned counsel is given the opportunity to amend the petition and present her
case." Fletcher, ___ Vt. at ___, 624 A.2d at 1134. I disagree that Fletcher
does not apply to this case. Although pro se plaintiff labelled his complaint
a civil rights action, he alleged a deprivation of liberty including a loss of
furlough status and good time credits. He sought restoration of those losses.
In Fletcher, the allegation was that defendant "improperly segregated her, and
added points to her record affecting her status as a prisoner." Id. at ___,
624 A.2d at 1133. Unless the right to counsel is to turn on the label put on
the action by a pro se prisoner, it is impossible to distinguish Fletcher.
Rather than reaching a broad prisoner's rights ruling on an inadequate
petition and record and a pro se presentation, we should recall the opinion and
remand the case for proper presentation through assigned counsel.
Although we have occasionally granted reargument, we have not developed
standards on when it is appropriate. Our decisions speak to when it is inap-
propriate, stating, for example, that new theories should not be considered on
reargument. See, e.g., Wolfe v. Yudichak, 153 Vt. 235, 256, 571 A.2d 592, 604
(1989). This case presents an appropriate exception to that rule. Fletcher
was decided after the case came under submission, but was not considered by the
Court. Other courts have considered such precedents as grounds for reargument
even when they address points not raised before if they are "important ques-
tions of law." Lowry v. Bankers Life and Cas. Retirement Plan, 871 F.2d 522,
523 n.1 (5th Cir. 1989) (decided under similar F.R.A.P. 40). I would grant the
motion for the limited purpose of recalling the opinion and remanding the case
for presentation with counsel.
I am authorized to state that Justice Johnson joins me in this dissent.
BY THE COURT:
_______________________________________
Frederic W. Allen, Chief Justice
Dissenting:
____________________________________ _______________________________________
John A. Dooley, Associate Justice Ernest W. Gibson III, Associate Justice
____________________________________ _______________________________________
Denise R. Johnson, Associate Justice Louis P. Peck, Associate Justice (Ret.),
Specially Assigned
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