Loveland v. Gorczyk

Loveland v. Gorczyk (2000-495); 173 Vt. 501; 786 A.2d 418

[Filed 07-Nov-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-495

                               MAY TERM, 2001


Michael D. Loveland	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Orleans Superior Court
                                       }	
John Gorczyk and Kathleen Lanman       }
                                       }	DOCKET NO. 294-12-99 Oscv

                                                Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:


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

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

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

 

       For three interrelated reasons, we agree with the interpretation of
  the superior court.  First, we  must defer to the Department of Corrections
  interpretation "[a]bsent compelling indications of error."  See In re
  Capital Investment, 150 Vt. 478, 482, 554 A.2d 662, 665 (1988). (FN1)

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

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

       Affirmed.


------------------------------------------------------------------------------
                                 Dissenting


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

       The majority's opinion is based on three rationales.  I fault all
  three.  First, the majority opines  that "absent compelling indications of
  error," interpretations of administrative regulations or statutes  by the
  agency responsible for their execution will be sustained on appeal.  See In
  re Agency of  Administration, 141 Vt. 68, 74-75, 444 A.2d 1349, 1351-52
  (1982).  The DOC maintains that it has

 

  no obligation under Directive 410.01(I)(2) to communicate the
  Superintendent's decision to the  inmate.  The majority finds no
  "compelling indications of error" in this interpretation of Directive 
  410.01(I)(2) and thus defers to the DOC's assertion.  Because the DOC's own
  policies, directives and  standardized forms contradict this assertion, I
  find "compelling indications" that the current position  of the DOC is in
  error.

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

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

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

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

 

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

       Subsection M appears to answer the question presented in this appeal,
  though plaintiff did not  make this argument to the court.  Nor did the DOC
  mention this time constraint or explain why it did  not apply.  This
  overlooked section of the directive apparently sets a time limit on when an
  offender  is to be provided with the documents that issued in his
  disciplinary action (FN2) and is another  compelling indication that the
  DOC interpretation of its regulations in this case is error. (FN3) 
 
       The majority's second rationale for upholding the trial court's
  decision is based on an  examination of the automatic expungement remedy
  prescribed for violations of the directive's 30-day  time limit.  The
  majority holds that this Court must apply the same rule of construction to
  the DOC  policy's expungement remedy that was used in In re Newton
  Enterprises, 167 Vt. 459, 708 A.2d 914  (1998) (implementing 24 V.S.A. §
  4470(a), which requires a zoning board to "render its decision" on  a
  permit application within 45 days or the permit is deemed approved). 
  Specifically, we must strictly  construe the expungement remedy to apply
  only when it clearly implements the statutory purpose of  avoiding
  "indecision and protracted deliberation."  Newton, 167 Vt. at 465, 708 A.2d 
  at 918.  The  Court finds no indecision or protracted deliberation and no
  prejudice to plaintiff by the Department's  failure to give Plaintiff
  notice of its decision because he  "received notice of the adverse decision
  in  time to appeal it on the merits."  

       A correction is in order.  The plaintiff only learned that the
  Superintendent had made a  decision on his appeal when the DOC provided a
  copy of the "Disciplinary Appeal and Receipt"  form attached to its summary
  judgment motion in plaintiff's Rule 75 action filed in superior court on 
  June 28, 2000 - 250 days after he filed his disciplinary appeal with the
  Superintendent.  While this  inordinate delay in communicating the
  Superintendent's decision to the plaintiff did not prevent him  from filing
  his Rule 75 action, it does implicate Directive 410.01(I)(3) which
  recognizes that while  appeals to the Superintendent/District Manager will
  delay access to the courts, "in no case will this  exceed 30 days."  This
  promise of minimal delay before a plaintiff inmate can take his case
  outside  the walls of the correctional facility and into a court of law
  seems difficult to achieve if the  Superintendent's disposition of the
  appeal is not revealed to the inmate. 

       Furthermore, inmate's case before the superior court was a Rule 75
  action seeking the  mandatory expungement remedy found in the DOC
  directive.  It remains to be seen when the inmate  would have ever received
  notice of the Superintendent's decision on his appeal had he never filed
  the  Rule 75 action.  The inmate has thus never been afforded an appeal to
  a court of law on the 

 

  merits of his disciplinary violation and the DOC is in violation of its
  Directive mandating disposition  of appeals within 30 days to prevent
  delays in access to the courts.  As far as the inmate was  concerned there
  was indeed a significant period of "indecision or protracted deliberation."  

       In espousing application of a strict construction rationale to the
  expungement remedy in  Directive 410.01(I)(2), the majority looks to cases
  in the area of municipal planning and  development that were decided under
  statutes that provide a time-sensitive remedy for indecision or  protracted
  deliberation on the part of municipal bodies.   

       In Glabach v. Sardelli, 132 Vt. 490, 321 A.2d 1 (1974), the Court
  addressed the issue of  whether the remedial provision of 24 V.S.A. §
  4470(a) is triggered when a board of adjustment  renders its decision at a
  meeting but does not notify the appellant of its decision within the
  forty-five  day period established by the statute. See 24 V.S.A. § 4470(a). 
  The Court held that "[o]nly when  both the decision and notification are
  made within the forty-five day period is the judgment  rendered."  Glabach,
  132 Vt. at 495, 321 A.2d  at 5.

       In Hinsdale v. Village of Essex Junction, 153 Vt. 618, 572 A.2d 925
  (1990), we reaffirmed the  Glabach holding but narrowed the rationale,
  holding that, because the purpose of the statute's notice  requirement was
  met when the board orally announced its decision to the plaintiff, the
  failure of the  board to mail plaintiff a written decision within the
  45-day time period prescribed by  § 4470(a), did not entitle him to the
  deemed-approval remedy.  "The decision in this case was  rendered within
  the statutory period; therefore, plaintiff is not entitled to the
  deemed-approval  remedy."  Id. 153 Vt. at 625, 572 A.2d  at 929. 

       In In re White, 155 Vt. 612, 587 A.2d 928 (1990), the Court considered
  a different statute, 24  V.S.A. § 4407(2) which states:  "[t]he board of
  adjustment shall act to approve or disapprove any  such requested
  conditional use within sixty days after the date of the final public
  hearing held under  this section, and failure to so act within such period
  shall be deemed approval."  Notwithstanding the  difference in the
  statutory language, the Court in White adhered to the Hinsdale mandate and
  held  there must be notice given in order to satisfy the statute and avoid
  the statutorily-imposed remedy.   Like Hinsdale, White received actual oral
  notice of the Board's decision, but claimed the oral  decision was not
  "final" until issued in writing.  We held that "once a board decision is
  'rendered' - i.e., the board has made a decision and communicated it to
  the applicant, as was done here - the  applicant is not entitled to the
  deemed-approval remedy."  In re White, 155 Vt. at 616, 587 A.2d  at  930
  (citing Hinsdale, 153 Vt. at 624-25, 572 A.2d at 928-29).

       These decisions all acknowledged the common sense requirement that
  claimants be in some  way informed of the decision in order to avoid the
  mandatory remedy for "indecision." 

       Then, in Leo's Motors, Inc. v. Town of Manchester, 158 Vt. 561, 564,
  613 A.2d 196, 199  (1992), we reevaluated our interpretation of § 4470(a)'s
  notice requirements in order to make  allowances for the "informality that
  often typifies municipal proceedings" and the desire that  "negligence or
  inadvertence of a municipal employee unrelated to the timeliness of the
  decisional  process ought not defeat the strong policies in favor of
  phasing out nonconforming uses."  In Leo's  Motors, Inc., the plaintiff
  failed to receive notice of the zoning board's decision within the
  statute's  45 day period because a municipal employee neglected to put the
  decision in the mail.  This Court  did not think it appropriate to award
  the mandatory deemed-approval remedy when the failure to 

 

  send a copy of the decision was inadvertent and not the result of any
  official policy or purpose to  withhold notice.

       On this record we don't know if the Superintendent's failure to notify
  the inmate was due to  inadvertence or negligence or whether it was
  deliberate.  That issue was never argued.  However, the  majority has
  accepted DOC's argument that it is official DOC policy that inmates are not
  entitled to  receive the superintendent's response to their appeals.  It
  would seem that this Court's allowances for  neglect or inadvertence would
  not be appropriate in the face of this policy.  

       The DOC directive at issue in this case is not as specific as the
  statute in Hinsdale.  Nor is the  directive as vague as § 4407(2) which
  merely requires the board to "act to approve or disapprove" the  action. 
  Instead, DOC Directive 410 commands that the Superintendent "respond" to
  the appeal - a  far more affirmative and specific requirement than that
  laid out in § 4407(2).  The Court's prior  interpretations of similar
  mandates requiring notice to claimants, should guide our interpretation of 
  the DOC Directive in this case.  I agree that, in an informal municipal
  proceeding, the important  public policy behind zoning laws should not be
  sacrificed to an inadvertent mistake by an employee  unrelated to the
  decision making process.  See Leo's Motors, 158 Vt. at 564, 613 A.2d  at
  199.   However, with no finding of inadvertence or negligence to explain
  the delay in "responding" to  inmate's appeal, and with the clear statement
  that DOC policy includes withholding that response, I  suggest that respect
  for inmate rights is what is being sacrificed under DOC policy.  The 
  expungement remedy becomes a myth. 

       The third rationale relied on by the majority is the meaning of the
  term "respond."  The  common meaning of "respond" cited by the majority is
  "to reply or answer."  No inmate can be more  confused than I to learn that
  the reply or answer can be whispered to the wind and still satisfy the 
  directive. 

       Rehabilitation of inmates takes many forms.  I assume that engendering
  respect for laws and  regulations is a major component of any
  rehabilitation objective.  And I suspect that simulation of  procedures of
  a free society within the walls of a prison is thought to advance the
  rehabilitative goals  of the institution.  This premise finds support in
  the creation of written policies and procedures  which govern various
  aspects of institutional life in our correctional facilities.  If
  rehabilitation  includes instilling a respect for the law and its
  requirements in those who have been imprisoned for  violating the law, then
  correctional policies and regulations that purport to give inmates
  expectations  of legal process and procedures should be meticulously
  adhered to by those who administer them. 

    Indeed, it is pressed upon us that the proceedings to ascertain
    and  sanction misconduct themselves play a major role in
    furthering the  institutional goal of modifying the behavior and
    value systems of prison  inmates sufficiently to permit them to
    live within the law when they are  released.

  Wolff v. McDonnell, 418 U.S. 539, 562-63 (1974).

       While the legislature may have created a mandatory expungement remedy
  to avoid indecision  and protracted deliberation in certain administrative
  procedures, there may be a broader,  rehabilitative intent behind the
  expungement remedy found in the DOC directive.  The DOC policies 

 
 
  and directives impose requirements on superintendents as well as on
  inmates.  The fact that there are  consequences for a superintendent who
  fails to comply with the DOC policies and directives  supports a conclusion
  that the DOC regulations are fair to all.  Common sense and the common 
  definition of the term "respond" are suspended in the DOC interpretation of
  the directive and our  decision to affirm.  This result can only impair
  rather than enhance the disciplinary process as a  rehabilitative tool. 
     
       As Justice Douglas noted in Wolff, "[e]very prisoner's liberty is, of
  course, circumscribed by  the very fact of his confinement, but his
  interest in the limited liberty left to him is then only the  more
  substantial."  418 U.S.  at 594 (Douglas, J. concurring).  Loveland had
  reasonable expectations  that the important procedural rights the DOC
  directive seems to grant him would be applied  rationally in his case, and,
  that if his jailers' interpretations of those rights was puzzling, that a
  court  of law would interpret the directive in a common sense manner.

       I dissent.  I am authorized to state that Justice Johnson joins this
  dissent.




  Dissenting:	                          BY THE COURT:


  ________________________________	  ______________________________________
  Marilyn S. Skoglund, Associate Justice  Jeffrey L. Amestoy, Chief Justice

  _________________________________	  ______________________________________
  Denise R. Johnson, Associate Justice	  John A. Dooley, Associate Justice

                                          ______________________________________
                                          James L. Morse, Associate Justice




--------------------------------------------------------------------------------
                                  Footnotes


FN1.  The dissent relies on the language of DOC directive 410.01(M) to show
  a compelling  indication of error because that section requires the
  superintendent to provide a copy of her decision  to the inmate within
  seventy-two hours.  This section supports our analysis because it does not 
  contain an expungement remedy; the expungement remedy is reserved for a
  failure to respond to the  appeal within the specified period.  By its
  placement in a separate section, the notice responsibility is  separate and
  not subject to the expungement remedy.

FN2.  The majority dismisses the significance of subsection M to our
  argument because it does not  contain an expungement remedy.  Whether or
  not this subsection contains an expungement remedy is  inconsequential to
  the obvious policy, evidenced by this subsection, of the DOC that inmates
  should  be made promptly aware of the Superintendent's final action in
  their appeals. 

FN3.  I take judicial notice of Directive 410.01 in its entirety - the
  directive relied on, in part, by both  parties in this appeal.  See V.R.E.
  201.