Relation v. Vermont Parole Board

Annotate this Case
RELATION_V_VT_PAROLE_BOARD.94-163; 163 Vt 534; 660 A.2d 318

[Filed 14-Apr-1995]

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. 94-163


Ralph Relation                                    Supreme Court

                                                  On Appeal from
    v.                                            Washington Superior Court

Vermont Parole Board and Its                      November Term, 1994
Members: Alice Hafner, Lorraine
Graham, Ernest Torpey, Arthur
Silvester and Elaine Charboneau


Alan W. Cheever, J.

Robert Appel, Defender General, and Judith A. Ianelli, Prisoners' Rights
Office, Montpelier, for plaintiff-appellant 


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


     JOHNSON, J.   Today, we hold that Article 10, Chapter 1 of the Vermont
Constitution protects the liberty interest of the parolee by requiring the
State to establish a parole violation by a preponderance of the evidence
prior to revoking parole.  Because the superior court upheld the substantial
evidence standard for parole revocation in 28 V.S.A.  552(b)(2), we
reverse. 

     Plaintiff was convicted of petty larceny and possession of stolen
property in May 1991 and was sentenced to a term of six months to four years.
 In March 1992, he was paroled by the Vermont Parole Board.  Plaintiff's
parole officer filed a request for violation of plaintiff's parole conditions
in January 1993.  The Parole Board found by substantial evidence that
plaintiff had violated five conditions of parole, and then revoked parole. 
Plaintiff was incarcerated. 

     Plaintiff filed a declaratory action in superior court challenging the
substantial evidence standard in 28 V.S.A.  552(b)(2) under Article 10,
Chapter 1 of the Vermont Constitution. He maintained that the substantial
evidence standard allowed the Parole Board to find a violation of parole on
less than a preponderance of the evidence and thus violated his state
constitutional 

 

due process rights.  The superior court held that the State's interest in
swift administrative proceedings for parole violations outweighed the risk of
unjust infringement of the parolee's liberty interest.  It therefore
concluded that the standard in  552(b)(2) does not offend Article 10. 
Plaintiff appeals. 

     Section 552(b)(2) provides that "[i]f the alleged violation is
established by substantial evidence, the board may continue or revoke the
parole, or enter such other order as it determines to be necessary or
desirable."  The substantial evidence standard requires "that there be `such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.'"  Baxter v. Vermont Parole Bd., 145 Vt. 644, 647-48, 497 A.2d 362, 364 (1985) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)),
overruled on other grounds by Watker v. Vermont Parole Bd., 157 Vt. 72, 596 A.2d 1277 (1991).  Under this standard, a parolee may be found in violation
of parole conditions even though the State cannot prove the violation by a
preponderance of the evidence.  See In re Muzzy, 141 Vt. 463, 473, 449 A.2d 970, 974 (1982) (substantial evidence rule allows board to make findings on
less than preponderance of evidence).  Defendant maintains that this standard
violates Article 10, Chapter 1 of the Vermont Constitution, which, he claims,
requires that a parole violation be found by a preponderance of evidence
before parole may be revoked. 

     "The essence of parole is release from prison, before the completion of
sentence, on the condition that the prisoner abide by certain rules during
the balance of the sentence."  Morrissey v. Brewer, 408 U.S. 471, 477 (1972).
 If the prisoner violates a condition of this supervised community sentence,
however, the Parole Board may revoke parole and require the prisoner to serve
all or part of the sentence remaining within a correctional facility.  28
V.S.A.  371.  A parole revocation decision consists of two steps.  First,
there is a factual determination of whether the parolee has violated the
conditions of parole.  28 V.S.A.  552(b).  If the Board concludes that
there has been a violation, the second step is to determine whether a
revocation is warranted.  Id.  While the first step requires fact-finding,
the second step involves predictive 

 

and discretionary decisionmaking. Morrissey, 408 U.S. at 479-80; see 28
V.S.A.  552 (alleged parole violation must be established before Board may
consider revoking parole).  In this case, we are concerned with the State's
burden of proof at the first step of the proceeding, establishing the
violation of parole conditions. 

     Article 10 provides that no person may be justly deprived of liberty,
"except by the laws of the land."  "[L]aws of the land" is synonymous with
"due process of law."  State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 743
(1985).  We recently held that the due process clauses of both Article 10 and
the Fourteenth Amendment require the State to establish inmate disciplinary
infractions by a preponderance of the evidence prior to imposing punishment. 
LaFaso v. Patrissi, 161 Vt. 46, 54-55, 633 A.2d 695, 700 (1993).  In Lafaso,
we adopted the test of Mathews v. Elderidge, 424 U.S. 319, 335 (1976), under
both Article 10 and the Fourteenth Amendment to determine whether a
particular standard of proof satisfies due process in a particular
proceeding.  LaFaso, 161 Vt. at 51, 633 A.2d  at 698.  This test sets forth
several factors to consider in balancing the competing interests: (1) the
private interest affected by the state action, (2) the risk of erroneously
infringing on this interest under the applicable standard, (3) the
governmental interest in the procedure, and (4) the burden on the government
of imposing a higher standard.  Id. at 51-53, 633 A.2d  at 698-99. 

     The first factor to consider is the parolee's interest in continued
conditional liberty.  The liberty of the parolee "includes many of the core
values of unqualified liberty," including, subject to conditions, the freedom
to seek gainful employment and to be with family and friends. Morrissey, 408 U.S.  at 482.  Indeed, a parolee may be living substantially as others in the
community at the time of a revocation proceeding.  Id.  Although still under
sentence, the parolee has a strong interest in a just determination of the
violation of parole because termination of parole inflicts a "grievous loss"
on the parolee.  Id.  The parolee's interest in accurate fact- finding at a
parole revocation hearing is at least as great as the interest of the
prisoner in accurate fact-finding in a prison disciplinary proceeding.  See
LaFaso, 161 Vt. at 51, 633 A.2d  

 

at 698 (prisoner's interest in not being unjustly disciplined is highly
important interest with direct and indirect consequences). 

     Second, the risk of an erroneous deprivation of the parolee's
conditional liberty interest is significant under any standard less than a
preponderance of the evidence.  See LaFaso, 161 Vt. at 52, 633 A.2d  at 699
(holding there was significant risk of erroneous discipline of innocent
inmate under standard requiring less than preponderance of evidence).  In the
realm of fact- finding, the function of procedural protections is to minimize
the risk of erroneous decisions. Greenholtz v. Inmates of the Nebraska Penal
and Correctional Complex, 442 U.S. 1, 13 (1979).  "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."  LaFaso, 161 Vt. at 52, 633 A.2d  at 699.  Applying
any standard that calls for less than a preponderance of the evidence at this
fact-finding stage invites error; it allows the Board to revoke parole even
where the evidence indicates that it is more likely than not that there has
been no violation of conditions. 

     Third, the government has an undeniably strong interest "in being able
to return the individual to imprisonment without the burden of a new
adversary criminal trial" but only "if in fact he has failed to abide by the
conditions of his parole."  Morrissey, 408 U.S.  at 483.  The government has
no interest in revoking parole where the weight of evidence indicates there
has been no parole violation.  See id at 483-84.  Nor is the state's interest
in a summary proceeding in this context as compelling as it is in controlling
disruptive prisoners within the prison setting. Id. at 483.  Thus, the
state's interest in swiftness of the proceeding is not as strong as it was in
LaFaso. 

     Finally, imposing a preponderance-of-the-evidence standard to establish
a parole revocation will present little if any administrative burden on the
government.  The parolee is entitled to an opportunity to be heard and to
present witnesses, and has the right to confront and cross-examine witnesses,
unless good cause is shown to deny confrontation.  Morrissey, 471 U.S.  at 489.  It will require little if any change in the current procedure
to require that the findings be based on a preponderance of the evidence
rather than simply on substantial evidence. See LaFaso, 161 Vt. at 53, 633 A.2d  at 699 (higher standard will not impose undue hardship on State; any
burden created by need to produce additional evidence in close cases will be
offset by benefit to state and society of greater assurance that disciplinary
cases will be correctly decided).  As we noted in LaFaso, the preponderance
standard generally applies in administrative adjudications in Vermont.  Id.
at 54, 633 A.2d  at 700.  Moreover, most states use the
preponderance-of-the-evidence standard in parole revocation proceedings, W.
LaFave & J. Israel, Criminal Procedure  25.4, at 162 (1984). 

     "The touchstone of due process is protection of the individual against
arbitrary action of government."  Wolff v. McDonnell, 418 U.S. 539, 558
(1974).  Decisions appear arbitrary when the government may deprive an
individual of an important liberty interest based on findings made against
the weight of evidence.  Thus, both the State and the parolee have strong
interests in having parole violations "justified and based on an accurate
assessment of the facts." Id. at 561.  On balance, imposing the
preponderance-of-the-evidence standard will greatly reduce the risk of
erroneous parole violations while imposing minimal burden on the government. 
We therefore conclude that the substantial evidence standard in 28 V.S.A. 
552(b)(2) violates the due process rights protected by Article 10 and hold
that proof of a parole violation must be established by a preponderance of
the evidence.  Cf. In re Muzzy, 141 Vt. at 473, 449 A.2d  at 974 (substantial
evidence rule denies grievant due process because it allows board to make
findings on less than preponderance of evidence). 

     Reversed and remanded for the superior court to consider plaintiff's
requests for injunctive relief. 
                                        FOR THE COURT:


                                        _____________________________
                                        Associate Justice


-----------------------------------------------------------------------------
                              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. 94-163


Ralph Relation                                    Supreme Court

                                                  On Appeal from
    v.                                            Washington Superior Court

Vermont Parole Board and Its                      November Term, 1994
Members: Alice Hafner, Lorraine
Graham, Ernest Torpey, Arthur
Silvester and Elaine Charboneau


Alan W. Cheever, J.

Robert Appel, Defender General, and Judith A. Ianelli, Prisoners' Rights
Office, Montpelier, for plaintiff-appellant 



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


     MORSE, J., dissenting.   In this case, we have no record of the evidence
underlying the parole violation or the findings and conclusions of the Parole
Board.  We do not know whether the Board was convinced of Ralph Relation's
guilt "beyond a reasonable doubt," "by clear and convincing evidence," "by a
preponderance," or by some other standard of proof.  The predicate for this
action in superior court is merely the one word answer, "Yes," from the chair
of the Board, who is not lawyer, in answer to a defense lawyer's question,
"Does the Board interpret [`substantial evidence'] as less than a
preponderance?"  Defense counsel at the time he 

 

elicited the incriminating "Yes" even admitted, "[S]ubstantial evidence is a
very murky kind of term as I understand it and I don't really know what it
means."  Based on this, counsel for the parties entered into a stipulation
which in part stated: 

       In reaching its determination, the Board found that the alleged
       violations were established by substantial evidence.  The Board did
       not apply the standard of preponderance of the evidence.

The stipulation means little because a higher standard of proof than a
preponderance may have been satisfied. 

     I do not believe after reviewing the limited record that the Board
purposefully violates parolees on the basis that some suspicion of guilt is
tantamount to guilt -- despite its belief that the parolee is innocent of
wrongdoing.  The record does not demonstrate that the Board lives in Lewis
Carroll's "Wonderland" where up is down and the sentence precedes the trial. 

     There must have been confusion over semantics.  The statute governing
the board's role, 28 V.S.A.  552(b)(2), states: 

       If the alleged violation is established by substantial evidence, the
       board may continue or revoke the parole, or enter such other order
       as it determines to be necessary or desirable.

Baxter v. Vermont Parole Bd., the case the Board expressly followed in
deciding the parole violation here states: 

       A parole violation must be established by substantial evidence. .
       . . This requires that there be "`such relevant evidence as a
       reasonable mind might accept as adequate to support a
       conclusion.'". . . Unlike a criminal prosecution, a parole violation
       does not need to be established beyond a reasonable doubt.  "[A]ll
       that is required is that the evidence and facts reasonably
       demonstrate that the person's conduct has not been as good as
       required by the terms and conditions of the release."

145 Vt. 644, 647-48, 497 A.2d 362, 364-65 (1985) (citations omitted).  This
quotation may not 

 

a paragon of clarity, but it does not remotely suggest that the standard is
less than a preponderance of the evidence.  Less than a preponderance would
mean that a violation would be proved if the evidence and facts demonstrate
that the person's conduct has been better than required. 

     As pointed out in In re Muzzy, 141 Vt. 463, 470-71, 449 A.2d 970, 973
(1982), "substantial evidence" is a legal term of art that describes the
deferential standard of review used by an appellate tribunal.  The
"substantial evidence" test is decidedly not a burden of proof.  Section
552(b)(2) simply requires the Board to render its decisions to withstand
appellate scrutiny.  That statute is not unconstitutional merely because it
is silent on the burden of proof. 

    The burden of proof, preponderance of the evidence, means that the
evidence supports one outcome more than another.  Burdens of proof may be
greater than "more likely than not," such as "clear and convincing" and
"beyond a reasonable doubt," but a burden of proof that fixes liability at
less than "probability" is impossible. 

     To define liability on an "improbability" is unheard of --  more
arbitrary than "a flip of a coin."  If the Board does its business in such a
fashion, this record does not establish it.  The question by the public
defender and the simple "yes" by the Board's chair is hardly the foundation
needed to launch this lawsuit.  The record of the merits of the parol
violation hearing is indispensable to this action.  It is curiously absent. 
I would vacate the judgment. 


                                        James L. Morse, Associate Justice