Sunday, January 1, 2017

Calendar Magic

Barron v. Menard, 2016 VT 123

By Elizabeth Kruska

David Barron is a guest of the State at one of our fine penal institutions. Back in October of 2015, he was with a group of other guests being escorted to the facility’s kitchen. As the group walked past a certain employee, Mr. Barron became agitated and started making some threats. The alleged threats were sort of along the lines of, “You make sure he’s never around me. I’ll beat him up.” This came with a gleam in his eye and a clench to his fists.

Another corrections officer was with the group and overheard Mr. Barron. She reported him, and he was subject to disciplinary action. Disciplinary actions in the jails often work as a package deal. Mr. Barron not only got to go before a hearing panel, but he also got to move to a segregation unit within the facility.

In our hustle-and-bustle life, it’s probably tempting to think, “yes, I could stand to spend some time segregated from pretty much everyone for a few days.” And you’d be right. But you don’t really want to spend that time in the segregation unit of a jail. It’s loud. It can be violent. It’s full of already-pissed off people who are now even more pissed off because they’re in a worse part of a place that already is generally terrible.

Recognizing this, the Department of Corrections has a set of procedures that must be followed when someone is charged with a Disciplinary Report, or DR. First, if a report is filed an an inmate is put in segregation, or “seg,” there has to be an investigation done and completed within three business days. There has to be a hearing done within four business days.

What’s a business day?

Well, that’s kind of a good question. For starters, the first of these business days is the next full business day after the incident. So, here, the incident happened on Thursday, October 22. The first “business day” after that was Friday, October 23. It matters not whether the October 22 incident happened at 7 a.m. or at two minutes to midnight, Friday is the “next full business day” so that’s Day One.

Mr. Barron tried to argue that because his hearing happened on October 28 that it was untimely. SCOV disagrees and does a little bit of calendar math to figure out that October 28 was a Wednesday and was the fourth business day after the incident, so it was fine that it was held that day. The hearing happened at 8:00 p.m, which I’ll agree seems a little odd. But SCOV points out, quite rightly, that correctional facilities are the kinds of places that are open all the time. Kind of like 7-11, but we don’t really have those in Vermont, so maybe this analogy falls flat.

Mr. Barron also argued that the evidence was insufficient for the DR to be found against him at his hearing. SCOV is not persuaded by this, either. At the trial court level the State moved for summary judgment, which was granted. Summary judgment is appropriate for the moving party when, taken in the light most favorable to the nonmoving party, there is no genuine issue of material fact. This is a sentence many lawyers have said so many times they could sing it. Maybe in 4-part harmony. That would really add a little panache to the courtroom, I think.

A DOC sanction like the one here is an administrative action. Courts will not disturb an administrative action if there is some evidence in the record to support the agency’s finding. The issue here had to do with Mr. Barron’s alleged threatening behavior. To sustain a DR for threatening behavior, the facility has to prove that the person made verbal threats when he or she had the ability to carry them out or that the person made physical threats and entered another person’s personal space in an intimidating manner.

The correctional officer who was with the group when Mr. Barron made the statement about wanting to beat up a different person was able to say what she heard and what she observed about Mr. Barron and his behavior. The agency credited her statement, and this rises to the level of “some evidence” to support the finding of the DR.

So, SCOV affirms.

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