Saturday, April 8, 2017

Use it or lose it

Pratt v. Pallito, 2017 VT 22

By Andrew Delaney

In appellate procedure, an issue not raised below becomes the proverbial snowball in hell. This is a constant. There’s the rare exception for clear error and manifest injustice, but for the most part, the phrase “an issue raised for the first time on appeal” is the death knell for an appellate argument. I think of Rule 75 petitions as (more or less) appeals of administrative proceedings.

This case deals with whether a petitioner can challenge a Department of Corrections’ (DOC) disciplinary conviction in the trial court on grounds not preserved in the DOC proceedings. The SCOV says “Nope.”

Disciplinary convictions in the DOC system follow a step-by-step path. When an inmate is charged with violating a rule, a hearing officer holds a hearing on the alleged rule violation. If the violation is upheld, a report is submitted to the Disciplinary Committee, which reviews the hearing officer’s decision. Then it goes to the Superintendent for review. Then the decision goes to the inmate. The inmate has a week to appeal. The Superintendent has to specifically address all appeal issues raised by the inmate in the appeal. After that, an inmate can challenge the conviction in the superior court, civil division with a Rule 75 petition.

What happened here is that a correctional officer ordered Mr. Pratt to move from a bed, supposedly multiple times, and Mr. Pratt allegedly refused. Mr. Pratt was charged with a violation for interfering with the orderly running of the facility. The hearing officer found him guilty. The Disciplinary Committee and the Superintendent upheld the decision.

Mr. Pratt appealed to the Superintendent, arguing that his hearing was untimely. The Superintendent rejected the argument and upheld the conviction. So Mr. Pratt filed a petition in the trial court on the untimely-hearing grounds. Then a lawyer stepped in for Mr. Pratt and filed an amended petition arguing only insufficient evidence.

Mr. Pratt then moved for summary judgment, arguing that the violation he was charged with was only to be used when no other rule applied and that his conduct fell under another rule. DOC also moved for summary judgment, arguing that there was sufficient evidence to support the conviction. The trial court denied both motions on the grounds that there were material facts in dispute as to what violation it was (or wasn’t).

DOC then moved to dismiss, arguing that petitioner hadn’t exhausted his administrative remedies (exhausting admin remedies is a requirement to proceed on the Rule 75 petition). DOC argued that only timeliness was appealed to the Superintendent, so the insufficient-evidence argument wasn’t properly before the court and the court lacked subject-matter jurisdiction. The trial court agreed and dismissed the petition on grounds that petitioner hadn’t exhausted all his administrative remedies.

Mr. Pratt appeals.

He argues that he followed all the DOC processes and that this is an issue of preservation rather than exhaustion. He argues that to the extent he didn’t preserve his insufficient-evidence-and-wrong-rule arguments, that shouldn’t bar review at the trial-court level. DOC says that exhaustion bars Mr. Pratt from raising an issue for the first time before the trial court and that exhaustion is a jurisdictional requirement.

The SCOV reviews a dismissal for lack of subject-matter jurisdiction de novo, with everything taken in the light most favorable to the non-moving party. Sounds nice, but it doesn’t help Mr. Pratt a whole lot.

The SCOV does agree with Mr. Pratt that this is more about preservation than exhaustion. But it concludes that without the issue being preserved below, the trial court didn’t have authority to hear the unpreserved issue. And none of Mr. Pratt’s preservation-shouldn’t-have-been-required-here arguments get any traction.

“Exhaustion” means that all the available administrative procedures must have been followed before filing in court. “Preservation” means that the issues a party seeks to raise in the trial court—which in this context acts more like an appellate court—must have been raised below. Both requirements need to be met.

I think judicial economy is the best explanation for these requirements (if you recall, there are two correct answers when it comes to law: “it depends” and “judicial economy”). First, the administrative agency needs an opportunity to hear the issue and develop a record for review—this is why exhaustion is required. Second, the agency needs an opportunity to consider all the applicable grounds before it gets second-guessed by a reviewer. You can’t “Matlock” procedure. This is why preservation is required. In both cases, it ensures smoother operating of the judicial machine, i.e., judicial economy.

The SCOV notes that petitioner did exhaust his administrative remedies. But he failed to preserve his arguments.

Mr. Pratt tries to argue that the trial court could review for plain error, which is allowed under the Rules of Criminal Procedure. The SCOV rejects the argument, reasoning that this a civil case, not subject to the criminal rules.

The SCOV also rejects Mr. Pratt’s inmates-don’t-get-legal-help-in-the-disciplinary-appeal-process-so-preservation-shouldn’t-be-required argument. The SCOV notes that the DOC rules authorize inmates to get in touch with the Prisoners’ Rights to get help with their disciplinary conviction appeals.

Finally, the SCOV rejects Mr. Pratt’s argument that by participating in the summary-judgment proceedings below, the State lost its opportunity to raise the lack-of-preservation issue. The summary-judgment proceedings weren’t a substitute for preservation at the administrative level.

So the SCOV affirms.

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