Sunday, July 23, 2017

You Can Bite This Apple Twice

"See that? Looks like a clerical error."
McLaughlin v. Pallito, 2017 VT 30

By Andrew Delaney

Most of the time, you only get one bite at the proverbial apple. I’ve always wondered about that phrase. Who doesn’t take more than one bite of an apple? I consulted the Google and the results are inconclusive—several folks think it’s a biblical Garden of Eden reference, a few think it’s a Snow White thing, and then there are some weird sexual theories out there. (Because aren’t there always?) This has nothing to do with this case. But I’ll be damned if I’m going to be the only one wasting time on this phrase.

The issue is this case is whether a prison superintendent can order a second hearing on a rule violation when the first hearing panel gives a not guilty based on a clerical error. SCOV says the second hearing is okay, which instinctively seems a bit strange, so let’s dig into it.

Mr. McLaughlin is a guest at state-subsidized housing—the kind very few people willingly live in. He got hit with a DOC charge—commonly referred to as a “D.R.”—for fighting. As is required in such cases, the prison held a hearing.

The abbreviated version of how the process works is as follows. First, the superintendent refers the charge to an investigating officer who wasn’t involved with the charging part. The investigating officer can refer the charge for resolution, amend the charge, or dismiss it.

If the charge is referred for resolution, then the superintendent has to designate a hearing officer. The hearing officer designates a presenting officer. The charged inmate gets twenty-four hours advance notice, and can have a hearing assistant (can’t be a lawyer). The hearing officer—after considering the hearing evidence—can go not guilty, guilty, or guilty of a lesser offense. The standard of proof is a preponderance of the evidence.

The disposition then gets sent to a three-member disciplinary committee appointed by the facility superintendent. This acts kind of like an appellate panel that considers whether a preponderance supports the hearing officer’s decision, whether the decision is procedurally sound, and whether any imposed sanctions are appropriate.

Finally, the disciplinary committee’s findings get sent to the superintendent who can do one of four things with them: (1) affirm the disciplinary committee’s decision; (2) reverse the decision, (3) order a new hearing; or (4) reduce sanctions.

What happened here is Mr. McLaughlin was accused of getting in a fight with another inmate. The reporting officer wrote that he received information that Mr. McLaughlin may have been in a fight the previous day. But then the report said that Mr. McLaughlin and the other inmate were seen coming out of the gym with apparent injuries the same day (that the officer received the information about the previous day’s fight).

Turns out the other inmate was moved into administrative segregation the day before the date of the fight in the report. So the hearing officer found Mr. McLaughlin not guilty because if the other dude was in ad-seg, then he couldn’t have been in a fight with Mr. McLaughlin the day before. The disciplinary panel agreed. The superintendent ordered a new hearing.

So the date in the report gets changed to the previous day and all of a sudden, Mr. McLaughlin is guilty and that gets upheld all the way up the chain. Mr. McLaughlin filed an internal appeal, and the superintendent affirmed. So Mr. McLaughlin went to superior court and tried to make a collateral-estoppel pitch. The superior court—on a summary judgment motion—found that the superintendent could order a new hearing and tossed the case.

Mr. McLaughlin appeals.

Do we need to bother with the summary judgment standard? For our new readers: If there are no genuine issues of material fact when the available evidence is viewed in the light most favorable to the nonmoving party, and the moving party is entitled to judgment as a matter of law, well, then summary judgment is the thing to do.

Mr. McLaughlin’s pitch is that collateral estoppel bars the second hearing. The majority notes that five things need to be present for collateral estoppel to preclude a claim: “(1) it is asserted against one who was a party in the prior action; (2) the same issue was raised in the prior action; (3) the issue was resolved by a final judgment on the merits; (4) there was a full and fair opportunity to litigate the issue in the prior action; and (5) its application is fair.”

But the majority isn’t even going to get to collateral estoppel here. First, the majority reasons—as did the trial court—that there was no preexisting final judgment in this case. And so, the majority frames the issue as “whether the superintendent could order a new hearing under the circumstances of the case.”

There was an affidavit from a DOC hearing officer which more or less said, “the not guilty resulted from an obvious, though missed, clerical error, and that’s why the superintendent ordered a new hearing.”

Mr. McLaughlin argues that there was no new evidence to justify ordering a new hearing. The majority disagrees, opining that the amended incident report was, in fact, new evidence.

Though there’s nothing in the disciplinary procedure that specifies grounds for ordering a new hearing, the majority reasons that an adjudicative body has inherent power to correct clerical mistakes and points to Rule 60(a) which specifically provides that a clerical mistake can be a ground for a new hearing.

And so the majority affirms.

Justice Robinson dissents. She points out that there’s nothing that specifically authorizes this kind of new hearing in the rules and there’s a further implied limit on the superintendent’s authority. The superintendent in the first instance—according to the rules—can’t find the inmate guilty of a more serious offense or impose a harsher sanction than that recommended by the disciplinary committee. A new hearing and a guilty finding are certainly a harsher sanction.

Justice Robinson points out that essentially, the superintendent can order a new hearing any time in order to get the desired result based on a claimed clerical error. It gives no meaning to the process. In other words, there can be new hearing after new hearing until the inmate gets his goose cooked just how the superintendent likes it. And that ain’t fair.

The superintendent didn’t identify any procedural irregularity. He just didn’t like the decision so he ordered a new hearing.

The majority’s reasoning doesn’t make sense. Justice Robinson notes: “An appellate court would not remand a judgment because it concluded that the plaintiff or prosecutor made a mistake in its complaint or charging document, that the trial court erred in relying on the mistaken proffer, and that the plaintiff or prosecutor should have an opportunity to revise the document and retry a defendant.”

What do you think? I, for one, am inclined to agree with Justice Robinson. Please discuss in the comment section.

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