Andres v. Gold, No. S0986-03 CnC (Katz, J., Oct. 29, 2003)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                         SUPERIOR COURT
Chittenden County, ss.:                  Docket No. S0986-03 CnC

ANDRES

v.

GOLD



                                 ENTRY

       Petitioner, Robert Andres, was returned to prison after he was caught
violating the terms of his furlough by drinking alcohol. Andres challenges
the hearing revoking his furlough on due process grounds. Based on the
evidence apparent in the record and two hearings concerning Andres’s
admitted alcohol use while on furlough, we deny the challenge.

       Andres’s due process must be analyzed within the context of a
prison environment which necessarily limits many privileges. Conway v.
Cumming, 161 Vt. 113, 115 (1993). His furloughed status is characterized
as more of a particular right or status within an institution rather than as a
parolee. Id. at 116. As such, its revocation is only due a minimal amount
of due process if any at all. Id. at 118 (finding no direct Constitutional or
statutory liberty interest in the revocation of furlough). The amount of
process Andres received, however, is not an issue since the Department of
Corrections did hold a hearing prior to revoking Andres’s furlough and did
not revoke the furlough in an arbitrary manner. Since strict proscription of
alcohol use is one of the major terms of his furlough, Andres’s only
challenge can be to the factual support for the Department’s findings. See
Conway, 161 at 116 (upholding the revocation of a furlough based on a
violation of a term of the furlough); Parker v. Gorczyk, 170 Vt. 263, 269–
70 (1999) (noting that the Commissioner has the statutory power to
promulgate the standards for furlough).

        While the proper promulgation of Department “directives” is very
murky, strict proscription of alcohol by inmates or furloughees must be
within the authority of the Department even without a particular, properly
promulgated regulation. It is our purpose then only to review the record
from that hearing for “some evidence” of a violation of the terms. LaFaso
v. Patrissi, 161 Vt. 46, 51 (1993) (discussing the “some evidence” rule
established in Superintendent v. Hill, 472 U.S. 445 (1985)). In Andres’s
case, there are several sources to support the finding of alcohol use. During
the hearing Andres admitted using alcohol while on furlough. Evidence
from Corrections Officers supported this. They reported that Andres was
seen in a bar drinking, that he denied being Robert Andres, and that he fled
from the bar. Although Officer Decatur could not initially identify Andres,
he very clearly reported that Andres was, in retrospect, the person he
encountered in the bar. Later, he was picked up at home by officers who
found alcohol on his breath. All three sources provide some evidence for
the finding that Andres was using alcohol. That finding in turn supports the
conclusion of the Department to revoke Andres’s furlough.

       On that basis, Andres’s petition to challenge his revocation of
furlough is denied.

       Dated at Burlington, Vermont________________, 2003.



                                          ________________________
                                          Judge
