In Re: Scott Millette, No. S368-03 CnC (Katz, J., Jan. 23, 2004)



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STATE OF VERMONT                           SUPERIOR COURT
Chittenden County, ss.:                    Docket No. S368-03 CnC
                                                      S646-03 CnC
IN RE SCOTT MILLETTE

                                   ENTRY

      Petitioner and Department of Corrections (DOC) seek summary
judgment each in their own favor regarding petitioner’s challenge to DOC’s
revocation of petitioner’s pre-approved furlough. In form, this is the
second half of petitioner’s challenge and is particularly addressed to the
adequacy of his revocation hearing.

         Petitioner initially challenged his furlough revocation in 2002 and
was found to have a liberty interest in his pre-approved furlough status.
Millette v. Gorczyk, S0436-02 CnC (Teachout, J., Jun. 19, 2002). This led
to a hearing conducted by DOC, which concluded that the petitioner’s
furlough should be revoked. (Aff. Rick Danforth, July 30, 2003). While
there is some conflict over the notice petitioner was given for this hearing,
it is clear from the evidence of both parties that petitioner was given at least
24 hours notice prior to his hearing. (Pet. Resp. to Statement of Uncont.
Mat. Facts at ¶ 10) (noting that petitioner was given a note on June 27,
2003 and had a hearing on June 28, 2003 at 4pm). At the hearing, Officer
Danforth reviewed: the petitioner’s original relief from abuse order from
July, 2001; Julie Corey’s sworn affidavit describing the abuse petitioner
committed against her while he was on furlough; and the notice of
suspension of furlough given to the petitioner at the revocation of his
furlough in March, 2002. (Mot. for Summ. J. at 4). The hearing officer
also took live testimony from the petitioner’s caseworker, and a friend of
Julie Corey who testified for the petitioner. Id. Petitioner also introduced
the testimony of his mother, father, friends, and former employer by
telephone. Id. From this evidence, the hearing officer found that the
petitioner had violated his furlough and concluded that it should be
revoked. Id. at Attach. 1.

        Although petitioner complains that he was not given an accurate
notice of his hearing and that its location was inconvenient for his defense,
he cites to no case law and provides no support for his challenge. (Opp’n to
Mot. for Summ. J. at 4, 6). According to petitioner, he was originally told
that his hearing was to be on Sunday when in fact it occurred on Friday.
(Pet. Resp. to Statement of Uncont. Mat. Facts at ¶ 10). If this is true, there
appears to have been a communication mistake between DOC and
petitioner. The effect of the mistake, however, is dissipated by the fact that
petitioner did have notice of his hearing and time to prepare his defense.
The argument that such time was inadequate falls flat against petitioner’s
actual defense. Notwithstanding confusion over the time of the hearing,
petitioner conducted a strong defense that included several witnesses and
impeachment evidence against Corey’s affidavit. In the end petitioner had
at least a day’s notice to prepare for the hearing, the opportunity to call
witnesses, and a meaningful chance to respond. Petitioner’s complaint’s
about location and notice might trigger greater review in a criminal trial,
but this was an administrative hearing not subject to “the full panoply of
rights due a [criminal] defendant.” Morrissey v. Brewer, 408 U.S. 471, 480
(1982). Petitioner’s notice and the hearing’s location were sufficient. Any
mistakes committed by DOC personnel were harmless.
        Petitioner’s central challenge to the DOC’s decision boils down to
his inability to confront and cross-examine his main accuser Julie Corey.
Corey, who was petitioner’s original accuser, complained in an affidavit
that petitioner contacted her, despite conditions of his furlough restricting
such contact, and forced her to revoke her original accusations, after which
he punched her in the stomach. (Mot. for Summ. J. at 2–3). At petitioner’s
hearing, Corey’s affidavit was entered into evidence, but Corey did not
testify and was not subject to cross examination. Petitioner argues that the
due process framework in Morrissey requires that confrontation of adverse
witnesses be included. But as the section of Morrissey, that petitioner
quotes from, notes, the right to confront adverse witnesses is a conditional
one subject to the hearing officer’s discretion based on good cause. (Opp’n
to Mot. for Summ. J. at 2) (quoting Morrissey, 408 U.S. at 489). Even at
the level of criminal trial where this right is at its zenith, confrontation is far
from absolute and subject to reasonable limits. See State v. Muscari, 174
Vt. 101, 117 (2002) (rejecting defendant’s appeal based on limitations to
his ability to cross-exam at trial). In petitioner’s case, there were additional
consideration for the DOC.

       Despite the petitioner’s objections, DOC had good cause not to bring
Corey into the administrative hearing. In domestic cases with no contact
injunctions, DOC should be sensitive to abusers attempting to continue to
dominate their victims’ lives as by reeling them into drawn-out hearings.
The hearing officer’s decision not to bring Corey into the hearing reflected
the kind of restraint that Morrissey suggests. Neither Morrissey nor prior
case law provides any type of test for reviewing a hearing officer’s good
cause. Even petitioner does not directly challenge the basis for the hearing
officer’s decision but argues that he could have chosen differently. (Opp’n
to Mot. for Summ. J. at 5). Such speculation alone cannot fuel an
overturning of a hearing officer’s decision. Only some evidence is required
to affirm a hearing officer’s decision. Herring v. Gorczyk, 173 Vt. 240,
243 (2001) (citing Superintendent v. Hill, 472 U.S. 445 (1985)). As the
hearing officer had good reason to keep Corey out of the process, based on
the no contact injunction and the threat of subverting the hearing as a way
of further entangling the victim, we accept the hearing officer’s reasoning
as good cause for the exclusion of Corey from the hearing.

        Furthermore, petitioner fails to show any evidence that a cross-
examination of Corey would have presented any new evidence to the
hearing officer. At best, petitioner argues that he did not have the
opportunity to impeach Corey, but petitioner did exactly that when he
called Corey’s friend as a witness since she contradicted Corey’s statements
and raised questions about Corey’s credibility. (Mot. for Summ. J. at 4).
Substantively then, petitioner fails to demonstrate how his lack of confron-
tation adversely affected his hearing so as to rob him of due process.
        As this is also a rule 75 review of the hearing, we need only find
“some evidence” in the record to support the hearing officer’s final
determination. Herring v. Gorczyk, 173 Vt. at 243. That is to say, our
review is not to re-weigh the credibility of testimony and exhibits but rather
is to sift the evidence available to the hearing officer for some basis of
guilt. LaFaso v. Patrissi, 161 Vt. 46, 50 (1993). Given the strength of Julie
Corey’s affidavit as well as testimony provided by petitioner’s caseworker,
we find that there was enough evidence to support the hearing officer’s
findings. The evidence from these two sources alone suggest that petitioner
violated the terms of his furlough by inquiring about Corey and then
making contact with her. If believed, the two sources provide enough
evidence to support petitioner’s furlough revocation.

       Based on the foregoing, petitioner’s motion for summary judgment
is denied, and Department of Corrections’ is granted.
Dated at Burlington, Vermont________________, 20_______.



                              ________________________
                              Judge
