Kirkland v. Rutherford ( 2019 )

Kirkland v. Rutherford, 183-3-18 Wncv (Teachout, J., Mar. 21, 2019)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 183-3-18 Wncv
HIEHEEM KIRKLAND,
Petitioner
v.
JOSHUA RUTHERFORD,
Vermont Department of Corrections,
Respondent
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Hieheem Kirkland is an inmate in the custody of the Commissioner of the Vermont
Department of Corrections. A final hearing was held on February 14, 2019 on his petition for
Rule 75 Review of Governmental Action. He seeks expungement of a disciplinary conviction on
the grounds that he was not afforded due process because of the involvement of the Hearing
Officer in the incident. Mr. Kirkland was present and represented by Attorney Kelly Green. The
Respondent was represented by Attorney Andrew Gilbertson. The court heard evidence and oral
argument. Based on the credible evidence, the court makes the following Findings of Fact,
Conclusions of Law, and Order.
Findings of Fact
On February 6, 2018, an incident occurred in prison involving conduct of Mr. Kirkland at
the end of a recreation period. Officer Burdick, who was in charge of ending the recreation
period, says that Mr. Kirkland, who was slow to end his recreation activity, said to him, “I am
going to punch you square in the face.” Officer Burdick got on the telephone and called Officer
Bowman and informed him of what had just occurred. In a few moments, Officers Bowman and
Provencher arrived with shackles, put Mr. Kirkland in the shackles, and escorted him to
segregation pending a hearing on the disciplinary charge arising out of the incident.
The hearing on the disciplinary charge was held a few days later. Mr. Kirkland arrived
and was surprised to discover that Officer Provencher was the Hearing Officer. Mr. Kirkland
objected to Officer Provencher being the Hearing Officer and stated that he had a conflict
because he was part of the events involved in the disciplinary report. Officer Provencher said,
“Yes I can because I did not write the report.” The hearing was held. Mr. Kirkland did not deny
making the statement but contended that it was addressed to another inmate and not Officer
Burdick. Officer Provencher found Mr. Kirkland guilty of the disciplinary charge.
Procedural rules for prison disciplinary hearings are found in Directive 410.01 effective
May 1, 2012 entitled “Facility Rules and Inmate Discipline.” (Exhibit B) These rules define a
Hearing Officer as “A person designated by the Commissioner of Corrections and assigned by
the Superintendent or designee to conduct administrative due process hearings.” Directive
410.01, Definitions at 4. The Rules do not specifically state that a person who had some
involvement or knowledge of the underlying incident cannot serve as a Hearing Officer. In
addition to the statement just quoted that the Hearing Officer is to conduct “due process
hearings,” they do state that:
—“The Hearing Officer may only assign as “Presenting Officer an employee who was
not involved in the violation incident.” Directive 410.01, Procedural Guidelines ¶ 5(e) at 10.
—“The Hearing Officer will conduct the hearing in a professional and fair manner.”
Directive 410.01, Procedural Guidelines ¶ 5(f)(ii) at 11.
The evidence gives rise to a strong inference that when Officer Burdick called Officer
Bowman to report the incident, and then Officers Bowman and Provencher were immediately
dispatched to escort Mr. Kirkland to segregation, Officer Provencher heard from Officer
Bowman about the reason for escorting Mr. Kirkland to segregation. In other words, he heard
Officer Burdick’s version of what had occurred through Officer Bowman. It is telling that when
Mr. Kirkland objected at the hearing to Officer Provencher serving as Hearing Officer, Officer
Provencher did not deny that he had heard about the incident at the time it occurred. Rather, he
relied on the explanation that he had not been the one to write the report. It is difficult to
conclude that Officer Provencher would have no understanding at all why he was escorting Mr.
Kirkland to segregation.
The evidence supports the finding of fact that Officer Provencher learned of Officer
Burdick’s version of what had occurred immediately after the incident as part of his involvement
in being one of the officers to escort Mr. Kirkland to segregation.
Conclusions of Law
The parties do not disagree that Mr. Kirkland’s due process rights entitled him to a fair
hearing, and that a fair hearing included an impartial decision maker. They disagree as to
whether Mr. Provencher’s involvement in the underlying events was sufficient to disqualify him
as an impartial decision maker. The court has considered the parties’ arguments and reviewed
the available caselaw.1 Decisions vary and tend to depend on the specific facts of each case.
1
The State’s citations to cases in the prison setting were limited to unpublished decisions in
courts of the federal Second Circuit. The court reviewed the cited cases but wishes to emphasize
that it reviewed caselaw in the prison context available from jurisdictions nationwide. “In
reviewing federal constitutional questions, ‘we place ourselves in the position of a federal court
of appeals.’ In so doing, we, ‘for prudential and policy reasons, . . . give due respect to the
decisions of the lower federal courts,’ as significant persuasive authority, keeping in mind the
desirability of ‘uniformity of result in same geographical area,’ ‘harmonious federal–state
relationships,’ and ‘judicial comity.’ Ultimately, however, we must undertake our own
independent analysis, considering the opinions of the Second Circuit and other lower federal
courts as potentially persuasive, but not binding.” Hallsmith v. City of Montpelier, 2015 VT 83,
¶ 25 n.10, 199 Vt. 488 (citations omitted).
2
One treatise has summarized the case law as follows:
One rather egregious example of a lack of the appearance of impartiality occurred
when the hearing examiner was the father of the prison guard who made the
accusations and where the charge rested on whether the guard or the prisoner was
the more credible person. One court has extended the analysis of these cases to
include not only persons intimately involved in the investigatory and accusatory
stages but also their immediate inferiors; although another has held that while in
some circumstances, the nature of one’s position or the relationship between that
position and the outcome of adjudications disqualifies a person from serving with
the impartiality mandated by the Due Process Clause, the fact that decision-maker
has responsibilities to uphold standards of conduct does not inevitably mean that
he is disqualified from adjudicating allegations that those standards have been
breached. In instances where strong personal animosity exists between a prisoner
and a prison official, the latter should not serve on that inmate’s disciplinary
committee. In short, most courts seem to agree that inmates are entitled to a fair
and impartial decision-maker who has had no direct personal involvement in the
incident that is the subject of the hearing, although not all courts agree on the
dividing line between what is fair and impartial and what is not.
2 Michael B. Mushlin, Rights of Prisoners § 10:47 (5th ed.) (footnotes omitted).
The court acknowledges the caselaw emphasizing that the administrative adjudicators of
prison disciplinary actions should not be held to the same level of impartiality one would
reasonably expect in a court of law. See, e.g., Eads v. Hanks, 280 F.3d 728, 729 (7th Cir. 2002)
(noting that “[t]he requirements of due process are considerably relaxed in the setting of prison
discipline”). The court also acknowledges, however, the venerable maxim that “justice must
satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954).
On balance, in this case, the court is persuaded that the circumstances weigh in favor of
the conclusion that Officer Provencher should have been disqualified as Mr. Kirkland’s hearing
officer. The administrative decision maker in this case was not an otherwise impartial panel for
which Officer Provencher was but one member. Officer Provencher was the sole finder of fact.
He was not uninvolved in the underlying events. He may not have been present when the alleged
threat was asserted, but he was part of the team that was advised about the event and the need to
respond to it, and he participated in that response. Obviously, that response would have been
unnecessary without some prevailing belief that the event in fact had occurred and necessitated a
response, and the response was undertaken immediately when, one may infer, emotions may still
have been high. By contrast, there was no evidence presented to the effect that Mr. Provencher
nevertheless was, or could have appeared to be, a reasonably impartial hearing officer, or that
there would have been any difficulty having someone else who truly was uninvolved serving as
hearing officer.
This violation, however, does not counsel in favor of the result that Mr. Kirkland seeks,
which is expungement. The conclusion that he was entitled to a hearing officer who had no
involvement in the circumstances does not mean that he should be cleared of the original charge.
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The case instead should be remanded for a new hearing before a different hearing officer
consistent with this decision.
ORDER
For the foregoing reasons, the conviction for a disciplinary violation is vacated. The
matter is remanded to the Department of Corrections for a new hearing.
Dated at Montpelier, Vermont this ____ day of March 2019.
_____________________________
Mary Miles Teachout
Superior Judge
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