Laflam v. Rutland Probation and Parole, No. 423-7-14 Wncv (Teachout, J., June 24, 2015)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text 

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket # 423-7-14 Wncv

CHRISTOPHER J. LAFLAM

v.

RUTLAND PROBATION AND PAROLE

DECISION AND ORDER

A court trial was held on February 2, 2015. Petitioner was present and 

represented by Attorney Seth E. Lipschutz. Respondent was represented by Attorney 

Robert M. LaRose. Evidence was admitted. Following the hearing, Attorney LaRose 

submitted an audio recording of the furlough revocation hearing that is the basis of this 

case. A status conference was held on May 18, 2015 to discuss with the parties certain 

procedural and legal issues that arose in the course of preparing a ruling, after which the 

parties were given a chance to submit further briefing.

Petitioner is an inmate currently in the custody and care of the Commissioner of 

the Department of Corrections. He was placed in the community on furlough, and his 

furlough was revoked at a furlough revocation hearing held in May of 2014. Petitioner 

claims that there was insufficient factual evidence to support revocation of furlough. 

FACTS

While Petitioner was on furlough from jail living at his grandmother’s house, an 

approved residence, he was mowing the lawn when he was attacked by disturbed bees 

who stung him numerous times. He had a significant allergic reaction over the next few 

days and became extremely swollen and impaired. He stayed in contact with his 

probation officer, with whom he discussed the need for getting medical attention and who 

supported such attention. When he went to pick up prescription medication on May 15, 

2014, he did not contact his probation officer in advance to get specific permission for 

being away from the residence. His probation officer stopped at his grandmother’s home 

and learned that he had gone to the pharmacy to pick up medication. He was not 

authorized to be away from his home at that time.

On Saturday, May 17, 2014, Vergennes police officers went to his grandmother’s 

home and found him in an excited, delirious state of mind. His grandmother gave the 

officers permission to search the house. On a high shelf, they found drug paraphernalia, 
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including empty heroin bags and a burned spoon. Mr. LaFlam testified at the hearing that 

those items must have been left over from some past time, that he had not used drugs 

while on furlough, although he had done so in the past, but that he had never used a 

spoon, and that he had specifically refused to take pain medication for the bee stings 

because he did not want to fail a urine test. As a result of the home visit, the Department 

terminated approval of his grandmother’s residence. Three days later he was returned to 

jail. 

At a furlough revocation hearing held on May 25, 2014, he was charged with 

three violations: being out of bounds, use of drugs, and loss of residence. After hearing 

the evidence, the hearing officer found him in violation by being out of bounds and losing 

an approved residence. He was not found guilty of use of drugs.

ANALYSIS

Mr. LaFlam argues that his probation officer had previously supported medical 

attention for his bee sting reaction, and that he should not have been violated for going to 

the pharmacy to pick up medication for that condition. At the hearing, Mr. LaFlam

admitted that he did not have permission to be away from his home at the time he went to 

pick up his medication. The record shows that he was not immediately violated for that 

alone. The hearing officer explained that, although it was a violation, it most likely was 

not, by itself, a significant reason to support return to jail.

The other violation was loss of residence, which apparently was predicated on the 

use of drugs for which he was found not guilty. He argues that his delirium was 

consistent with the effects of his allergic reaction, and that since he was not found to have 

used drugs, he should not have lost his residence and been returned to prison. The 

hearing officer stated that approval or nonapproval of a residence is entirely within the 

discretion of the Department of Corrections, which need not prove a reason to either 

withhold or terminate approval of a residence, and that since his residence was no longer 

approved after the discovery of the drug paraphernalia, there were proper grounds for 

revocation based on loss of residence alone.

The parties disagree about the standard of review. The State argues that the 

“some evidence” rule that applies to ordinary disciplinary cases similarly applies to a 

furlough revocation hearing. See King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt. 220

(explaining that a decision from an inmate disciplinary hearing must be supported by 

“some evidence”). Mr. LaFlam argues that a clearly erroneous standard applies. The 

Vermont Supreme Court has not ruled on what standard applies in a case like this and the 

court will not attempt to resolve that matter now.

The DOC’s furlough violation directive recognizes that modern furlough has due 

process implications. See generally, e.g., Young v. Harper, 520 U.S. 143 (1997) (ruling 

that Oklahoma’s conditional release program is sufficiently similar to traditional parole 

that it is subject to the due process protections applicable to parole as described in 

Morrissey v. Brewer, 408 U.S. 471 (1972)); see also Directive #410.02, Policy (“The 
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Department is responsible for providing due process procedures in each case where the 

offender is incarcerated.”). Accordingly, at a due process hearing, a hearing officer 

determines by a preponderance of the evidence whether the inmate “violated a condition 

or conditions of . . . furlough.” Directive #410.02, Procedural Guidelines § 1(a). Based 

on all of the evidence presented, the hearing officer finds the inmate guilty or not guilty 

of the charged violation. Id. § 5(d). If guilty, the hearing officer does not determine a 

sanction. The case is referred for a case staffing to determine what incarceration may be 

required and any requirements that the inmate must satisfy prior to release on furlough 

again. Id. §§ 5(f) (referral for case staffing), 11 (case staffing process). The inmate has 

the right to appeal the determination of guilt, id. § 6, and a separate right to grieve the 

resulting case staffing, id. § 11(b).

In Mr. LaFlam’s case, he admitted being out of bounds and that, according to the 

hearing officer, would not have been likely to result in a return to jail absent other 

violations. He was not found guilty of using drugs.

With regard to the loss of residence violation, the hearing officer made clear that 

the only issue was whether the approval for the residence had been withdrawn, not 

whether there was any reasonable basis for the approval to have been withdrawn. He 

stated that the DOC has complete discretion to approve a residence and complete 

discretion to un-approve a residence. He treated residence approval as a furlough 

condition and found Mr. LaFlam guilty of violating that condition when the DOC unapproved the residence.

Framing the issue in this manner, of course, made the due process hearing a 

pointless exercise. A furlough “violation” predicated on the DOC’s exercise of its own 

unbounded discretion leaves nothing for the inmate to challenge at the due process 

hearing and, in effect, gives the DOC unfettered discretion to determine that any 

furloughee is in violation of furlough conditions at any time merely by declaring that 

approval of a residence is withdrawn, without having to prove any conduct on the part of 

the furloughee. That leaves nothing for due process to protect and is inconsistent with the 

rights recognized in Young v. Harper, 520 U.S. 143 (1997), Morrissey v. Brewer, 408 

U.S. 471 (1972)), and the evident intent of Directive # 410.02 itself.

The hearing officer’s determination of guilt on the loss of residence charge is 

error as a matter of law. It was not based on a finding of conduct of Mr. LaFlam.1 

The DOC argues that any such error is harmless because the DOC had good 

reason to case staff Mr. LaFlam in any event because of the undisputed out-of-bounds 

violation. However, the case staffing that occurred necessarily was predicated on the 

furlough violations that were found, which included loss of residence. If Mr. LaFlam had 

been found guilty of conduct that was in violation of a furlough condition and justifiably 

 

1 The Department argues that there were filled-out checks from a closed account at the residence and 

that an officer at the house expressed some concern for the grandmother’s safety, but there was no 

finding about these circumstances and specifically no finding that they involved conduct on Mr. 

LaFlam’s part that justifiably resulted in loss of approval of the residence.
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triggered loss of residence, that would have a significant impact on case staffing analysis 

and outcome. He fact, he was not found guilty of any such conduct. The only violation 

in this case was the relatively innocuous one of having been out of bounds when he went 

for a prescription on May 15th , two days before the day of the home visit and delirium. 

He was not found guilty of any conduct that either occurred or was discovered on May 

17th. 

The court cannot conclude that the hearing officer’s error was harmless, as it 

would have had a significant impact on the decisions made at the case staffing. 

ORDER

The hearing officer’s determination is vacated in total. This case is remanded for 

a new hearing consistent with Directive # 410.02.

Dated at Montpelier, Vermont, this __ day of June 2015. 

Honorable Mary Miles Teachout

Superior Court Judge