Andres v. Gold, No. S0986-03 CnC (Katz, J., Oct. 2 9, 2003)

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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 alc ohol. Andres challenges the hearing revoking his furlough on due process gr ounds. Based on the evidence apparent in the record and two hearings co ncerning Andres’s admitted alcohol use while on furlough, we deny the challenge.

Andres’s due process must be analyzed within the c ontext of a prison environment which necessarily limits many pr ivileges. Conway v. Cumming , 161 Vt. 113, 115 (1993). His furloughed status i s characterizedas more of a particular right or status within an i nstitution rather than as a

parolee. Id . at 116. As such, its revocation is only due a mi nimal amount of due process if any at all. Id . at 118 (finding no direct Constitutional or statutory liberty interest in the revocation of fur lough). The amount of process Andres received, however, is not an issue s ince the Department of Corrections did hold a hearing prior to revoking An dres’s furlough and did not revoke the furlough in an arbitrary manner. Si nce strict proscription of alcohol use is one of the major terms of his furlou gh, Andres’s only challenge can be to the factual support for the Dep artment’s findings. See Conway , 161 at 116 (upholding the revocation of a furloug h based on a violation of a term of the furlough); Parker v. Gor czyk , 170 Vt. 263, 269– 70 (1999) (noting that the Commissioner has the sta tutory power to promulgate the standards for furlough).

While the proper promulgation of Department “direc tives” 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 onl y to review the record from that hearing for “some evidence” of a violatio n of the terms. LaFaso

v. Patrissi , 161 Vt. 46, 51 (1993) (discussing the “some evide nce” rule established in Superintendent v. Hill , 472 U.S. 445 (1985)). In Andres’s case, there are several sources to support the find ing of alcohol use. During the hearing Andres admitted using alcohol while on furlough. Evidence from Corrections Officers supported this. They rep orted 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 i nitially identify Andres, he very clearly reported that Andres was, in retros pect, 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 pro vide some evidence forthe finding that Andres was using alcohol. That fi nding in turn supports the

conclusion of the Department to revoke Andres’s fur lough.

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

Dated at Burlington, Vermont________________, 2003

.

________________________ Judge