Warren E. Burger: We'll hear arguments next in Massachusetts Correctional Institution against Hill. Ms. Smith, I think you may proceed whenever you are ready.
Barbara A. H. Smith: Mr. Chief Justice and may it please the Court, the particular issues that we bring to this Court for review are whether the due process clause of the United States Constitution as held by the Supreme Judicial Court of Massachusetts requires judicial review of the sufficiency of the factual findings of the Prison Disciplinary Board when those findings form the basis for a loss of good time credits to inmates. Second, assuming that judicial review is required, whether the Constitution requires any greater scrutiny than inquiry into whether the decision is supported by some or any facts. The particular issues, however, I think implicate a much more fundamental and far-reaching issue, and that is the extent to which the Court will involve itself in the internal decisionmaking ability of prison administrators. This case concerns what I believe is a very central concern of the prison system and that is the ability of the administrators to maintain discipline within the system. This decision goes far beyond merely requiring certain procedural requirements of the disciplinary hearing, but indeed establishes the court as the ultimate fact finder in this area. To subject the internal determinations regarding discipline to judicial second-guessing will result in substantial disruption to the prison system, to unnecessary but increasing demands on the judiciary, and will result in minimal salutary benefit to the inmates. Now, the specific incidents which give rise to the instant case are as follows. I will be very brief. A guard on duty at a wing door into the yard at Walpole State Prison heard an inmate call out, "What's going on here"? The guard moved to a window in the door leading out to the yard, where he again heard the inmate call out, "What's going on here"? He peered out the window, observed a commotion, opened the door, and found the inmate bleeding from his mouth, with a puffed eye. He immediately observed three inmates jogging away down a closed-in walkway into the regular yard. Disciplinary reports issued and a hearing was held for each inmate. The reporting officer testified substantially as I have just described. However, in the hearing for innate Crawford... Hill... I'm sorry... the officer testified that a medic had told him that the injuries were consistent with the inmate having been beaten. Crawford testified that he knew nothing of the event and offered an affidavit from the injured inmate that Crawford had not been involved. Hill also testified that he knew nothing about the event. The Board found the inmates guilty and ordered loss of 100 days' good time credits. Hill and Crawford appealed to the Superintendent who affirmed the decision of the Disciplinary Board. By regulation, the Commissioner of Correction also reviews any loss of good time cases. The inmates then filed a pro se complaint in the Superior Court of Massachusetts, alleging that the evidence was insufficient to support the finding of the Disciplinary Board. The Superior Court, having reviewed the Disciplinary Board's findings, concluded that as a matter of law the Board's findings of guilty rested on no evidence constitutionally adequate to support the findings of the Board.
Speaker: May I ask, Ms. Smith, I gather that Massachusetts practice provides for this review in Superior Court, does it?
Barbara A. H. Smith: I believe it provides only as a result of the Supreme Judicial Court held in this case. Now, the Superintendent appealed the Superior Court Decision, alleging that there was no constitutional right to judicial review of this nature, of the sufficiency of the findings. The Supreme Judicial Court held that there is no statutory right of review in Massachusetts for issues of this nature, but that its reading of Wolff v. McDonnell, it felt, logically entitled an inmate to judicial review as a matter of constitutional law. Therefore, having reached this result, the Court construed Massachusetts law, particularly the certiorari aspect of Massachusetts law, as providing the appropriate vehicle for raising this constitutional claim; not that it was an independent statutory right, independent of the constitutional finding.
Speaker: How much of this is state law?
Barbara A. H. Smith: The decision, I don't believe, is state law at all. Throughout the opinion, the Supreme Judicial Court refers to this Court's decision in Wolff v. McDonnell, and they rule specifically and that was the issue presented to them, that it is the Constitution, the due process clause in the United States Constitution which mandates judicial review.
Speaker: So whether or not... I think you suggested the inmates have a constitutional or nonconstitutional claim in respect to a disciplinary hearing, they are not entitled to any judicial review--
Barbara A. H. Smith: Of the sufficiency of the evidence. Yes, Your Honor, that is our position.
Speaker: --When you say sufficiency, would that be... are you questioning the standard? Suppose there was absolutely no evidence in the record instead of what you had here.
Barbara A. H. Smith: Then I think, Your Honor, we'd got into a question of whether there is an arbitrary capricious denial of the inmates' liberty interest, which I believe is quite different from the court reviewing the weight, the credibility, the quantum of evidence upon which a Board makes its decision. And it is the latter that our court has said--
Speaker: In other words, you would concede that the law, whether it was... say, federal law... requires that there be some evidence in the record to support the finding of guilt.
Barbara A. H. Smith: --I believe that that is the scope of review where there is a claim of an arbitrary denial of a constitutionally protected right.
Speaker: And you would agree that the Constitution requires review to that extent?
Barbara A. H. Smith: Yes, I would, Your Honor.
Speaker: So your argument really is on the standard of whether it's sufficiency or just some evidence. That's your real bone of contention.
Barbara A. H. Smith: That is one bone of contention. The other bone of contention is whether the Constitution requires the reviewability in general. And I think it's very difficult to separate the question of reviewability in general from the question of scope of review, because many of the same factors inform the decision in both areas.
Speaker: Well, I thought you agreed with me that you did need reviewability in general in order to determine whether the decision was entirely arbitrary. How else could you ever know it was entirely arbitrary without some kind of judicial review?
Barbara A. H. Smith: Then I might rephrase it; reviewable only for arbitrary or capriciousness, but not reviewable for determination of sufficiency.
Speaker: But you do agree it's reviewable to that extent.
Barbara A. H. Smith: To that extent, yes.
Speaker: So you're not complaining there's no review at all.
Barbara A. H. Smith: No, Your Honor. But to a very limited extent is there any review.
Speaker: Which I think then boils down to the fact that you are disagreeing on the standard of review. That's the whole case.
Barbara A. H. Smith: That is certainly a large part of the case, Your Honor.
Speaker: Well, what else is there?
Barbara A. H. Smith: Your Honor, I don't think that we can pass over or just ignore the question of what is the constitutionally required general scope of reviewability. And I will move ahead in my argument, and I think the case of Ortwein v. Schwab points out what I mean here. In that case, a petitioner claimed that an order reducing his welfare benefits was not supported by reliable, probative, or substantive evidence. Now, judicial review was provided by the state there; however, a $25 filing fee precluded these indigent appellants from having access to the state-provided judicial review. This Court held that there was no due process violation. It held that due process did not require appellate review, that due process only requires a predetermination evidentiary hearing. And where procedural requirements are met, due process requires nothing more. Now, that case dealt with reviewability. It didn't limit itself to the standard that would be applied if someone alleged arbitrary and capriciousness. I think it is on all fours with the question that we are presenting here, and that the same reasoning that applies in Ortwein should be applied in the case at hand. Going back to, if I may, the reliance of the Supreme Judicial Court on the Wolf decision, I think it's entirely misplaced and reads much too much into that decision. In Wolff, this Court merely set out certain procedural requirements to be applied to disciplinary hearing, included advanced written notice of the charges, an opportunity to be heard, and to present evidence under certain circumstances, and a requirement that a written statement of the evidence and the reasons for the sanction be applied. The Court indicated that these protections were necessary to guarantee fundamental fairness. The Court never indicated that judicial review of the legal sufficiency of the evidence was an additional constitutionally necessary safeguard, or that there was a constitutionally required evidentiary standard.
Speaker: Is the standard to be applied a matter of procedural due process or substantive due process in your view?
Barbara A. H. Smith: Your Honor, I think it's a matter of procedural due process. I think the question is if a hearing has been held, there has been an opportunity to be heard, the hearing is conducted in a regular fashion as the Court indicated in Wolff, that is the end of the matter... unless there is an assertion with the burden of proof on the person making that assertion, that the decision was arbitrary and capricious. But there is no generalized, in a sense, appellate review of disciplinary findings.
Speaker: Well, whatever standard might be found applicable to this type of claim, whether it is, as you suggest, arbitrary and capricious or unsupported by substantial evidence, which I guess is the respondent, isn't the burden of proof on the prisoner in any case?
Barbara A. H. Smith: I don't believe it was, Your Honor, in this case. The court... the prisoner made the allegation there is insufficient evidence. The court reviewed the Disciplinary Board's finding and made its judgment that there was no constitutionally adequate evidence to support. I would think in the arbitrary and capricious considerations, the petitioner would have the burden of isolating some incident that would indicate some kind of arbitrary and capricious conduct, either that there is no evidence or that the Board acted in some type of non-impartial manner or in some type of bad faith. In this case, our court acknowledged that all the procedural requirements of Wolff had been met, that the decision was made in good faith.
Speaker: So part of your argument as to the nature of the right in question perhaps goes to where the burden of proof lies.
Barbara A. H. Smith: That is one of the considerations. Yes, Your Honor.
Speaker: Then do you or don't you think that the Constitution requires review of prison disciplinary decisions that are arbitrary? Does the Constitution require any judicial review in any case? I thought your point here was that--
Barbara A. H. Smith: I think that the Constitution would--
Speaker: --I thought one of your points was that the Constitution doesn't require any judicial review, no matter what the facts are.
Barbara A. H. Smith: --I don't think it does at this point. I don't believe this Court has ever held that it does. But--
Speaker: Well, I know, but is your submission that we should say that as long as prison officials go through the procedures, they're just not subject to judicial review?
Barbara A. H. Smith: --Yes.
Speaker: No matter what the evidence is?
Barbara A. H. Smith: But then it... that is my position. If the Court finds that there is some limited scope of judicial review, I suggest that that scope--
Speaker: You mean if we find that the Constitution requires some review.
Barbara A. H. Smith: --It would be limited to arbitrary and capricious conduct.
Speaker: What you describe as your position, which I take it is your front line position, to Justice White would not include our review, even for arbitrariness and Capriciousness.
Barbara A. H. Smith: Not the front line position I'm taking. Backup position-- I'd suggest that the SJC's reliance on the one sentence in Wolff which relates to the requirement of a written record does not give support to their finding. In that statement, the Court only indicated the possibility of saying perhaps even review by the court where fundamental constitutional rights had been abridged. This sentence simply doesn't support the proposition that the Constitution requires that every disciplinary hearing involving loss of good time credits be reviewed for the sufficiency of the evidence. Loss of good time credits does not involve the loss of a fundamental constitutional right, and in any event the court indicated the primary reason for the requirement of this statement was for its use in collateral administrative proceedings such as transfer decisions based on the incident or parole determinations. As I have already indicated in the Ortwein v. Schwab case, this Court has held that due process simply doesn't require a state to provide appellate review. Now, in other cases, the Court has specifically rejected the notion that mere entitlement to procedural protection in certain administrative hearings carries with it a concomitant right to judicial review of the sufficiency of the evidence in those hearings. And these determinations affect a broad range of interests, including the welfare benefit situation in Ortwein, the situation in court martials proceedings, and in particular the decisions within the deportation system, because the Court recognizes that the crux of due process is you get a fair hearing. And the Court has held that a fair hearing is not established by proving that the decision of the fact finders was wrong. In Tisi v. Todd, the Court specifically held that a wrong inference drawn from the evidence or if it is wrongly decided that evidence that has been introduced constituted legal evidence of a fact to be decided, the fact that these mistakes were made doesn't render that hearing unfair. And therefore, the Court in these areas has refused to grant review to the factual findings of the tribunals.
Speaker: Ms. Smith, may I interrupt again on the basic right to judicial review? You're quite correct that in Ortwein, the Court held there was no right to judicial review, but the basis for that was the premise, even in criminal cases, there is no right to judicial review. But that does not mean, as I understand the holding, that there's no right to review of the question whether the judgment was constitutionally permissive. It's not review of the basic merits of the case, but whether the judgment is void because it was not in conformity to the Constitution.
Barbara A. H. Smith: Doesn't that premise that there is a constitutional standard that disciplinary boards have to follow or have to meet in making their evidentiary decisions?
Speaker: It certainly does. But for years it was thought that the review on an evidentiary basis, a constitutional question would be whether there was some or any evidence, the Jackson v. Virginia standard... or the Thompson v. Louisville standard. Whether that's been modified by Jackson v. Virginia, I don't know. But surely, you're not contending that there is no proceeding in which the constitutional validity of the prison action can be looked at is required, are you?
Barbara A. H. Smith: I was looking only at review for evidentiary sufficiency, and I am saying there is no constitutional right to review of that narrow area.
Speaker: I see.
Barbara A. H. Smith: I'd just like to mention the Hewitt v. Helms decision in which this Court, involving the transfer of an inmate to administrative segregation resulting in a curtailment of liberty within the prison system, held that due process was satisfied if the inmate gets notices of the reasons for the hearing, an opportunity to be heard, and the decisionmaker reviews the evidence. There was no suggestion that there is an additional due process procedural requirement that judicial review of the legal sufficiency of the evidence upon which a transfer to decisions is based is an additional requirement of due process. Finally, in resolving the question of reviewability, I'd ask this Court to apply its traditional analysis and weigh the relative interest to the individual, to the state, and to balance the utility of judicial review against the burden that it would place upon the prison systems and indeed upon the courts. The due process clause is flexible and its scope depends on the context in which it is applied. This Court has already acknowledged in Wolff the critical need to impose swift discipline in the prison system to ensure the safety of the other inmates as well as the guards. The Court has already recognized that prison administrators have a better grasp of their domain than a reviewing judge. And the members of a disciplinary board have as a matter of everyday experience knowledge of the particular physical structure of the prison. To require judicial review of the sufficiency of the evidence is then going to require introduction of evidence of facts within the common knowledge of the disciplinary board. For example, the record in this case establishes only that the assault took place at the west wing guard gate, yard gate No. 1; that the inmates were observed right away, jogging away down the walkway; and that they were the only inmates in the chain link area. Now, as a hypothetical matter, it may well be that the physical structure of that area would render it impossible for any other inmates to have committed the offense. That physical structure is well known to the guards. They did not put that evidence into the record. But if we are going to have judicial review, we're going to have to expand the hearing so that we can introduce evidence--
Speaker: That situation, Ms. Smith, would be saved by the arbitrary and capricious standard, would it not, because I would think there you are not limited to just what... you know, what a reporter's transcript might show. You could come into the court proceeding and say this was done in the context of such and such.
Barbara A. H. Smith: --You could under those... but not under review for just sufficiency of the evidence. That would require building a record just for the purpose of educating the reviewing court to what is known to everyone else. We suggest that this would place unnecessary burden on the prison system, and any form of judicial review in general of the sufficiency of the evidence is going to place an enormous burden on the courts. Our statistics in 1980 show that disciplinary reports for major infractions were issued in 6,900-and-some cases. Now, full disciplinary--
Speaker: In Massachusetts?
Barbara A. H. Smith: --In Massachusetts alone. Full disciplinary hearings must be held on all these, and under the current decision every one of these hearings in which good time sanctions were applied would be automatically reviewable by the courts for the sufficiency of the evidence. I don't think I need belabor the burden that would place upon the court system.
Speaker: Let me ask one other question on the threshold question, whether there is any judicial review at all. The Solicitor General in his brief, page 8, says that the question whether the Constitution requires judicial review of the claim arises only when the applicable statutes would otherwise bar an aggrieved party from raising a claim in court. If, as in this case, a statute authorizes judicial review, there is no need to determine whether such review is constitutionally required. Then on page 9, he interprets the Supreme Judicial Court's holding as an interpretation of state statutes authorizing judicial review. Do you agree or disagree?
Barbara A. H. Smith: I disagree.
Speaker: You just think he's read the case incorrectly?
Barbara A. H. Smith: I think, unfortunately, he was not a party in the case below, does not know how the case went up to the Supreme Judicial Court, and seems to fail to recognize the fact that the Supreme Judicial Court in a footnote specifically said in this case there is no statutory right to review in Massachusetts. What the court did, I think what the Solicitor General's office misses, is that after finding a constitutional right to review, they construed existing Massachusetts law to accommodate that constitutional finding.
Speaker: The Solicitor General thought it was a civil action in the nature of certiorari.
Barbara A. H. Smith: It was originally brought as a civil action in the nature of a writ of habeas corpus ad testificandum. Well, that clearly wasn't making it. Even if it was brought as a writ of habeas corpus under Massachusetts law, that too would have been inappropriate because the remedy available was not immediate release, as is required by the state habeas corpus. Therefore, the court having decided that constitutional right to bring this action posited certiorari as the appropriate vehicle to accommodate the Constitution. They were not going to leave it, saying there's a constitutional right, but we in Massachusetts will not observe it.
Speaker: Certiorari is available in Massachusetts?
Barbara A. H. Smith: In Massachusetts, since the finding that there is a constitutional right to review. That is the procedural mechanism for asserting the right.
Speaker: In this case it could have been done?
Barbara A. H. Smith: In this case the court indicated that would be the proper way, and that they would treat this pro se complaint.
Speaker: You don't agree with that?
Barbara A. H. Smith: I don't... I do agree that if there is a constitutional right, the appropriate vehicle may well be certiorari.
Speaker: And certiorari only exists if there is a constitutional right.
Barbara A. H. Smith: That was the court's holding here, that certiorari... no one brought the action in the nature of certiorari, but that since there is a constitutional right, Massachusetts must provide some vehicle for asserting the right, and they indicated--
Speaker: What's the right, Ms. Smith?
Barbara A. H. Smith: --Constitutional right to judicial review.
Speaker: Footnote 3, as you have already told us, says there is no statutory right of review. Decisions of the Department of Correction are not reviewable on sites, your Massachusetts statute. But you are now telling us that there is, however, certiorari review at least in some limited way?
Barbara A. H. Smith: What I'm trying to do is explain the court's two footnotes. In the one, I think they correctly say there's no statutory right to review. In the other--
Speaker: Which one is the other?
Barbara A. H. Smith: --Footnote 2. They note that the actions were brought as writs of habeas corpus ad testificandum. They say that the actions should have been brought as civil actions in the nature of certiorari. Now, at page--
Speaker: Well, is there anything inconsistent between the two footnotes?
Barbara A. H. Smith: --No. Because there's no statutory right to review. It--
Speaker: But there is a common law of certiorari.
Barbara A. H. Smith: --Right. And if there's a constitutional right--
Speaker: Of a limited--
Barbara A. H. Smith: --nature.
Speaker: --And that nature is?
Barbara A. H. Smith: Limited to the finding that here we have the constitutional right to review.
Speaker: I see.
Barbara A. H. Smith: And I think that if you look at page 15 of their opinion in the Appendix to the certiorari, I think they make it quite clear that they are construing the existence of this vehicle to fit with their view... as they say, in view of our conclusion that inmates have a constitutional right to such review.
Speaker: Ms. Smith, the colloquy has left me a little bit confused. What do you say about the amicus briefs of the Government citing about Massachusetts law authorizes review of the decision of the Prison Disciplinary Board.
Barbara A. H. Smith: They misunderstand what the court decided in Hill. Massachusetts law does not independently, of the court's decision in Hill that there exists a constitutional right to review.
Speaker: May I ask this question? Supposing an inmate filed a piece of paper in a Massachusetts state court and labeled it common law writ of certiorari, in which he alleged that sanctions were imposed on him in a disciplinary proceeding at which no evidence was put before the trier of fact? Would he get review of that or not?
Barbara A. H. Smith: Since the Hill decision? Yes, Your Honor.
Speaker: No, no. Apart from... before the Hill decision. Would state law authorize the judge to consider those allegations?
Barbara A. H. Smith: Massachusetts law provides for extremely liberal construction of pro se prisoner/inmate complaints. I would say if the court construed that complaint as an allegation that he was arbitrarily and capriciously denied his liberty interest, that the court might well review it. However, that matter has never been litigated and our Supreme Judicial Court hasn't ruled on whether you can--
Speaker: But according to Footnote 2, it would review it pursuant to general law, chapter 249, Section 4, which is your common law writ of certiorari.
Barbara A. H. Smith: --But that defines a type of complaint. That does not provide a statutory right to review.
Speaker: But that is a statutory right.
Barbara A. H. Smith: Well, our Supreme Court said that there is no statutory right to review in the footnote that Justice Brennan--
Speaker: Tell me, Ms. Smith, is the common law writ under the statute a discretionary writ?
Barbara A. H. Smith: --I believe it is. I'm not absolutely certain. I believe it is. And it has since been abolished. But one can still bring actions in the nature of certiorari, nature of mandamus and so forth.
Speaker: How do you decide evidentiary questions? What if the man alleged that I got no hearing at all; they didn't follow the procedure specified by Wolff v. McDonnell in any respect. I was unconstitutionally deprived of my good time, earned good time. Could he bring that proceeding in your common law writ of certiorari, even apart from Hill?
Barbara A. H. Smith: I'm not sure that that would--
Speaker: I mean there is just no state remedy for a prisoner's claim that he was deprived of liberty without any--
Barbara A. H. Smith: --Well, we have a state civil rights statute, where if you make certain allegations about invidious action on the part of the police, that you might have that reviewed. But he certainly has access to the federal courts under the situation that you posit, either under 1983 or in some instances under federal habeas corpus. So the inmate is certainly not deprived of--
Speaker: --But you think it's a fair reading of the Massachusetts Supreme Court opinion that there's no federal remedy, I mean no state remedy? I sure don't read it that way.
Barbara A. H. Smith: --No, I don't say there is no state remedy. There is a state vehicle for raising the constitutional claim, that being I have a constitutional right to judicial review of the sufficiency of the evidence. And that is all that our court said. I see that my time is just about gone, and I would only on this question of the scope of review ask this Court to limit any scope to the general concerns of arbitrary and capricious. Thank you.
Warren E. Burger: Ms. Sabino.
Jamie Ann Sabino: Mr. Chief Justice and may it please the Court, I think it should be pointed out, what all parties agree with in this case; that in Massachusetts persons incarcerated do have a constitutionally protected liberty interest in their good time credits. And all parties seem to agree that an arbitrary and capricious denial of the liberty interest violates the due process clause of the United States Constitution. It is our contention and we believe the contention of the Massachusetts Supreme Judicial Court, that a decision which is not based on some evidence is that violation of due process, it is an arbitrary and capricious violation.
Speaker: We've never decided that before, I guess.
Jamie Ann Sabino: Excuse me?
Speaker: We have never decided that until today, I guess, or we wouldn't be here.
Jamie Ann Sabino: Oh, I would disagree, Your Honor. I would say there are decisions of this Court--
Speaker: Where have we decided?
Jamie Ann Sabino: --that indicate... I refer the Court specifically to some of the immigration decisions such as--
Speaker: Yes, but we've never... we've never had a holding to this effect in the context of prison disciplinary hearings.
Jamie Ann Sabino: --No, Your Honor. There has not been a holding in the context of prison disciplinary hearings. However, this Court has held in many cases that a denial of the liberty interest on charges that are unsupported by evidence is a denial of due process.
Speaker: In what context? Prison or immigration--
Jamie Ann Sabino: That was in a deportation case, Your Honor, United States--
Speaker: --Well, that's quite a different matter, isn't it?
Jamie Ann Sabino: --ex rel Vajtauer. To some extent, it's a different type of denial of liberty interest, but in fact it is a liberty interest. And what we are discussing here is the incarceration of people, somebody being kept in prison for a period of time; in this case, 100 days; in other cases, up to 700 days, or perhaps a three-year incarceration. I believe that liberty interest is of an equal standing with liberty interests in the deportation cases. I would also note that in the past, that the review for arbitrary and capricious includes reviewing factual support for the questioned decision. The specific issue of whether there has to be some or sufficient evidence in prison disciplinary hearings has been met by many circuit courts, and the vast majority of them--
Speaker: Well, do you agree then that if there is some evidence in the record, that's enough?
Jamie Ann Sabino: --That there is some evidence which can rationally permit a board's finding. I would argue that--
Speaker: You don't argue for the standard, then, adopted apparently by the court below? It was a substantial evidence standard apparently.
Jamie Ann Sabino: --No, Your Honor. The court below only adopted the "some evidence" standard. They indicated that there were differences among the circuits between whether there had to be some evidence or substantial evidence. However, in this case, as they found, there was no evidence to support the decision; they would use only the most lenient, "some" or "any" evidence standard. And I would--
Speaker: Would you say that there was indeed no evidence here by virtue of the appearance that only the four prisoners were in the area; that the one who was injured was complaining, and the other three were jogging away?
Jamie Ann Sabino: --I would believe that there was no evidence before one could rationally prove that any one of those three people was a person involved in an assault. If there had been ten people in that yard, there had been 15 people in that yard, could the same evidence say that all 15 were involved in the assault? Some evidence may be relevant. The fact the prisoner--
Speaker: Isn't the very fact that there are only three or four here, rather than the 15 in your hypothesis, isn't that one of the factors that perhaps makes what otherwise might be unreasonable reasonable?
Jamie Ann Sabino: --No, Your Honor, I believe if there's more than one. If, under this set of circumstances, there was more than one person, there was no evidence from what you could reasonably infer that any one of those particular persons was involved in the assault.
Speaker: Well, you certainly can plausibly infer that there was a 50 percent chance that either one of them was involved. You say that doesn't meet the arbitrary and capricious test?
Jamie Ann Sabino: I would agree. There were three people.
Speaker: You say you would agree that--
Jamie Ann Sabino: I meant I would disagree that it does not meet the standard. There were three people. There is no evidence to infer that each of those three people was involved in the assault.
Speaker: --How about if there were two people?
Jamie Ann Sabino: I believe it would be the same, Your Honor, if there were two people.
Speaker: That's still arbitrary and capricious.
Jamie Ann Sabino: If there's no evidence to indicate that both of those people were involved in the assault, which could have easily been done by one person--
Speaker: You're talking about evidence beyond a reasonable doubt.
Jamie Ann Sabino: --No, not beyond a reasonable doubt. We're saying something that you can rationally make an inference from. Because there were two people, how can you rationally make an inference that both of them did an act?
Speaker: Well, if they were all three leaving the scene, as it were, maybe that indicates they were all three involved. Maybe they all took a punch at him.
Jamie Ann Sabino: Except that, as the Supreme Judicial Court indicates, that even if you consider the flight as more than demonstrating the reluctance to be found at the scene of assault, you cannot fairly infer that more than one person struck the inmate.
Speaker: Well, that's the question, I guess. The question's really now... suppose there was a gunshot, and there was one gun and there were three people there. Would that be enough?
Jamie Ann Sabino: To convict all three of shooting the gun?
Speaker: No. To charge all three of them.
Jamie Ann Sabino: I--
Speaker: And couldn't you find that one of those three did it?
Jamie Ann Sabino: --You could charge all three, and then depending on what evidence was produced, perhaps you could find all three. But if the same situation occurred, that the guard did not see the assault, did not see the people--
Speaker: Well, do you know any other way of doing it than for everybody to confess but one?
Jamie Ann Sabino: --Well, Your Honor, in some cases the disciplinary--
Speaker: You're not talking about some cases; you're talking about what's sensible.
Jamie Ann Sabino: --I'm saying that in some cases you're not going to be able to find somebody guilty, because you don't know who is guilty.
Speaker: Do you ever find prisoners whistling on other prisoners?
Jamie Ann Sabino: Certainly that does happen. It did not happen in this case. It happens in many cases there is some other evidence; for example, blood on one of the prisoner's shirts would have shown he was in closer contact. Or the fact the guard may have been able, in some case, to see what's going on.
Speaker: Is the review here something in the nature of review of administrative action generally?
Jamie Ann Sabino: I believe that it is less than the review; that generally in many administrative actions, the review is for sufficient evidence. I believe this is what the Supreme Court, Judicial Court, has done is somewhat less... some or any evidence.
Speaker: Then what deference is due to the people who are living with and working with inmates of prisons 365 days a year, less a little vacation?
Jamie Ann Sabino: Because this isn't a review of the factual findings. It does not review the credibility or the weight that the Board gives, and that is something that comes from their expertise within the prison.
Speaker: You mean a court in reviewing it cannot take into account that people who run prisons have some special knowledge of the conduct of human beings who are inmates of prisons?
Jamie Ann Sabino: I believe it takes it into account in the fact that it does not hold an evidentiary review and it does not question whether what the Board found is credible or not credible evidence. All the court does is looks at the evidence the Board found and says can that support. And that is certainly what the Board does in every administrative proceeding. No one would contend that the Department of Health and Human Services, the energy regulators of our nation, the federal... the FCC... don't have expertise. And, in fact, the deference to that is that we do not go through the total evidentiary hearing. The court isn't going to say well, was this guard telling the truth, wasn't he telling the truth. It's going to look at what the Board found as credible evidence, and then say, as judges say in every case, is that legally enough evidence, is that some evidence on which somebody can be found guilty?
Speaker: When you say as judges say in every case, Ms. Sabino, are you saying it's just like review, say, of a civil case in a bench trial, kind of clearly erroneous?
Jamie Ann Sabino: I believe it's similar to the de novo reviews for arbitrary and capricious action in administrative cases, which would be in some cases whether the Board acted arbitrarily or capriciously. And I think it is very important to note that the Supreme Judicial Court does not postulate a standard that is stronger than the "some or any evidence". When you're talking about evidence, at some point you have to be discussing evidence that the fair fact-finding can rely on. The fact that the inmate was in the institution on the day an assault occurred is relevant evidence, however tenuous, but is relevant. Certainly that would not be evidence that's some evidence of guilt. One must look at whether the evidence would rationally permit a Board's finding of guilt, and that's all that the Massachusetts Supreme Judicial Court did. I'd like to bring up the statute, the writ of certiorari, because as I indicated, I think there's agreement among the parties on many issues, There seems to be a disagreement as to the mechanism for proceeding to court, that the Petitioner seems to be arguing that the Massachusetts Supreme Judicial Court has postulated an independent constitutional mechanism for proceeding to court. The Massachusetts petition writ of certiorari is a very broad writ. It states that a petition for writ of certiorari--
Speaker: Where are you reading from, Ms. Sabino?
Jamie Ann Sabino: --I'm reading from the Appendix of my brief, page 4a.
Speaker: Thank you.
Jamie Ann Sabino: "A petition for writ of certiorari to correct errors in proceedings which are not according to the course of common law may be presented to a justice of the Supreme Judicial Court. " It then goes on to state that: "It shall be open to the Petitioners to contend at the hearing upon the petition that the evidence which formed the basis of the action complained of or the basis of any specified finding or conclusion was as a matter of law insufficient to warrant such action, finding or conclusion. " On the question that Justice Stevens raised concerning procedural regulations, in previous cases which are cited in my brief, particularly Commonwealth v. Cepulonis, the inmate seemed to be arguing that the Department of Corrections was not living up to its regulations that a decision must be based on reliable evidence, but it was looking specifically at the regulations of the Department. And that was heard under a writ of certiorari. I believe that, were there a procedural defect, that if there was no notice or no hearing or something of that nature, an inmate would certainly be able to proceed under the writ of certiorari. In some ways, we are confusing what... what the Supreme Court has determined is the constitutional right is not the constitutional right to have an independent mechanism of proceeding to court, but the constitutional right not to be deprived of a due process of a liberty interest, not to have due process violated, and the right of a court to overturn an administrative decision that's arbitrary and capricious and that violates due process.
Speaker: Ms. Sabino, it's your assertion basically that in the context of prison disciplinary proceedings, that you want this Court to say it's unconstitutional to discipline all three members of a group that may well have been acting together in assaulting another prisoner.
Jamie Ann Sabino: I want this Court to say that there was no sufficient facts, there was no some evidence on which one could reasonably infer--
Speaker: Isn't this just a typical example of what happens day in and day out in prisons?
Jamie Ann Sabino: --It certainly--
Speaker: Some prisoner is subjected to assaults by some small group of fellow prisoners, and you want us to in effect say we'll have to close our eyes to that.
Jamie Ann Sabino: --Certainly not. In cases where there's evidence as to who committed the assault, one would not close their eyes.
Speaker: But the prisoners will never testify against each other. What more can you have than the guard reporting here were three fellow prisoners involved in a scuffle, and they appeared to act as a group and ran away as a group? And why shouldn't that be enough?
Jamie Ann Sabino: There's no testimony that they appeared to act as a group. The only testimony was the three of the were moving away. In many cases you have guards observing, and I would contend, Your Honor, from the basis of my experience in disciplinary hearings, that you do have prisoners testifying against each other. You often have other evidence. You often have a bloody hand, somebody holding the instrument. There may often be only one person. But I'm saying in the cases where a guard says I did not see the assault, where there is no evidence that more than one person participated in the assault... because what you would have on the other hand, you leave a prisoner who's standing in a yard, an assault occurs, he stands there at the scene of the assault and he's found guilty because he's standing there, or he leaves and he's found guilty because he leaves. That certainly cannot be a fair or rational basis for depriving somebody of their liberty interests, for incarcerating them for, in this case, a three-month sentence based on no evidence at all that this individual participated in an assault.
Speaker: Ms. Sabino, the certiorari statute you referred us to speaks of insufficient to warrant the action. Is that a different standard under that statute than what you concede, I think, is the proper standard... some evidence?
Jamie Ann Sabino: Under the writ of certiorari statute, what the court will do is, will look at the standard to be used based on the particular issue brought before them, and that is in the case of Commonwealth v. Cepulonis.
Speaker: Well, now what I want to get at is, you regard this as different from what I gather you concede is the proper standard... some evidence?
Jamie Ann Sabino: I do not regard it as different in this light. The Massachusetts court has interpreted this standard as a flexible standard based on the particular issue in front of them. If the issue in front of them is the constitutional right not to be deprived of liberty arbitrarily and capriciously, then I believe that would be the appropriate standard. Certainly, I argued below to the Massachusetts Supreme Judicial Court that a sufficient evidence standard was the appropriate standard. I do not believe, however, that this is a case in which this court should make a decision on the distinction between the "some" and the "sufficient" evidence because the court below did not decide that. I believe that the certiorari statute that the own department's rules of regulation and other types of indicia would lead the proper determination to be a sufficient evidence standard. However--
Speaker: Didn't you say earlier that the Supreme Judicial Court actually adopted the "some" evidence standard? But that was not in connection with the certiorari statute, was it?
Jamie Ann Sabino: --What the Supreme Judicial Court adopted, it did not actually adopt the standard. What it said is, we are not going to adopt... we are not going to look at the dispute of standards between whether it's some evidence or substantial evidence, because in this case it only... the evidence here does not meet the "some" evidence standard. I would argue that based on other Massachusetts laws and regulations and those in other states, that a substantial evidence test might be the more appropriate test; specifically, when the department itself is bound by its own regulations that a prisoner must be found guilty by a preponderance of the evidence. Again, substantial evidence does not raise that, but it would be an indication of their having to follow their own regulation. However, in this particular Court, based on what the Supreme Judicial Court has found, I think it would be inappropriate to go above or argue beyond the some or any evidence standard.
Speaker: But the Supreme Judicial Court did proceed on the basis that there was a constitutional right to judicial review?
Jamie Ann Sabino: A constitutional right... I believe what they are saying is that there's a constitutional right not to be deprived of a liberty interest, and a constitutional right for a court to overturn that.
Speaker: That's a rather long answer to a simple question. Didn't they proceed on the basis that there was a constitutional right to judicial review in this case?
Jamie Ann Sabino: I believe that they... yes. But not as an independent mechanism.
Speaker: Yes. And then they thought that they would not decide what the standard of review was in this case, because they didn't need to.
Jamie Ann Sabino: Yes.
Speaker: Because they thought there was no evidence at all.
Jamie Ann Sabino: Yes. That's correct. I think my reason for that is again trying to distinguish the question as to whether there's an independent constitutional mechanism. The court did not make that decision below because that issue was never raised. The question of whether there's an independent--
Speaker: You would appeal the factual point all the way to this Court?
Jamie Ann Sabino: --I did not appeal the factual--
Speaker: I'm saying, is that what the court said, the Supreme Court of Massachusetts?
Jamie Ann Sabino: --The Supreme Court of Massachusetts said that there was a constitutional violation; therefore, it could be appealed through this Court, were this Court to accept certiorari.
Speaker: Why didn't they go further?
Jamie Ann Sabino: I'm not sure I understand the question.
Speaker: I hope not.
Jamie Ann Sabino: The court did not postulate an independent constitutional mechanism saying that were there no certiorari statute, were there no federal habeas were there no 1983 actions, could you, based on constitutional right, have a right to go to court? That issue was not argued, nor was it raised, from what I can see in the reading of the cases in the other courts that examined prison disciplinary hearings. In each of those cases, a writ of federal habeas corpus or 1983 or in some cases similar state certiorari or habe statutes were used.
Speaker: May I ask you... I notice that in your brief, you don't quote any... what you think the questions presented are. What do you think the issue before us is?
Jamie Ann Sabino: I think the issue before you is whether there can be an arbitrary and capricious denial of a due process right... excuse me... liberty interest, and therefore violation of the due process clause if an inmate is found guilty of a disciplinary offense, loses a liberty interest, based on no or some evidence.
Speaker: That's almost... see, your opponent in the second question is whether there needs to be a standard more stringent than review for action which is arbitrary, capricious, or an abuse of discretion. What you're saying is the same standard as the court used, because the no evidence standard is the same as the arbitrary and capricious standard. So I don't think the two of you really are arguing about the standard, unless your opponent might say some evidence is a higher standard than an arbitrary and capricious standard, but I'm not sure it is.
Jamie Ann Sabino: I would agree, Your Honor. I do not believe that any or some evidence standard is higher.
Speaker: And I don't find a question presented as to whether the particular facts here, three people running away from the scene, there's no question presented as to whether that satisfies the arbitrary standard or the some evidence standard. That's not before us.
Jamie Ann Sabino: I would agree that the lower court--
Speaker: So we have a case before us in which two courts have said there was no evidence. And then the question is whether that was the right standard. Well, now is that correct that all the court below said, judicial review is to be limited to the legal sufficiency of the evidence? And then it reviewed this evidence and said one can't say that this is sufficient to support the findings. The court never said there is... we're reviewing it for no evidence. They just said it wasn't sufficient. When I read the opinion, I assumed they recognized that there was some evidence here, but they thought it wasn't sufficient, so of course that question is here. The court below clearly applied something other than the no evidence standard.
Jamie Ann Sabino: --I would disagree with that, Your Honor, for two reasons. If you look at the opinion at pages 16 or 17, the judge... the court states: "The trial judge reviewed the evidence to determine whether there was some evidence which it believed would rationally permit a Board's finding. " "In other cases, the court relies upon cases in other courts which clearly indicate the some or any evidence statute. " I think the reference to the sufficiency of the evidence is again a... perhaps looking at it in a different light, that the question is whether or not... the question is whether or not there's some evidence. And is the evidence presented legally sufficient to meet that standard of some evidence? That--
Speaker: Well, that isn't what the court said the standard was. It said the standard is the sufficiency of the evidence.
Jamie Ann Sabino: --I believe the court said the standard is whether there is some evidence. I believe the reference to sufficiency is, you're looking for the sufficiency, and then the standard is, in this case, whether there is some. By specifically stating that this is an alternative review to the substantial evidence, I do not believe that they came in with a middle level.
Speaker: I suppose the opinion will just speak for itself, won't it?
Jamie Ann Sabino: Again--
Speaker: Well, Ms. Sabino, don't you get any support for your position from Footnote 5, page 17?
Jamie Ann Sabino: --I believe that is great support for my position. The fact that the court--
Speaker: Excellent.
Jamie Ann Sabino: --Yes. The court is recognizing that there is an alternative standard to review, and if one reads all the cases one will see two standards of review, the some or any evidence, or the sufficient evidence. They in fact say that they are taking the lower standard in this case, which is the some or any evidence case.
Speaker: Could I ask you, isn't one of the... do you think there is an issue in this case as to whether or not a state court must give under the federal Constitution, judicial review to a prison disciplinary decision? I'll put it another way. Suppose the Massachusetts courts had said well, under our law, there is just no review in the courts of prison disciplinary decisions. We just... that's just the law in this state. Do you think the Federal Constitution would require the Massachusetts courts to give some review?
Jamie Ann Sabino: I believe that there is an inherent right to an independent constitutional--
Speaker: Well, that may be; that may be; but must the state court furnish direct review of the prison disciplinary decision?
Jamie Ann Sabino: --I believe if there were no state mechanism for getting to court, that a federal habeas in the federal court would be the more appropriate.
Speaker: All right. There would be federal habeas available.
Jamie Ann Sabino: Yes.
Speaker: Now, do you think that the court below decided that the federal Constitution required them, the state courts, to give judicial review?
Jamie Ann Sabino: I do not believe they decided that. I believe they decided--
Speaker: Do you think they just said that this appellant is in the courts under state law?
Jamie Ann Sabino: --Yes, and that the federal Constitution requires that he not be deprived of a liberty interest without some or any evidence; that the right, the federal constitutional right that's being vindicated is the right to due process.
Speaker: So you think the state law is what got this person into the Massachusetts courts?
Jamie Ann Sabino: I believe so. I believe that was the mechanism, as opposed to the right being vindicated, the mechanism for going to court.
Speaker: And if the state hadn't provided a mechanism, then the proper course would have been federal habeas?
Jamie Ann Sabino: I believe that would have been open to the Petitioner. I believe that there might be some argument under our state constitution as well.
Speaker: Would 1983 be--
Jamie Ann Sabino: This Court has ruled that 1983 is not the appropriate avenue for restoring good time credits. Pressler, I believe, stated that a habeas statute was the appropriate for the restoration of good times, and 1983 was for damages.
Speaker: --May I ask if you agree with... you agree with the Solicitor General's analysis of the entire case, as I understand, except for his final paragraph in which he says there really isn't enough evidence to meet the... there really was enough evidence to meet the standard.
Jamie Ann Sabino: Yes, I would agree with his analysis. If there are no further questions--
Warren E. Burger: Very well. Do you have anything further? You have one minute remaining.
Barbara A. H. Smith: Just for purposes of clarifying for the Court the appropriate certiorari statute, my respondent has cited the 1953 amended version in her brief. That was further amended in 1963, omitting the sentence that was read to the Court.
Speaker: Where is it in yours?
Barbara A. H. Smith: The appropriate statute is at page 4 and 5 in my redly brief. Thank you.
Speaker: Four and five of what?
Barbara A. H. Smith: The reply brief.
Speaker: Now, what did it omit, Ms. Smith?
Barbara A. H. Smith: It omitted the sentence read to you by the Respondent: "It shall be open to the Petitioner to contend upon hearing upon the petition that the evidence which formed the basis of the action complained of or the basis of any specified findings was a matter of law insufficient. "
Byron R. White: Do you agree that the court below, that the Supreme Judicial Court did not hold that the state courts were required to give review of a prison disciplinary decision?
Barbara A. H. Smith: What the court held is that the federal Constitution requires of the state court to give review of the sufficiency of the evidence of the disciplinary hearings.
Speaker: I see. All right, thank you.
Warren E. Burger: Thank you, counsel. The case is submitted.