Ponte v. Real

PETITIONER:Ponte
RESPONDENT:Real
LOCATION:Cleburne City Hall

DOCKET NO.: 83-1329
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Massachusetts Supreme Judicial Court

CITATION: 471 US 491 (1985)
ARGUED: Jan 09, 1985
DECIDED: May 20, 1985

ADVOCATES:
Jonathan Shapiro – on behalf of the Respondent
Martin E. Levin – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – January 09, 1985 in Ponte v. Real

Warren E. Burger:

We’ll hear arguments next in Ponte against Real.

Mr. Levin, I think you may proceed whenever you’re ready.

Martin E. Levin:

Mr. Chief Justice and may it please the Court, this case presents a relatively narrow issue, and that is whether Chapter 103 of the Code of Massachsetts Regulations, Section 430.14 fails to satisfy the due process clause because it does not require a Prison Disciplinary Board to state its reasons in the record for denying an inmate’s request for witnesses at his disciplinary hearing.

I will argue that the regulation wholly comports with due process, and that imposing the additional procedural requirement of a statement of reasons imposes unjustified burdens on the prison administration.

I will also address the issue of mootness that has been raised by the Respondent.

William H. Rehnquist:

Counsel, when you say requirement of a statement of reason, you’re talking about a requirement that the administrative record before the Prison Disciplinary Board contain a statement of reasons as to why the Superintendent refused to allow a witness requested by the prisoner to be called?

Martin E. Levin:

As to why the Disciplinary Board refused to allow that request.

Yes, Your Honor.

William H. Rehnquist:

That would be as opposed to what might later be offered in a 1983 suit where the prisoner challenges his disciplinary hearing, reasons advanced at that time by the State.

Martin E. Levin:

Correct, Your Honor.

The Massachusetts Department of Correction has adopted regulations governing the procedures used at prison disciplinary hearings which track, virtually word for word, this Court’s holding in Wolff v. McDonnell.

The particular regulation at issue here, Section 430.14, provides that an inmate does have a right to call witnesses at his disciplinary hearing except where that right conflicts with the prison official’s interest in seeing that the hearing does not create undue hazards within the institution or otherwise undermine correctional goals.

The regulation further provides that in determining whether or not to allow an inmate’s request for witnesses, the board is to consider such factors as relevance, necessity, the cumulative nature of the testimony to be given, and the hazards present in a particular case.

The regulation does not require the board to state its reasons or provide support in the record for its decision to deny an inmate’s request for witnesses.

Of course, in Wolff v. McDonnell and again in Baxter v. Palmigiano, this Court rejected the notion that due process requires such a statement of reasons.

In this case, John real who was a prisoner at the maximum security institution in Massachusetts, was charged with three violations of the Massachusetts Code of Disciplinary Offenses.

Those charges stem from an incident in which Mr. Real, contrary to an order of a correctional officer named John Baleyko, entered an office within the prison in which Mr. Baleyko was attempting to stop another inmate’s attack on another officer.

At his disciplinary hearing, Mr. Real requested that John Balayko, the reporting officer, the officer who authored the disciplinary report, be called as a witness.

Mr. Baleyko was called and he testified t the particulars of the offenses charged.

John Real also requested that two inmates be called as witnesses.

That request was denied and no reason for the denial appears in the administrative record.

The Disciplinary Board found that John–

Byron R. White:

What was the theory of… his theory of the incident?

Why did he want the witnesses?

Martin E. Levin:

–Well, Your Honor, that’ not clear from the record as to why… why those witnesses were requested.

In the record it reflects that, although Mr. Real did not contest that he entered the office contrary so the order of the correctional officer, that on subsequent orders he was trying to leave, and that incoming officers stopped him from leaving to shake him down, as he–

Harry A. Blackmun:

Well, that’s a pretty good defense.

Martin E. Levin:

–Well, Your Honor, that may be a good statement in mitigation, but in fact what occurred here was the officer did issue an order which was not obeyed under circumstances in which immediate obedience was necessary.

Harry A. Blackmun:

But if he couldn’t obey, in other words, hasn’t he asserted the defense that sounds rather reasonable and he ought to have a chance to prove it?

Martin E. Levin:

Well, he… I don’t want to get into the particulars of the record, but our position basically is that under the circumstances, in fact, when the officer had indeed ordered him not to come in in the first place, and he did not comply with that order, although a number of other inmates whom he was with did, was sufficient disobedience of an order, especially under circumstances such as these in which an assault was taking place, to constitute the offenses charged.

Sandra Day O’Connor:

Mr. Levin, there were no reason given by the Disciplinary Board for its refusal to allow any of the witnesses to be called?

Martin E. Levin:

That’s correct, Your Honor.

Sandra Day O’Connor:

And at the subsequent habeas hearing in the State trial court, is it correct that the State at that time offered no reason, no subsequent reason or explanation?

Martin E. Levin:

Well, there was no evidence presented by the State at that hearing.

Basically, it’s our position that at that point, under the Constitution, the judge had–

Sandra Day O’Connor:

Well, in addition to no evidence, as I understand that, and I want you to correct me if I’m wrong, the attorney for the State offered no explanation at all.

Martin E. Levin:

–That’s correct, Your Honor.

There was no explanation offered.

Sandra Day O’Connor:

So, on the surface then, the Defendant may have had some plausible excuse for his failure to immediately leave the scene, and yet the reviewing court has no opportunity at all to understand the reason why he wasn’t allowed to call witnesses.

Is that right?

Is that the posture in which we review the case?

Martin E. Levin:

Well, Your Honor, the reviewing court did, I believe, have the administrative record which reflected what was before the Prison Disciplinary Board during the prison disciplinary proceedings.

It’s our position that, given the guidance of wholly proper procedures under these circumstances and the discretion of the board to properly deny witnesses, based on the factors that are laid out in those regulations, and the failure of Mr. Real to state any or make any showing that the board failed to follow those procedures, that it was wholly within the discretion of the board to make that determination, and that in fact at the hearing before the judge, there was no reason why correctional authorities had to come forward at that point with their reason.

There basically was no prima facie showing by the Plaintiff at that time which would necessitate answer… excuse me… with respect to that issue.

Thurgood Marshall:

One thing that worries me: We assume that the original order by the guard was a lawful order, don’t we?

Do we have to assume that?

Martin E. Levin:

That it was a lawful order?

Thurgood Marshall:

Yeah.

Martin E. Levin:

Well, there has never been any issue raised in the case that the guard didn’t have the authority to order Real to stay out of the office at that time.

Thurgood Marshall:

For no reason?

He just… he doesn’t like the way he twists his moustache, so he said “You can’t come in”?

He can do that?

Martin E. Levin:

Well, whether or not the officer has–

Thurgood Marshall:

And is that a lawful order?

Martin E. Levin:

–Whether or not the officer has to give a reason to a prisoner, in general–

Thurgood Marshall:

You say that in this case, the prisoner has to give all these reasons.

Well, doesn’t the guard have to give some?

Martin E. Levin:

–Well, under these circumstances, Your Honor, I don’t think the guard did have to give any reasons.

And, in fact, this case is a prime example of–

Thurgood Marshall:

I don’t mean he had to give reason to the man.

Thurgood Marshall:

Doesn’t he have to give reasons to the court?

Martin E. Levin:

–To the court?

Thurgood Marshall:

Yeah.

Martin E. Levin:

Well, the reasons for the order, the reasons for the charge of the offense in the first place, were before the court in the administrative record and the disciplinary report.

Thurgood Marshall:

It said… well, what was the reason for the guard doing that?

Martin E. Levin:

The guard was in a prison office, an office within the prison, trying to stop another inmate’s attack on another guard.

That’s what the record shows.

A group of inmates from a shop, a prison shop next door, began to enter the office.

The guard, naturally, said don’t come into this office.

Thurgood Marshall:

That’s in the record.

Martin E. Levin:

That’s in the administrative record.

That’s in the disciplinary report.

Sandra Day O’Connor:

Well, that’s all I was asking for.

Counsel, what, in your view, would the prisoner have to show to trigger some duty to respond at the habeas hearing in State court?

Martin E. Levin:

Well, Your Honor, in some of the lower federal courts in successful actions under these circumstances, what prisoners did show, for example, was that there was a persistent practice on the part of prison officials to never allow an inmate to call a witness.

Certainly, if an inmate could make a prima facie showing, for example, that the prison officials were acting on a discriminatory basis with respect to their decisions, that would be a showing that prison officials were not properly exercising their discretion.

Sandra Day O’Connor:

Could a showing ever be made, in your view, on an individual case that it was needed just for evidence and there was no valid excuse no discrimination alleged, no overall policy alleged?

Martin E. Levin:

Well, Your Honor, in the first place, it’s our position that the necessity with respect to the evidence is not the end of the inquiry.

The inquiry also has to go to, as this Court considered in Wolff, to what kinds of risks would be involved in bringing that witness into the disciplinary hearing room.

Second, with respect to your answer about the individual case, certainly one can hypothesize situations in which a prison inmate could make allegations and prove through evidence that there was some systematic discrimination against him or some plot on the part of prison officials to set him up, and that this was part of an ongoing plot.

Sandra Day O’Connor:

Well, do you think that the case of Hughes v. Roe has any relevance for our purposes here in indicating that in the absence of some indication on the record that concern for safety of witnesses, for example, or other prisoners was a concern that the State has to offer at least an explanation of some kind?

Martin E. Levin:

No, Your Honor.

I don’t believe Hughes v. Roe is applicable in this case or provides much guidance.

In Hughes, of course, an inmate had alleged that he was placed into segregation without any prior hearing whatsoever, and this Court held that that was sufficient to survive a Rule 12(b)(6) motion to dismiss.

Under subsequent case law, Helms v. Hewitt, decided by this case, it was made plain that under these circumstances, a liberty interest might be implicated and an inmate might be entitled to a bearing.

That kind of a scenario is much… the scenario where an inmate may not have a hearing where liberty interest is implicated, may not have a hearing at all, we submit is quite distinct from the situation such as this where there is no question that Mr. Real received his hearing.

There is no indication that the Prison Disciplinary Board failed to follow what, on their face, were fully adequate procedures, and where this Court has indeed held that the prisoner doesn’t have the right to have a statement of reasons, which is exactly the right that the Supreme Judicial Court held that he did have.

William H. Rehnquist:

Well, of course, the Supreme Judicial Court seems to have held that, and I think that’s contrary to the… for myself, that’s contrary to the language in Wolff and in Baxter.

But it seems to me the State is going further here, and they are saying not only do we not have to supply written reasons in the administrative record at the time the hearing is conducted before the Superintendent, but if the disciplinary hearing is later challenged for revocation of good time on a violation of the constitutional rights of the prisoner, even in court we don’t have to advance any reason why the Superintendent didn’t allow these witnesses to be called.

And I think you run into a little trouble with some of the language in Wolff there.

William H. Rehnquist:

I mean to say you don’t have to give reasons means you don’t have to give reasons, as I read Wolff, at the time of the disciplinary hearings, not that you cannot be judicially called upon later to give reasons in a particular case.

Martin E. Levin:

No, Your Honor.

We don’t contest that in the individual case, in a later judicial proceeding to review the action of prison officials, that where the prisoner makes out a prima facie case that he’s been denied his procedural rights, that prison officials are going to have to answer that case as they would in any other habeas corpus case or a 1983 case.

Our position is merely that where a prisoner simply goes into court and says I didn’t get a witness, under this court’s ruling in Wolff that’s not enough because, especially under these circumstances in Massachusetts where the procedures which prison officials follow are exactly those procedures prescribed in Wolff, the Prison Disciplinary Board has that very discretion to say you can request the witness but we can deny it, and we don’t have to tell you why.

So that it seems anomalous, just as a matter of pleading, to have a prisoner go into court and say, well, it did exactly what they’re entitled to do under the Constitution and under their regulations, but I want to know more, I want them to answer me more; I want them to justify themselves.

That, it seems to me, would be fairly unprecedented just by virtue of general rules of pleading, and–

John Paul Stevens:

Mr. Levin, may I just say that I’m still a little unclear whether you draw a distinction between the duty to explain at the hearing itself and in subsequent litigation.

Is it a different duty or the same duty?

Martin E. Levin:

–Well, Your Honor, the–

John Paul Stevens:

You’re saying that if aggravated facts are alleged, you would have to explain; if he alleged that there was a conspiracy directed against him.

But if he merely alleged that this was an eye witness who could corroborate his defense, that’s not enough?

Martin E. Levin:

–Yes, Your Honor.

John Paul Stevens:

That’s your position?

And that’s the same position whether it’s at the hearing or whether he makes the allegation, an attack on the hearing in a judicial proceeding?

Martin E. Levin:

Yes, Your Honor.

John Paul Stevens:

You draw no distinction between the two?

Martin E. Levin:

We draw no distinction.

We would argue that he would have to go further than that, because in fact all he’s arguing… and this Court did consider the fact that presentation of witnesses is generally a requirement of a procedurally fair hearing in Wolff.

And under Wolff, even with respect to those considerations, it was deemed that the concerns for prison security and correctional goals were so great as to override that right, and basically if the officials are guided by proper considerations, as here they were under the procedures, allow them the discretion to be sure that hazards–

Byron R. White:

The decision below was that the agency, the prison had to put in the administrative record a reason.

Martin E. Levin:

–Yes, Your Honor.

Byron R. White:

And that it wouldn’t be enough if, in litigation, the State offered a reason?

Martin E. Levin:

That was, most certainly, the decision below, Your Honor.

Byron R. White:

So that’s the issue we have, whether at the time they must give an explanation.

Martin E. Levin:

Yes, Your Honor.

Warren E. Burger:

We’ll resume there at 1:00 o’clock.

Martin E. Levin:

Thank you.

Warren E. Burger:

You may continue, Mr Levin.

Martin E. Levin:

Thank you, Mr. Chief Justice, and may it please the Court, to resume with my response to Justice White’s question, in fact what the Supreme Judicial Court did hold in this case is that the statement of reasons to be given is to be given in the administrative record at the disciplinary hearing.

Now, this Court has recently stated in Olim v. Wakinekona that procedures do not exist in a vacuum.

Martin E. Levin:

They are not to be valued in and of themselves, but they exist for a purpose, and that is to protect some substantive right; in this case, it’s the inmate’s substantive right or substantive liberty interest in statutory good time.

Furthermore, this Court has noted that in fashioning its procedural prescriptions, prescriptions required by the Constitution, it is concerned that government officials be guided by adequate procedures in the generality of cases, and not with whether, when guided by such procedures, officials make a decision with which a court might later disagree.

In this case, the procedure prescribed by the Supreme Judicial Court does not really bear any relation to these principles.

The procedural requirement of a statement of reasons is primarily focused on safeguarding, if you will, another procedural requirement; that is, the requirement of the right to call witnesses, that qualified right that this Court enunciated in Wolff v. McDonnell.

Furthermore, and equally as important, the impetus of the Supreme Judicial Court’s decision was that it wanted a record that it could review basically on a case-by-case basis to decide whether or not it agreed with what prison officials were doing.

Such a holding is not warranted by the principles set forth by this Court in its due process, procedural due process cases.

John Paul Stevens:

Mr. Levin, may I ask you a question?

You say that they said it had to be done at the hearing.

Martin E. Levin:

Yes, Your Honor.

John Paul Stevens:

But, in their opinion, they said the question was based on the fact there was no… I am reading from page 16 of the jurisdictional statement, I guess it is, petition for certiorari… failure to explain in any fashion at the hearing or later.

And then again on page 21, there is no explanation for the denial of the inmate witnesses requested, and so forth.

I didn’t find the distinction you rely on.

They said that there was a failure at both parts of the proceedings, is what they were addressing.

Martin E. Levin:

Well, Your Honor, I’d have to page through the opinion to find the exact spot, but I am confident that even though they noted that there was no statement of reasons given, either at the hearing or later, the ruling was that the statement of reason should come at the point of the disciplinary hearing and not be what they considered to be a post hac rationalization.

They relied on Hayes II.

I forget just now whether that was Hayes v. Thompson or Hayes v. Walker, but the case that’s referred to in both our brief and the Respondent’s as Hayes II.

And in that case, in that very case, exactly what happened was that in accordance with this Court’s ruling in Wolff, a Prison Disciplinary Board denied a request for witnesses.

There was little or no statement of reasons in the record.

The case before the trial court included evidence put in by prison officials upon which the trial court determined that there was no arbitrary deprivation of the right to call witnesses.

But in that case, the Seventh Circuit reversed, stating that we want this statement in the record.

And, although I don’t have at my fingertips the page number now–

John Paul Stevens:

That may all be absolutely correct, but the constitutional violation, as I understand their holding, was that there was no explanation at any time.

And I thought you, earlier in the proceeding, said it would be the same issue whether you looked at it later or at the time of the hearing.

That’s why I’m a little unsure of your position.

Martin E. Levin:

–Well, Your Honor, we’re not saying that it is the same issue.

I believe Justice O’Connor and some of the other justices were questioning us about some of the pleading implications, basically, of our position; what position were we taking with respect to the burden to go forward really in pleading.

And we don’t contest that certainly an inmate has a right to bring a 1983 case or a petition–

John Paul Stevens:

Well, I am still not quite clear whether your position is that there was no constitutional violation in this record or that the Massachusetts court ordered the wrong remedy.

Which do you say, or both?

Martin E. Levin:

–Well, Your Honor, both.

Martin E. Levin:

On this record, there was no constitutional violation.

John Paul Stevens:

Even though there was no explanation at any time.

Martin E. Levin:

Certainly not.

William H. Rehnquist:

Well, Mr. Levin, let me ask you a question about the holding.

The Supreme Judicial Court said that the regulations were unconstitutional, didn’t they?

Martin E. Levin:

Yes, Your Honor.

William H. Rehnquist:

And on page 22, they said… and this is of the jurisdictional statement:

“We conclude that the failure of the regulations to require some support in the record for the denial of the Plaintiff’s witness has abridged his federal due process right. “

Now, if you’re talking about regulations issued by the State in the record, I presume the Supreme Judicial Court in that sense was referring to the administrative record.

Martin E. Levin:

Yes, Your Honor, and that’s exactly the portion of the opinion to which I was just referring.

Our reading of that holding is that the Supreme Judicial Court held these regulations unconstitutional because they did not require a statement of reasons in the administrative record.

Now, we have noted in our brief several reasons why we’re most concerned about this new requirement imposed by the Supreme Judicial Court, and I would just like to highlight this afternoon one or two of them.

The most serious cases, of course, are those cases in which the calling of a witness may create hazards within the institution because the witness may be subject to reprisal, generally by the charged inmate.

In such cases where we have a requirement, an across-the-board requirement of a statement of reasons, the Prison Disciplinary Board is basically put into the position of trying to guess how much it can put in the record, how much must it put in the record without running the very risk that it hopes to avoid by not calling the witness in the first place.

John Paul Stevens:

What does that follow?

Because couldn’t they put it in the record, but not show it to the inmate?

If it goes in the record, does it necessarily have to… for later review… does it necessarily have to be disclosed to the inmate?

Martin E. Levin:

Well, Your Honor, I believe that under the ruling in Wolff, the record is to be shown to the inmate and is to include those factors that is required by the court under the constitution.

I’m not quite certain what purpose it would serve as far as the rationale of the Supreme Judicial Court is concerned to have it otherwise.

Principally, when the Court was concerned that the Board state at the outset to the knowledge of the inmate why it is that the requested witness was denied–

John Paul Stevens:

I don’t understand your reference to Wolff.

I thought you said Wolff doesn’t require a statement of reasons–

Martin E. Levin:

–No, no.

But to the extent that a record was required and that record went to the evidence on which the Board relied and the reasons for sanctions to he given, it’s my reading that that was the record that would be available to the inmate.

Furthmore, we run into a problem where we have an across-the-board rule, and the only time the inmate can’t know is when, in fact, there’s a risk of reprisal.

Then the only time the inmate doesn’t know is exactly… will lead to exactly the same result.

That is, the arousal of the suspicions in the inmate’s mind which can lead to the physical retaliation that is trying to be avoided.

And we submit that in fact this requirement leads to exactly that position that the Respondent himself has suggested at page 32 of his brief.

That is, it puts prison officials in the position of making a decision between forgoing an otherwise proper and necessary disciplinary action within the institution or revealing sensitive information which can lead to harm within the institution.

Now, the Commonwealth of Massachusetts is not here to play the heavy, and we’re not here to say the Constitution doesn’t accompany these individuals once they step into the jailhouse door.

Martin E. Levin:

But we don’t believe that this Court’s ruling in Wolff or in Baxter or in the recent cases of Hudson v. Palmer or Block v. Rutherford or Hewitt v. Helm contemplate that the Constitution is going to require that prison officials be put in that kind of a position.

Sandra Day O’Connor:

–Well, I suppose that a procedure whereby some kind of explanation is… contemporaneous explanation would be made by the Disciplinary Board, but in every case perhaps kept confidential so that it could be reviewed by any subsequent court in camera.

Is that procedure unworkable?

Martin E. Levin:

Well, Your Honor, I’m not going to say it’s unworkable.

But–

Sandra Day O’Connor:

So that it isn’t reviewed at all by the prisoner.

Martin E. Levin:

–There are certain drawbacks to that procedure which are inherent in the procedure in general.

One, in dealing with these cases, we wish to stress, as Judge Friendly said in his article, some kind of hearing that we’re dealing with a system of mass justice, and that prison officials in Massachusetts, for example, in 1980 had almost 7,000 disciplinary proceedings at which prisoners were entitled to the full procedural safeguards, presumably as you suggested, which would include an extended record, although that record would be confidential.

Now, this may not seem like much in the context of any one disciplinary proceeding, but when you add this up you’re talking about man hours and you’re talking about resources that come out of other areas within the prison.

I see that my time is growing short, and I do want to address the issue of mootness because I promised that I would, and I don’t want to break my promise.

During the disciplinary action involved in this case, Mr. Real was in the state prison on a three t five-year sentence for possession of a sawed-off shotgun.

In November of 1982, the Commissioner of Correction issued a certificate of discharge from that sentence and he made the discharge effective to July 19, 1982 because of certain recalculations in good time credit.

From that date, from the July 19th date, Mr. Real was deemed to have begun serving a five-year from and after sentence imposed for a manslaughter offense he committed while in prison, killing another inmate.

Now, the Respondent has suggested that this case is now moot because Mr. Real has received the certificate of discharge from the three to five-year sentence, that is, the sentence to which the good time at issue would apply.

But that’s clearly not the case, because if this Court were to affirm the judgment of the Supreme Judicial Court, returning the 150 days good time to Mr. Real, his effective date of discharge then becomes some time in February 1982.

The running of his five-year from and after sentence is from that date, and Mr. Real ceases to be in Massachusetts custody in February of 1987, rather than in July of 1987.

Mr. Real clearly has a concrete interest in this case which presents the Court with a justiciable controversy.

If I might, if there are no further questions, I’d like to reserve my remaining time.

Thank you.

Warren E. Burger:

Mr. Shapiro.

Jonathan Shapiro:

Mr. Chief Justice and may it please the Court, I’d like to first address some of the factual issues that were raised in Petitioner’s argument.

First of all, this is a classic case where the calling of witnesses would be, as Justice Blackmun suggested, very important to the inmate’s defense.

What had happened in the prison on the particular day in question was that a scuffle had broken out between an inmate and a guard.

A number of other inmates who were in the vicinity came into the room to see what was happening, after which they were ordered to leave.

It was at this point that Mr. Real, while leaving, was stopped, according to his testimony at the hearing, was stopped by another officer who shook him down and delayed him from complying with the order that had been given to him.

The inmates which John Real requested be called in his defense were eye witnesses who would have corroborated his version of what happened, and therefore, in our view, would have given him a defense to the charge that he had disobeyed an officer and also the charges, in addition, that he had incited to riot and that he had engaged in conduct which was disruptive of the orderly running of the institution.

All three of these charges were made against Mr. Real, and all three of them were at issue in the disciplinary hearing.

And the witnesses that Mr. Real requested be called and which the record below indicates were requested because they had been present and because they would corroborate his version of what happened, were the witnesses who were denied without any explanation at any point in either the administrative or the judicial proceedings of this case.

We think there are two issues involved in the case.

Thurgood Marshall:

Did he have any witnesses at all?

Jonathan Shapiro:

The only witness who was presented was the correction officer who testified against him.

Thurgood Marshall:

I said did he have any.

Jonathan Shapiro:

He had requested that that correction officer be present, because otherwise the correction officer would not have been present.

He did not have any witnesses to testify on his behalf.

Thurgood Marshall:

Well, he asked for two others.

Jonathan Shapiro:

He asked also for the officer–

Byron R. White:

He asked for two inmates.

Jonathan Shapiro:

–Those were the witnesses who were denied.

Byron R. White:

Yes.

So he apparently had more… other witnesses he wanted to call.

Jonathan Shapiro:

The witness request in this case requested two inmates who were eye witnesses, but also… and an officer.

And that was all.

Byron R. White:

Right.

Jonathan Shapiro:

And they were denied.

Byron R. White:

Right.

Okay.

Jonathan Shapiro:

It is clear, we think in the record below, that the request was timely made to the Disciplinary Board, and that both in the form which the inmate was required to fill out, he sufficiently indicated the reasons for those witnesses to be present by indicating they were eye witnesses.

And he also, in the court proceeding which followed the filing of his petition for habeas corpus, he indicated why these witnesses were to be called in his defense.

In both of these proceedings, the witnesses were denied without any explanation.

Byron R. White:

What was the issue in the habeas corpus proceeding?

Was it the prison officials had wrongfully denied him witnesses?

Jonathan Shapiro:

Yes.

He alleged that he had been arbitrarily and capriciously denied due process because witnesses he had requested were not called.

Byron R. White:

Did you… was part of your argument in the… were you at the habeas corpus?

Jonathan Shapiro:

Mr. Real was not represented at any of the judicial proceedings below.

He proceeded pro se–

Byron R. White:

In the habeas corpus?

Jonathan Shapiro:

–in the Superior Court, and he also proceeded pro se–

Byron R. White:

Who presented the argument, or who made the argument that the reason for denial should appear in the administrative record?

Jonathan Shapiro:

–That argument was not made at all in the trial court, nor indeed was it made by Mr. Real in the Supreme Judicial Court.

Byron R. White:

But that’s what the Supreme Judicial Court held.

Jonathan Shapiro:

We think that a fair reading of the Supreme Judicial Court’s opinion is that both issues were considered and ruled on.

Byron R. White:

Right.

Well, would you… if you had been representing him in the habeas corpus hearing, would you have been satisfied if the State had said well, it’s true that the administrative record doesn’t… that no reasons were given orally or in writing at the administrative hearing or in connection with the decision, but here’s the reason that we now present to you to defend this charge that we had wrongfully denied witnesses.

Would you have been satisfied with–

Jonathan Shapiro:

I think that was the issue presented.

I think that would have been depositive of the petition.

Byron R. White:

–Well, I mean… but the habeas corpus court could then have decided whether that was enough of a reason to deny witnesses.

Jonathan Shapiro:

Yes.

And I think that’s exactly the ground which the trial court decided.

Byron R. White:

Didn’t the State ever give a reason?

Jonathan Shapiro:

The State has never given a reason.

Even to this day, they have never indicated–

Byron R. White:

But the District Court said that… also held there should be reasons given at the administrative hearing.

Jonathan Shapiro:

–The trial judge, and this was a Superior Court, State judge, held only that because in his view the inmate had made a prima facie case, that he was entitled to witnesses, and in court the Petitioner, the State had not given any explanation as to why those witnesses were refused, he concluded that that meant that the witnesses had been arbitrarily denied and ordered relief on that basis.

Byron R. White:

Right.

Jonathan Shapiro:

There was no requirement considered or imposed by the trial judge that reasons be given at the administrative rather than the judicial hearing.

Byron R. White:

Right.

But that’s… as it came out in the Supreme Judicial Court:

“We find persuasive the requirement of the United States Court of Appeals for the Seventh Circuit, there must be some support in the administrative record to justify a decision not to call– “

Jonathan Shapiro:

I think the Supreme Judicial Court did certainly find that persuasive.

However, as Justice Stevens has suggested, I don’t think that the decision of the Supreme Judicial Court rests solely on that around.

We think that the court considered both of the issues; that is, whether in fact there was an arbitrary deprivation and secondly, whether due process requires that there be some support in the administrative record.

And on page 22 of the petition for certiorari, the Supreme Judicial Court says, in concluding its discussion of this issue:

“The trial judge properly concluded that the sanctions resulting from a constitutionally flawed disciplinary hearing were invalid and correctly ordered the return of Real’s good time credits. “

Well, the trial judge concluded only that the witnesses had been denied arbitrarily, without any consideration or discussion of the statement of reason.

Warren E. Burger:

–Would it have satisfied your position if the reason given was that it would expose these witnesses to reprisals either by the individual or by his friends?

Jonathan Shapiro:

I think, unquestionably, that would provide, depending on the facts of the case, a legitimate justification for a limitation of the right to call witnesses.

And had the Commonwealth made such a submission, I think that it would have, and I think it’s clear from the trial court’s ruling that he would have accepted that.

The trial judge, as the record of the hearing before the trial judge indicates, was upset that the State and the prison officials had made no attempt whatsoever to justify the denial of witnesses.

Jonathan Shapiro:

He said all they have to do is come in here and tell us why the witnesses were denied, but they didn’t do so.

And I think it’s that conclusion by the trial judge that, in the face of a showing by the inmate that witnesses had been requested, were relevant, that a timely request had been made, and that nothing else appeared on the face of the record to justify a denial of those witnesses, at least in those circumstances the burden shifts to the prison officials to come forward and make some showing.

This is not to say that the prison officials would bear the burden of proof on that issue; only that they should come forward with some explanation of why the witnesses were denied, at which time the burden would then remain with the inmate to establish either that those reasons were arbitrary or not legitimate.

Warren E. Burger:

Would it be appropriate for the regulations to provide that in order to have that right, the inmate must tender or proffer a statement of what the witnesses, each of the witnesses would say if they were called?

Jonathan Shapiro:

I think the regulations could properly require such a statement.

We think in this case, the inmate did make such a showing.

Warren E. Burger:

I’m not challenging that.

Jonathan Shapiro:

The Petitioner has never challenged the relevance of the witnesses.

And we think in this case, the Petitioner made a sufficient showing–

Warren E. Burger:

The State would hardly question the idea that the inmate must identify and state the testimony that would be given if the witness appeared.

Jonathan Shapiro:

–I think that would be a reasonable requirement.

We think in this case it was satisfied by what was in fact tendered by the inmate in his request and in the subsequent judicial proceedings.

But that hasn’t ever been made an issue by Petitioner.

William H. Rehnquist:

In your view of the Superior Court’s decision, the Superior Court would have had no occasion to set aside the regulations because the regulations weren’t inconsistent with the reasoning of the Superior Court.

Jonathan Shapiro:

That’s correct.

And the inmate himself did not challenge the constitutionality of the regulations.

So we see there are two issues in the case; one, whether or not due process is violated by the arbitrary denial by the prison officials of the witnesses on the facts of this case; and the second broader issue, which is the issue as to whether due process requires that the administrative record of a disciplinary hearing contain a basis for the denial of witnesses.

And we think they are both separate, yet both presented.

The second, broader one, we think is unnecessary to be decided by this Court, because I think the case can properly decided on–

Byron R. White:

Well, but that’s the basis that the Supreme Judicial Court decided it.

Jonathan Shapiro:

–That is one of the bases.

We think both grounds are–

Byron R. White:

In the Supreme Judicial Court’s opinion?

Jonathan Shapiro:

–Yes.

And the statement on page 22, the end of that paragraph, I think indicates that the Supreme Judicial Court was affirming the trial judge’s rationale.

Byron R. White:

Well, it affirmed the judgment for the reasons given by the Supreme Judicial Court.

Jonathan Shapiro:

And also earlier in the opinion, the portion of the opinion referred to by Justice Stevens on page 16, where the court in defining the issue presented, indicates that the question is whether federal due process requirements impose a duty on the Board to explain in any fashion at the hearing or later, why witnesses were not allowed to testify.

So we think both issues were properly presented, and at least implicitly properly considered.

However, we think that the Respondent may defend the judgment below on any ground that’s properly presented by the law and the record, regardless of whether either of the courts below considered both of those issues specifically.

So that even if the Supreme Judicial Court’s reasoning was based on the broader issue, if that rationale is not necessary for a decision of the case by this Court, which we don’t think it is, it would be unnecessary for this Court to decide that issue.

Jonathan Shapiro:

We think that the principle of judicial restraint counsels in favor of deciding the narrower, rather than the broader issue.

And since the narrower issue, that is, the arbitrariness of the denial of the witnesses on the facts of this case, was properly presented, provided the basis for the decision by the trial court, that that can properly be the basis for a decision by this Court.

On that issue, furthermore, we think that the Commonwealth, in effect, concedes that judicial review is appropriate where the inmate has made a prima facie case.

Judicial review, in a subsequent habeas corpus proceeding, at which point when the inmate has made that prima facie case, the prison officials would have some burden to justify the denial of witnesses.

In this case, we think that a prima facie case was made, and it is difficult to see what more an inmate could be required to do than to make a timely request for relevant witnesses who could testify and in this case provide a basis for a self defense claim.

The Petitioner’s argument that there is a greater burden defies common sense, and it also would make that burden impossible to be met by the inmate.

It’s difficult to see how the inmate could disprove the reasons that the prison officials may have for not calling a witness if the inmate can’t even find out what those reasons are.

The Petitioner argues that somehow the inmate has a greater burden to go beyond making a showing of relevance to his or her case, and to in fact disprove any possible reasons the Commonwealth might have for not calling the witnesses.

William H. Rehnquist:

Mr. Shapiro, what about Justice O’Connor’s suggestion made to your opponent, that perhaps there should be reasons at least adduced in the habeas corpus hearing, but that perhaps those reasons should be submitted in camera to the judge just because of the very volatility of the prison situation?

Jonathan Shapiro:

We think that where the Commonwealth makes a showing that that is a consideration in the case, that would be appropriate.

Indeed, it would be appropriate, turning for a moment to the question of requiring some statement of reason or other basis to appear in the administrative record for a similar requirement, and we have referred in our brief to the regulations of the Federal Bureau of Prisons which provides just for such a possibility.

And in a case where the Disciplinary Board concludes that documenting the reliability of an informant upon which it has relied in a decision would pose a threat to identifying that informant or otherwise endangering that informant, the Disciplinary Board of the chairperson of the Disciplinary Board may document those reasons, but not provide them to the inmate: that is, to keep them apart from the inmate for the very purpose of a subsequent justification in court, at which time the reasons could be examined or the statement could be examined in camera.

So that the only serious claim that the Commonwealth has made here that a statement of reasons would interfere with security or endanger the identify of an informant, there is a perfectly reasonable alternative which could be utilized so that those reasons would not prejudice the particular informant involved.

The other argument that Petitioner makes to justify the prison officials in not having to make any showing, either at the administrative hearing or otherwise, is that an inmate’s right to present witnesses is not violated unless there is a pattern or practice or a discrimination by the Disciplinary Board or the prison officials which go beyond the individual case.

We think in Wolff v. McDonnell, this Court clearly stated that a witness has… an inmate has a right to call witnesses unless the witnesses would be irrelevant, cumulative, unnecessary, or pose a threat to institutional security in some other way.

The argument that somehow the inmate could be denied witnesses arbitrarily, so long as there was no overt discrimination or pattern in practice, is simply inconsistent with Wolff, and is unrelated to the reasons for according an inmate that right to call witnesses, which is to give that individual an opportunity to have a fair hearing on the charges against that particular inmate.

And why, in order to establish that that right has been violated, that inmate would have to show that there is some pattern in practice, escapes me, and I think finds no support whatsoever in any of the cases this Court has decided.

The Commonwealth’s argument would also carry the principle of deference to the expert judgment of prison officials too far.

What the Commonwealth, in effect, is arguing is that the officials should be presumed to have made a decision to deny witnesses in accordance with applicable regulations, and that any inquiry into the basis for that refusal is unwarranted.

It’s one thing to defer where prison officials have exercised a judgment; it’s another thing to defer to the presumption that they have exercised a judgment in accordance with applicable regulations.

And the effect of the decisions of the court below is primarily to require that that discretion by prison officials, to which this Court has often deferred, is in fact actually exercised.

Without some obligation, either in the administrative hearing or in court, to justify their action, there is in fact no right to call witnesses on behalf of the inmate.

And there is no properly exercised discretion to which a court could defer.

So in many ways, the requirements of the courts below would serve the interests of both the Commonwealth and the inmate by insuring that the officials to whom discretion is accorded have, in fact, exercised it.

Once there is that exercise, a court could properly, as this Court has often counseled, defer to the discretion because of the expertise which may have been possessed by the officials who exercised it.

We do think that Hughes v. Roe is or should be dispositive of the case, because in Hughes the inmate was held to have made a prima facie showing that he was entitled to a hearing.

And the prison officials, as in the present case, made no response, made no showing as to any legitimate basis in administration for correctional goals for denying that hearing, and this Court said in the absence of such a showing, the inmate was entitled to relief; or at least in that case, because it involved a complaint, that the complaint should not be dismissed.

The same principle we think is applicable here where, as we argue, the prima facie case is made where the prison officials in court make no showing of a legitimate basis for not according that right of the inmate to call witnesses.

Then, that inmate should be entitled to relief.

With respect to the decision of the court below on the issue of whether or not due process requires that the administrative record of a disciplinary hearing have some support for the decision to deny witnesses, I’d like to emphasize first that that decision is not inconsistent with Wolff.

Jonathan Shapiro:

In Wolff, this Court stated that an inmate has a right to call witnesses, which may be denied if there are certain legitimate considerations involved.

The Court went on to say that although it would be useful for the Board to give an explanation of its reasons and make a written statement of those reasons in the record, at that time the Court deemed it unnecessary to require that.

The Supreme Judicial Court’s decision, first of all, does not require a written statement of reason.

What it does require is that there be some support in the administrative record.

That requirement is a far more flexible requirement than a written statement of reasons.

That requirement can be satisfied by reviewing the record to determine whether the record itself supports a decision to deny witnesses; for example, if the request of the inmate himself or herself indicates that the witnesses would not be relevant to the proceeding.

For example, the charge may be such that it’s clear that no witnesses could appropriately testify in the case.

The Board, at a later review in court, could rely upon that information which is obvious from a review of the record itself to deny.

William H. Rehnquist:

That would be pretty coincidental, though, wouldn’t it, when the record happened to support because of the testimony of other witnesses or something else, the refusal of the… or due to the record, supplied the reasons for the prison officials’ refusal to call the witness.

Jonathan Shapiro:

I don’t think it would be coincidental.

I think that in, if not the majority of the cases, many cases, reviewing the record of an administrative hearing will indicate what the issues were in the case, why the witnesses were called, and why they were denied.

So that although there may be cases where a statement of reasons or some explanation by the Board is required, we think that there are many other cases where the record itself will, upon review, provide an adequate basis for a decision by the Board.

William H. Rehnquist:

Was the written record of the administrative proceeding produced in the Superior Court in this case?

Jonathan Shapiro:

The written record of the hearing consists of the disciplinary charge, and these are set forth in the Appendix to this case, the disciplinary report which is on page 13-A of the Appendix, the report of the testimony and who testified on 14-A, the decision of the Board on 15-A, the appeal and the decision of the Superintendent affirming the conviction of the inmate.

William H. Rehnquist:

So at least the administrative report, as it’s now done in Massachusetts, doesn’t have a transcript of testimony.

Jonathan Shapiro:

There is no transcript.

William H. Rehnquist:

Well, how could a report of the dimensions of, say, that on page 14-A ever, except by sheerest coincidence, support a conclusion that witnesses shouldn’t be allowed?

Jonathan Shapiro:

Very often the description of the offense in the disciplinary report is more than necessary to indicate what the case is about and what the evidence is likely to be.

The decision of the Board in which the Board sets forth, as this Court required in Wolff, a statement of the evidence that’s relied on, often gives enough information.

It’s true that in many cases it may be coincidental.

In other cases it may be necessary for the Board to give a reason in order to justify the denial of witnesses, particularly in those cases where the basis upon which the Board is denying a witness, such as institutional security, is the kind of reason which is peculiarly within the knowledge of the Board.

Byron R. White:

Didn’t Wolff… do I recall Wolff right?

It said that the prison administration could deny the witnesses if it would jeopardize institutional safety or correctional goals.

Is that what it said?

Jonathan Shapiro:

Yes.

That is one of the justifications.

Byron R. White:

Well, would it be enough to satisfy the Constitution, in your view, if the Superintendent said, or the decision-maker in the prison said we deny these witnesses because in our view, calling these witnesses would jeopardize institutional safety, period?

Jonathan Shapiro:

No.

I think that they would be required to set forth some basis for that conclusion.

Byron R. White:

They then have to explain their judgment that institutional safety would be–

Jonathan Shapiro:

I think so.

Otherwise, I think it would make meaningless the requirement that there be a legitimate justification if they–

Byron R. White:

–No, it wouldn’t be meaningless.

At least it would show that the prison official knows what the standard is and has thought that his position complied with the standard.

It wouldn’t be a mindless act anyway.

Jonathan Shapiro:

–I think that standard is so broad, that effectively it would not only insulate–

Byron R. White:

So a court would have to decide whether that institutional decision was rational or not.

Jonathan Shapiro:

–And I think that is because of this Court’s decision in Wolff, that a court would be obligated to do that.

Byron R. White:

Yeah, but Wolff didn’t say that… Wolff gave the standard, but it didn’t say that the official had to explain it in detail.

Jonathan Shapiro:

I think to the extent that Wolff recognizes a right to call witnesses, that right, in order to be meaningful, it’s implicit that there has to be at least a limited judicial review.

We suggest that a limited judicial review which is appropriate is a review for arbitrariness.

Byron R. White:

Well, it isn’t entirely a fruitless matter to inquire whether you knew what the law was and whether you applied the right standard in denying.

That’s frequently the only question there is.

Jonathan Shapiro:

I think it would mean–

Byron R. White:

And at least the official could evidence that he knew what the law was and give his opinion that we looked at the evidence, we looked at the situation and thought that the witnesses could be denied under the standard.

Jonathan Shapiro:

–I don’t think that simply responding that institutional security would be endangered does sufficiently indicate that the official knows what the law is and is applying it.

That’s the type of phrase that is mouthed by prison officials, regardless of what’s at stake, in order to justify virtually anything.

Warren E. Burger:

Do you have anything further, Mr. Levin?

Martin E. Levin:

Your Honor, just to address Justice White’s question.

Again, I’d like to stress that there was nothing in this record that indicated that prison officials were unaware of what the law was, that the issue here had to do with the procedure that Massachusetts had adopted, and there was never any showing that officials did not know what that procedure was or failed to follow that procedure.

Unless there are any other questions–

Thurgood Marshall:

Is there any… can you point to anyplace in the record where the State explained why it did not permit him to call these witnesses?

Martin E. Levin:

–There is no explanation of that expressly in the record.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.