VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-03739 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org
Joseph Lampman v Department of Corrections
Opinion and Order on Cross-Motions for Summary Judgment
Plaintiff–inmate Joseph Lampman seeks Vt. R. Civ. P. 75 review of the
Department of Corrections’ (“DOC’s”) determination, following a hearing, that he is
guilty of a Major B13 infraction. Major B13 refers to: “Engaging in sexual acts or activity
without use or threat of force, to include but not limited to, kissing, fondling of self or
another person in a manner, which produces or is intended to produce sexual stimulation
or gratification without the appearance of threat or harm on the part of both persons.”
DOC Policy 410.01, Attachment 1 at 20 (emphasis added). The allegation was that Mr.
Lampman greeted his wife during a visit with a kiss. Following an evidentiary hearing,
the hearing officer found that he, in fact, kissed his wife in violation of Major B13. Mr.
Lampman apparently conceded that he had kissed his wife. Paperwork related to the
disciplinary charge reflects that, after being charged, Mr. Lampman argued only that he
did not know that he was not allowed to kiss a visitor. It is unclear what may have
transpired at the hearing because the parties have submitted no transcript or recording
of it, and the hearing officer made no findings or rulings related to the only issue raised
in this case: whether Mr. Lampman did or did not have fair notice as to whether kissing
was permitted or prohibited. The parties have filed cross-motions for summary judgment
Order Page 1 of 7 23-CV-03739 Joseph Lampman v Department of Corrections addressing, as a de novo matter, whether Mr. Lampman had fair notice that kissing was
not permitted in the facility.1
I. Procedural Standard
Summary judgment procedure is “an integral part of the . . . Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive determination of every
action.’” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the
record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party fails to
make a showing sufficient to establish an essential element of the case on which the
party will bear the burden of proof at trial). The Court derives the undisputed facts from
the parties’ statements of fact and the supporting documents. Boulton v. CLD
Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing
summary judgment may not simply rely on allegations in the pleadings to establish a
genuine issue of material fact. Instead, it must come forward with deposition excerpts,
affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,
628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,
1 The State also argues that the Court lacks jurisdiction to hear this case. The argument appears to be based on its misperception that Mr. Lampman is attempting to challenge the DOC’s authority to have the policy at issue. He expressly is not. He is seeking Rule 75 review (in the nature of certiorari) of the DOC’s quasi-judicial determination that he violated a facility rule. He is entitled to seek that review, and the Court has subject matter jurisdiction to conduct it. Order Page 2 of 7 23-CV-03739 Joseph Lampman v Department of Corrections 380. Where, as here, there are cross-motions for summary judgment, the parties
opposing summary judgment “are entitled to the benefit of all reasonable doubts and
inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181 Vt. 154, 156.
In this instance, the Court’s examination is further cabined by Vt. R. Civ. P. 75.
Rule 75 allows judicial review of governmental administrative decisions, but only “if such
review is otherwise available by law.” While the case law interpreting Rule 75 has
insulated the overwhelming majority of discretionary administrative decisions made by
the Department from judicial review, see, e.g., Rheaume v. Pallito, 2011 VT 72, ¶11, 190
Vt. 245, 250, the Court may still review quasi-judicial decisions in accordance with the
principles of certiorari review. Id.
The scope of certiorari review under Rule 75 is very narrow. “[W]hen reviewing
administrative action by the [Department] under V.R.C.P. 75, we will not interfere with
the Department’s determinations absent a showing that the [Department] clearly and
arbitrarily abused its authority.” King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt. 220, 224;
Molesworth v. University of Vermont, 147 Vt. 4, 7 (1986) (certiorari review “confined to
addressing substantial questions of law affecting the merits of the case.”).
More specifically, in the context of reviewing disciplinary determinations made in
the prison setting, the Vermont Supreme Court has adopted the standards set forth by
the United States Supreme Court in Superintendent v. Hill, 472 U.S. 445, 455 (1985).
LaFaso v. Patrissi, 161 Vt. 46, 49 (1993). Although due process requires the Department
to prove inmate disciplinary infractions by a preponderance of the evidence at the
disciplinary hearing, id. at 51, under Hill, this Court will uphold a disciplinary
determination if “there is any evidence in the record to support the conclusion reached by
Order Page 3 of 7 23-CV-03739 Joseph Lampman v Department of Corrections the disciplinary board.” Hill, 472 U.S. at 455–56 (emphasis added); King, 2003 VT 34, ¶
7, 175 Vt. at 224 (noting same); Lafaso, 161 Vt. at 49 (prison determination “must be
upheld if it is supported by ‘some evidence’ in the record” (citation omitted)).
“Review by certiorari under Rule 75 ordinarily ‘provides only for review of legal
issues,’ and is therefore usually ‘restricted to the record’ from the administrative
proceeding.” Ketchum v. Town of Dorset, 2011 VT 49, ¶ 15, 190 Vt. 507, 510 (citations
omitted) (but noting that the record may be expanded on review in appropriate
circumstances).
II. Analysis
The Court fails to see how it can effectively rule on the present record. Mr.
Lampman apparently concedes that he kissed his wife. He claims that his conviction
violates his due process rights, however, because he never had fair notice that kissing
would violate a disciplinary rule.
One treatise describes the notice requirement as “textbook” and elaborates as
follows:
Due process . . . requires that inmates receive fair notice of a rule before they can be sanctioned for its violation. Prison regulations should be clear and intelligible, and they should also be made available to those at whom they are directed. Unless the conduct violates criminal statutes, inmates should not be expected to abide by rules of which they have not been informed.
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VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-03739 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org
Joseph Lampman v Department of Corrections
Opinion and Order on Cross-Motions for Summary Judgment
Plaintiff–inmate Joseph Lampman seeks Vt. R. Civ. P. 75 review of the
Department of Corrections’ (“DOC’s”) determination, following a hearing, that he is
guilty of a Major B13 infraction. Major B13 refers to: “Engaging in sexual acts or activity
without use or threat of force, to include but not limited to, kissing, fondling of self or
another person in a manner, which produces or is intended to produce sexual stimulation
or gratification without the appearance of threat or harm on the part of both persons.”
DOC Policy 410.01, Attachment 1 at 20 (emphasis added). The allegation was that Mr.
Lampman greeted his wife during a visit with a kiss. Following an evidentiary hearing,
the hearing officer found that he, in fact, kissed his wife in violation of Major B13. Mr.
Lampman apparently conceded that he had kissed his wife. Paperwork related to the
disciplinary charge reflects that, after being charged, Mr. Lampman argued only that he
did not know that he was not allowed to kiss a visitor. It is unclear what may have
transpired at the hearing because the parties have submitted no transcript or recording
of it, and the hearing officer made no findings or rulings related to the only issue raised
in this case: whether Mr. Lampman did or did not have fair notice as to whether kissing
was permitted or prohibited. The parties have filed cross-motions for summary judgment
Order Page 1 of 7 23-CV-03739 Joseph Lampman v Department of Corrections addressing, as a de novo matter, whether Mr. Lampman had fair notice that kissing was
not permitted in the facility.1
I. Procedural Standard
Summary judgment procedure is “an integral part of the . . . Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive determination of every
action.’” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the
record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party fails to
make a showing sufficient to establish an essential element of the case on which the
party will bear the burden of proof at trial). The Court derives the undisputed facts from
the parties’ statements of fact and the supporting documents. Boulton v. CLD
Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing
summary judgment may not simply rely on allegations in the pleadings to establish a
genuine issue of material fact. Instead, it must come forward with deposition excerpts,
affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,
628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,
1 The State also argues that the Court lacks jurisdiction to hear this case. The argument appears to be based on its misperception that Mr. Lampman is attempting to challenge the DOC’s authority to have the policy at issue. He expressly is not. He is seeking Rule 75 review (in the nature of certiorari) of the DOC’s quasi-judicial determination that he violated a facility rule. He is entitled to seek that review, and the Court has subject matter jurisdiction to conduct it. Order Page 2 of 7 23-CV-03739 Joseph Lampman v Department of Corrections 380. Where, as here, there are cross-motions for summary judgment, the parties
opposing summary judgment “are entitled to the benefit of all reasonable doubts and
inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181 Vt. 154, 156.
In this instance, the Court’s examination is further cabined by Vt. R. Civ. P. 75.
Rule 75 allows judicial review of governmental administrative decisions, but only “if such
review is otherwise available by law.” While the case law interpreting Rule 75 has
insulated the overwhelming majority of discretionary administrative decisions made by
the Department from judicial review, see, e.g., Rheaume v. Pallito, 2011 VT 72, ¶11, 190
Vt. 245, 250, the Court may still review quasi-judicial decisions in accordance with the
principles of certiorari review. Id.
The scope of certiorari review under Rule 75 is very narrow. “[W]hen reviewing
administrative action by the [Department] under V.R.C.P. 75, we will not interfere with
the Department’s determinations absent a showing that the [Department] clearly and
arbitrarily abused its authority.” King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt. 220, 224;
Molesworth v. University of Vermont, 147 Vt. 4, 7 (1986) (certiorari review “confined to
addressing substantial questions of law affecting the merits of the case.”).
More specifically, in the context of reviewing disciplinary determinations made in
the prison setting, the Vermont Supreme Court has adopted the standards set forth by
the United States Supreme Court in Superintendent v. Hill, 472 U.S. 445, 455 (1985).
LaFaso v. Patrissi, 161 Vt. 46, 49 (1993). Although due process requires the Department
to prove inmate disciplinary infractions by a preponderance of the evidence at the
disciplinary hearing, id. at 51, under Hill, this Court will uphold a disciplinary
determination if “there is any evidence in the record to support the conclusion reached by
Order Page 3 of 7 23-CV-03739 Joseph Lampman v Department of Corrections the disciplinary board.” Hill, 472 U.S. at 455–56 (emphasis added); King, 2003 VT 34, ¶
7, 175 Vt. at 224 (noting same); Lafaso, 161 Vt. at 49 (prison determination “must be
upheld if it is supported by ‘some evidence’ in the record” (citation omitted)).
“Review by certiorari under Rule 75 ordinarily ‘provides only for review of legal
issues,’ and is therefore usually ‘restricted to the record’ from the administrative
proceeding.” Ketchum v. Town of Dorset, 2011 VT 49, ¶ 15, 190 Vt. 507, 510 (citations
omitted) (but noting that the record may be expanded on review in appropriate
circumstances).
II. Analysis
The Court fails to see how it can effectively rule on the present record. Mr.
Lampman apparently concedes that he kissed his wife. He claims that his conviction
violates his due process rights, however, because he never had fair notice that kissing
would violate a disciplinary rule.
One treatise describes the notice requirement as “textbook” and elaborates as
follows:
Due process . . . requires that inmates receive fair notice of a rule before they can be sanctioned for its violation. Prison regulations should be clear and intelligible, and they should also be made available to those at whom they are directed. Unless the conduct violates criminal statutes, inmates should not be expected to abide by rules of which they have not been informed. Some courts, therefore, have held that the failure to provide incoming inmates with printed copies of disciplinary rules and regulations and the failure to read such rules to illiterate inmates violates due process. Generally speaking, however, as is true in the case of other types of procedural violations, the courts follow a “harmless error” rule. Thus, a court held that an inmate was properly disciplined for a violation of prison disciplinary rules, despite his claim that he never received a copy of the rulebook since he admitted that he had previously received a copy of the rulebook while incarcerated at another prison.
Order Page 4 of 7 23-CV-03739 Joseph Lampman v Department of Corrections 2 Michael B. Mushlin, Rights of Prisoners § 10:2 (5th ed.); see also ABA Treatment of
Prisoners Standards (3d ed.) § 23-4.2 cmt. (“Notice of what conduct is prohibited is
therefore a fundamental component of due process.”).
In many cases where fair notice is challenged, the asserted lack of notice was
caused by a vague or opaque rule that a reasonable person would not have understood to
forbid the inmate’s actions. See, e.g., Keus v. Pallito, No. 2012-225, 2012 WL 5974087
(Vt. Sept. 26, 2012) (unpub. mem.) (urine sample rule said nothing about whether inmate
could make more than one attempt at producing sufficient volume). Such a claim largely
presents a legal question. This case is different. DOC Policy 410.01, Attachment 1,
Major B13 is crystal clear that inmates are not permitted to kiss other persons.2 Mr.
Lampman’s claim is that he was unaware of the rule, not that the rule itself is unclear.
That is largely a factual question: whether he knew or should have known of the rule.
This case is here for certiorari review, not a wholesale de novo trial of the alleged
violation. The principal evidentiary proceeding was the hearing before the hearing
officer. No transcript or recording of that hearing is in the record of this case. Neither
party has suggested that the record of that proceeding is unavailable, attempted to
reconstruct it in useful detail if it is unavailable, or has explained why additional facts
need to be developed now. Other than a few vague and self-serving assertions by Mr.
Lampman as to what happened there, the Court has no way of knowing whether Mr.
Lampman raised the notice issue at the hearing (or waived it), how he raised it if he did
2 Major B13 applies only to kissing “which produces or is intended to produce sexual
stimulation or gratification.” The hearing officer made no finding on this aspect of the violation. Nor has Mr. Lampman challenged the violation on this basis, however.
Order Page 5 of 7 23-CV-03739 Joseph Lampman v Department of Corrections at all, whether there was any countervailing evidence, whether and how the hearing
officer ruled on the matter orally (he did not rule on it in writing), and whether the case
may need to be remanded for further findings if the notice issue was raised but the
hearing officer simply failed to rule on it.
Mr. Lampman has supported most of the allegations of fact in his statement of
undisputed facts by reference to his own affidavit rather than by pointing to any evidence
in the record before the hearing officer. The State has responded to many of Mr.
Lampman’s allegations of fact, not by coming forward with countervailing evidence, but
by asserting, “Respondent is without sufficient information from this matter’s record to
reply.” It presumably refers to the underlying record before the hearing officer, which is
what this Court should be reviewing when undertaking certiorari review under Vt. R.
Civ. P. 75. It, too, however, has attempted to create a new factual record on the issue of
notice.
Conclusion
For the foregoing reasons, the parties’ motions for summary judgment are denied.
The Court requests that the parties submit the administrative record into the record of
this case, or a motion to supplement the record with grounds therefor, prior to any
further dispositive motion practice. The Court will set a deadline of 60 days for a motion
for summary judgment but will allow cross-motions to be filed within 30 days thereafter.
Order Page 6 of 7 23-CV-03739 Joseph Lampman v Department of Corrections Electronically signed on Tuesday, June 4, 2024, per V.R.E.F. 9(d).
_______________________ Timothy B. Tomasi Superior Court Judge
Order Page 7 of 7 23-CV-03739 Joseph Lampman v Department of Corrections