Ponte v. Real

*501 Justice Stevens,

with whom Justice Blackmun joins as to Part II, concurring in part.

On March 10, 1983, this case was submitted to the Supreme Judicial Court of Massachusetts along with four others. 1 In each case, prisoners in state correctional institutions challenged the procedural fairness of recurring practices in the prison disciplinary process. The five opinions were all assigned to the same justice, who eight months later delivered five unanimous opinions for the court interpreting the minimum procedural requirements of state regulations and the Federal Constitution in the prison context. The evident deliberation of the Massachusetts court in these cases suggests a careful effort to establish workable rules for prison disciplinary proceedings in that State.

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The Court candidly states that it granted certiorari to review the judgment of the Supreme judicial Court of Massachusetts because that judgment “seem[s] to us to go further than our pronouncement on this subject in Wolff v. McDonnell, 418 U. S. 539 (1974).” Ante, at 492. As Justice Marshall points out, that is a manifestly insufficient reason for adding this case to our argument docket. See post, at 522-523, n. 21. The merits of an isolated case have only an oblique relevance to the question whether a grant of *502 certiorari is consistent with the sound administration of this Court’s discretionary docket. 2

When the prison Superintendent petitioned for certiorari, he had a heavy burden of explaining why this Court should intervene in what amounts to a controversy between the Supreme Judicial Court of Massachusetts and that State’s prison officials. 3 In determining what process is due in the prison context under the Federal Constitution, the Court emphasizes that we must be cautious to ensure that those requirements will be fair to all parties in the varying conditions found in each of the 50 States and the District of Columbia. Ante, at 497-498, n. 2. The Court’s display of caution would have been more relevant in deciding whether to exercise discretionary jurisdiction in the first place. The denial of certiorari would have left the decision below in effect for the State of Massachusetts, but would have left other jurisdictions to explore the contours of Wolff , in the light of local conditions.

*503 The imprudence of the Court’s decision to grant certiorari in this case is aggravated by the substantial probability that the Massachusetts court will, on remand, reinstate its original judgment on the basis of the State Constitution. 4 In that event, the Court’s decision — as applied to the State of Massachusetts — will prove to be little more than a futile attempt to convince a State Supreme Court that a decision it has carefully made is somehow lacking in wisdom as applied to conditions in that State. “As long as the Court creates unnecessary work for itself in this manner, its expressions of concern about the overburdened federal judiciary will ring with a hollow echo.” Watt v. Alaska, 451 U. S. 259, 274 (1981) (Stevens, J., concurring).

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Having granted the petition for certiorari, however, each of us has a duty to address the merits. All of us agree that prison officials may not arbitrarily refuse to call witnesses requested by an inmate at a disciplinary hearing. It is *504 therefore obvious that even if the reason for the refusal is not recorded contemporaneously, it must exist at the time the decision is made.

Moreover, as the Court expressly holds, ante, at 499, the burden of proving that there was a valid reason for the refusal is placed on prison officials rather than the inmate. In many cases, that burden will be difficult to discharge if corrections officers elect to rely solely upon testimonial recollection that is uncorroborated by any contemporaneous documentation. For that reason, the allocation of the burden of proof, together with the policy considerations summarized by Justice Marshall, will surely motivate most, if not all, prison administrators to adopt “the prevailing practice in federal prisons and in state prisons throughout the country.” Post, at 518 (Marshall, J., dissenting). Because I am not persuaded that the Federal Constitution prescribes a contemporaneous written explanation as the only permissible method of discharging the prison officials’ burden of proving that they had a legitimate reason for refusing to call witnesses requested by an inmate, I join the Court’s opinion. 5

Nelson v. Commissioner of Correction, 390 Mass. 379 , 456 N. E. 2d 1100 (1983); Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399 , 456 N. E. 2d 1111 (1983) (case below); Lamoureux v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 409 , 456 N. E. 2d 1117 (1983); Cassesso v. Commissioner of Correction, 390 Mass. 419 , 456 N. E. 2d 1123 (1983); Royce v. Commissioner of Correction, 390 Mass. 425 , 456 N. E. 2d 1127 (1983). The court did not reach the constitutional questions presented in Royce since it resolved the controversy in favor of the prisoner on the basis of state regulations.

Cf. Watt v. Alaska, 451 U. S. 259, 276 (1981) (Stevens, J., concurring) (“My disagreement in these cases with the Court’s management of its docket does not, of course, prevent me from joining [the Court’s opinion] on the merits”); Revere v. Massachusetts General Hospital, 463 U. S. 239, 246-247 (1983) (Stevens, J., concurring in judgment).

“Because the Supreme Judicial Court of Massachusetts — rather than another branch of state government — invoked the Federal Constitution in imposing an expense on the City of Revere, this Court has the authority to review the decision. But is it a sensible exercise of discretion to wield that authority? I think not. There is ‘nothing in the Federal Constitution that prohibits a State from giving lawmaking power to its courts.’ Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 479 (1981) (Stevens, J., dissenting). No individual right was violated in this case. The underlying issue of federal law has never before been deemed an issue of national significance. Since, however, the Court did (unwisely in my opinion) grant certiorari, I join its judgment.” Revere v. Massachusetts General Hospital, 463 U. S., at 247 (Stevens, J., concurring in judgment) (footnote omitted). See also Michigan v. Long, 463 U. S. 1032, 1067-1068 (1983) (Stevens, J., dissenting); post, at 522-523, n. 21 (MARSHALL, J., dissenting).

In a series of recent cases, this Court has reversed a state-court decision grounded on a provision in the Federal Bill of Rights only to have the state court reinstate its judgment, on remand, under a comparable guarantee contained in the State Constitution. See, e. g., Massachusetts v. Upton, 466 U. S. 727 (1984), on remand, Commonwealth v. Upton, 394 Mass. 363, 370-373 , 476 N. E. 2d 548, 554-556 (1985); California v. Ramos, 463 U. S. 992 (1983), on remand, People v. Ramos, 37 Cal. 3d 136, 150-159 , 689 P. 2d 430, 437-444 (1984), cert. denied, post, p. 1119; South Dakota v. Neville, 459 U. S. 553 (1983), on remand, State v. Neville, 346 N. W. 2d 425, 427-429 (SD 1984); Washington v. Chrisman, 455 U. S. 1 (1982), on remand, State v. Chrisman, 100 Wash. 2d 814, 817-822 , 676 P. 2d 419, 422-424 (1984) (en banc). This development supports Justice Jackson’s observation that “reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U. S. 443, 540 (1953) (concurring in result).

1 do not, however, agree with the second paragraph in n. 2, ante, at 498.