State v. Shambley and the Nebraska Supreme Court's Conclusory Approach Defining a Standard of Proof for Drug Court Termination Hearings

• Jurisdiction: Nebraska,United States
• Citation: Vol. 47
• Publication year: 2022

47 Creighton L. Rev. 1. STATE V. SHAMBLEY AND THE NEBRASKA SUPREME COURT'S CONCLUSORY APPROACH DEFINING A STANDARD OF PROOF FOR DRUG COURT TERMINATION HEARINGS

STATE V. SHAMBLEY AND THE NEBRASKA SUPREME COURT'S CONCLUSORY APPROACH DEFINING A STANDARD OF PROOF FOR DRUG COURT TERMINATION HEARINGS

CHRISTOPHER P. BELLMORE(fn*)

I. INTRODUCTION

Due process of law is not a technical conception.(fn1) Its precise term and nature remain undefined.(fn2) In State v. Shambley,(fn3) the Nebraska Supreme Court addressed the application of due process to the State's decision to terminate an individual from drug court.(fn4) In Shambley, Samantha Shambley struggled while participating in the drug court program, tested positive for drugs numerous times, and was sanctioned on several occasions.(fn5) Eventually, the drug court sought to terminate her from the program.(fn6) At the termination hearing, Shambley was assigned the burden of proving why she should not be terminated from the drug court program.(fn7) Although Shambley objected, the drug court accepted evidence based solely on hearsay and terminated her from the drug court program.(fn8)

The Nebraska Supreme Court remanded the case to the drug court for re-hearing, determining that the drug court denied Shambley due process when it required her to prove why she should not be terminated from the drug court program, and denied her the right to confront and cross-examine the evidence offered against her.(fn9) The court also found that the appropriate standard of proof upon rehearing was a preponderance of the evidence standard.(fn10)

This Article will first review the facts and holding of Shambley and the rationale the Nebraska Supreme Court used to determine that drug court termination hearings trigger due process, the drug court denied Shambley due process, and the drug court determined that the appropriate standard of proof at a drug court termination hearing was a preponderance of the evidence standard.(fn11) This Article will then provide a summary of relevant case law regarding the applicability of procedural due process involving liberty interests, including Mathews v. Eldridge(fn12) and its supporting cases.(fn13) Next, this Article will show that the Nebraska Supreme Court erred in determining the appropriate standard of proof in a drug court termination hearing is a preponderance of the evidence standard.(fn14) This Article will establish that 1) the Nebraska Supreme Court correctly determined that drug court termination hearings trigger due process protection because the deprivation of participation would cause a participant to suffer grievous loss, 2) the Nebraska Supreme Court erred when it failed to consider the Mathews factors when assigning the procedures required in a drug court termination hearing because the Mathews factors more precisely highlight the nature of due process at stake rather than simply comparing similar hearings, and 3) the Nebraska Supreme Court erred when it determined that a preponderance of the evidence standard was sufficient at a drug court termination hearing because application of Mathews indicates that an intermediate clear and convincing standard is constitutionally required.(fn15) Finally, this Article will conclude the Nebraska Supreme Court erred when it determined that a preponderance standard is all that is constitutionally required when terminating a participant from drug court.(fn16)

II. FACTS AND HOLDING

On December 23, 2008, Samantha Shambley was charged with possession of a controlled substance and entered a guilty plea in the District Court of Madison County, Nebraska.(fn17) Prior to sentencing, the district court transferred Shambley's case to the drug court.(fn18) Shambley signed a drug court contract, which emphasized that Shambley was to abstain from drug use, as a prerequisite to her participation in the program.(fn19)

The court provided a general background on the drug court process.(fn20) The drug court's purpose is to reduce recidivism through treatment, supervision, and judicial oversight.(fn21) The drug court provides a post-plea or post-adjudicatory program.(fn22) Eligibility requires that a candidate enter a guilty plea to an underlying offense and agree to and sign a contract promising to abide by the drug court's conditions.(fn23) Upon successful completion, a drug court participant may withdraw his or her guilty plea and thus avoid sentencing and conviction for the underlying offense.(fn24) However, if a participant is unsuccessful and is terminated from the program, the case is transferred back for sentencing in the district court.(fn25)

During Shambley's tenure in the program, she was sanctioned numerous times for allegedly using marijuana and violating conditions regarding drug testing.(fn26) On August 28, 2009, she admitted to using marijuana, and was ordered to serve seventy-two hours in jail as a result.(fn27) On November 13 and December 4, 2009, she received similar sanctions for similar violations.(fn28) On February 5, 2010, the drug court confronted Shambley about drug use, but she did not admit to the allegation.(fn29) The drug court advised her that she risked termination from the program.(fn30)

On March 12, 2010, Shambley appeared in drug court and was told she was being recommended for termination.(fn31) Shambley appeared with counsel at the termination hearing.(fn32) The drug court explicitly placed the burden of proof on Shambley to provide evidence as to why she should not be terminated and stated it was Shambley'sresponsibility to rebut the drug court's recommendation fortermination.(fn33)

The drug court coordinator's letter contained five attachments, which noted Shambley's drug use and synopsized her inability to comply with the drug court contract.(fn34) The accompanying attachments supported the drug court coordinator's synopsis and contained the following: information regarding Shambley's discharge from a rehabilitation center, the difficulties Shambley had during her stay at a halfway house, and laboratory reports indicating a positive drug test from a March 8, 2010 sample.(fn35) The final attachment was an e-mail from an unidentified author to an unidentified recipient indicating that although one of Shambley's drug tests returned negative, it was likelyincorrect.(fn36)

Shambley objected to the letter and its attachments on hearsay and foundation grounds.(fn37) Shambley also objected that the letter and the termination hearing itself violated her rights to confrontation and due process.(fn38) Specifically, Shambley argued that she had no ability to question the evidence's veracity or examine the reliability of the laboratory conclusions.(fn39) The drug court overruled each of Shambley's objections.(fn40) Although Shambley did not testify to prior drug usage while in drug court, she stated that she did not use drugs on March 11, 2010.(fn41) Following the drug court team's recommendation, Shambley was terminated from the drug court.(fn42) The district court then scheduled a hearing and sentenced Shambley to ninety days in jail based on the underlying possession-of-a-controlled-substanceoffense.(fn43)

Shambley appealed the termination asserting four assignments of error.(fn44) First, Shambley asserted that the drug court terminated her from the program without due process.(fn45) Second, Shambley asserted that her Fourteenth Amendment due process rights were violated when the drug court placed the burden on Shambley to show she should not be terminated.(fn46) Third, Shambley asserted receiving the drug court coordinator's letter into evidence violated her right to confront and cross-examine witnesses.(fn47) Fourth, Shambley asserted that the evidence offered against Shambley was insufficient to support termination.(fn48)

The Nebraska Supreme Court stated that due process requires an examination of whether the interest affected falls within the Four-teenth Amendment, and if so, what process is due.(fn49) The court stated that the United State Supreme Court had not decided whether a drug court termination hearing triggers due process.(fn50) The court discussed two United States Supreme Court decisions involving due process in probation and parole revocations.(fn51) Applying Morrissey v. Brewer(fn52) and Gagnon v. Scarpelli,(fn53) the court explained that parole and probation involve conditional liberty interests allowing greater freedoms than those confined in prison.(fn54) Next, the court stated that, in the parole and probation revocation context, the State has an interest in revocation without affording the full panoply of rights due in a criminal prosecution.(fn55) Because a parolee or probationer's liberty is conditional, termination does not require the same adversarial trial necessary to obtain a criminal conviction.(fn56) Under Morrissey, the court stated that balancing State and individual interests requires at a minimum a hearing to assure a finding based on verified facts where the parolee, or probationer, has the right to present a defense.(fn57) The court also stated that the United States Supreme Court has enumerated a list of minimum procedures in revocations, including the right to confront and cross-examine witnesses.(fn58)

Next, the court applied Morrissey and Gagnon to the drug court termination hearings.(fn59) This was a case of first impression, but a majority of other jurisdictions had determined that individuals facing...