Friday, July 22, 2011

Small Victories

By Michael Tarrant

Rheaume v. Pallito, 2011 VT 72

Inmate is currently serving a life sentence as a “habitual offender.”  But this is not your borderline, “three-strikes and you’re out” habitual offender life sentence: Inmate has forty-eight convictions—five of which either involved sex crimes or had a sexual element.  Additionally, and apparently not one to rest on his out-of-prison-trouble-making laurels, Inmate has also racked up sixty-three disciplinary report convictions since being incarcerated.  Two more and I’m told he gets a coupon for a free iced coffee from the prison commissary.

But the appeal at issue here is not directly related to Inmate’s life sentence; rather, Inmate appealed his classification by the Department of Corrections (“DOC”) as a “high risk” sex offender and the concomitant programming requirements that accompany such a classification.

In 2007, the Vermont Department of Corrections’ Sex Offender Review Committee (“Committee”) classified Inmate as a “high-risk sex offender” pursuant to 13 V.S.A. § 5411b(b).  The Committee then sent Inmate a letter in July 2007, notifying him of this designation and also of his right to appeal to the Committee within thirty days.  Inmate apparently filed no such appeal.

In March 2009, the DOC reviewed Inmate’s file and determined that in order for him to be released prior to the expiration of his maximum sentence he would have to participate in “Cognitive Self Change,” a program run by the Vermont Treatment Program for Sex Abusers. 

In November 2009, Inmate appealed to the superior court pursuant to Vermont Rule of Civil Procedure 75.  The superior court granted the DOC’s motion to dismiss for failure to state a claim and lack of subject matter jurisdiction; concluding that Rule 75 did not allow for review of either his “high risk” designation or his programming requirements.  Inmate appealed both determinations to the SCOV. 

On appeal, the DOC conceded that the trial court’s determination that Inmate could not seek review of his classification pursuant to Rule 75 was erroneous.  The DOC argued, however, that notwithstanding that error, Inmate did receive notice of his classification in early August 2007 as evidenced by his dated signature on the notification letter, and as Inmate’s appeal was not filed until late 2009, his claim should be time barred. 

Curiously, Inmate filed his complaint challenging his classification in November 2009, and yet claims he did not receive notice of such classification until December 2009.  The SCOV determined that, although the timing is “somewhat difficult to harmonize,” the issue of exactly when Inmate received notice is a question of fact and therefore not proper for disposal on the pleadings.  The SCOV reversed and remanded to the superior court the question of whether Inmate received notice of the Committee’s decisions such that the thirty day appeal period began to run.

The second issue on appeal—whether an inmate designated as “high risk” can appeal his or her DOC determined programming requirements pursuant to Rule 75—was one of first impression for the SCOV. 

Rule 75 is simply titled “Review of Governmental Action.”  It is part of the rules of civil procedure that the SCOV long ago created to the standards governing the various parts of a court action.  Other rules set the timelines, the guidelines for discovery, and the process that judgements are issued.  Rule 75 is the close cousin—some might suggest evil doppelganger—of Rule 74.  That rule governs how we take appeals from governmental agency decisions when a party is entitled to seek review by statute.  So for example, if you are a barber, and the Secretary of State refuses to renew your license, you would appeal to Superior Court following the process given by Rule 74 because the statute allows for such an appeal. 

Rule 75 basically picks up the slack that Rule 74 leaves behind by providing a procedure for review of any action or refusal to act by a government agency “if such review is otherwise available by law.”  Unlike Rule 74, Rule 75 does not layout exactly what type of “governmental action” is reviewable, but the Reporter’s Notes to the Rule indicate that it comes from one of two sources, either a where court review is provided by statute or where it is “available as a matter or general law by proceedings in the nature of certiorari, mandamus, or prohibition.”  If you think the second sounds like a jumping off point for a broad review of historical doctrines with broad and variable application, then ring the bell because that woman has won a prize.

The SCOV notes that as no statute provides for review of DOC programming decisions, the question falls to the second category and becomes whether such review “falls within the class of decisions appealable at common law under one of the extraordinary writs.”  Quickly dispatching with the writs of prohibition and mandamus as inapplicable, the SCOV moves on to review of the writ of certiorari as the “most likely avenue from which [Inmate] could derive the right of Rule 75 appeal with regard to his programming requirements.”

Certiorari is one of those Latin-based terms that courts and lawyers have tossed around since the birth of the billable hour.  Basically, it means that people have the right to apply to the SCOV to review the judicial actions of any lower court or tribunal.  In this case, anyone making a “judicial” decision is fair game and the SCOV has to decide whether the Commissioner of Corrections is making a “judicial” decision or simply exercising his power as given by statute.  Law school professors, one of the few groups of people with the time, spend hours arguing about the difference between the two.

So after laying out the powers and responsibilities of the Commissioner of Corrections, the SCOV concludes that establishing programming requirements falls within the Commissioner’s explicit statutory powers and that the Commissioner is not acting as a quasi-judicial body when it establishes such requirements—the Commissioner is simply “fulfilling his statutorily-created responsibilities.”  On the other hand, determining whether someone is a “high risk” could be considered “quasi-judicial” and is therefore subject to certiorari and by extension review under Rule 75.  In conclusion, the SCOV clarifies that the decision to classify an inmate as “high risk” could be considered “quasi-judicial,” and thus is subject to review under Rule 75, while the establishment of concomitant programming requirements falls solely within the Commissioner’s discretion, and thus Rule 75 review is unavailable.  So inmate can challenge the fact that he was determined to be “high risk” (if such appeal was timely), but he cannot challenge any of the programs he will have to complete if he is determined to be high risk.

Like many Rule 75 cases, the details tend to outstrip the import of the underlying issues.  Or as a partner at my firm put it somewhat sarcastically, "Well I'll sleep better tonight knowing this has been decided."  

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