Monday, December 2, 2013

No review for you!

Inman v. Pallito, 2013 VT 94


Do you remember the soup Nazi from Seinfeld?    

This is a short opinion based entirely on procedural grounds.  Plaintiff is an inmate who was kicked out of the Incarcerative Domestic Abuse Treatment Program (InDAP).  At the time, he was serving a twenty six-month to eight-year sentence for aggravated assault and escape.  Participation in InDAP, along with meeting other requirements, can help an inmate get early, supervised release.     

When plaintiff was coming up on completion of his minimum sentence, he requested a telephone hearing for visitation with his kids upon release.  He got the hearing.  At the hearing, he asked his wife—the complainant in his domestic-assault case—to be quiet and let him tell his side of the story.  He also accused his wife of lying.  Plaintiff contends that he was polite and well-behaved throughout the hearing. 

An account of plaintiff’s behavior at the hearing made its way to the InDAP coordinator and plaintiff was placed on probation.  Plaintiff was booted from InDAP six days later on the bases that he “continuously justifies abuse towards his partner and blames others for his actions,” he “is just going through the motions to get through the program,” and he had “another person call his victim of record after being placed on probation for abuse towards her during the court call.”


Plaintiff attempted to appeal within DOC, but was unsuccessful, and DOC’s reasons for rejecting the appeal seem objectively tenuous.  At any rate, plaintiff appealed to superior court, arguing that the DOC’s decision was appealable under Vermont Rule of Civil Procedure 75.  The state moved to dismiss, based in large part on this case, which essentially held that programming decisions within the DOC Commissioner’s discretion are not appealable under Rule 75.  The superior court granted the state’s motion, and plaintiff appealed.   

The standard of review is de novo, and the SCOV takes all the plaintiff’s allegations as true.  The SCOV notes at the outset that there is no absolute right to review of administrative decisions, as well as the SCOV’s historical application of this principle to DOC programming decisions.  As Bob Dylan said, You don't need a weather man to know which way the wind blows.  But I’ll tell you anyway: this wind ain’t blowin’ anywhere.    

Though the SCOV acknowledges the oft-allowed Rule 75 review of administrative decisions, the SCOV begins by noting that no statute allows review of DOC programming decisions, following up with the observation that the case mentioned above “looms over the discussion.”  It is with this lens that the SCOV looks at plaintiff’s mandamus and certiorari arguments.    

The SCOV notes its prior reasoning that the DOC’s programming-requirements decisions cannot be “reached via mandamus because there [are] no pre-existing duties to enforce.”  The SCOV also notes the inapplicability of “certiorari, because the DOC is not a lower court or inferior tribunal.” 

Despite plaintiff’s arguments that the case is distinguishable as to mandamus (a court’s order to a lower court or agency) because his case involves termination from the programming rather than a programming-requirements decision, the SCOV reasons that this is a distinction with no practical effect.  The decision is still a programming decision that is not reviewable.    

Plaintiff’s last-gasp argument is that this is an extreme and arbitrary abuse of discretion.  The SCOV doesn’t bite.  Though the SCOV acknowledges that this type of review is sometimes available, it is not available in this case.  The SCOV notes that this type of review applies in situations where there is a clear duty and a complete abdication of responsibility on the part of an administrative entity.  Plaintiff’s case just doesn’t cut it, apparently.     

Certiorari, as noted above, doesn’t apply “because the DOC is not ‘performing the functions of a quasi-judicial body when it establishes programming requirements.’”  And so the SCOV affirms the trial court’s dismissal of plaintiff’s case. 


 I’d guess that plaintiff, given his history, will henceforth refer to Rheaume v. Pallito (the case mentioned several times above) as “that damned case.”

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