Wednesday, July 23, 2014

Reviewing the unreviewable . . .

In re Roy Girouard, 2014 VT 75

By Jeffrey M. Messina

Petitioner appeals the superior court's denial of motion to reopen his post-conviction-relief (“PCR”) petition and order the Department of Corrections (“DOC”) to release him on furlough.

In the mid-seventies, petitioner was convicted of first-degree murder and sentenced without a minimum term. At the time, eligibility for furlough was not conditional on the completion of a minimum prison term. However, in 2001 the Legislature amended the governing statute to condition eligibility for conditional re-entry furlough on the completion of a minimum term.

Petitioner filed an action against the DOC in 2007 alleging its refusal to consider him furlough eligible because he lacked a minimum sentence violated the Ex Post Facto Clause of the US Constitution. The superior court dismissed the claim determining the amended statute did not violate the clause because it did not increase the penalty for the crime. 

Petitioner appealed and the SCOV ruled petitioner "may prevail" on the Ex Post Facto claim if the 2001 amendments "created sufficient risk of eliminating eligibility for parole." The SCOV therefore remanded for further factual findings to determine whether the statute, as amended, "produced a significant risk of increasing [the] sentence."

On remand, the superior court found that although furlough is only one factor DOC considers in its parole decisions, a violent offender was not historically paroled without first being furloughed. Further, the court concluded petitioner's inability to obtain furlough release because he lacked the minimum sentence impacted the likelihood of his parole and therefore "create[d] a significant risk of lengthening his period of incarceration." The court granted relief, ordering DOC to "evaluate [petitioner] for furlough under the pre-2001 version of the statute."

Following the order, DOC's Central Case Staffing Review Committee (CCSRC) considered furlough release and decided petitioner could be re-evaluated for release once he completed eight more program participation credits of the program Cognitive Self Change (CSC).

Petitioner calls "Shenanigans!"He claims he completed his original CSC program requirements in 2007 and therefore flatly refuses to participate in any additional programming. As a result, he continued to be denied furlough. In 2011, he was denied based on his failure to comply with the committee's programming requirements. Petitioner then filed a motion to reopen his original motion, alleging the reasons for denying him furlough were pretextual.

In the motion, petitioner argued that DOC had made a determination he completed all the requirements of this case plan, had approved his re-entry plansincluding checking and accepting his proposed residence and verifying his transportation and employment resources - and had never even suggested there were any factors (other than the 2001 amendment) that might be obstacles to furlough. He claimed DOC required the additional programming "to penalize [him] for his successful litigation of the issue of his furlough eligibility." Petitioner therefore requested the court to reinstate the original petition, provide him counsel, and issue an order directing DOC to furlough him immediately.

The superior court denied the motion to reopen, stating DOC's decision to require the additional programming prior to furlough was solely a programming decision and was unreviewable.This appeal followed.

On appeal, petitioner argues the 2009 Order guiding DOC to assess the furlough is the law of the case and the superior court has "inherent authority" to enforce it. Petitioner further claims DOC's actions constitute a "bad faith evasion" of the order and argues the superior court erred by failing to develop a factual record to determine if DOC followed the court mandate. The State argues DOC met the terms of the order and program decisions are unreviewable.

The SCOV begins by explaining why it treats the lower court’s denial as a dismissal for failure to state a claim upon which relief can be granted.

The SCOV’s question, then, is whether DOC's decision not to grant petitioner furlough and require additional programming is reviewable. The SCOV states the use of programming requirements “falls within the broad discretion of the DOC to determine what mode of treatment best serves individual inmates” and is therefore normally unreviewable. Petitioner also concedes that DOC's decision to deny furlough because he had not met requirements of his case plan would generally be protected from review. Petitioner argues, however, that the extra CSC requirements were nothing more than a pretext to allow DOC to deny furlough, which was simply retaliation.

The SCOV reasons that while programming decisions are unreviewable by courts, constitutional claims are. Therefore, to the extent that petitioner is raising a colorable constitutional claim, that claim is reviewable. The Court follows that by saying if petitioner's allegations about DOC's actions frame a colorable constitutional claim, dismissal on the pleadings would be premature.

The SCOV reminds us that to determine whether a complaint survives dismissal for failure to state a claim, "courts must take the factual allegations in the complaint as true, and consider whether it appears beyond doubt that there exists no facts or circumstances that would entitle the plaintiff to relief." Under that analysis, if established, petitioner's allegations that DOC used its programming requirements to retaliate against him for pursuing the original case by preventing him from attaining the furlough release would clearly be unconstitutional.

To be successful in his claim of unconstitutional retaliation, petitioner has to show he took part in constitutionally protected conduct, and that conduct was a "substantial or motivating factor" in DOC's decision to require additional programming and deny the furlough. SCOV says the petitioner puts forth satisfactory allegations to survive dismissal.

SCOV determines that accepting petitioner specific factual allegations as true, it cannot conclude "it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Instead, if proven says SCOV, the allegations in this case would be sufficient to support a circumstantial inference of retaliation. Because petitioner alleged specific facts, SCOV says he makes a prima facie case of unconstitutional retaliation. The dismissal on the pleadings was premature.

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