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| An antique? |
By Elizabeth Kruska
Know anyone in jail? I do. I mean, I’m a lawyer, so it goes with the territory. My jail calls usually go like this, “hey, it’s Elizabeth. I’m calling to tell you (insert one very specific piece of information). I’ll try to come see you sometime soon.” And that’s that.
Sometimes clients call me. And I am often pretty quick with these calls. Couple reasons. First, these calls are recorded. There’s a warning to the caller and to the recipient of the call that the call is recorded. If you are Suge Knight’s lawyer, this might even land you in jail, depending on what you’re alleged to have said (btw, Mark Geragos gives a really good explanation of this weird case in Episode 138 of his podcast, “Reasonable Doubt” with Adam Carolla).
The other reason I’m quick with these calls is because I know it costs my clients money. A client who is in jail doesn’t really have a lot of options in terms of contacting people who aren’t in jail. They can write a letter, but that takes a couple days. If the communication isn’t urgent, this is fine. If it’s more pressing, though, a good ol’ phone call makes more sense. But it’s not as if someone in jail is able to shop for the best pricing on phone plans. No, people in jail have to use the phones they have access to, which are the phones provided by the jail.
And it’s not as if the jail can provide free phone calls. That would be like a pre-cell phone era teenager’s bedroom in the whole jail. I’m picturing phone cords trailing on the floor and arguments over who’s been on the phone longer. People would be on the phones all the time. And this would cost the jail—and thus the taxpayers—a whole lot of money. There are security concerns involved with phone calls, too, obviously. So, the jail has to have some sort of phone system that is a pay-per-call based system.
But.
There’s a lot of potential for abuse of prisoners’ resources by instituting a pay-per-call system. They’re literally a captive audience, so a jail (or system of jails) could, in theory, go with whatever calling system they want, regardless of the cost. And since the prisoners really have no choice with respect to the call plan, they’re basically stuck using whatever the system implements. I don’t want to go too far down this rabbit hole, but there is a lot of research out there on costs of imprisonment, including the unanticipated costs of imprisonment on prisoners’ families, as they’re usually the ones who have to pay for the calls, visits, commissary, etc. If this is interesting to you, let your fingers do the walking (albeit via The Google) and poke around some articles a little bit.
Wow, this was a long walk to get to this case. But basically, it’s this. Kirk Wool is in jail, and from what I recall from other appeals of his I’ve seen, I think he’s got a long sentence. He’s aggrieved because the Vermont Department of Corrections signed a contract with a phone provider without putting it out for bid. He figured out that the current phone provider charges about $8/hour for phone calls, while other providers charge less. His position is that if DOC had put the contract out for a competitive bid, they would have been required to go with the provider that causes the least harm to the users of the system (the people in jail). He felt he was entitled to damages in the amount of the difference between the price he paid and the price he would have paid had DOC gone with a more beneficial company.
So, Mr. Wool filed a lawsuit against the State. It was dismissed, and he appealed. SCOV affirmed the dismissal with respect to the damages he alleged he sought, but reversed with respect to mandamus relief he sought.
With respect to the motion to dismiss, the trial court ruled that the State had not waived its sovereign immunity, and that Mr. Wool hadn’t proved that they had. SCOV reviews motions to dismiss de novo, or anew, because they’re questions of law. SCOV agreed that there are circumstances where, by statute, the State has expressly waived sovereign immunity. This isn’t one of those times. So, SCOV agrees that a tort claim by Mr. Wool can’t go forward.
But SCOV does reverse with respect to Mr. Wool’s claim for mandamus relief. Hey, right . . . So, what’s mandamus relief? It’s where a court orders some state official, agency, or tribunal to perform a ministerial duty required by law.
In order to get such relief, the petition has to show three prongs. First, the petitioner has to have a clear and certain right to the mandamus action. Second, it has to be for enforcement f ministerial duties, not for duties that are done within the agency or official’s judgment or discretion. Last, there can’t be any other remedy in order to get to the desired end.
SCOV finds that Mr. Wool is in a position to get such relief. First of all, the statute requires that DOC has to use a competitive bidding process for phone service for inmates. DOC is required to get three or more bids and has to award the contract to one of the lowest bidders unless the bid is rejected. Mr. Wool didn’t exactly say it in these words or use the statutory cite, but SCOV finds that DOC could and should have known what he meant by what he wrote.
As an inmate in the custody of the Vermont Department of Corrections, Mr. Wool has the right to have phone services provided to him at the lowest possible cost. DOC argues that Mr. Wool is not a third-party beneficiary of the contract. SCOV says, hold on, friends! He didn’t file a breach of contract suit. He was seeking to enforce statutory bidding requirements, and he doesn’t have to be a third-party beneficiary in order to do that.
So, does he have standing to even bring this suit? SCOV says indeed he does. In order to figure out if someone has standing, they have to allege personal injury that’s fairly traceable to the defendant’s allegedly unlawful conduct, and can be redressed by the requested relief. In other words, he has standing because DOC did something, he feels the brunt of what they did, and what ails him can be fixed if the court says, “hey, fix this.” And it’s got to be pretty specific to the plaintiff—it can’t just be a generalized complaint or harm to the public.
The point is that even though I, as a member of the general public, don’t like that there are lots of costs passed on to inmates, I don’t really feel the effects of it personally. And if the Department of Corrections changed their phone provider to a cheaper one, I’d probably feel happy on behalf of the inmates and their families, but it’s got no real effect on me. Therefore, I wouldn’t have standing to raise this claim.
Mr. Wool, on the other hand, is in a different handbasket. He does have financial injury traceable to the higher phone rates. And had the Department of Corrections done the competitive bidding process, chances are there’d be cheaper calls through a different provider.
All this to say that the opinion isn’t completely clear to me if, in fact, this didn’t happen, but SCOV determines that the trial court was too quick to rule that this requested relief should be dismissed. So, this piece is reversed for the trial court to determine whether Mr. Wool is eligible for such relief.
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