In re: Tony Taylor, No. 354-7-10 Wmcv (Wesley, J., Aug. 31, 2011)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Windham Unit                                                                               Docket No. 354-7-10 Wmcv


In re: Tony Taylor


                                                  ORDER GRANTING
                                                   RULE 75 RELIEF

        This is a V.R.C.P. 75 action challenging a determination made by the Vermont
Department of Corrections (“the Department”) denying an exemption from the Sex
Offender Internet Registry (“SOIR”) for Petitioner Tony Taylor. Following a pre-trial
status conference on October 19, 2010, the Court issued an entry requiring the parties to
submit memoranda of law addressing the standard of review and the burden of proof.
Following requests for extensions made by each party, the pleadings were closed on April
13, 2011. In consideration of the authorities and arguments advanced by each party, and
after further examination of the issues presented by the petition, the Court makes the
following rulings.1

        Petitioner posits the question: What does due process require when the
Department considers an offender’s petition for an exception to retroactive inclusion in
the Sex Offender Internet Registry?2 The Court concludes that Petitioner’s constitutional
arguments need not be addressed, however, because the Department failed to comply
with the procedural requirements of the statutory and regulatory scheme itself. Cf. In re
Sealed Documents, 172 Vt. 152, 155 (2001) (courts should refrain from deciding
constitutional issues where case can be decided on statutory or other grounds).
Specifically, the Court concludes that the statutory notes and administrative regulations
require an individualized decision-making process with written findings explaining the
decision in relation to specified criteria. The contemplated decision-making process is
not intended to be overly burdensome. Nonetheless, the form letter denial with no
findings specific to the Petitioner’s case issued in this matter is plainly insufficient.
Accordingly, this petition is REMANDED to the Commissioner with direction to revisit
1
  This procedure to which the parties acquiesced resulted in a record which the Court considers the
functional equivalent of one created pursuant to V.R.C.P. 56. Thus, because there are no disputed facts
suggested by either party, this opinion resolves the dispute framed by the petition as a matter of law
requiring summary judgment.
2
  Petitioner maintains that due process in this instance requires that the State prove by clear and convincing
evidence that his inclusion in the registry was justified, and afford de novo review upon a Rule 75 petition.
The State disclaims Petitioner’s right to de novo review in these proceedings, and insists that due process
was not offended by the Department’s administrative determination. For the reasons set forth in this
opinion, the Court does not reach these issues, at least as a matter of due process analysis. However, the
Court notes that, unless compelled as a matter of due process, and in the absence of any specific statutory
grant of de novo review, a Rule 75 appeal is in the nature of certiorari and review is confined to the
adequacy of the record under an abuse of discretion standard. See, Ketchum v. Town of Dorset, 2011 VT
49, ¶13; Hunt v. Village of Bristol, 159 Vt. 439, 441-42 (1992).
his determination and provide written findings explaining the Department’s decision in a
manner consistent with this opinion, within 60 days of the date of this Order.

Statutory and Regulatory Authorities

         In 2009, the Vermont Legislature expanded the list of crimes for which inclusion
in the Sex Offender Internet Registry (SOIR) is required. See 13 V.S.A. § 5401(10)(A).
Furthermore, it made this expansion retroactive, such that previously convicted offenders
would be included in the registry even if their crimes had not qualified them for inclusion
at the time of conviction. See Historical and Statutory Notes to § 5401, 2009, No. 58,
§11 (“Applicability”). It is apparent from the Notes that both the expansion and the
retroactivity were required by federal mandate,3 and that the amendment was enacted
reluctantly, to avoid loss of federal funding, despite concerns about constitutionality and
doubts about the reliability of using crime-of-conviction rather than actuarial tools to
assess the risk of recidivism. See Historical and Statutory Notes, 2009, No. 58, § 1.4

       To lessen the constitutional concerns and perceived unfairness of the federal
mandate, the Vermont version of the law provides that offenders convicted of listed
crimes who had successfully completed their terms of imprisonment and/or probation
could petition for an exception based on successful reintegration into the community.
See Historical and Statutory Notes, 2009, No. 58, § 11(3)(A). As required by the statute,
the Department has adopted an administrative rule setting forth the criteria and
procedures to be utilized in deciding these petitions for exceptions. See APA Rule #
09039, DOC Policy # 258(5) & (6) (“the Rule”) (effective January 2010).

        Subsection 5 of the Rule specifies that the following criteria should be considered
in determining successful reintegration: (i) whether the person has had charges or
convictions in the five years prior to the effective date of the rule (i.e., since January
2005) of a felony offense, an offense with a sexual element, or a probation/protection
order violation; (ii) whether the person has successfully completed all recommended
treatment; (iii) whether the person had any sex offenses prior to the offense on which the
registry requirement is based; (iv) whether the person’s current or prior probation/parole
officer(s) provided a positive recommendation; (v) whether the person’s family and other
social supports are positive and prosocial; and (vi) whether the person’s employment and
residence status are stable. Id. at 5.

        Subsection 6 then specifies the procedures to be utilized in evaluating successful
reintegration. Id. at 6. The offender is required to submit a complete petition, including

3
   See Adam Walsh Child Protection and Safety Act of 2006, adding Chapter 109B to Title 18, U.S.C.
4
   For further background regarding this federal mandate and the problems it has caused for states, see
Stephanie Buntin, “The High Price of Misguided Legislation: Nevada’s Need for Practical Sex Offender
Laws,” 11 Nev. L.J. 770 (2011); Amy Baron-Evans, “Still Time to Rethink the Misguided Approach of the
Sex Offender Registration and Notification Act,” 20 Fed. Sent’g Rep. 357 (2008); Lara Geer Farley, “The
Adam Walsh Act: The Scarlet Letter of the Twenty-First Century,” 47 Washburn L.J. 471 (2008); Jacob
Frumkin, “Perennial Punishment? Why the Sex Offender Registration and Notification Act Needs
Reconsideration,” 17 J.L. & Pol’y 313 (2008).



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documentation of treatment completion and documentation of residence and employment
for the previous five years. Id. at 6(a). Neither the statute nor the Rule makes any
provision for the petitioner to request an evidentiary hearing, or to otherwise present
evidence in support of the petition. Rather, the petition is reviewed by the Sex Offender
Review Committee (SORC), which “shall make written findings on each petition for an
exemption after review of a completed petition,” and shall then deliver its written
findings to the Commissioner. Id. at 6(c) (emphasis added). The Commissioner then
reviews the SORC’s written decision. Id. at 6(d). “The Commissioner shall return to the
SORC any decision in which the Committee has not provided a sufficient basis for
review,” in which case the SORC must provide further explanation. Id. at 6(e) (emphasis
added). Additionally, the Commissioner “shall deliver” the SORC’s written findings to
the eligible offender/petitioner with his determination. Id. at 6(f).

Factual Background

        Petitioner Taylor was convicted in 2001 of sexual assault on a minor based on an
uncoerced sexual encounter he had with a fifteen year old when he was nineteen. In May
2005, he was discharged from probation, without objection from the State, for
satisfactory completion of all conditions. Four years later, though never previously
subject to mandatory listing, he was notified that his offense had been added to the list of
those for which inclusion in the Sex Offender Internet Registry (SOIR) was required.
Petitioner was informed that he could petition for an exception if he could show he had
successfully reintegrated into the community; and he did so, providing all the requested
documentation. He then heard nothing further until he received a letter from the
Department denying his petition “based on the fact that you have continued to have arrest
and convictions for criminal activities and/or violations since your sex offense
conviction.” Nothing in this notice indicated what these arrests or convictions were or
when they occurred; nor was there anything in the letter referring to any of the particular
facts or circumstances of Petitioner’s situation pertinent to the other factors the
Department was required to consider. It is from this decision that Petitioner appeals.

Analysis

        Petitioner argues that as a matter of procedural due process, (1) the State should
have to show by clear and convincing evidence that he has not successfully reintegrated
into the community before putting him on the internet registry, rather than putting the
burden on him to show that he has successfully reintegrated; and (2) review of the
decision in this Court should be de novo rather than on the record. Although the
Department gives Petitioner’s arguments short shrift, it is the Court’s view that these and
other due process questions raised by the retroactive application of this law could be
close and difficult to decide, particularly given the absence of any opportunity for the
petitioner to present evidence in support of his claim for reintegration. Indeed, the
unfairness and arguable unconstitutionality of retroactive application to offenders who
have successfully completed their sentences is one of a number of obstacles to
implementation that many states have encountered in trying to comply with the federal
mandate. See, generally, the authorities cited supra in n.2. Numerous lawsuits



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challenging the constitutionality of similar state laws based on the federal model have
been filed, and at least one has been successful. See American Civil Liberties Union of
Nevada v. Cortez Masto, 719 F.Supp.2d 1258 (D. Nev. 2008) (enjoining retroactive
application of internet registry requirement on various constitutional grounds, including
ex post facto and due process clauses).

        Notably, however, neither the federal model nor the Nevada law at issue in ACLU
of Nevada provided an opportunity to petition for an exception; and the District Court in
ACLU of Nevada emphasized this shortcoming in concluding that the due process clause
was violated. 719 F.Supp 2d at 1260; see also Baron-Evans, supra, at 357 (noting that the
federal scheme provides no opportunity to petition for exception or removal). By
contrast, the Vermont statutory and regulatory scheme does provide the opportunity to
petition for an exception (albeit without a hearing), and this opportunity arguably
mitigates the claimed unfairness and weakens the constitutional arguments against
implementation – but only if the opportunity provided is a meaningful one.

        The drafters of Vermont’s statutory notes and regulations not only created the
opportunity to petition for exception, but specified the criteria to be used and explicitly
required written findings. Although the drafters did not elaborate as to exactly what
should be included in the findings, the Court concludes that the only reasonable
interpretation necessitates findings which address the criteria articulated in the Rule, that
they be specific to the individual petitioner, and that they explain the decision in a
manner that relates the findings to the criteria articulated in the Rule. Vermont’s version
of the Act was drafted well after those of Nevada and numerous other states, and it is
reasonable to assume that our drafters were trying to avoid the unfairness and
constitutional problems other states had encountered. Thus the Court infers an intent on
the part of the drafters that the right to petition and receive a decision on the petition be
meaningful, rather than a formality, and that the criteria and procedures were established
for that purpose. Cf. In re G.T., 170 Vt. 507, 517 (2000) (laws should be read to avoid
constitutional difficulties if possible).

       In this case, however, the Department failed to comply with its own Rule.
Instead, it informed Petitioner of the decision on his petition in what appears to be a
generic form letter given its lack of any findings particular to him. The letter made no
reference to the criteria articulated in the Rule, and provided no explanation other than
the general statement that the denial was “based on the fact that you have continued to
have arrest and convictions for criminal activities and/or violations since your sex offense
conviction.”5


5
  The underlying basis for this determination remains unclear. The Department attached to its pleading
here a copy of the docket sheet from Petitioner’s original conviction, without explanation. This docket
sheet does show a probation violation in 2002; but to the extent the Department is suggesting this was the
basis for their decision, without the need to consider anything else, the Court notes that it occurred well
before the five year period the articulated criteria focus on. Petitioner acknowledges a drug-related
conviction in 2005, which would be just within the pertinent period under the criteria. Assuming this
acknowledged subsequent conviction underlies the Department’s determination, a bare reference to it
would not negate the need to consider other criteria and provide findings. In any case, neither the


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        Courts should generally refrain from deciding constitutional questions where a
case can be decided on statutory or other grounds. In re Sealed Documents, 172 Vt. 152,
155 (2001). Thus, the Court concludes that, at least as an initial matter, the better basis
for a decision here is not due process, but the Department’s failure to follow the
procedures required by the Vermont statutory and regulatory scheme. 6

        Accordingly, the Court will remand this case to the Department to allow the
Commissioner and/or Committee to revisit the decision on Petitioner’s petition and
produce a written decision individual to his case, including written findings on the
specified criteria in the Rule, and an explanation of the decision in relation to those
findings and criteria. As Petitioner is already on the internet registry without compliance
with the Rule, the Department should comply with this order in as timely a manner as
possible, and no later than 60 days from the date of this Order.

                                                 ORDER

       This case will be REMANDED to the Department of Corrections to revisit the
decision on Petitioner’s petition and produce a written decision individual to his case,
including written findings on the specified criteria in the Rule and an explanation of the
decision in relation to those findings and criteria, within 60 days of this Order.


         Dated at Newfane, Vermont, this _31st___ day of August, 2011.



                                                                ________________________
                                                                    John P. Wesley
                                                                    Presiding Judge




Petitioner nor the Court should have to speculate about the basis for the decision when a written
explanation is required.
6
  Without addressing whether remand might be justified on other than constitutional grounds, the
Washington Civil Division recently issued a similar mandate to the Department, requiring it to undertake
new proceedings before the Committee within 60 days and either issue adequate findings or remove the
petitioner’s listing from the internet registry. The Court found that petitioner had a protected liberty
interest, that the Department’s findings failed to inform petitioner of the basis for denying his claim of
community reintegration, that procedural fairness required that “the committee’s determination should be
preceded by an evidentiary hearing at which Mr. Coolidge has a fair opportunity to present evidence and
confront the evidence presented against him,” that the State had the burden of proving failure to reintegrate
by a preponderance of the evidence, and that the Rule 75 appeal did not afford petitioner the right to de
novo review. Coolidge v. Commissioner, Vermont Department of Corrections, No. 486-7-10 Wncv (Vt.
Super. Ct. August 22, 2011) (Crawford, J.).


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