2014 VT75


In re Girouard (2012-372)
 
2014 VT 75
 
[Filed 18-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 75

 

No. 2012-372

 

In re Roy Girouard


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Addison Unit,


 


Civil Division


 


 


 


October Term, 2013


 


 


 


 


Helen
  M. Toor, J.


 

Michael Rose, St. Albans, for Petitioner-Appellant.
 
William H. Sorrell, Attorney General, and Sarah Katz,
Assistant Attorney General, Montpelier,
  for Respondent-Appellee.
 
 
PRESENT:    Reiber, C.J., Dooley, Skoglund
and Robinson, JJ., and Crawford, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
ROBINSON, J.   Petitioner Roy Girouard is in the
custody of the Vermont Commissioner of Corrections serving a life sentence with
a possibility of parole.  Petitioner appeals the superior court’s
denial of a motion to reopen his Vermont Rule of Civil Procedure 75
post-conviction relief petition and to order the Department of Corrections
(DOC) to release him on furlough.  We reverse and remand.
¶ 2.            
Petitioner was convicted of first-degree murder in 1975 and sentenced
without a minimum prison term.  Prior to 2001, an inmate’s
eligibility for furlough was not conditioned on the completion of a minimum
prison term.  28 V.S.A. § 808 (2000); see also Girouard v. Hofmann
(Girouard I), 2009 VT 66, ¶ 3, 186 Vt. 153, 981 A.2d 419.  The
Legislature amended 28 V.S.A. § 808 in 2001 to condition eligibility for
conditional reentry furlough on the completion of the inmate’s minimum
term.  See 28 V.S.A. § 808(a)(6)
(2013).  
¶ 3.            
In 2007, petitioner filed a Rule 75 action against the DOC alleging that
DOC’s refusal to consider him eligible for furlough because he lacked a minimum
sentence violated the Ex Post Facto Clause of the United States
Constitution.  The superior court dismissed petitioner’s claim, concluding
that 28 V.S.A. § 808, as amended, did not violate the Ex Post Facto Clause
because it did not increase the penalty for petitioner’s crime.  Girouard I, 2009 VT 66, ¶ 1.  On appeal,
this Court instructed that if the 2001 amendment “created a sufficient risk of
eliminating [petitioner’s] eligibility for parole” then he “may prevail” on his
Ex Post Facto Clause violation claim.  Id.
¶ 11.  We remanded to the superior court for further factual
development to determine whether the amended statute, as applied to petitioner,
“produced a significant risk of increasing [his] sentence.”  Id. ¶ 12.  
¶ 4.            
On remand, the superior court held a bench trial in which it heard
testimony from the Vermont Parole Board Director regarding the effect of
furlough on parole decisions.  The court found that, while furlough is but
one factor DOC considers in its parole decisions, it was historically rare for
a violent offender to be paroled without first being furloughed.  In its
December 18, 2009 order, the court concluded that petitioner’s inability to
obtain furlough release because he lacks a minimum sentence impacts the
likelihood of his parole and therefore “creates a significant risk of
lengthening his period of incarceration.”  The court granted petitioner
Rule 75 relief and ordered DOC to “evaluate [petitioner] for furlough under the
pre-2001 version of the statute.”
¶ 5.            
Following the 2009 court order, DOC’s Central Case Staffing Review
Committee (CCSRC) considered petitioner for furlough release and determined
that petitioner could be reevaluated for release upon completing eight more
program participation credits of Cognitive Self Change (CSC).
¶ 6.            
Petitioner asserts that he had completed his original CSC programming
requirements in 2007 and thus refused to participate in the additional CSC
programming required by the committee.  As a result, the committee
continued to refuse petitioner furlough.  In October 2011, the Vermont
Parole Board denied petitioner parole based on his failure to comply with the
committee’s programming requirements.
¶ 7.            
In February 2012, petitioner filed a motion to reopen his original Rule
75 motion for post-conviction relief, alleging that the committee’s reasons for
denying him furlough were pretextual.  In the ensuing pleadings,
petitioner argued that, prior to the superior court’s December 2009 order, DOC
had made a determination that he had completed all the requirements of his case
plan, had approved his reentry plans, including checking and accepting his
proposed residence and verifying his transportation and employment resources,
and had never intimated that any factors other than the 2001 amendment were
obstacles to his eligibility for furlough.  He argued that DOC required
the additional programming as a prerequisite to furlough release “to penalize
[him] for his successful litigation of the issue of his furlough eligibility.”  Petitioner
requested that the court reinstate his original Rule 75 petition, appoint counsel,
and issue an order directing DOC to furlough petitioner immediately.
¶ 8.            
The superior court denied petitioner’s motion to reopen, stating that
DOC’s decision to require additional CSC programming prior to furlough was a programming
decision wholly unreviewable under Rule 75.  Petitioner appealed. 
¶ 9.            
Petitioner argues on appeal that the superior court’s 2009 order
directing DOC to evaluate petitioner for furlough is the law of the case and
the superior court has “inherent authority” to enforce it.  Petitioner
alleges that DOC’s actions constitute a “bad faith evasion” of the court’s
order and argues that the superior court erred by failing to develop a factual
record to determine whether DOC followed the court’s mandate.  The State
counters that DOC complied with the 2009 superior court order, and that its
programming decisions are unreviewable under Rule 75.[1]  
¶ 10.         At
the outset, we note that the trial court denied petitioner’s motion based on
its legal conclusion that programming decisions are unreviewable under Rule
75.  Although the State submitted an affidavit in support of its position,
defendant was denied any discovery and did not respond with a presentation of
evidence of his own, and the trial court’s decision was not based on the
evidentiary record as opposed to its legal conclusion.  Accordingly, we
treat the denial as a dismissal for failure to state a claim upon which relief
can be granted.  
¶ 11.         The
threshold question is whether, and pursuant to what standard, the DOC’s
decision not to grant petitioner immediate furlough, and to instead require
that he complete additional programming, is reviewable.  The application
of programming requirements “falls within the broad discretion of the DOC to
determine what mode of treatment best serves individual inmates” and thus is
not ordinarily reviewable under Rule 75.  Rheaume v. Pallito, 2011
VT 72, ¶ 11, 190 Vt. 245, 30 A.3d 1263.
 Petitioner does not challenge DOC’s authority or expertise in determining
his programming needs, and concedes that a DOC decision to deny furlough
because he had not met the requirements of his case plan would ordinarily be
shielded from review.  However, he argues that the additional CSC
programming requirements were a pretext designed to enable DOC to deny
petitioner furlough.  In particular, he argues that the denial is intended
as retaliation for petitioner’s successful litigation of the issue of his
furlough eligibility.
¶ 12.         Although
discretionary programming decisions are not reviewable by courts,
constitutional claims are.[2] 
The fact that a colorable constitutional claim implicates a programming
decision committed to the DOC’s discretion does not insulate the alleged
constitutional violation from judicial review.  This Court implicitly
recognized as much when it reviewed petitioner’s Ex Post Facto claim in
response to DOC’s initial refusal to consider petitioner eligible for furlough. 
Girouard I, 2009 VT 66, ¶¶ 6-12.  To the extent that
petitioner is not merely challenging the propriety of the programming decision
here, but is raising a colorable constitutional claim, his claim is
reviewable.  See Webster v. Doe, 486 U.S. 592, 603-04 (1988)
(concluding that although judicial review is not available for discharge
decisions within discretion afforded to CIA Director by the National Security
Act, that Act does not preclude judicial review of colorable constitutional
claims based on individual discharges); Handverger v. City of Winooski,
2011 VT 130, ¶ 8, 191 Vt. 556, 38 A.3d 1153 (mem.) (stating that in
context of administrative decision, the Legislature has the power, in the
absence of a constitutional requirement, to deny appellate review); Vt.
State Emp. Ass’n, Inc. v. Vt. Criminal Justice Training Council, 167 Vt.
191, 201, 704 A.2d 769, 775 (1997) (refusing to impose limits on Attorney
General’s legislatively derived power absent any constitutional
imperative).  DOC’s expertise in promulgating programming requirements and
our concomitant deference to DOC’s discretion does not shield DOC from review
of colorable constitutional claims.  Thus, if petitioner’s allegations
concerning the DOC’s actions frame a colorable constitutional claim, dismissal
on the pleadings would be premature.
¶ 13.         In
determining 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 exist no facts or
circumstances that would entitle the plaintiff to relief.”  Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1,
955 A.2d 1082 (quotations omitted).  In this case, petitioner alleges
that the DOC used its programming requirements to retaliate against him for
pursuing his case in Girouard I by preventing him from attaining the
furlough release at issue in that case.  Such retaliation, if established,
would clearly be unconstitutional.  See Graham v. Henderson, 89
F.3d 75, 80 (2d Cir. 1996) (concluding that retaliation against inmate for
pursuing a grievance violates right to petition government for redress of
grievances guaranteed by the First and Fourteenth Amendments); see also Rhodes
v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (stating inmates have
constitutional right secured by the First Amendment to pursue civil rights
litigation in the courts and file prison grievances).  To make a claim of
unconstitutional retaliation, petitioner must demonstrate that he engaged in
constitutionally protected conduct and that the protected conduct was a
“substantial or motivating factor” in DOC’s decision to require additional
programming and deny him furlough.  Graham, 89
F.3d at 79.[3] 

¶ 14.         Petitioner’s
allegations state a claim sufficient to survive dismissal.  In his reply
to the State’s response to the motion to reopen, petitioner states that before
he brought his original Rule 75 petition claiming a violation of the Ex Post
Facto Clause, he had complied with all the requirements of his case plan,
including completing all his original CSC programming requirements.  In
anticipation of his furlough, petitioner had secured employment and a residence,
which was visited and approved by the local probation and parole office. 
Additionally, DOC had arranged for petitioner to meet with representatives of
federal agencies to ensure his receipt of federal benefits upon release. 
Petitioner’s caseworker had also deposited $100 into petitioner’s inmate
account as “gate money,” a practice petitioner states only occurs when an
inmate is days away from release.  In short, the only impediment to
his release on furlough in 2007 was the 2001 amendment to the law.
¶ 15.         Further,
petitioner claims that he has never received a major disciplinary
infraction.  Nor had DOC ever indicated, until the evaluation in response
to the 2009 superior court order, that petitioner might need additional CSC
programming prior to his release.  Petitioner asserts that the only change
since DOC’s preparations for his release on furlough prior to 2007 was that he
successfully litigated his Ex Post Facto claim against DOC.
¶ 16.         We
understand the concern that retaliation claims by prisoners are prone to abuse.
 See Graham, 89 F.3d at 79 (“Retaliation claims by prisoners are
prone to abuse since prisoners can claim retaliation for every decision they
dislike.” (quotation omitted)).  We support the
notion that “wholly conclusory” complaints alleging retaliation can be
dismissed at the pleading stage.  Id.  But that is not the
case here.  Accepting petitioner’s specific factual allegations as
true—that DOC had taken tangible and affirmative steps to prepare for
petitioner’s furlough up until he filed his case in Girouard I and the
only change between the preparations for his imminent release and the
subsequent denial of his furlough was his successful litigation of that
claim—we cannot conclude “it appears beyond doubt that there exist no facts or
circumstances that would entitle the plaintiff to relief.”  Colby, 2008 VT 20, ¶ 5 (quotation omitted). 
The allegations in this case, if proven, would be enough to support a
circumstantial inference that would not be common in many other, less factually
specific, claims of retaliation.  See Godwin v. Hunt Wesson, Inc.,
150 F.3d 1217, 1222 (9th Cir. 1998) (explaining that where direct evidence is
unavailable to prove pretext, a plaintiff may present circumstantial evidence
showing that the “proffered motives were not the actual motives because they
are inconsistent or otherwise not believable”).  Petitioner has not made
mere generalized allegations of retaliation; he has alleged specific facts to
make a prima facie case of unconstitutional retaliation.  DOC may have
entirely credible evidence countering petitioner’s allegations, but dismissal
on the pleadings in the face of petitioner’s allegations of a colorable (and
reviewable) constitutional claim is premature.   
Reversed and
remanded.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 





[1]
 The State also argues that petitioner’s motion is essentially a motion
for relief from judgment pursuant to V.R.C.P. 60(b), and was untimely
filed.  Petitioner seeks the opposite of relief from judgment; he has
asked for enforcement of a judgment.  We accordingly reject the
State’s argument that petitioner’s motion was untimely.


[2]
 A court also has inherent authority to ensure compliance with its own
decree.  See Aither v. Estate of Aither, 2006 VT 111, ¶ 11,
180 Vt. 472, 913 A.2d 376 (“[I]t is axiomatic that a court can review its
actions to ensure compliance with the court’s decree.”); Andrew v. Andrew,
62 Vt. 495, 498, 20 A. 817, 818 (1889) (“In the absence of any other provision,
the authority to make the order carries with it the power to enforce it.”). 
We agree with petitioner that the court is empowered to review the DOC’s
furlough determination to ensure compliance with the superior court’s 2009
mandate requiring DOC to remove the impediment that the amended statute’s
minimum term requirement posed in petitioner’s furlough review.  We do not
infer from the pleadings that petitioner alleges that the 2001 statute remains
as an impediment.  Rather, petitioner seems to be suggesting a new
unconstitutional impediment to his goal of furlough release—retaliation by
DOC.  


[3] 
If petitioner makes this showing, the burden then shifts to DOC to show that it
would have required the additional programming in the absence of the protected
conduct.  Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977). 



