2010 VT 36


Nichols, Wool et al. v. Hofmann
(2008-510)
 
2010 VT 36
 
[Filed 30-Apr-2010]
 
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, Vermont Supreme Court, 109 State Street, Montpelier, Vermont05609-0801 of any errors in order
that corrections may be made before this opinion goes to press.

 
 

2010 VT 36

 

No. 2008-510

 

James Nichols, Kirk Wool and All
  Other
Vermont
  Inmates Similarly Situated


Supreme Court


 


 


 


On Appeal from


     v.


Washington Superior Court


 


 


 


 


Robert Hofmann, Commissioner of
  Corrections


November Term, 2009


 


 


 


 


Helen
  M. Toor, J.
 
Matthew F. Valerio,
  Defender General, and Dawn Seibert, Prisoners’ Rights Office,
  Montpelier, for Plaintiff-Appellant
  Nichols.


 

William H. Sorrell, Attorney General, and Jon Jeffrey Tyzbir, Assistant Attorney General,
  Montpelier, for
Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
DOOLEY, J.   Plaintiffs, prison inmates housed at the LeeAdjustmentCenter, a privately operated prison in
Beattyville, Kentucky, appeal the dismissal of their
petition for injunctive relief seeking both the right to use debit cards for
telephone calls and the availability of free postage stamps.  We reverse
and remand. 
¶ 2.            
Plaintiffs were convicted and sentenced in Vermont
and then transferred to the Kentucky
prison pursuant to a contract between the Vermont Department of Corrections
(DOC) and the Corrections Corporation of America (CCA), the company that
manages the prison.  Since plaintiffs’ arrival at the prison, CCA has not
permitted them access to debit calling cards to place telephone calls, instead
requiring them to make collect calls.  This restriction has caused
hardship on plaintiffs due to the comparatively high cost of collect calls, as
well as the circumstance that some of their family members possess only cell
phones, which are not able to receive collect calls.  Furthermore, CCA has
refused to provide free postage stamps to inmates, a benefit enjoyed by all inmates
housed in Vermont
pursuant to DOC policy.
¶ 3.            
In December 2007, plaintiffs filed a petition for injunctive relief,
seeking access to debit calling cards under 28 V.S.A. § 802a(c) and free
postage stamps pursuant to a stipulation entered into by DOC in 1981 in a
federal court case.  The State filed a motion to dismiss under Vermont
Rule of Civil Procedure 12(b)(6) in June 2008,
contending that plaintiffs’ claims failed as a matter of law.  The court
granted the State’s motion, concluding that this Court’s decision in Daye v.
State, 171 Vt.
475, 769 A.2d 630 (2000), precluded the relief sought by plaintiffs. 
Plaintiffs filed a timely appeal.
¶ 4.            
We review the trial court’s disposition of the motion to dismiss de
novo,  Girouard v. Hofmann, 2009
VT 66, ¶ 6,  ___ Vt. ___, 981 A.2d 419, taking all facts alleged by
plaintiffs as true, Amiot v. Ames, 166
Vt. 288, 291, 693 A.2d 675, 677 (1997).  To maintain open access to the
courts and to implement our preference for dispositions on the merits, courts
should view Rule 12(b)(6) motions with disfavor and
rarely grant them.  Bock v. Gold, 2008 VT 81, ¶
4, 184 Vt. 575, 959 A.2d 990 (mem.); Endres v. Endres, 2006 VT 108, ¶ 4, 180 Vt. 640, 912 A.2d 975 (mem.). 
A court should therefore grant a Rule 12(b)(6) motion
only if “it is beyond doubt that there exist no facts or circumstances that
would entitle the plaintiff to relief.”  Richards v.
Town of Norwich, 169 Vt.
44, 48, 726 A.2d 81, 85 (1999) (quotation omitted).
¶ 5.            
Plaintiffs first contend that CCA’s refusal to
allow access to debit calling cards violates 28 V.S.A. § 802a(c), which
provides in relevant part: “When an inmate requests and receives a list of
parties approved to receive telephone calls, the inmate shall be provided the
option of using a debit or collect call system to place such calls.”  The
trial court answered this argument primarily by holding that the statute gives
DOC, not the inmate, the choice of method of paying for telephone calls. 
In addition, the trial court adopted the State’s assertion that the statute by
its terms applied only to inmates incarcerated in Vermont and not to inmates transferred out
of state.  Relying upon our decision in Daye, the court held that
instead of applying § 802a(c) we should resolve this issue by relying upon
the policies underlying the Interstate Corrections Compact, and that these
policies require only that plaintiffs be treated similarly to the other inmates
housed at the Lee Adjustment Center.   
¶ 6.            
The argument that § 802a(c) applies only to prisons located in Vermont fails because it
relies upon an overly narrow reading of the statutory language.  Section
802a(c) applies to “inmates,” a term defined in relevant part as “any person . . . committed to the custody of
the commissioner pursuant to the law of the state and subsequently committed to
a correctional facility.”  28 V.S.A. § 3(5) (emphasis
added).  The term “correctional facility” is in turn defined as “any building . . . of or supported by the department
and used for the confinement of persons committed to the custody of the
commissioner.”  Id. §
3(3).   In the State’s view, § 802a(c) does not apply
because the privately operated Kentucky
prison is not a facility “of or supported by” DOC and is thus not a
“correctional facility.”  Following this argument to its logical
conclusion, plaintiffs, therefore, are not “inmates” and thus fall outside the
scope of § 802a(c).  We are not persuaded by this argument.
¶ 7.            
When interpreting a statute, we first rely upon the plain language of
the law as a means of determining legislative intent.  Delta Psi
Fraternity v. City of Burlington, 2008 VT
129, ¶ 7, 185 Vt.
129, 969 A.2d 54.  “If that plain language
resolves the conflict without doing violence to the legislative scheme, there
is no need to go further . . . .” 
Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986). 
Here, the plain language of the definition of “correctional facility”
demonstrates that it encompasses out-of-state private prisons that house
offenders under DOC custody.  Even if the LeeAdjustmentCenter is not a facility
“of” DOC, it plainly is “supported by” DOC.   According to an
affidavit from plaintiff Kirk Wool, the prison currently houses over 500
inmates from Vermont.[1]  Those inmates fill more than sixty
percent of the 816 beds at the prison.  See CCC Facilities: LeeAdjustmentCenter,
http://www.correctionscorp.com/facility/lee-adjustment-center (listing the
number of beds as 816).  In return for housing these prisoners, the state
compensates CCA at a daily rate that, according to a 2004 article, is $42.50
per prisoner.  D. Yetter & M. Pitsch, Prison Riot Followed Increase in Inmates,
Courier-Journal (Louisville, Ky.), Sept. 17, 2004, at A1, available at 2004
WLNR 22883843.   Thus, based on the 2004 cost per prisoner, and
assuming a relatively stable prisoner population, this amounts to around
$8,000,000 in revenue per year.[2] 
These figures plainly indicate that the LeeAdjustmentCenter derives
considerable income from CCA’s contract with the
state.  These figures show the extent of support, although they are not
central to our decision.  The important point is that DOC pays to house
inmates at Lee Adjustment Center, and that is support as contemplated in
§ 3(3) such that Lee Adjustment Center is a “correctional facility” for
purposes of the governing Vermont statutes. 
¶ 8.            
Given our conclusion that § 802a(c) applies to inmates in the
private, out-of-state facility in this case, it is not appropriate to apply the
Interstate Corrections Compact to plaintiffs’ claim, as the State urges us to
do.  We note as a preliminary matter, and the State concedes, that the
Compact by its terms does not apply to contracts with privately operated
prisons.[3] 
The Compact, codified at 28 V.S.A. § 1601-1621, governs contracts between
states “for the confinement of inmates on behalf of a sending state in
institutions situated within receiving states.”  28 V.S.A. § 1603(a);
see also Daye, 171 Vt. at 479, 769 A.2d at 633-34 (concluding that state
contract with county in New Jersey to transfer inmates was entered into
pursuant to DOC Commissioner’s broad authorization “to designate the place of
confinement where the sentence shall be served” under 28 V.S.A. § 701(b)
and not pursuant to Compact); Slater v. McKinna,
997 P.2d 1196, 1198-99 (Colo. 2000) (holding that Compact does not apply to
privately operated prisons).[4] 
Therefore, claims raised by inmates transferred pursuant to the state’s
contract with CCA fall outside the scope of the Compact.  Apparently the
State’s concession was not transmitted to the trial court, because that court
rejected plaintiffs’ argument that the Compact does not apply.  
¶ 9.            
The State contends that although the Compact does not expressly apply to
privately operated prisons, this Court should nonetheless apply the compact by analogy. 
In particular, the State directs this Court’s attention to a Compact provision
stating that inmates transferred out-of-state “shall be treated equally with
such similar inmates of the receiving state as may be confined in the same
institution.”  28 V.S.A. § 1604(e).  We
decline to adopt the State’s position.  Plaintiffs rely upon a specific
statutory right contained in 28 V.S.A. § 802a(c).  We cannot
understand what theory would allow us to deny a statutory right based on an
inapplicable interstate compact applied by analogy.  The controlling law
is the statute and not the Compact.
¶ 10.         The
State nevertheless argues that we should apply the policies set forth in the
Compact because it would be unreasonable to run the correctional system in any
other way.  The short answer to these arguments is that “policy arguments,
however persuasive, cannot prevail if there is conflict with the
statutes.”  In re Allied Power & Light Co.,
132 Vt. 354,
361, 321 A.2d 7, 11 (1974).  Even if this were not the answer, we
are faced with conflicting policy arguments that are not for us to
resolve.  Plaintiffs argue that it is unreasonable to make them
communicate with family members and others solely through collect calls because
some will refuse collect calls and many have only cell phones that will not
accept collect calls.  The State contends in its brief that “the strong
public policy encouraging interstate inmate transfer would best be served if
inmates were subject to the policies of the receiving state [only].” 
Applying the policies of a sending state to a prison in the receiving state,
the State argues, would tremendously burden such receiving facilities by
forcing them to learn and apply the policies of the sending state, which would
“improperly thwart the efficiencies contemplated by interstate transfer” and
make such prisons less willing to accept inmates from other states.  The
State argues that treating all inmates housed in one facility the same is
critical to maintaining prison morale and efficient prison
administration.  Beyond noting that DOC’s policy
arguments appear out of place in a situation where DOC is supplying the
majority of the prisoners in a private prison, we leave these arguments to the
Legislature.
¶ 11.         Finally
on this point, DOC argues, and the trial court seems to have accepted, that our
decision in Daye holds that the policy in the Compact, 28 V.S.A. §
1604(e), applies even if the Compact does not technically apply.  We
cannot read Daye to support that argument.  Daye involved a
suit by members of an organization that advocates for Vermont prisoners, arguing that the State
had unlawfully transferred custody of inmates to county facilities in one state
and state facilities in another.   With respect to the county
facilities, the main argument was that the Compact did not apply and that, as a
result, DOC had no power to transfer Vermont
inmates to the out-of-state county facility.  We rejected that argument,
holding that DOC could transfer inmates under the general statutory powers of
the Commissioner.  Daye, 171 Vt.
at 479, 769 A.2d at 633-34.  The rest of the
decision involved the construction of the Compact because it applied to the
prisoners transferred to Virginia. 
The plaintiffs argued that under the Compact the facility policy of limiting
visitors to one adult at a time was unlawful because inmates housed in Vermont were not so
limited.  We held that the Compact did not require that the policies of
the sending state, with respect to issues like visitation, be applied in the
receiving state.  Id.
at 482, 769 A.2d at 636.  That holding is
exclusively a construction of the Compact and does not suggest that Compact
provisions shall be enforced even when the Compact is not applicable.[5]   
¶ 12.         We
hold that § 802a(c) does apply to plaintiffs, even though they are housed in an
out-of-state private correctional facility.  Thus, we address the second
issue, whether § 802a(c) gives plaintiffs the right they seek—that is, access
to debit calling cards.  The plain language of the statute conclusively
indicates that it does.  Subsection 802a(c) states that “[w]hen an inmate
requests and receives a list of parties approved to receive telephone calls,
the inmate shall be provided the option of using a debit or collect call system
to place such calls.”  The trial court read the statute as giving control
of the payment option to DOC.  We cannot agree.  The language makes
clear that the inmate is provided the choice and that the choice is
between “a debit or collect call system.”  Id.  Any
inmate who falls within the scope of § 802a(c) must therefore be given the
choice of using a debit calling card or calling collect.  It is telling
that DOC has not defended the trial court’s construction of the statute in this
Court and appears to have conceded the point in its motion to dismiss, stating
that “under section 802a, Vermont
inmates have the option to purchase debits cards with their own funds.”  
¶ 13.         We
conclude that plaintiffs have the statutory right to use debit cards for
telephone calls when housed in an out-of-state private correctional facility
not pursuant to the Compact.   It follows that the trial court erred
in granting DOC’s motion to dismiss.  On remand,
the trial court must determine whether the right was violated and what remedy
to impose, if any.
¶ 14.         Plaintiffs
next contend that DOC’s refusal to provide them with
free postage stamps violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.  On May 4, 1981, in the
United States District Court case of Pregent
v. State, No. 80-56 (D. Vt.), the parties entered into a stipulation of
settlement that provided that “[t]he Department of Corrections shall promulgate
a state-wide policy which provides each inmate a maximum of seven (7) free
stamps a week.”[6] 
Pursuant to this stipulation, DOC provides free stamps to inmates housed in Vermont.  However,
DOC has not provided free stamps to Vermont
inmates housed in out-of-state facilities.  Plaintiffs argue that the
Equal Protection Clause requires DOC to treat them similarly to inmates
incarcerated in Vermont
and that DOC lacks any rational basis for failing to do so.
¶ 15.         At
the outset, we note that the trial court granted the motion to dismiss with
respect to this claim based on its reading of Daye.  We find
nothing in that decision that resolves the equal protection issue in this
case.  The plaintiffs never made an equal protection claim in Daye.
¶ 16.         The
Equal Protection Clause demands that states treat similarly situated people
alike, unless they have a rational basis for treating them differently.  Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2153 (2008); City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S.
432, 439 (1985).  Plaintiffs allege that DOC refuses to
provide free stamps to Vermont inmates housed
at the LeeAdjustmentCenter and therefore treats them
differently than similarly situated persons—that is, Vermont
inmates housed in Vermont. 
The State concedes that it does not provide free stamps to plaintiffs, but
contends that plaintiffs are not situated similarly to inmates housed in Vermont.  Rather,
the State argues, plaintiffs should be compared to the other inmates housed at
the LeeAdjustmentCenter.
 Some cases from other jurisdictions support the view that plaintiffs are
similarly situated with in-state Vermont
inmates; others support the opposing view advanced by DOC.  Compare, e.g.,
Bishop v. Moran, 676 F. Supp. 416, 421 (D.R.I. 1987) (“[T]he mere fact
that an inmate is being housed in a different facility does not mean that he is
no longer a [sending] state prisoner subject to the jurisdiction of the
[sending state’s] Department of Corrections along with in-state prisoners.”),
with Tucker v. Angelone, 954 F. Supp. 134, 136
(E.D. Va. 1997) (“For equal protection purposes, inmates transferred pursuant
to the Interstate Corrections Compact are similarly situated to those inmates
in the receiving institutions.” (quotation omitted)). 
¶ 17.         Equal
protection “does not just mean treating identically situated persons
identically.”  Esmail v. Macrane, 53 F.3d 176, 179 (7th
Cir. 1995).  The issue is whether the groups involved are similar
in relevant aspects.  Thomas v. City of W. Haven, 734 A.2d 535, 545 (Conn. 1999).  There must be
“some showing that the two groups are sufficiently similar with respect to the
purpose of the law in question that some level of scrutiny is required in order
to determine whether the distinction is justified.”  People
v. Nguyen, 63 Cal.Rptr. 2d 173, 178 (Cal. Ct. App. 1997).
¶ 18.         Here,
DOC wants us to rule that plaintiffs are not similarly situated with in-state
inmates solely on the basis that they are housed out of state.  We
conclude that this fact, alone, does not show that plaintiffs are not situated
similarly with in-state inmates for purposes of an entitlement to stamps. 
Indeed, on the surface, the fact that the plaintiffs are housed out of state
would appear to increase the need for the ability to communicate with family
and others that the stamps provide.  We reiterate that we have no facts on
which to base a ruling, other than the general ones provided above, which can
be used only to demonstrate the context for the issues.    We do
not have the contract between DOC and CCA, and we do not know the barriers to
supplying the stamps.  We do not know what other inmates are at the LeeAdjustmentCenter and the rights and
privileges of these inmates.  For all that appears in this record, other
inmates at the Center could be provided with free stamps, while the Vermont inmates are
denied those stamps. 
¶ 19.         The
inadequacy of the record becomes even more apparent when we reach DOC’s argument that there is a rational basis for any
discrimination between in-state and out-of-state inmates.  For this
argument, DOC repeats its claim with respect to the telephone charging issue:
the policies of the receiving state should control, it is onerous to have
different policies on communication for different inmates, and having different
policies for different inmates on the availability of stamps would undermine
inmate morale.  Each of these claims requires factual support, and DOC has
provided none because it filed a motion to dismiss that
cannot go outside the facts alleged by plaintiffs.  The trial court
acted prematurely in dismissing plaintiffs’ equal protection claim with respect
to stamps.
Reversed and remanded for proceedings consistent with
this opinion.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Although this case was submitted and decided on a motion to dismiss, all parties
have alleged facts, and conclusions based on facts, on which they sought a
decision in the trial court and in this Court.  In fact, the State filed
the motion to dismiss and then argued that facts alleged by plaintiffs were
speculation and were unsupported, stating that “[u]nsupported commentary is not record evidence and should be
afforded no weight.”  The conduct of the parties demonstrates that
submission on a motion to dismiss was wholly inappropriate in this case. 
Nevertheless, it appears from the briefing and the oral arguments that the
basic facts underlying the complaint and the motion are undisputed.  For
the limited purpose of explaining the undisputed facts, we have drawn on
information from publicly available sources in writing this decision.
 


[2] 
This is a conservative estimate since it is based on 2004 numbers. 
According to more recent figures, on average, 637 Vermont inmates were housed in privately
operated prisons on any given day in fiscal year 2009.  Vermont Department
of Corrections, Facts and Figures FY 2009, at 188, available at
http://www.doc.state.vt.us/about/reports/ff2008_adobe/view.  This resulted
in expenditures by the state of approximately $15,114,847, or $23,728 per inmate,
for fiscal year 2009.  Id. 
Given that more than 500 of those 637 inmates are apparently housed at the LeeAdjustmentCenter, that prison presumably
receives the vast majority of the more than fifteen million dollars spent by Vermont on housing
out-of-state prisoners.


[3] 
It is fair to say that at oral argument the lawyer for DOC made this concession
begrudgingly when pressed and then went back to arguments that suggested that
the Compact does apply.  DOC’s brief states that
“DOC has steadfastly maintained that [plaintiffs] were not transferred pursuant
to the ICC.”  Overall, DOC’s position is best
characterized by the statement at oral argument that “we would argue that the
ICC applies by analogy.”  
 


[4]
We do not dismiss the possibility that an inmate could be incarcerated in a
private facility in the receiving state at least in part pursuant to a contract
between the states.  DOC has made no showing of such an arrangement
here.  Its concession that the Compact does not apply is an indication
that no such contract exists.


[5] 
The confusion about the reach of Daye may arise because the plaintiffs
in that case argued that the visitation policies in both the county and the
state facilities were unlawful “in violation of the Compact.”  171 Vt. at 477, 769 A.2d at 632.  Despite the fact that the Compact did
not apply to the county transfers, the analysis exclusively involved provisions
of the Compact and decisions from other jurisdictions involving the Compact
because the plaintiffs argued from the Compact.  To the extent that Daye
can be read to state that provisions of the Compact or its policies apply in
situations where the Compact is inapplicable, whether directly or by analogy,
that reading is incorrect.  


[6] 
Plaintiffs have not claimed, either in the trial court or in this Court, that
they can enforce the stipulation in this action.  Their claim is entirely
that DOC’s conduct in honoring the stipulation for
in-state inmates, but not for them as out-of-state inmates, denies them equal
protection of the law.



