This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
Appeal from: Superior Court, Frank. Civ. Division. DOCKET NO. 79-2-13 Frcv, DOCKET NO. 295-6-12 Frcv. Trial Judge: Dennis R. Pearson.
Reiber, C. J., Skoglund, and Robinson, JJ.
In the above-entitled causes, the Clerk will enter:
Petitioner is an inmate supervised by the Department of Corrections (DOC). He filed suit after DOC denied him conditional reentry furlough based on lack of an approved residence. Petitioner argues that DOC failed to comply with its own regulations in ascertaining the suitability of his residence and that the basis for its failure to approve his residence was not supported by sufficient facts. We affirm.
The relevant facts are not disputed. Petitioner is under DOC supervision pursuant to his June 1983 conviction for second-degree murder, which has a controlling sentence of twenty years to life. In 1996, petitioner reached his minimum sentence date, and was eventually released on parole. He was arrested in May 2012 for violating his parole conditions by using or consuming alcohol. In June 2012, his parole was revoked and he was returned to DOC custody under his controlling sentence.
Petitioner is eligible for conditional reentry furlough, and sought to return to his prior home--a mobile trailer located in a mobile home park in Hinesburg. After DOC's initial denial, petitioner filed a complaint under Vermont Rule of Civil Procedure 75 for review of governmental action. The court held a hearing, and concluded that DOC did not follow the procedures in the applicable regulations governing conditional reentry furlough. Therefore, in January 2013, the court entered judgment for petitioner, and ordered DOC to reconsider petitioner for furlough release and apply the relevant DOC directives.
Petitioner filed a second action after DOC again disapproved his residence. Petitioner styled his complaint as one for habeas corpus. The parties agreed to rely solely on the documentary evidence submitted at the hearing. Those documents included DOC Directives 371.14 and 371.15, petitioner's approval form dated February 1, 2013, a case staffing form from January 25, 2013, and case notes from February 1, 2013. Directive 371.14 is entitled " Furlough Residence Approval." The directive indicates that it is to " provide the Department with guidance in the approval of a household residence of a person on furlough. The guiding principles are guidelines to ensure public safety, staff safety, and offer the least restrictive environment for the offender." There is a chart that determines what level of scrutiny staff uses to approve a residence. Low-level offenses use the guiding principles, whereas some felonies and listed offenses require use of the residence approval checklist. The residence approval checklist contains six yes-or-no questions. The form states: " If all of the above are answered NO, then the residence shall be approved and staff will schedule contact visits at/in the home." The form has a further sentence that states " After the staffing, is the residence approved as is or is there a need for a plan?"
The " Residence Approval" form that is part of DOC Directive 371.14 was completed for petitioner and submitted to the court. " No" was checked in answer to questions 1-5 on the residence approval checklist, and " N/A" was written next to question 6. Directly below, the form indicated that the residence was approved. However, in the bottom portion, the sentence regarding staffing was circled, with the result that the residence was denied. The written explanation was that petitioner " cannot return to live in the trailer park as it presents a foreseeable risk of harm to neighbors. The neighbor who reported the drinking resides next door. [Petitioner] can move trailer to reside in another trailer park." A case note from petitioner's DOC file indicates that under Directive 3220.127.116.11c, the residence was denied based on information from neighbors, and concern about a direct neighbor who reported petitioner's parole-violating behavior.
The court issued a written order in April 2013. The court concluded that petitioner's motion was not one for habeas corpus because his eligibility for furlough reentry did not make his detention illegal. Therefore, the court construed petitioner's request as one under Rule 75 for review of governmental action. The court granted judgment to the State, concluding that DOC had substantially followed its regulations and that its decision was not arbitrary or capricious. Petitioner appeals.
On appeal, petitioner was initially represented and his counsel filed an appellant's brief. Petitioner then moved to proceed pro se and filed a second appellant's brief. In both briefs, petitioner's main argument is that DOC was obligated to approve his residence because the evaluator answered the listed questions on the residence approval form negatively, and the form indicates that " [i]f all of the above are answered no, then the residence shall be approved and staff will schedule contact visits at/in the home."
The State argues that DOC has full discretion in deciding matters related to release on furlough and that its decisions are not reviewable. See Rheaume v. Pallito, 2011 VT 72, ¶ ¶ 10-11, 190 Vt. 245, 30 A.3d 1263 (holding that promulgation of programming requirements by DOC are not reviewable under Rule 75 because DOC has full discretion in establishing programming requirements and its decisions are not judicial or quasi-judicial). The Defender General's Office has filed an amicus brief in support ...