Parker v. Gorczyk
Annotate this Case
Parker v. Gorczyk (97-347); 170 Vt. 263; 744 A.2d 410
[Opinion Filed 29-Oct-1999]
[Motion for Reargument Denied 23-Dec-1999]
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, Vermont 05609- 0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 97-347
Gordon Parker and Robert Bailey Supreme Court
On Appeal from
v. Windsor Superior Court
John Gorczyk, Commissioner June Term, 1998
Vermont Department of Corrections
Shireen Avis Fisher, J.
Jeffrey Dworkin, Montpelier, for Plaintiffs-Appellees.
William Sorrell, Attorney General, Montpelier, and Joseph L. Winn,
Assistant Attorney General, Waterbury, for Defendant-Appellant.
PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., Cashman, D.J., Specially Assigned
SKOGLUND, J. Plaintiffs, two inmates incarcerated at the Woodstock
Regional Correctional Facility, brought this class action seeking to
enjoin defendant, the Commissioner of the Department of Corrections, from
implementing a policy that would make prisoners convicted of violent
felonies ineligible for furlough until the expiration of their minimum
sentences. Based on its conclusion that the policy violated plaintiffs'
right to due process guaranteed by Chapter I, Article 10 of the Vermont
Constitution, the Windsor Superior Court permanently enjoined defendant
from implementing the policy or adopting any other policy that would
prevent the Department from making individualized furlough assessments for
each prisoner. Because we conclude that the challenged policy does not
violate statutory law or contravene plaintiffs' right to due process or
equal protection of the law under the Vermont Constitution, we reverse the
superior court's decision.
The material facts are not in dispute. As of January 1995, the
Department's Offender Classification Manual provided as follows:
Extended furlough should be granted as part of an offender's
reintegration plan and should occur during the 90 days prior to the
offender's minimum release date. Extended furlough to a
residential treatment, educational, or vocational program may be
granted up to 6 months prior to an offender's minimum release
date.
On January 24, 1995, the Commissioner amended this provision by adding the
following sentence:
Exception: offenders incarcerated for felony violence are not
eligible for release on Furlough until they have reached their
minimum release date.
(Emphasis in original.) The Commissioner explained that the change was
aimed at serving and protecting the public, and at bringing the
Department's policy in line with public expectations concerning truth in
sentencing and protection from violent offenders.
In April 1995, inmates Gordon Parker and Robert Bailey filed suit on
behalf of themselves and similarly situated prisoners, asking the superior
court to declare the new regulation unconstitutional and to enjoin the
Commissioner from enforcing it. Plaintiffs alleged that the regulation
constituted an abuse of discretion, violated their rights to due process
and equal protection of the law under the federal and Vermont
constitutions, and was not promulgated in accordance with the Vermont
Administrative Procedures Act (APA), in violation of 3 V.S.A. §§
801-849.(FN1) At a hearing on plaintiffs' request for a preliminary
injunction, the parties presented evidence on (1) the history and
rationality of the new policy; (2) the impact of the policy on prisoners'
chances of being granted parole upon the expiration of their minimum
sentences; and (3) the specific impact of the policy on each plaintiff.
Following the hearing, the superior court dismissed plaintiffs' due
process claims, but granted preliminary injunctive relief based on its
conclusion that plaintiffs had demonstrated a likelihood of success on
their APA claim.
The parties then filed cross motions for summary judgment after
stipulating that they would not be presenting any additional evidence and
that the evidence submitted at the preliminary hearing could be considered
for a final ruling on the merits. In their motion, plaintiffs asked the
court to reinstate their due process claim in light of the analysis
contained in a recent United States Supreme Court case, Sandin v. Conner,
515 U.S. 472 (1995). The motion was initially denied, but following the
rotation of a new judge into the superior court, plaintiffs filed a motion
to reconsider. In August 1996, the successor judge reinstated plaintiffs'
due process claim and declared that the Commissioner's change in furlough
policy violated plaintiffs' right to due process guaranteed by the Vermont
Constitution.
The court's decision was based on its conclusion that Vermont's
furlough statute, 28 V.S.A. § 808, requires the Commissioner to exercise
his discretion by making an individualized assessment of furlough
eligibility for each inmate. In the court's view, by categorically barring
furlough for a specified class of inmates before they served their minimum
sentences, the new policy eliminated the Commissioner's statutorily
mandated discretionary role in determining furlough eligibility, and thus
constituted an abuse of discretion and a violation of due process.
Accordingly, the court enjoined defendant from implementing the new
regulation and from adopting any other policy that would allow him to deny
furlough without making an individualized assessment of each prisoner
under § 808(a).
On appeal, the Commissioner argues that plaintiffs have no due process
right, either directly under Chapter I, Article 10 of the Vermont
Constitution or indirectly through Vermont's furlough statute, to
individualized assessments of their furlough eligibility before serving
their minimum sentences. In response, plaintiffs ask this Court to uphold
the superior court's determination that the challenged regulation violates
both § 808 and their right to due process of law under the Vermont
Constitution. Plaintiffs also argue in the alternative that the regulation
violates their right to equal protection under the Vermont Constitution.
I.
Because we generally address constitutional issues only when
necessary, and because the superior court grounded its due process
analysis on its determination that the challenged policy violates
Vermont's furlough statute, we first consider the parties' statutory
arguments. Section 808(a) provides as follows:
The commissioner may extend the limits of the place of
confinement of an inmate at any correctional facility if in the
judgment of the commissioner the inmate will honor his trust, by
authorizing the inmate under prescribed conditions to visit a
specifically designated place or places for a period not to exceed 15
days and return to the same facility. An extension of limits may be
granted:
(1) To visit a critically ill relative; or
(2) To attend a funeral of a relative; or
(3) To obtain medical services; or
(4) To contact prospective employers; or
(5) To secure a suitable residence for use upon
discharge; or
(6) For any other reason consistent with the
rehabilitation of the inmate.
(Emphasis added.) The superior court held that this statute requires the
Commissioner to exercise his judgment by making an individualized
assessment for each inmate to determine whether "the inmate will honor his
trust" and thus be placed on furlough.
In support of this ruling, plaintiffs argue that if the Commissioner
automatically denies furlough for a specified category of inmates, then
furlough will not have been granted or denied based on whether each of
those inmates "will honor his trust." Further, plaintiffs argue that only
by individually assessing each inmate can the Commissioner rationally
determine whether any of the six specified statutory criteria warrant
granting furlough for particular prisoners. Plaintiffs contend that their
view is supported by other related statutory provisions denoting the
purposes of the Department and the responsibilities of the Commissioner.
See 28 V.S.A. § 1(b) (Department shall strive to develop and implement
comprehensive program that will confine frequent dangerous offenders but
will seek to prepare offenders for reintegration into community); 28
V.S.A. § 102(c)(3), (8) (among responsibilities of Commissioner is to
establish
"a program of treatment designed as far as practicable to prepare and
assist each inmate . . . to participate as a citizen of the state and
community," and "to establish a program for each inmate upon his
commitment to the facility and to review the program of each inmate at
regular intervals and to effect necessary and desirable changes in the
inmate's program of treatment"). Finally, according to plaintiffs, the
fact that, functionally, each inmate's chances of obtaining parole depend
upon his having achieved furlough status demonstrates that the Legislature
intended § 808(a) to require individualized assessments with respect to
that status.
We are not persuaded by these arguments. First, we find no language
in § 808(a) entitling each inmate to an individualized furlough assessment
before his minimum release date. The statute provides that the
Commissioner "may" grant furlough "if in the judgment of the commissioner
the inmate will honor his trust." Thus, the Commissioner is not required
to grant furlough even if he determines that "the inmate will honor his
trust." As this Court stated in Conway v. Cumming, 161 Vt. 113, 118, 636 A.2d 735, 738 (1993), § 808(a) contains "no limitations on the
discretionary authority granted to the Commissioner."
More significantly, even assuming that § 808 required an
individualized assessment of each inmate's furlough eligibility, it
contains no limitations on the Commissioner's discretion in determining
when to make such individualized assessments. The Legislature knows how to
impose such limitations, but chose not to do so with respect to the
furlough statute. Cf. 28 V.S.A. § 501(2) ("If the inmate's sentence has a
minimum term, the inmate shall be eligible for parole consideration after
the inmate has served the minimum term of the sentence less any reductions
in term for good behavior.").
The challenged policy sets forth eligibility requirements that prevent
plaintiffs from obtaining furlough prior to completion of their minimum
sentences, but does not preclude the Commissioner from exercising his
discretion regarding furlough on an individual basis once those
requirements are met. Thus, by delaying individual furlough assessments
for inmates convicted of violent felonies until those offenders have
completed their minimum sentence, the
Commissioner is not exercising his discretion in a manner inconsistent with
§ 808(a) or the statutory criteria contained therein. Cf. Burbo v.
Department of Social Welfare, 157 Vt. 664, 665, 599 A.2d 1045, 1046 (1991)
(department abused its discretion by failing to follow own regulation
giving it discretion to set welfare recoupment rates in individual cases).
Accordingly, the superior court erred in concluding that the challenged
policy violated § 808(a). See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996) (unless necessary to effectuate legislative intent,
judiciary may not read something into statute that is not there).
Sections 1 and 102, cited by plaintiffs, do not compel us to construe
§ 808(a) as mandating individual furlough assessments for each inmate
prior to the inmate's minimum release date. Those statutes merely set
forth the general goals of our penal institutions, which include
protection of the public from violent offenders as well as rehabilitation
and reintegration into the community.
Further, we reject plaintiffs' attempt to bootstrap their right to
parole consideration following completion of their minimum sentences onto
§ 808(a) so as to create an otherwise nonexistent statutory right to an
individualized furlough assessment prior to their minimum release dates.
Cf. Bishop v. State, 667 A.2d 275, 279 (R.I. 1995) (inmate "cannot
piggyback his parole liberty interest onto prison classification system").
The fact that parole determinations may ultimately be affected by whether
prisoners have been granted furlough does not compel us to read § 808(a)
as requiring the Commissioner to provide an individual furlough assessment
before each inmate reaches his minimum release date. As the Court of
Appeals for the Second Circuit stated in an analogous context concerning
federal law:
Although the Attorney General may . . . grant furloughs of up to
30 days, and permit a prisoner to work outside a prison or engage
in community activities, subject to certain conditions, he is under
no statutory obligation to exercise any of these powers with respect
to any prisoner. It may be true . . . that a [Central Monitoring
Case] designation in practice delays or precludes a prisoner from
being favorably considered for furloughs, transfers, work releases,
participation in community activities and even early parole, but the
fact remains that these freedoms are mere possibilities, like an
unclassified prisoner's prospect of release on parole, with no
prisoner (CMC or not) able to prove any state of facts which would
entitle him to these freedoms. Non CMC status, in other words,
merely gives a prisoner a greater chance of enjoying these
freedoms, it does not guarantee them.
Pugliese v. Nelson, 617 F.2d 916, 923-24 (2d Cir. 1980) (citations
omitted).
We also reject plaintiffs' argument that the Commissioner acted beyond
his authority in basing the challenged policy on his concerns over the
public's allegedly incorrect perception that violent crime is on the
increase. The Commissioner has general authority to "establish and
administer programs and policies for the operation of the correctional
facilities of the department, and for the correctional treatment of
persons committed to the custody of the commissioner." 28 V.S.A. §
102(b)(2). More specifically, the Commissioner is charged with making
rules and regulations for the governing of and treatment of inmates, see
id. § 102(c)(1), and for establishing a system of classification of
inmates, see id. § 102(c)(8). Without doubt, the Commissioner acted
within the authority conferred upon him by the Legislature in promulgating
the challenged policy. See, e.g., White v. Fauver, 530 A.2d 37, 41 (N.J.
Super. Ct. App. Div. 1987) (public's perception of safety must be
considered because public confidence that safety is not jeopardized is
essential component to any prison program attempting to rehabilitate
prisoners through supervised interaction with community).
II.
Having determined that the challenged policy does not violate §
808(a), we now turn to plaintiffs' claim that the policy violates their
right to due process. Plaintiffs' due process claim is brought under the
Vermont Constitution. Because our jurisprudence in this area has relied
heavily on that of the United States Supreme Court, and plaintiffs ask us
to adopt a test stemming from earlier Supreme Court decisions, we briefly
review the relevant due process jurisprudence of both the United States
Supreme Court and this Court before addressing plaintiffs' arguments as
they apply to this particular case.
A.
The United States Supreme Court has recognized that prisoners are not
"wholly stripped" of constitutional protections following their criminal
convictions. See Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). In
Morrissey v. Brewer, 408 U.S. 471, 482 (1972), the Court articulated the
"grievous loss" standard, holding that because the grant of parole confers
a significant liberty interest upon parolees, the termination of that
interest constitutes a "grievous loss" that calls for some orderly
process, however informal. In arriving at this holding, the Court stated
that procedural protections are due to the extent that an individual will
suffer a grievous loss, which depends not merely on the "weight" of the
individual's interest, but on "whether the nature of the interest is one
within the contemplation of the 'liberty or property' language of the
Fourteenth Amendment." Id. at 481; see also Young v. Harper, 520 U.S. 143,
151-52 (1997) (concluding that program employed by State of Oklahoma to
reduce prison overcrowding was sufficiently like parole, and
distinguishable from furlough, to require procedural protections set forth
in Morrissey).
In a later case involving a challenge to a prison transfer, the Court
emphasized that the "determining factor" in a procedural due process
analysis "is the nature of the interest involved rather than its weight."
Meachum v. Fano, 427 U.S. 215, 224 (1976). The Court explicitly rejected
the notion that "any change in the conditions of confinement having a
substantial adverse impact on the prisoner involved is sufficient to
invoke the protections of the Due Process Clause." Id. To hold
otherwise, the Court warned, "would subject to judicial review a wide
spectrum of discretionary actions that traditionally have been the business
of prison administrators rather than of the federal courts." Id. at 225.
The Court continued to apply these principles in Greenholtz v.
Nebraska Penal Inmates, 442 U.S. 1 (1979), where inmates claimed that they
had been unconstitutionally denied parole. The Court rejected the
inmates' claim that they were entitled to protection directly under the Due
Process Clause, holding that "[t]here is no constitutional or inherent
right of a convicted person
to be conditionally released before the expiration of a valid sentence."
Id. at 7. In arriving at this holding, the Court distinguished between
parole release and parole revocation, stating that "[t]here is a crucial
distinction between being deprived of a liberty one has . . . and being
denied a conditional liberty that one desires." Id. at 9. The Court
pointed out the inherent difference between revocation decisions, which
generally depend on proving specific facts, and release decisions, which
involve a more subtle and subjective assessment of a multitude of factors.
See id. at 9-10. Nevertheless, though finding no constitutional
protection directly under the Due Process Clause, the Court concluded that
the unique language of the Nebraska parole statute created a liberty
interest that was entitled to protection under the Fourteenth Amendment.
See id. at 12. The dissent argued that the existence of a parole system
providing the possibility of early release does implicate a liberty
interest under the Fourteenth Amendment and therefore requires due process
protections with respect to parole-release decisions regardless of the
uniqueness of Nebraska's statute. See id. at 19, 23 (Powell, J.,
concurring in part and dissenting in part) (Marshall, J., dissenting).
After Greenholtz, the Court increasingly focused on the language of
particular state statutes or regulations to determine whether there
existed state-created liberty interests entitled to protection under the
Due Process Clause. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 249
(1983) (parsing language of prison regulation led Court to hold that
discretionary language of transfer decision negated any state-created
liberty interest); Hewitt v. Helms, 459 U.S. 460, 471-72 (1983) (finding
that mandatory language of prison regulation had created protected liberty
interest).
In Sandin v. Conner, however, the Court renounced its growing tendency
to focus on the language of particular regulations rather than on the
nature of the deprivation, see 515 U.S. at 481, complaining that the
former methodology had "encouraged prisoners to comb regulations in search
of mandatory language on which to base entitlements," see id. at 480-81.
While maintaining its long-standing position that the Due Process Clause
alone does not create a liberty
interest in being free from state action while under sentence, see id. at
480, the Court pronounced that state-created liberty interests protected
by the Due Process Clause would be limited to freedom from restraints
imposing "atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life," id. at 484. The Court then held
that the alleged deprivation in that case -- discipline in segregated
confinement -- did not present the type of deprivation which infringed
upon a liberty interest. See id. at 486.
B.
As noted, plaintiffs' due process claim is brought under the Vermont
Constitution, which provides that no person can "be justly deprived of
liberty, except by the laws of the land." Vt. Const. ch I, art. 10.
"[A]s final interpreter of the Vermont Constitution, this Court has final
say on what process is due in any given situation." State v. Brunelle,
148 Vt. 347, 350, 534 A.2d 198, 201 (1987). Nevertheless, the term "laws
of the land" in Article 10 is synonymous with the term "due process of
law" contained in the Fourteenth Amendment of the United States
Constitution, see id., and, as such, our own due-process jurisprudence has
relied heavily on that of the United States Supreme Court even when our
decisions were ultimately based on the Vermont Constitution.
For example, in G.T. v. Stone, 159 Vt. 607, 610-11, 622 A.2d 491, 493
(1992), this Court relied on the analysis contained in Morrissey and other
federal cases in concluding that a patient conditionally released from
commitment to a mental hospital has a liberty status that cannot be
terminated without due process of law. Although we reached our decision
under both the United States Constitution and on independent grounds under
the Vermont Constitution, we added little to our state constitutional
analysis, other than noting that the Vermont Constitution explicitly
provides that people enjoy freedom from restraint as a natural, inherent
and unalienable right. See id. at 613, 622 A.2d at 494. In more recent
cases, we have adopted the same pattern of basing our due process analysis
on federal case law before making an independent determination under the
Vermont Constitution. See Mullin v. Phelps, 162 Vt. 250,
263, 647 A.2d 714, 721 (1994) (holding that finding of sexual abuse by mere
preponderance of evidence is insufficient process for court in divorce
case to terminate all parent-child contact; emphasizing that although due
process analysis relied heavily on United States Supreme Court case,
holding was grounded on Chapter I, Article 10 of Vermont Constitution);
LaFaso v. Patrissi, 161 Vt. 46, 51, 633 A.2d 695, 698-99 (1993) (applying
test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to determine that
preponderance-of-evidence standard of proof is required in prison
disciplinary hearings to satisfy due process under both Vermont and federal
constitutions).
C.
Plaintiffs contend that they should prevail under any of the due
process tests applied over the years, but ask this Court to adopt the
"grievous loss" test stated in Morrissey. See 408 U.S. at 481-82; Conway,
161 Vt. at 123, 636 A.2d at 741 (Dooley, J., dissenting) (relevant question
is whether any change in conditions of imprisonment constitutes
sufficiently grievous loss to trigger due process protection). We decline
to adopt as a threshold test any of the legal catchwords -- such as
"grievous loss," "liberty interest," "entitlement," or "atypical and
significant hardship" -- that have marked the Supreme Court's due process
jurisprudence.
Each of these phrases seeks to determine the point along the continuum
of claimed interests at which due process protections are warranted. But
labeling that point with a catchword does not aid the analysis. Rather,
each case requires a fact-sensitive examination of the particular
circumstances involved, including consideration of the nature and
significance of the interest at stake, the potential impact of any
decision resulting in a deprivation of that interest, and the role that
procedural protections might play in such a decision.
Here, the interest involved is plaintiffs' anticipation of obtaining
furlough before serving their minimum sentences. At least two aspects of
this interest reduce its significance. First, plaintiffs claim an
interest in freedom from in-house confinement not only before the
expiration of their sentences, but before expiration of their minimum
release dates. As convicted prisoners,
plaintiffs do not have a right to freedom from confinement during the
period of their lawful sentences. See Greenholtz, 442 U.S. at 7 (given
valid criminal conviction, prisoner's interest in being free from
confinement has been extinguished). Any interest they have in freedom from
confinement is even less significant before they serve their minimum
sentences. See Conway, 161 Vt. at 116-17, 636 A.2d at 737 (finding
qualitative difference between prisoners' interest in release from parole
as opposed to furlough).
Second, plaintiffs are concerned with obtaining eligibility for
furlough rather than maintaining an already realized conditional freedom.
Conceding that they are not necessarily entitled to furlough, plaintiffs
ask only for individual furlough assessments that may or may not result in
their obtaining furlough. As Judge Henry Friendly cogently noted, "there
is a human difference between losing what one has and not getting what one
wants." H. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1296
(1975). Without deciding whether revocation of furlough implicates due
process protections under the Vermont Constitution, we conclude that
plaintiffs' anticipation of furlough is a less significant interest than if
they were defending against revocation of furlough. In short, plaintiffs
have a sharply limited interest in obtaining individualized furlough
assessments before serving their minimum sentences.
Plaintiffs make much of the probable negative impact of the denial of
furlough consideration on whether they will be granted parole upon
completing their minimum sentences. Although plaintiffs presented evidence
indicating that a prisoner who has achieved furlough status is in a
significantly better position to obtain parole, the fact remains that
plaintiffs' anticipation of parole requires an additional level of
speculation beyond their hopes of being furloughed. See Berard v. State
of Vt. Parole Bd., 730 F.2d 71, 73-74 (2d Cir. 1984) (neither mere
possibility of release nor statistical probability of release creates
legitimate expectation of release on parole); Baumann v. Arizona Dep't of
Corrections, 754 F.2d 841, 844 (9th Cir. 1985) (statistical probability
that particular treatment will be applied under regulations does not
implicate due process protections). The evidence at the preliminary
hearing was that the board
has no categorical approach in deciding whether to grant parole, and that
parole decisions concern other factors besides whether the inmates were
being held in community custody. Indeed, the evidence indicated that the
board had denied parole to inmates who had been granted furlough, and had
granted parole to inmates who had never been furloughed. In any event, as
we stated in rejecting their statutory arguments, plaintiffs cannot
bootstrap any protectible interest in parole that they might have onto a
claimed interest in obtaining furlough before serving their minimum
sentences. See Bishop, 667 A.2d at 279.
As for the role that procedural protections might play, plaintiffs
complain that categorical exclusions will result in furlough being denied
before the minimum release dates of violent felons who are in fact ready
to be reintegrated into the community. We do not find this argument
persuasive. As the United States Supreme Court stated in Greenholtz,
"there simply is no constitutional guarantee that all executive
decisionmaking must comply with standards that assure error-free
determinations." 442 U.S. at 7. The Commissioner's categorical exclusion
might preclude the release of violent felons who could have successfully
reintegrated into the community before serving their minimum sentences,
but it also will assure that violent felons who are not ready for
reintegration into the community are not mistakenly released before they
serve their minimum sentences.
Unlike revocation decisions, which most often turn on factual
questions such as whether an inmate's misconduct violated conditions of
release, release decisions involve a discretionary assessment of a
multitude of factors that require subjective appraisals. See id. at 9-10
(comparing difference between release and revocation decisions).
Procedural due process protections are less pivotal when the prisoner's
status is subject to change without a showing of misconduct. See Jenkins
v. Fauver, 528 A.2d 563, 567 (N.J. 1987) (noting that the Supreme Court
has generally declined to extend due process protections in situations not
requiring proof of misconduct); cf. Conway, 161 Vt. at 126, 636 A.2d at
742 (Dooley, J., dissenting) (when sole issue is whether inmate committed
act that caused furlough revocation, and there are no
questions of professional judgment or discretion, price of due process is
small, while gain in protection against arbitrary action is great).
Indeed, because the Commissioner has the authority to classify prisoners
without regard to their individual disciplinary records, one could argue
that providing plaintiffs with procedural due process protections would
have served no useful purpose because the only factual issue to be
resolved was whether plaintiffs had been convicted of violent felonies, a
fact they do not dispute. See Jenkins, 528 A.2d at 571.
In considering the role that procedural protections might play, we
recognize that plaintiffs' due process claim has both procedural and
substantive overtones. It is procedural in the sense that plaintiffs are
asking for a particular process -- an individualized assessment. But it
is also substantive in the sense that, in effect, they are claiming that
the Commissioner violated due process by applying an impermissible
categorical criterion to preclude them from obtaining individualized
furlough assessments before their minimum release dates. See Winsett v.
McGinnes, 617 F.2d 996, 1004 (3d Cir. 1980) (noting procedural and
substantive overtones of due process claim); 2 R. Rotunda, J. Nowak, & J.
Nelson, Treatise on Constitutional Law § 14.6, at 13 (1986) (substantive
review is concerned with constitutionality of underlying rule rather than
fairness of process by which government applies rule to individual).
In any event, whether their due process claim is substantive,
procedural, or an amalgam of both, plaintiffs have failed to show that
Chapter I, Article 10 of the Vermont Constitution prohibits the
Commissioner from denying them furlough before their minimum release dates
by classifying them based on the type of crime they committed. Given the
nature of plaintiffs' interest, we conclude that plaintiffs were not
entitled to procedural protections directly under the Vermont
Constitution. Nor did § 808 entitle them to procedural protections under
the Vermont Constitution, as evidenced by our construction of the statute
above. Cf. Lee v. Governor of State of New York, 87 F.3d 55, 58 (2d Cir.
1996) (rejecting prisoners' due process claim challenging statute that
prevented commissioner from allowing prisoners convicted of certain
offenses to participate in work release program).
Further, to the extent that plaintiffs' due process claim is
substantive in nature, it does not concern a fundamental constitutional
right or suspect class; therefore, plaintiffs must demonstrate that there
is no conceivable rational relation between the challenged regulation and a
legitimate end of government. See R. Rotunda, supra § 15.4, at 61-62
(challenged government act not involving fundamental right or suspect
class will be upheld against substantive due process or equal protection
claims unless no reasonable conceivable set of facts could establish
rational relationship between challenged regulation and legitimate end of
government); see also Washington v. Harper, 494 U.S. 210, 223 (1990) (even
when fundamental constitutional right is involved, proper standard for
determining validity of prison regulation is whether regulation is
reasonably related to legitimate penological interests). The challenged
policy of not allowing violent felons to obtain furlough before serving
their minimum sentences was intended to protect the public and meet public
expectations that offenders will serve their sentences. Unquestionably, a
general rule requiring violent felons to serve their minimum sentences
before becoming eligible for parole meets the rational basis standard.
Cf. Thornton v. Hunt, 852 F.2d 526, 527 (11th Cir. 1988) (classification
denying "good time" credits to prisoners serving sentences greater than
ten years is rationally related to legitimate purpose of preventing early
release of serious offenders).
The standard is the same under an equal protection analysis, and thus
plaintiffs' equal protection claim also fails. See Lorrain v. Ryan, 160
Vt. 202, 212, 628 A.2d 543, 550 (1993) (when no fundamental right or
suspect class is involved, test under Vermont Constitution's Common
Benefits Clause is whether law is reasonably related to promotion of valid
public purpose); see also Baumann, 754 F.2d at 846 (legitimate interest in
deterrence and public perception of fair administration of justice allows
states to base early release decisions on type of offense); Maufouz v.
Lockhart, 826 F.2d 791, 794 (8th Cir. 1987) (state's decision to exclude
sex offenders from work release program is rationally related to legitimate
government purpose of preventing sex crimes); Hastings v. Commissioner of
Corrections, 674 N.E.2d 221, 226
(Mass. 1997) (classification policy met rational basis test even though
prison officials did not submit factual proof that prisoners with life
sentences who had been denied parole two or more times were more likely
than other prisoners to attempt escape).
IV.
Plaintiffs may have anticipated obtaining furlough before serving
their minimum sentences so long as their conduct conformed with their case
plans, but "because of the unique circumstances that attend the
administration of prisons, reasonable assumptions of inmates cannot always
be equated with constitutionally protected interests." Jenkins, 528 A.2d
at 570. Any such reliance on the part of plaintiffs did not prevent the
Commissioner from altering the Department's furlough policy. The
Commissioner has the authority to classify prisoners in administering the
prison system. Considerations behind such classifications are peculiarly
within the province and professional expertise of prison officials, and
courts should ordinarily defer to their expert judgment in such matters.
See Bell v. Wolfish, 441 U.S. 520, 547-48 (1979).
We must strike the appropriate balance between the need for the
protection of prisoners' individual interests and the need for prison
officials to undertake the difficult task of administering a prison system
unhampered by unwarranted procedural burdens. See Wolff, 418 U.S. at 566
(recognizing that broad discretionary authority of prison officials is
necessary for them to undertake extraordinarily difficult task of
administering prison). If we were to accept plaintiffs' proposition that
they are entitled to due process protections with respect to any prison
policy having the potential to impinge directly or indirectly on inmates'
conditions or length of confinement, we would subject to judicial review a
wide spectrum of discretionary matters that are within the Commissioner's
authority and expertise. See Dominique v. Weld, 73 F.3d 1156, 1160 (1st
Cir. 1996); Bishop, 667 A.2d at 278. The Vermont Constitution does not
require us to do so under the circumstances present in this appeal.
Reversed and remanded.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Plaintiffs have not argued here on appeal that the Commissioner's
challenged regulation was promulgated in violation of the Administrative
Procedures Act, and thus we do not address that issue.
------------------------------------------------------------------------------
Dissenting
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, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 97-347
Gordon Parker and Robert Bailey Supreme Court
On Appeal from
v. Windsor Superior Court
John Gorczyk, Commissioner June Term, 1998
Vermont Department of Corrections
Shireen Avis Fisher, J.
Jeffrey Dworkin, Montpelier, for Plaintiffs-Appellees.
William Sorrell, Attorney General, Montpelier, and Joseph L. Winn,
Assistant Attorney General, Waterbury, for Defendant-Appellant.
PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., Cashman, D.J., Specially Assigned
MORSE, J., dissenting. The Commissioner's policy carves out an
exception to the furlough release program, rendering all offenders
incarcerated for committing violent felonies ineligible for release on
furlough until they have reached their minimum release date.
Categorically denying furlough to a class of inmates is contrary to the
intent of the legislature in enacting 28 V.S.A.§ 808(a). Therefore, I
respectfully dissent.
The Court holds that the language of § 808(a) allows the Commissioner
to make this categorical exception. See 28 V.S.A. § 808(a) ("commissioner
may extend the limits of the place of confinement of an inmate at any
correctional facility if in the judgment of the commissioner the inmate
will honor his trust"). The Court reads the word "may" to connote both
discretion whether to invoke furlough and, if invoked, whether to perform
an individualized assessment. In my view, such a reading is too broad a
construction of the Commissioner's
authority, and one that disregards the statutory scheme governing the
department of corrections. According to the Court, if the Commissioner is
so disposed, he can withhold furlough from any "trustworthy" inmate, or
any class of inmate for any or no reason whatsoever. This is obviously
not what the Legislature had in mind. See Vincent v. Vermont State
Retirement Bd., 148 Vt. 531, 535, 536 A.2d 925, 928 (1987) (discretion
granted by Legislature to administrative agency must not be "unrestrained
and arbitrary") (citation omitted).
When words of common use are found in a statute, they are to be taken
in their ordinary sense, unless a contrary intention is evident. See
State v. Levine, 117 Vt. 320, 322, 91 A.2d 678, 679 (1952). Generally, in
the construction of statutes, the plain, ordinary meaning of the word
"may" indicates that it is discretionary and not mandatory. See In re
D.L., 164 Vt. 223, 234, 669 A.2d 1172, 1180 (1995). Nevertheless, the
context in which the word appears must be the controlling factor. See
Black's Law Dictionary 979 (6th ed. 1990) (noting the distinction between
"may" and "shall"). In statutory construction, determining whether "may"
is to be construed as imposing an absolute duty or merely a discretionary
power, the true intent and purpose of the Legislature must be ascertained
and given effect. See Levine, 117 Vt. at 323, 91 A.2d at 679-80. Thus,
after examining legislative intent and purpose, in certain instances, the
word "may" has the effect of "must." See Richard v. Richard, 131 Vt. 98,
102, 300 A.2d 637, 639 (1973) (although use of word "may" appears to be
merely permissive, it would be inconsistent with spirit of act to construe
it as permissive and not mandatory); see also 3 Sutherland Stat. Const. §
57.03 at 7 (5th ed. 1992) (although form of verb used in statute is single
most important textual consideration in determining whether statute is
mandatory or directory, it is not sole determinant; other considerations,
such as legislative intent can overcome ordinary meaning).
The interpretation of 28 V.S.A. § 808(a) as conferring upon the
Commissioner complete discretion whether to undertake an assessment of an
inmate's eligibility for furlough renders the statute superfluous. The
Court finds no entitlement to individualized furlough assessment prior
to their minimum release dates. The Court need not, however, find an
"otherwise nonexistent statutory right," ante at 6, to recognize that the
exclusion of an entire class of inmates from furlough assessment exceeds
the bounds of the Commissioner's authority and shortchanges the
Legislature's intent implicit in § 808(a) and expressed in other statutory
provisions.
First, the Legislature has mandated that the department of corrections
shall not only "implement a comprehensive program which will provide
necessary closed custodial confinement of frequent, dangerous offenders,"
but also "establish as its primary objective the disciplined preparation
of offenders for their responsible roles in the open community." 28 V.S.A.
§ 1(b) (emphasis added). Absolute exclusion of any class of inmates from
consideration for furlough before their minimum release date ignores this
primary objective.
Second, the Court has failed to reconcile 28 V.S.A. § 808(a) with 13
V.S.A. § 11a. Section 11a establishes a mechanism through which the
State may seek greater penalties for those persons convicted of a third
"felony crime of violence." Section 11a(e) specifically provides: "No
person who receives a minimum sentence under this section shall be eligible
for early release or furlough until the expiration of the minimum
section." 13 V.S.A. § 11a(e). Statutes are to be considered in relation
to one another when they "deal with the same subject matter or have the
same objective or purpose." Board of Trustees of Kellogg-Hubbard Library,
Inc. v. Labor Relations Bd., 162 Vt. 571, 574, 649 A.2d 784, 786 (1994).
Since both § 11a(e) and § 808(a) relate to the Commissioner's
discretionary authority to assess furlough eligibility, they should be
construed with reference to each other. Read together, the statutes
illustrate that the Legislature retained the prerogative to exclude
certain classes of inmates from § 808(a). Therefore, the Commissioner's
challenged policy to exclude all inmates convicted of violent felonies
from consideration under § 808(a) is an indisputable extension of his
authority beyond the limits established in § 11a(e).
In addition to finding that the use of the word "may" does not entitle
each inmate to a determination of furlough eligibility prior to his
release date, the Court holds that any such
determination undertaken by the Commissioner need not include an individual
assessment of trustworthiness. Again, the Court focuses too narrowly on
the word "may" to the exclusion of Legislative intent. Under § 808(a),
the Commissioner has discretion to grant a furlough to "an inmate" after
determining that "the inmate" will be trustworthy. The use of the singular
articles "an" and "the" prior to "inmate" by the Legislature denotes the
individual significance of each inmate, plainly indicating the
Commissioner's obligation to individually assess the merits for granting
furlough status.
In another statute, the Legislature provided the Commissioner with
discretion for addressing medical furloughs. See 28 V.S.A. § 808(f)
("commissioner shall develop a policy regarding the application for,
standards for eligibility of and supervision of persons on medical
furlough"). Had the Legislature wanted to grant the Commissioner the
authority to develop standards for inmate eligibility for general
furloughs, it would have done so. It did not, and the class of inmates
excluded in this case are entitled to the attention the Legislature asked
the Commissioner to provide.
Finally, the Court overlooks the practical impact of the
Commissioner's policy. The Court acknowledges plaintiffs' evidence
indicating that prisoners who achieve furlough status are in a
significantly better position to obtain parole compared to those who have
not. Since furlough status may be granted during the three to six month
period preceding a prisoner's minimum release date, exclusion from
furlough consideration prior to this date in effect operates to lengthen
the prisoner's sentence. In May 1995, the Commissioner had in his custody
approximately 263 violent offenders who had not yet reached their minimum
release dates. Lengthening sentences for a whole class of prisoners may
result in significant costs. Such an effect begs the active involvement
of both Legislative and Executive branches, rather than one branch to the
exclusion of the other.
For the foregoing reasons, I would affirm the superior court's
conclusion that the policy exceeds the Commissioner's discretionary
authority under 28 V.S.A. § 808(a). The Court
further holds that the policy does not violate plaintiffs' right to due
process or equal protection under the Vermont Constitution. Since the
policy exceeds, in my opinion, the authority vested in the Commissioner
under § 808(a), this constitutional analysis is unnecessary. I am
authorized to state that Justice Dooley joins in this dissent.
_______________________________________
Associate Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
