Parker v. Gorczyk

Parker v. Gorczyk (2000-540); 173 Vt. 477; 787 A.2d 494

[Filed 26-Sep-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-540

                               JUNE TERM, 2001


Gordon Parker and Robert Bailey	       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Windsor Superior Court
                                       }	
                                       }
John Gorczyk	                       }	DOCKET NO. 153-4-95 Wrcv

                                                Trial Judge: Alan W. Cheever

             In the above-entitled cause, the Clerk will enter:


       Defendant, John Gorczyk, Commissioner of the Vermont Department of
  Corrections, appeals  from a summary judgment of the superior court
  permanently enjoining him from implementing a  new policy that would make
  prisoners convicted of violent felonies ineligible for furlough until the 
  expiration of their minimum sentences.  Plaintiffs are two prisoners who
  are subject to the new  policy and a class consisting of all prisoners,
  present and future, who are incarcerated for committing  a violent felony. 
  The superior court concluded that the furlough policy is a rule which must
  go  through rulemaking procedures of the Vermont Administrative Procedures
  Act (APA) to be  effective.  We agree and affirm.

       This case has already been before us.  In Parker v. Gorczyk, 170 Vt.
  263, 744 A.2d 410 (1999)  (Parker I) we held that the policy was a valid
  exercise of the Commissioner's statutory power and  does not offend the
  Vermont Constitution.  The material facts leading up to Parker I are fully 
  recounted there.  Id. at 264-66, 744 A.2d  at 411-12.  In short, the
  furlough policy is contained in the  Department's Offender Classification
  Manual and provides that furlough can be granted as part of a 
  reintegration plan during the 90 days prior to a prisoner's release date. 
  The amendment in issue  states an exception that those incarcerated for a
  violent felony are not eligible for furlough until their  minimum release
  date.  The amendment was issued without going through the notice, comment
  and  review procedure set out for rules by the APA.

       Before Parker I, the superior court enjoined defendant from
  implementing the new furlough  policy.  The initial preliminary injunction
  was based on plaintiffs' claim that defendant failed to  follow the
  rulemaking procedure required by the APA.  3 V.S.A. §§ 801-49.  Later, the
  superior  court issued a permanent injunction on the ground that the policy
  violated plaintiffs' due process 

 

  rights guaranteed by Chapter I, Article 10 of the Vermont Constitution. 
  The court never issued a  decision on the merits of plaintiffs' APA claim.

       On October 29, 1999, we reversed the superior court's decision,
  holding that the challenged  policy was within defendant's statutory power
  and does not violate plaintiffs' Vermont constitutional  rights.  Parker I,
  170 Vt. at 264, 744 A.2d  at 411.  We did not address plaintiffs' APA claim,
  nor did  we vacate the superior court's preliminary injunction.  Rather, we
  reversed and remanded the case to  the superior court for proceedings on
  plaintiffs' remaining claims.  Id. at 278, 744 A.2d  at 420.

       Subsequently, defendant moved the superior court to dissolve the
  injunction without  determining the merits of plaintiffs' APA claim. 
  Defendant argued that the APA claim was barred  because plaintiffs did not
  raise it in this Court in the appeal.  The superior court rejected this 
  argument, invited cross motions for summary judgment, and granted summary
  judgment to plaintiffs  because it found that the new furlough policy was a
  "rule" under the APA.  The court further found  that the opportunity to
  apply for furlough, though not an interest protected by due process, is a
  legal  right or privilege protected by the APA.  Because defendant still
  had not gone through the APA  process for rulemaking, the superior court
  made the court's earlier temporary injunction permanent.

       On appeal, the Commissioner argues that plaintiffs' APA claim was
  waived because they did  not raise it in the initial appeal and that the
  new furlough policy is not subject to the APA's  rulemaking procedure
  because (1) the policy is a "practice" and not a "rule" under the APA, and
  (2)  without a specific statute requiring use of the APA procedure or an
  interest protected by due process,  plaintiffs have no right to the APA
  rulemaking process.

       The Commissioner first argues that as a prudential matter plaintiffs'
  failure to assert the APA  claim in the Parker I appeal should constitute a
  waiver of the claim.  We agree with the superior  court that plaintiffs did
  not waive their APA claim in the first appeal.  Plaintiffs raised the APA
  issue  in their complaint.  The superior court initially granted a
  preliminary injunction based on plaintiffs'  likelihood of success on the
  APA claim.  The court did not, however, issue a final decision on the 
  merits of plaintiffs' APA claim and, in issuing permanent relief, shifted
  to a different ground without  addressing the APA claim.  On appeal of the
  superior court's decision, neither party addressed the  APA issue.  We
  specifically declined to address it, preferring instead to remand the case
  to the trial  court for further proceedings.  Id. at 265 n.*, 744 A.2d  at
  412 n.*.  Because the Commissioner did  not raise the APA claim on appeal
  in Parker I, plaintiffs did not have a duty to raise it.  While we will 
  "affirm a judgment which is correct even if the grounds stated in support
  of it are erroneous," Circus  Studios, Ltd. v. Tufo, 145 Vt. 219, 222, 485 A.2d 1261, 1263 (1984), we have never imposed on  appellees a duty to raise
  on appeal claims raised by the parties but undecided by the trial court. 
  As a  Court which frequently acts under a limited standard of review, an
  appellate decision without a lower  court decision to review would often be
  inappropriate.  We remanded this case so that the trial court  could render
  judgment on unresolved claims, including the APA claim.  Plaintiffs did not
  waive their  ability to present those unresolved claims to the superior
  court.

 

       With regard to the merits "[s]ummary judgment is appropriate when the
  party against whom  judgment is sought is given the benefit of all
  reasonable doubts and inferences, but no genuine issue  of material fact
  exists, and the moving party is entitled to judgment as a matter of law." 
  Larocque v.  State Farm Ins. Co., 163 Vt. 617, 618, 660 A.2d 286, 287
  (1995) (mem.); V.R.C.P. 56(c).  This  Court applies the same standard of
  review on appeal. State v. Delaney, 157 Vt. 247, 252, 598 A.2d 138, 141
  (1991).

       Defendant first argues the new furlough policy is not a rule and,
  therefore, is not required to go  through the APA procedure.  The
  Legislature has granted the Commissioner of Corrections authority  to issue
  rules necessary "for the governing and treatment of persons committed to
  the custody of the  commissioner, the administration of correctional
  facilities and the regulation of employees under the  jurisdiction of the
  commissioner."  28 V.S.A. § 102(c)(1).  The APA establishes certain
  procedures  that an agency must follow in issuing rules, including
  publication, notice and comment, hearings and  legislative review.  3
  V.S.A. §§ 836-43.  The act does not exempt rules concerning furlough or any 
  other corrections matter from these procedures.  3 V.S.A. § 832 (exemptions
  from rulemaking  procedures); but cf. id. § 832(b)(4) (prohibiting inmates
  from requesting that procedures or practices  not considered rules under
  the APA be subject to rulemaking).  Furthermore, the Legislature has not 
  exempted the Department of Corrections from complying with the APA.  Id. §
  831(a).  Accordingly,  if the Commissioner adopts rules he must do so by
  following the statutory rulemaking procedures.  In  this case, the
  Commissioner did not follow these procedures in adopting the new furlough
  policy.   Therefore, unless the Department's change of furlough policy did
  not constitute rulemaking, it is  invalid for noncompliance with the APA.
  Id. § 846.

       Under the APA, a "rule" is an "agency statement of general
  applicability which implements,  interprets, or prescribes law or policy." 
  Id. § 801(b)(9).  On its face, the Commissioner's new  furlough policy fits
  this definition of a rule.  The Commissioner has prescribed and implemented
  a  written change in furlough policy that is meant to apply generally to a
  class of prisoners; he is not  making an individualized assessment of each
  prisoner.  We conclude that this issue is controlled by  In re Diel, 158
  Vt. 549, 614 A.2d 1223 (1992), a case in which the Vermont Department of
  Social  Welfare adopted, and then rescinded, a policy change on calculation
  of income which affected 750  recipients in the ANFC welfare program.  The
  department failed to follow the APA procedures for  either the adoption or
  the rescission of the policy.  We concluded that the policy was a rule, and
  the  Department was required to use the APA procedures, because the policy
  "interpreted the statute  authorizing the ANFC program and both prescribed
  and implemented a policy intended to apply  generally to a class of ANFC
  recipients."  Id. at 554, 614 A.2d  at 1227; see also 33 V.S.A.

       § 105(c)(1), (2) ("In addition to other duties imposed by law, the
  commissioner shall [a]dminister the  laws assigned to the department [and
  f]ix standards and issue regulations necessary to administer  those laws .
  . . .").  The change in furlough policy here likewise interprets the
  Commissioner's broad  power to issue rules necessary "for the governing and
  treatment of persons committed to the custody  of the commissioner . . . ." 
  28 V.S.A. § 102(c)(1).  Moreover, just as the rescission of public 
  assistance applied generally to some ANFC recipients, and not the entire
  public or even all ANFC 

 

  recipients, the Commissioner's furlough policy applies generally to all
  prisoners convicted of violent  felonies, one third of the prison
  population.

       Defendant argues that the policy is instead a "practice" and thus not
  subject to the APA  rulemaking procedures.  See 3 V.S.A. § 801(b)(7).  This
  argument, however, presumes that "rule"  and "practice" are mutually
  exclusive terms as employed in the APA.  The operative question here is 
  whether the new policy is a rule.  The furlough policy may also be a
  practice, but because the policy  is generally applicable to all prisoners
  convicted of violent felonies it is a rule and is thus subject to  the
  rulemaking procedures of the APA.

       Defendant further seeks to distinguish this case from In re Diel.  He
  argues that we required  the change in benefit calculations in that case to
  be subjected to rulemaking procedures only because  the plaintiffs there
  had a protected due process interest in their welfare benefits.  Although
  the Diel  opinion discusses plaintiffs' due process claim, its evaluation
  of the requirements of the APA is  independent of that discussion.  158 Vt.
  at 554, 614 A.2d  at 1226.  Neither Diel, nor the governing  statute,
  provides that an agency must use rulemaking procedures when adopting a
  policy only if it  affects a due process interest of one or more persons. 
  3 V.S.A. § 831(a).  Instead, the statute requires  use of the rulemaking
  procedures where due process requires it or "a statute directs or permits
  an  agency to adopt rules."  Id. 

       Alternatively, defendant argues that no statute directs or permits him
  to adopt rules with  respect to inmate classification.  As we noted in
  Parker I, the authority for the policy is found in part  in the
  authorization to make rules "for the governing and treatment of persons
  committed to [his  custody]."  28 V.S.A. § 102(c)(1); see Parker I, 170 Vt.
  at 270, 744 A.2d  at 414.  This statute clearly  permits the Commissioner to
  make inmate classification rules, and the new furlough policy is such a 
  rule.  Therefore, in order for this rule to take effect it must go through
  rulemaking procedures under  the APA.

       We do not believe this holding is inconsistent with the Commissioner's
  discretion we   acknowledged in Parker I.  Our earlier holding found that
  the Commissioner had the power to  exercise his discretion through a
  written eligibility rule.  It did not purport to address the procedure 
  that he must go through in exercising his discretion in this fashion. 
  Specifically, our holding is not  affected by the fact that the Offender
  Classification Manual was not adopted through APA  procedures.  The same
  situation was present in Diel, 158 Vt. at 556, 614 A.2d  at 1228.

       Finally, the Commissioner argues that requiring the Department to go
  through rulemaking  procedures will produce absurd and unconstitutional
  results.  The results will be absurd, according to  the Commissioner,
  because this decision will limit his day-to-day decision-making authority.  
  Nothing in this decision impinges on the Commissioner's day-to-day
  decision-making authority; the  APA does not concern itself with daily
  individual decisions of the Commissioner, except as they are  related to
  rules of general applicability.  To the extent that the Commissioner
  promulgates new  policies of general applicability, they are subject to the
  rulemaking procedure.  The APA goes no  further.

 

  Furthermore, subjecting the new furlough policy to rulemaking procedures
  does not, as the  commissioner argues, "usurp" the "rightful powers of an
  agency of the executive branch of  government."  Cf..Dep't of Revenue v.
  Novoa, 745 So. 2d 378, 381 (Fla. Ct. App. 1999), rev. denied,  762 So. 2d 917 (Fla. 2000) (holding that Florida policy prohibiting Department of
  Revenue  employees from preparing tax returns for private parties was not a
  rule for purposes of the Florida  Administrative Procedures Act).  It is
  the Legislature's prerogative to establish the procedures  governing the
  establishment of agency policy of general applicability, just as it was the
  Legislature's  prerogative to give defendant discretion over furlough
  policy in the first instance. 


       Affirmed.



                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Alan W. Cook, District Judge
                                       Specially Assigned