In re Girouard
102 A.3d 1079
Vt.2014Background
- Girouard was convicted of first-degree murder in 1975 and sentenced without a minimum term; he is in DOC custody serving a life sentence with parole eligibility.
- In 2001, Vermont amended 28 V.S.A. § 808 to condition furlough eligibility on completion of a minimum term.
- In 2007, Girouard filed a Rule 75 action asserting ex post facto violation due to the amendment; court remanded for factual development.
- On remand (2009), a bench ruling directed DOC to evaluate furlough under pre-2001 law, finding that absence of minimum term impeded furlough eligibility.
- DOC then considered the petitioner for furlough and, after a committee review, required additional Cognitive Self Change (CSC) programming before furlough, a decision petitioner later challenged.
- In 2011, the Vermont Parole Board denied parole; in 2012, petitioner moved to reopen Rule 75 relief, alleging pretextual denial and retaliation; the trial court dismissed the motion for failure to state a claim, and petitioner appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOC’s additional CSC programming condition is reviewable under Rule 75. | Girouard argues the programming decision is a pretext to deny furlough and should be reviewable as a colorable constitutional claim. | The State contends programming decisions are discretionary and not ordinarily reviewable under Rule 75. | Colorable constitutional claims are reviewable; dismissal is premature. |
| Whether petitioner stated a colorable retaliation claim under the First/Fourteenth Amendments. | Petitioner asserts DOC retaliated for Girouard I litigation, affecting furlough eligibility. | DOC contends retaliation claims are either unsupported or conclusory. | Petitioner’s specific factual allegations, if proven, could establish actionable retaliation. |
| Whether the 2009 decree mandating furlough evaluation remains enforceable against DOC despite subsequent programming decisions. | Petitioner seeks enforcement of the 2009 mandate and asserts ongoing compliance. | DOC complied with the court order; programming decisions are discretionary and not subject to Rule 75 review. | Court may review for compliance with the 2009 mandate; not clear beyond the pleadings that petition seeks beyond enforcement. |
| Whether the pleading state a claim given the trial court’s dismissal on grounds of unreviewability. | Petitioner claims factual records show retaliation and improper pretext. | Record insufficient to avoid dismissal as a matter of law. | Pleadings survive dismissal because facts alleged could support a colorable constitutional claim. |
| Standard of review for reviewable constitutional claims arising from discretionary DOC actions. | Constitutional claims can override discretion in programming. | Discretionary programming decisions are generally unreviewable. | Constitutional review is possible when a colorable claim is pled; not all programming decisions are immune. |
Key Cases Cited
- Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996) (retaliation claims by prisoners may be actionable; requires showing protected conduct as a motivating factor)
- Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005) (First Amendment right to pursue civil rights litigation and file grievances)
- Colby v. Umbrella, Inc., 184 Vt. 1 (2008 VT) (pleadings reviewed on sufficiency; facts alleged must entitle relief)
- Webster v. Doe, 486 U.S. 592 (1988) (colorable constitutional claims may be reviewable despite discretionary executive actions)
- Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (burden-shifting framework for causation in constitutional claims)
- Rheaume v. Pallito, 2011 VT 72 (VT 2011) (broad discretion of DOC over programming decisions; usually not reviewable)
- Girouard I, 2009 VT 66 (VT 2009) (ex post facto review; whether amendment creates risk of increasing sentence)