Redcross v. Parole Bd

Opinion

VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-03921 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org

Justin Redcross v Vermont Parole Board

Opinion and Order on Court’s Authority to Hear This Case

The Vermont Parole Board revoked Petitioner Justin Redcross’s parole after he

was terminated from participation in a substance abuse treatment program in the

community, ostensibly violating a condition of parole requiring him to participate in

“programming, screening, and/or counseling as required by your Parole Officer.” Mr.

Redcross sought review under Vt. R. Civ. P. 75 (certiorari), and the parties have filed

cross-motions for summary judgment. Mr. Redcross principally argues that the

Department of Corrections failed to prove the violation by a preponderance of the

evidence because: (1) it failed to demonstrate that Mr. Redcross’s conduct was willful;

and (2) there are no findings by the Board as to whether he participated in the treatment

program satisfactorily.

After the parties filed those motions, the Court sought additional briefing as to

whether the parole violation proceeding before the Board is a “contested case” for

purposes of Vermont’s Administrative Procedures Act (“APA”), 3 V.S.A. §§ 800–848 and,

if so, whether under Section 815(a) review of the Board’s decision should have been

sought directly in the Supreme Court.

Order Page 1 of 5 23-CV-03921 Justin Redcross v Vermont Parole Board Both parties have responded to the request for additional briefing. Neither takes a

position either way on whether the violation proceeding is a contested case for APA

purposes and, thus, is subject to 3 V.S.A. § 815. The State appears to argue generally,

however, that treating a parole violation proceeding as subject to the APA would not be

consistent with 3 V.S.A. § 800 (purpose) because the public should not be involved in

parole decisions. Mr. Redcross appears to agree with that assessment and separately

argues that revocation decisions can be reviewed as habeas claims—he requests that the

Court “convert” his claim to habeas and review it as such.

The purpose section of the APA principally addresses the interest in public

involvement in agency rulemaking, which has nothing to do with contested cases or this

case. No one has proposed involving the general public in the Board’s parole decisions.

As the Court explained in its earlier request for additional briefing:

A “contested case” under the APA is “a proceeding, including but not

restricted to rate-making and licensing, in which the legal rights, duties, or

privileges of a party are required by law to be determined by an agency after

an opportunity for hearing.” 3 V.S.A. § 801(2). An “agency” includes any

“State board, commission, department, agency, or other entity or officer of

State government, other than the Legislature, the courts, the Commander

in Chief, and the Military Department, authorized by law to make rules or

to determine contested cases.” 3 V.S.A. § 801(1).

The Parole Board appears to be an agency for APA purposes, and the

Board in parole revocation proceedings determines the parolee’s “legal

rights, duties, or privileges” “after an opportunity for a hearing.” See 28

Order Page 2 of 5 23-CV-03921 Justin Redcross v Vermont Parole Board V.S.A. § 552(b) (parole revocation hearing). Neither the Board nor parole

revocation proceedings are expressly exempt from the APA’s contested case

provisions, even if the Board has latitude to employ its own procedures. See

3 V.S.A. § 816; 28 V.S.A. § 552(b)(1) (“The hearing shall be conducted in

accordance with such rules and regulations as the Board may adopt.”).

Numerous courts have held that parole revocation proceedings are contested

cases under state APAs. See, e.g., Pisano v. Shillinger, 835 P.2d 1136, 1138

(Wyo. 1992); Frazee v. Iowa Bd. of Parole, 248 N.W.2d 80, 82 (Iowa 1976); In

re Wayne Cnty. Prosecutor, 591 N.W.2d 359, 361 (Mich. Ct. App. 1998).

Neither party has come forward with any convincing rationale as to why parole

violation proceedings are not contested cases for APA purposes, as discussed above.

Appeals from such determinations are subject to 3 V.S.A. § 815, which directs review to

the Supreme Court when, as here, no statute directs review to the Superior Court. For

those reasons, the Court concludes that parole violation proceedings are contested cases,

and that this case should have been filed in the Supreme Court under § 815. The Court

lacks authority to hear this case.

The remaining arguments against that conclusion are simply not persuasive. The

State appears to argue that the limitation on review of Board decisions in 28 V.S.A. § 454

means that no review is available and that, as a result, review in the nature of certiorari

is available under Vt. R. Civ. P. 75. Section 454 says, “The determinations of the Parole

Board shall not be reviewable except as to compliance with the provisions of this chapter.”

28 V.S.A. § 454 (emphasis added). Section 552(b)(2) (part of “this chapter”) provides, “If

the alleged violation is established by [a preponderance of the evidence], the Board may

Order Page 3 of 5 23-CV-03921 Justin Redcross v Vermont Parole Board continue or revoke the parole, or enter such other order as it determines to be necessary

or desirable.” See generally Relation v. Vermont Parole Bd., 163 Vt. 534 (1995) (adopting

preponderance standard). Mr. Redcross’s claim in this case is that the violation is not

supported by a preponderance of the evidence and that his parole should not have been

revoked. In the language of § 454, he claims that the Board did not comply with the

provisions of the parole statutes. Section 454 does not shield the Board’s decision from

review. Further, while § 454 may provide insight into the scope of review, it says nothing

about where such review should occur.

The State also suggests that, regardless of the APA, the Court nevertheless can

hear this case under the certiorari prong of Vt. R. Civ. P. 75. The Court disagrees. The

“writ will issue only when there is no other adequate remedy at law, and no other means

of review is available.” Rhodes v. Town of Woodstock, 132 Vt. 323, 325 (1974). Section

815 provides such an avenue.

Lastly, Mr. Redcross argues that parole revocation decisions can be reviewed as

habeas claims. He requests that the Court “convert” his Vt. R. Civ. P. 75 claim to a

habeas claim and review it as such. The Court declines to do so. Even if a parole

revocation decision, in appropriate circumstances, can be addressed as a habeas claim,

such claims must be sought from “a Superior judge, or by Superior Court during its

sitting, in the county where such person is imprisoned.” 12 V.S.A. § 3953. The record

shows that Mr. Redcross is imprisoned at Southern State Correctional Facility, which is

in Windsor County, whereas this Court is located in Washington County.

Order Page 4 of 5 23-CV-03921 Justin Redcross v Vermont Parole Board Conclusion

For the foregoing reasons, on the Court’s own motion, this case is dismissed.1

Electronically signed on June 19, per V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi Superior Court Judge

1 The briefing suggests that Mr. Redcross may have been released on June 1, 2024. No party has argued that the case is moot on that basis, however. Order Page 5 of 5 23-CV-03921 Justin Redcross v Vermont Parole Board