Summary
The Vermont Supreme Court affirmed summary judgment and a permanent injunction barring the Commissioner of Corrections from implementing a furlough policy for prisoners convicted of violent felonies without complying with the Vermont Administrative Procedure Act. The court held that the policy was a generally applicable agency rule and that the plaintiffs had not waived their APA claim by failing to raise it in the prior appeal.
Topics
Practice areas
Questions Presented
- Whether the plaintiffs waived their APA claim by failing to raise it in the prior appeal.
- Whether the amended furlough policy constituted an agency rule subject to the Vermont Administrative Procedure Act's rulemaking procedures.
- Whether APA rulemaking procedures applied even though furlough eligibility was not a constitutionally protected due-process interest.
- Whether summary judgment was proper on the undisputed facts.
Holdings
- The plaintiffs did not waive their APA claim because the claim had been raised in the trial court, remained unresolved there, and the Supreme Court in the prior appeal expressly remanded for proceedings on unresolved claims.
- The amended furlough policy was a rule under the Vermont Administrative Procedure Act because it was a written agency statement of general applicability that implemented or prescribed policy for a class of prisoners. Because the Commissioner adopted it without APA rulemaking procedures, the policy was invalid and could not take effect.
- An agency's obligation to use APA rulemaking procedures does not depend solely on whether the affected persons possess a constitutionally protected due-process interest.
Key quotations
“The operative question here is whether the new policy is a rule.” (497)
“Therefore, in order for this rule to take effect it must go through rulemaking procedures under the APA.” (498)
Factual background
The Vermont Department of Corrections maintained a furlough policy allowing furlough as part of a reintegration plan during the 90 days before a prisoner's release date. The Commissioner amended the policy to exclude prisoners convicted of violent felonies from furlough eligibility until their minimum release dates. The amendment was placed in the Department's Offender Classification Manual and was adopted without the notice, comment, hearing, and review procedures required for APA rulemaking.
Procedural history
The superior court initially issued a preliminary injunction based on the plaintiffs' claim that the policy had been adopted without APA rulemaking. It later granted permanent relief on constitutional due-process grounds without deciding the APA claim. In Parker I, the Vermont Supreme Court reversed the constitutional ruling and remanded for proceedings on the unresolved claims, including the APA claim. On remand, the superior court rejected the Commissioner's waiver argument, granted summary judgment to the plaintiffs, and made the injunction permanent because the furlough policy was an APA rule adopted without required procedures. The Supreme Court affirmed.