Breer v. Deml

7ermont Superior Court
Filed 03/25/26
Orleans UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orleans Unit Case No. 25-CV-00145
247 Main Street
Newport VT 05855
802-334-3305
www.vermontjudiciary.org
Harley Breer, Jr. v
Nicholas Deml

ORDER ON SUMMARY JUDGMENT
Petitioner Harley Breer, Jr., an inmate in state custody, filed this action to challenge
a decision by the Commissioner of the Department of Corrections to deny him release on
community supervision furlough. Now pending before the court are the parties' competing
summary judgment motions. Because the court concludes the Commissioner acted within
his broad statutory authority to determine whether a sentenced inmate may be released on
furlough, the Commissioner's motion for summary judgment is granted and petitioner's
cross-motion for summary judgment is denied.

Background
The facts set forth below are undisputed. Petitioner is currently serving a sentence
after pleading guilty to two counts of obstruction of justice and unlawful mischief.
Petitioner reached his minimum sentence on the obstruction of justice counts in late 2024
and will reach his maximum in 2030. On the unlawful mischief count, petitioner received a
sentence of five years to life, all suspended, with a 20-year term of probation set to expire in
May 2043. Petitioner has a lengthy history of past criminal charges, parole violations, and
probation violations including multiple convictions.
In January 2024, the Department told petitioner that he was required to complete
Risk Intervention Services programming before being considered for release. This
programming is intended to help offenders "learn and develop knowledge, skills, and
abilities to reduce [the] risk of committing new crime and support . . successful community
reentry." Pet.'s Exh. B, at DOC 0286. Petitioner successfully completed the programming
without incident.
Because petitioner is designated a "Release Sensitive Notification" case, the
Department held a central office case staffing on September 4, 2024, to determine whether
petitioner, after completing his minimum, should be recommended for parole or allowed to
serve any portion of his remaining sentence on community supervision furlough. The case
staffing committee declined to recommend petitioner for parole because of his past criminal
history while on probation and home confinement. The committee believed "furlough will
provide a better option to enact, maintain, and adjust community conditions as required to
manage [petitioner]'s risk to public safety," but determined that petitioner could not be
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released to or reside in Washington County because of victim concerns. Resp.’s Exh. A., at
DOC 905. Petitioner was denied parole by the Parole Board on November 20, 2025.
Following the parole board hearing, the Department worked with petitioner to
identify potential residences for him if released on community supervision furlough. One
option considered was the Judd House, a transitional housing facility in Newport. Another
option was a private rental in Canaan.
Petitioner’s preference was to live in Canaan. The Department told petitioner it
would approve the residence, which ultimately led petitioner to decline an available bed in
the Judd House on or about December 24, 2024. The Department then informed Orleans
County law enforcement officials that petitioner would be released the following week to
Canaan, which is in Essex County. Petitioner’s planned release and criminal history was
reported in the local media.
On December 31, Essex County State’s Attorney Vincent Illuzzi sent the
Department an email expressing concern about petitioner’s planned release to Canaan and
questioning why he had not been notified or consulted. Illuzzi’s concerns were also reported
in the local media. 1 Some residents in Canaan thereafter started an online petition to try
and stop petitioner’s planned release to their community. Among the concerns raised were
Canaan’s lack of a local police force, its rural nature, and its proximity to the New
Hampshire and Canadian border. Department staff also consulted with the Governor’s
Office concerning the situation.
In response to these concerns, on or about January 2, 2025, the Department
determined it would no longer release petitioner to the residence in Canaan, would
undertake a comprehensive review of petitioner’s eligibility for community supervision
furlough, and that petitioner would remain incarcerated while this review was underway.
On January 3, 2025, then-Commissioner Nicholas Deml issued a memo to
petitioner’s file indicating that petitioner “will not be placed on [community supervision
furlough] based on his risk to the public’s and his victim’s safety, his history of repeated
noncompliance with community supervision, and . . . the likelihood of his fleeing from the
jurisdiction of the Department of Corrections and the Vermont criminal justice system.”
Resp.’s Exh. A, at DOC 344. The Commissioner’s memo noted recent information received
by the Department that petitioner planned to contact victims in Washington County after
his release and also expressed concern about the proposed release to Canaan, given its lack
of a police force. In declining to approve petitioner’s release on community supervision
furlough, the Commissioner noted that petitioner did not meet the criteria to receive a risk
containment designation under the Department’s policies, but the Commissioner relied on

1 The Department later stated that Illuzzi was notified of petitioner’s potential release on furlough

(but not in Canaan specifically) on or about November 19, 2024. Resp.’s Exh, A, at DOC 0571.

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his general authority under 28 V.S.A. § 102(b)(1) and (2) to supervise the Department and
administer its programs. The Commissioner thereafter issued a press release announcing
and explaining his decision.
Petitioner filed this complaint on January 10, 2026, to challenge the Commissioner’s
decision to deny him release on community supervision furlough.
Analysis
“Summary judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Hier v. Slate Valley Unified Sch. Dist., 2025 VT 2, ¶ 8 (quoting V.R.C.P. 56(a)). All
reasonable doubts and inferences are resolved in favor of the nonmoving party. Boyd v.
State, 2022 VT 12, ¶ 19, 216 Vt. 272.
As noted above, the relevant facts are undisputed. The legal questions before the
court are (i) whether the Commissioner’s actions are subject to judicial review in this case,
and (ii) whether Commissioner Deml had the authority to unilaterally reverse the decisions
of lower-level Department staff approving petitioner’s release on community furlough.
Rule 75 permits judicial review of “[a]ny action or failure or refusal to act by . . . any
department . . . that is not reviewable or appealable under Rule 74 . . . if such review is
otherwise available by law.” V.R.C.P. 75(a). The Vermont Supreme Court has explained
that “otherwise available by law” includes review that would have been available “under
the traditional writs for extraordinary relief.” Maple Run Unified Sch. Dist. v. Vermont
Hum. Rts. Comm'n, 2023 VT 63, ¶ 10, 218 Vt. 496. Petitioner claims the relief he seeks is in
the nature of the traditional writs of mandamus and certiorari.
The court assumes without deciding that this case falls within the nature of
mandamus review. Petitioner claims he had a right to be released with which the
Commissioner lacked discretion to interfere. On the unique facts of this case, the conditions
for mandamus review are inextricably intertwined with the substantive question of the
Commissioner’s authority. See id., ¶ 11 (“Mandamus is an extraordinary remedy
appropriate only when three conditions are met: (1) when a party has a clear and certain
right to the action sought by the request for [mandamus]; (2) [the request] is for the
enforcement of ministerial duties, not those that involve the exercise of an official’s
judgment or discretion; and (3) there is no other adequate remedy at law.”). The court will
thus consider the substantive question of whether the Commissioner possesses the legal
authority he claims.
The Legislature has vested the Commissioner of the Department of Corrections with
broad authority to “supervise the administration of the Department” and to “exercise
supervisory power over and to establish and administer programs and policies . . . for the
correctional treatment of persons” in the Department’s custody. 28 V.S.A. § 102(b)(1), (2).

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“When a person is convicted of an offense and the court commits him or her to a term of
imprisonment, the commitment shall be to the custody of the Commissioner,” and the
“Commissioner shall have the authority to designate the place of confinement where the
sentence shall be served.” 28 V.S.A. § 701(a), (b).
The Legislature has further required the Department to “establish an offender
reintegration process that requires offenders to be held accountable to their victims and the
community,” under which an “offender who participates in the reintegration process . . .
may be placed in the community under the Department’s supervision for the remainder of
the sentence if the Department is satisfied that the offender is demonstrating progress in
his or her reentry programs and that the offender does not present an unreasonable risk to
his or her victims or to the community at large.” 28 V.S.A. § 721. Accordingly, the
Department “may release” an offender from a correctional facility to serve their remaining
sentence in the community if the offender has served the minimum term of their sentence,
is ineligible or has been denied parole, and “agrees to comply with such conditions of
supervision the Department, in its sole discretion, deems appropriate.” 28 V.S.A. § 723(a).
“The offender’s continued supervision in the community is conditioned on the offender's
commitment to and satisfactory progress in his or her reentry program and on the
offender’s compliance with any terms and conditions identified by the Department.” 28
V.S.A. § 723(b). The Legislature has established a comprehensive framework for
determining how the Department may modify or terminate an offender’s furlough status
once granted, and how such decisions may be challenged. 28 V.S.A. § 724.
The Legislature thus has given the Commissioner broad discretion to determine
where a sentenced offender serves his or her sentence and whether any portion of that
sentence may be served in the community. 28 V.S.A. §§ 102(b), 701, 721, 723. The question
then becomes whether the discretion was abused in this case. Petitioner argues that it was
for essentially two reasons. First, petitioner argues that the decision to release him on
furlough was made by lower-level Department officials acting consistently with Department
policy, and that it was an abuse of discretion for the Commissioner to act outside the policy
and reverse that decision. And second, petitioner argues that he had acquired a liberty
interest in his expected release on furlough that could not be denied without due process,
which he was not provided.
These arguments fail. The statutes relevant to this case do not limit the
Commissioner’s discretion to determine that a particular offender is not suitable for
community supervision furlough. “The Legislature knows how to impose such limitations,
but chose not to do so” here. See Parker v. Gorczyk, 170 Vt. 263, 268 (1999). Indeed, as noted
above, the Legislature has done so in the furlough revocation context but has chosen to
leave the Commissioner’s discretion intact with respect to the initial decision whether to
permit an offender to serve their sentence in the community. And even if the Department’s
policy guidelines could circumscribe the Commissioner’s statutory authority in this area,
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they do not purport to do so. See DOC Policy 348(A)(1) (noting that DOC “may release” a
person to furlough and describing when a person is “eligible” for such release). While it is
easy to imagine a situation where this authority might be exercised unlawfully—for
example, if furlough was denied because of an offender’s political viewpoints or race—such
facts are not presented here. Even if the process here left much to be desired, there is
nothing inherently unlawful with an executive official responding to safety concerns raised
by the press, the public, and other government officials. Cf. Vt. Const. ch. 1, art. 6 (“That all
power being originally inherent in and consequently derived from the people, therefore, all
officers of government, whether legislative or executive, are their trustees and servants;
and at all times, in a legal way, accountable to them.”).
And while “[t]he Department has not contested—and many courts have concluded—
that revocation of community supervision furlough implicates a protected liberty interest
and therefore triggers the right to due process,” see, e.g., Parker v. Deml, 24-CV-02721 (Vt.
Super. Ct. Mar. 12, 2025) (emphasis added), those holdings have not been extended to the
furlough denial context. The court declines to do so here. As both the Vermont Supreme
Court and the United States Supreme Court have observed, “there is a crucial distinction
between being deprived of a liberty one has . . . and being denied a conditional liberty that
one desires.” Parker, 170 Vt. at 271 (quoting Greenholtz v. Nebraska Penal Inmates, 442
U.S. 1, 9 (1979)).
The court accordingly concludes that the Commissioner acted within his statutory
authority when he intervened in this case to prevent petitioner’s release on community
supervision furlough. The apparently unprecedented nature of the intervention does not by
itself make it unlawful. Whether to restrict the Commissioner’s authority in this area is a
policy question for the Legislature.
Order
The Department’s motion for summary judgment is GRANTED and petitioner’s
cross-motion for summary judgment is DENIED.

Electronically signed on: 3/24/2026 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

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