Redcross v. Parole Bd

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

Request for Additional Briefing

Plaintiff Mr. Justin Redcross seeks review under Vt. R. Civ. P. 75 of a final
decision of Defendant the Vermont Parole Board revoking his parole. Following a final
hearing, the Board determined that he violated a parole condition warranting revocation.
The parties have briefed the substance of the controversy in cross-motions for summary
judgment. Before reaching the merits, on its own motion, the Court requests briefing on
a preliminary matter potentially affecting the Court’s authority to hear this case.

The question is whether the parole revocation proceeding before the Board was 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?

Section 815 addresses the judicial review of contested cases. It provides:

A person who has exhausted all administrative remedies available within
the agency and who is aggrieved by a final decision in any contested case
may appeal that decision to the Supreme Court, unless some other court is
expressly provided by law. However, a preliminary, procedural, or
intermediate agency action or ruling is immediately appealable under those
rules if review of the final decision would not provide an adequate remedy,
and the filing of the appeal does not itself stay enforcement of the agency
decision. The agency may grant, or the reviewing court may order, a stay
upon appropriate terms.

3 V.S.A. § 815(a).

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).

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23-CV-03921 Justin Redcross v Vermont Parole Board
At first blush, 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 V.S.A. § 552(b) (parole revocation
hearing). Neither the Board nor parole revocation proceedings appear to be expressly
exempt from the APA’s contested case provisions, even if the Board has some latitude to
promulgate 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 other states’ 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).

If parole revocation proceedings are contested cases, and 3 V.S.A. § 815 applies,
that provision requires that appeals go directly “to the Supreme Court, unless some other
court is expressly provided by law.” 3 V.S.A. § 815(a). Nothing in Vermont parole
statutes appears to direct review of revocation decisions to the Superior Court. See 28
V.S.A. §§ 551–554. Section 454 says only that: “determinations of the Parole Board shall
not be reviewable except as to compliance with the provisions of this chapter.” But that
provision has never been understood to prevent review of constitutional questions and is
not asserted in opposition to the review sought in this case. And it does not mention the
Superior Court.

No doubt, in the past, review of parole revocation cases has been conducted
directly in the Superior Court, and some such cases then have been appealed to the
Supreme Court, all without anyone raising the question presented here. As the United
States Supreme Court has cautioned, however, “[q]uestions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.” Webster v. Fall, 266
U.S. 507, 511 (1925).

Moreover, as in this case, some or all those cases proceeded directly to the
Superior Court under the Rule 75 rubric. But Rule 75 is a rule of procedure. It neither
creates jurisdiction nor a right to review that does not otherwise exist. See Reporter’s
Notes, Vt. R. Civ. P. 75 (The rule “does not purport to say what determinations are
reviewable.”); Vt. R. Civ. P. 82 (“These rules shall not be construed to extend or limit the
jurisdiction of the superior courts and the District Court, or the venue of actions
therein.”).

On the other hand, there may be other statutes or principles not mentioned above
that would counsel in favor of review in this Court.

Accordingly, the Court requests that the parties brief whether or not Plaintiff’s
parole revocation is rightly seen as a contested case under Vermont’s APA and, if so,
whether review should have been sought directly in the Supreme Court pursuant to 3
V.S.A. § 815(a). The parties shall file memoranda on that legal issue no later than 21
days from the date this order is docketed.
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23-CV-03921 Justin Redcross v Vermont Parole Board
Electronically signed on Monday, April 29, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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23-CV-03921 Justin Redcross v Vermont Parole Board