Gandy v. Raemisch
| Decision Date | 10 August 2017 |
| Docket Number | Court of Appeals No. 16CA1267 |
| Citation | 405 P.3d 480 |
| Parties | Robert D. GANDY, Plaintiff-Appellant, v. Rick RAEMISCH, Executive Director, Colorado Department of Corrections; and Steve Hager, Director of Prisons, Colorado Department of Corrections, Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Gibson, Dunn & Crutcher LLP, Timothy M. Zimmerman, Reid F. Rector, John D.W. Partridge, Denver, Colorado, for Plaintiff-Appellant
Cynthia H. Coffman, Attorney General, Kathryn A. Starnella, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees
Opinion by JUDGE BOORAS
¶ 1 Plaintiff, Robert D. Gandy, appeals the district court's judgment dismissing his complaint under C.R.C.P. 106 against defendants, Rick Raemisch, Executive Director of the Colorado Department of Corrections (Executive Director), and Steve Hager, Director of Prisons of the Colorado Department of Corrections (Director). We affirm in part, reverse in part, and remand with directions for further proceedings.
¶ 2 Gandy is a Canadian citizen serving a habitual criminal life sentence1 in the custody of the Colorado Department of Corrections (DOC). Gandy has applied numerous times to the DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. See Gandy v. Colo. Dep't of Corr., 2012 COA 100, 284 P.3d 898 ( Gandy III ); Gandy v. Colo. Dep't of Corr., (Colo. App. No. 07CA2381, Nov. 26, 2008) (not published pursuant to C.A.R. 35(f) ) ( Gandy II ); Gandy v. Colo. Dep't of Corr., (Colo. App. No. 03CA1056, June 24, 2004) (not published pursuant to C.A.R. 35(f) ) ( Gandy I ). His applications have been denied.
¶ 3 At issue is Gandy's September 3, 2015, application for transfer. On February 8, 2016, the Director denied Gandy's application in writing, referencing the Canadian Minister of Public Safety's 2012 denial of Gandy's most recent application. The Canadian application was denied based on Gandy's length of time abroad; the infrequency of his visits; his insufficient personal support or ties to Canada; the lack of evidence the transfer would promote public safety in Canada; and lack of evidence that any of these factors had changed since Gandy's previous applications for transfer. The Director said that, under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. He suggested that Gandy use the interim period to "provide documentation that would support those reasons for denial having changed." But the Director did not forward Gandy's application to the Executive Director.
¶ 4 Gandy filed a complaint in the district court seeking mandamus relief. He asked the court to direct the DOC to "process and submit" his application for transfer to the United States Department of Justice. He also asked for "a nominal amount for punitive damages" for alleged violations of his constitutional rights. The court granted defendants' motion to dismiss Gandy's complaint pursuant to C.R.C.P. 12(b)(5) for failure to state a claim on which relief can be granted.
¶ 5 Gandy appeals the district court's dismissal of his complaint, contending that he stated a claim for mandamus relief under C.R.C.P. 106. He argues that, under the applicable state statute and DOC administrative regulation, he was entitled to final review of and decision on his transfer application by the Executive Director rather than the Director. He also asserts that the Director improperly imposed a two-year waiting period and "change of circumstances" requirements for any future transfer applications. Finally, Gandy alleges several constitutional violations.
¶ 6 Before we address Gandy's arguments, we first describe the framework of international treaty, state statute, and DOC administrative regulation that governs the transfer of a Canadian offender to serve his remaining sentence in Canada.
¶ 7 In 1978, the United States and Canada entered into a treaty "to enable [o]ffenders, with their consent, to serve sentences of imprisonment or parole or supervision in the country of which they are citizens, thereby facilitating their successful reintegration into society." Treaty on the Execution of Penal Sentences, Can.-U.S., Mar. 2, 1977, 30 U.S.T. 6263 (the Treaty).
¶ 8 Under certain conditions, an offender may apply for a transfer from the country in which he or she is incarcerated, known as the "Sending State." Id. at art. I(a); art. III, ¶ 3. Upon approval of the federal authorities, and, if the offender is a state prisoner, the state authorities, the offender's country of citizenship, known as the "Receiving State," must also approve the transfer. Id. at art. I(b); art. III, ¶ 3.
Id. at art. III, ¶ 7.
¶ 10 "After a transfer is complete, the receiving country is responsible for the cost of incarceration and may not challenge, set aside, or otherwise modify the terms of the offender's sentence." Gandy III, ¶ 4.
¶ 11 Colorado's legislature implements federal treaties allowing offender transfers through section 24-60-2301, C.R.S. 2016, which provides as follows:
If a treaty ... provides for the transfer or exchange of convicted offenders to the country of which they are citizens or nationals, the governor may, on behalf of the state and subject to the terms of the treaty, authorize the executive director of the [DOC] to consent to the transfer or exchange of offenders and take any other action necessary to initiate the participation of this state in the treaty.
¶ 12 The governor delegated authority to the DOC to "approve the transfer of eligible foreign national offenders, pursuant to the conditions of current treaties which provide for such transfer, and the approval of the Department of Justice and the affected foreign country." DOC Admin. Reg. 550-05(IV)(B) (the Regulation). The DOC promulgated the Regulation to promote its policy of "return[ing] convicted foreign national offenders to their country of origin consistent with the interests of the state of Colorado, the United States Department of Justice, and the individual offender." DOC Admin. Reg. 550-05(I).
¶ 13 The Regulation lists eight criteria for determining an offender's eligibility for transfer. DOC Admin. Reg. 550-05(IV)(C). It also describes a "Transfer Application Process," listing steps for the processing of an offender's request for transfer, and, if it is approved, describing the procedures for seeking federal approval from the Department of Justice. DOC Admin. Reg. 550-05(IV)(D).
¶ 14 We review de novo a dismissal pursuant to C.R.C.P. 12(b)(5) for failure to state a claim and apply the same standards as the district court. Van Rees v. Unleaded Software, Inc., 2016 CO 51, ¶ 9, 373 P.3d 603 ; Bly v. Story, 241 P.3d 529, 532 (Colo. 2010). We accept the factual allegations contained in the complaint as true and view them in the light most favorable to the plaintiff. Van Rees, ¶ 9.
¶ 15 Gandy contends that the district court erred when it dismissed his claim for mandamus relief. Gandy argues that the Regulation's "Transfer Application Process" imposed a duty on the Director to process his application for transfer and send it to the Executive Director for his final review and decision. We agree with Gandy.
¶ 16 "Mandamus is an extraordinary remedy that a court may use to compel performance of a duty that the law requires." Jefferson Cty. Educ. Ass'n v. Jefferson Cty. Sch. Dist. R-1, 2016 COA 10, ¶ 10, 378 P.3d 835.
¶ 17 A plaintiff must satisfy a three-part test before a court will grant a request for mandamus relief:
Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo. 1983).
¶ 18 The dispute in this case focuses on the first two factors: Does the Regulation confer upon Gandy a clear right to have his application for transfer sent to the Executive Director for final review and consideration? Does the Executive Director have a clear duty to perform the final review and determination? We conclude that Gandy has such a right, and that the Executive Director or his designee has such a duty.
¶ 19 "In construing an administrative regulation, we apply the same rules of construction that we would in interpreting a statute." Phillips v. Exec. Dir., Colo. Dep't of Corr., 251 P.3d 1176, 1178 (Colo. App. 2010). "We first look to the language of the regulation and analyze the words and phrases according to their plain and ordinary meaning"; "if the language of a regulation is clear and unambiguous, we do not resort to other rules of construction." Id."We may consider and defer to an agency's interpretation of its own enabling statute and regulations the agency has promulgated, but we are not bound by the agency's interpretation." Bd. of Cty. Comm'rs v. Colo. Pub. Utils. Comm'n, 157 P.3d 1083, 1088 (Colo. 2007). In construing regulations, we must avoid interpretations that lead to absurd results. Phillips, 251 P.3d at 1178.
¶ 20 Under the Regulation, a chain of individuals and offices reviews an offender's request for transfer and supplies a recommendation regarding the transfer. First, an offender must request transfer through his or her assigned case manager. DOC Admin. Reg. 550-05(IV)(D)(1). The...
To continue reading
Request your trial
-
Gandy v. Williams, Court of Appeals No. 18CA0865
...concerned his request to be transferred to the Canadian penal system. As discussed in Gandy v. Raemisch , 2017 COA 110, ¶ 2, 405 P.3d 480 ( Gandy IV ), Gandy is a Canadian citizen serving a habitual criminal life sentence in the CDOC’s custody. See also Gandy v. Colo. Dep’t of Corr. , 2012 ......
- Klein v. Tiburon Dev. LLC