Girouard v. Hogan, 345-76
| Citation | 378 A.2d 105,135 Vt. 448 |
| Decision Date | 16 September 1977 |
| Docket Number | No. 345-76,345-76 |
| Court | Vermont Supreme Court |
| Parties | Roy GIROUARD v. Cornelius HOGAN, Commissioner, Department of Corrections. |
James L. Morse, Defender Gen., and Charles S. Martin, Appellate Defender, Montpelier, for plaintiff.
M. Jerome Diamond, Atty. Gen. and Peter B. Brittin and Robert L. Orleck, Asst. Attys. Gen., Montpelier, for defendant.
Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SMITH, J. (Ret.), specially assigned.
This is an appeal based on the granting of a motion to dismiss alleging a failure to state a cause of action entitling the plaintiff to the relief sought. He had brought a declaratory judgment, coupled with a request for injunctive relief, seeking to reverse a projected transfer of him as a prisoner from the Vermont correctional system to an out-of-state federal facility.
The plaintiff, Roy Girouard, is presently serving a life sentence after conviction of first-degree murder. He has had numerous terms of confinement in Vermont, and was several times convicted of escape. The Commissioner of the Department of Corrections, in an affidavit for this case, stated that he considered the plaintiff a maximum security risk.
The projected transfer came about because the State elected to close its maximum security institution at Windsor. 28 V.S.A. § 706(a) authorizes the Commissioner of the Department of Corrections to contract with the United States for transfer of inmates from State facilities to federal institutions. Such a transfer can be authorized on any of three considerations: (1) the inmate needs particular treatment or special facilities available at the federal correctional facility; (2) all in-state security and custody alternatives for the inmate have been considered and found unsuitable; or, (3) the inmate voluntarily requests transfer. In this case the order of transfer was based on the unsuitability of in-state treatment and rehabilitative programs and the unsuitability of security in in-state treatment and rehabilitative programs and the unsuitability of security in in-state facilities. The plaintiff has never requested transfer out of Vermont.
The complaint filed by the plaintiff asserted that the proposed transfer out of the State of Vermont would violate his right of residence guaranteed to him, as he claims, by the Vermont Constitution. As further grounds, and the only grounds advanced in his brief before this Court, he claims such transfer also constitutes the punishment of exile, banishment or transportation (in the English sense of "beyond the seas"). These are...
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Olim v. Wakinekona
...420 F.Supp. 217, 220 (ED Ill.1976); Goodnow v. Perrin, 120 N.H. 669, 671, 421 A.2d 1008, 1010 (1980); Girouard v. Hogan, 135 Vt. 448, 449-450, 378 A.2d 105, 106-107 (1977); In re Young, 95 Wash.2d 216, 227-228, 622 P.2d 373, 379 (1980); cf. Fajeriak v. McGinnis, 493 F.2d 468 (CA9 1974) (pre......
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Ray v. McCoy
...interest and is not cruel and unusual punishment). Nor do we choose to follow the Vermont Supreme Court's reasoning in Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977), where confinement of a Vermont prisoner outside of that state was regarded only as a "fortuitous consequence of a prope......
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Beshaw v. Fenton
...have been considered and found wanting; or (3) the inmate voluntarily requests transfer. 28 V.S.A. § 706(a); see Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (Sup.Ct.1977). At the pre-transfer hearing accorded Beshaw, it was determined that he was subject to transfer under condition (2). Be......
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Daye v. State, 99-133.
...not an additional element of his punishment." In so holding, the Supreme Court cited this Court's earlier decision in Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977), which similarly rejected a Vermont inmate's claim that his planned transfer to an out-of-state federal facility constitu......