In re Bruyette

• Decision Date: 21 January 2022
• Docket Number: 21-108
• Citation: 274 A.3d 844
• Parties: IN RE Joseph BRUYETTE
• Court: Vermont Supreme Court

274 A.3d 844

IN RE Joseph BRUYETTE

No. 21-108

Supreme Court of Vermont.

December Term, 2021

January 21, 2022

Matthew F. Valerio, Defender General, and Annie Manhardt, Prisoners’ Rights Office, Montpelier, for Petitioner-Appellant.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Timothy P. Connors, Assistant Attorney General, Waterbury, for Respondent-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Zonay, Supr. J., Specially Assigned

COHEN, J.

¶ 1. This is an administrative agency appeal from the Vermont Department of Corrections (DOC). Petitioner Joseph Bruyette appeals from an April 2021 DOC declaratory ruling, made after his case staffing in June 2019, in which the DOC stated that it would "continue to rely on evaluations and reports that refer to [an] expunged offense when assessing [an] individual's risk to make programming, classification and release decisions." The DOC further stated in its declaratory ruling that it would also "maintain a record of such evaluations and reports to support its decisions ... until [the individual in question] ha[s] reached their maximum release date whether or not the offense has been expunged." Petitioner had several felony convictions expunged prior to reclassifications in June and August 2021, and alleges that the declaratory ruling is in violation of 13 V.S.A. § 7606, Vermont's expungement statute. The State argues that petitioner does not have standing to bring this case because the State did not rely on his expunged convictions during his final reclassification in August 2021. Shortly after the staffing, petitioner filed a motion to remand the case for further development of the record. He noted that the State's brief did not address the merits of his claim and instead solely urged the Court to dismiss the appeal for lack of standing. Several material facts related to his 2021 reclassification are in dispute and were not considered below. Because the disputed facts are vital for consideration of petitioner's standing, we remand the case for further development of the record.

¶ 2. Petitioner is currently serving an aggregate sentence of forty-five to eighty-five years in connection with four felonies for which he was sentenced in January 1990. In petitioner's June 2019 case staffing, the DOC classified him as a "Level C offender" pursuant to DOC Directive 371.10 based on his scores using two methodologies: the Level of Service Inventory (LSI) and Violence Risk Appraisal Guide (VRAG). The scores on both the LSI and VRAG are partially based on criminal history, including the number of prior arrests, number and severity of convictions, and sentencing dates. Petitioner's 2019 classification referenced felony convictions that pre-dated his current sentence.

¶ 3. Petitioner's felony convictions from before his current sentence were expunged pursuant to 13 V.S.A. § 7606 as of July 2019. Because his case staffing from June 2019 had occurred a month prior, the resulting classification took into account his prior offenses before they were expunged. Petitioner's next case staffing and two-year review of his Level C designation was scheduled to occur in June 2021, and he believed his expunged convictions might still be considered in both the LSI and VRAG. On April 1, 2021, he petitioned the DOC for a declaratory ruling pursuant to 3 V.S.A. § 808 "regarding the applicability of Vermont's expungement statute, 13 V.S.A. § 7606, to [the] DOC's treatment of individuals with expunged convictions and [the] DOC's use of evaluations and reports that consider or acknowledge expunged convictions." The DOC responded on April 14 with the following ruling:

To the extent an individual has had an offense for which they have been convicted expunged while still serving a sentence for the expunged offense, or while still in the custody of the VTDOC, the VTDOC will continue to rely on evaluations and reports that refer to the expunged offense when assessing that individual's risk to make programming, classification and release decisions. The VTDOC will also maintain a record of such evaluations and reports to support its decisions related to the individual until they have reached their maximum release date whether or not the offense has been expunged. The VTDOC does remove expunged convictions from its database.

Petitioner appealed.

¶ 4. Petitioner argues that the DOC's April 2021 declaratory ruling violates both the plain language and legislative intent of 13 V.S.A. § 7606. Section 7606 states that once a conviction has been expunged, the individual "shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense." 13 V.S.A. § 7606(b)(1) (emphasis added). The statute is far-reaching and explicitly impacts employment, license, and other applications in which the individual is only required to disclose their previous criminal history regarding nonexpunged convictions. It also includes process requirements ordering courts to destroy case files related to the expunged offenses. Id. § 7606(b) - (c). If, as the DOC states in its declaratory ruling, it uses expunged convictions in making any decisions, including classifications, that action would plainly violate the statute.

¶ 5. The DOC did not respond to petitioner's arguments. Instead, it contends that petitioner does not have standing to bring this case because, despite what it said in the declaratory ruling, it did not actually rely on any of petitioner's expunged offenses when it conducted its reclassification. It asserts therefore petitioner has failed to show that he has suffered a justiciable injury.

¶ 6. Standing is "a jurisdictional prerequisite." Wool v. Off. of Pro. Regul., 2020 VT 44, ¶ 10, 212 Vt. 305, 236 A.3d 1250. To satisfy the standing requirement, petitioner must "show (1) injury in fact, (2) causation, and (3) redressability." Id. (quotation omitted). "Without standing, the court...