Pelland v. Rhode Island

• Decision Date: 07 May 2004
• Docket Number: C.A. No. 01-454S.
• Citation: 317 F.Supp.2d 86
• Parties: Joseph A. PELLAND, Plaintiff, v. State of RHODE ISLAND, Department of Corrections, and Ashbel T. Wall, II, individually and in his official capacity as the Director of the Rhode Island Department of, Corrections, Defendants.
• Court: U.S. District Court — District of Rhode Island

317 F.Supp.2d 86

Joseph A. PELLAND, Plaintiff, v. State of RHODE ISLAND, Department of Corrections, and Ashbel T. Wall, II, individually and in his official capacity as the Director of the Rhode Island Department of, Corrections, Defendants.

C.A. No. 01-454S.

United States District Court, D. Rhode Island.

May 7, 2004.

COPYRIGHT MATERIAL OMITTED

Richard A. Sinapi, Esq., Sinapi Formisano & Coleman Ltd., Cranston, RI, for Plaintiff.

Rebecca Tedford Partington, Esq., Genevieve M. Allaire Johnson, Esq., Attorney General's Office, Providence, RI, for Defendants.

DECISION AND ORDER

SMITH, District Judge.

The right to travel from state to state, though not explicitly guaranteed by the United States Constitution, has long been recognized as a liberty interest protected by the Fourteenth Amendment. In this case, a convicted sex offender on probation seeks greater freedom of movement than the State of Rhode Island is willing to allow him. The question for this Court is whether Rhode Island's enforcement of a policy that curtails the right of sex offender probationers to travel interstate violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment or the Ex Post Facto Clause of the Constitution.

On September 24, 2003, the Court conducted a bench trial of this matter. After reviewing the evidence and considering the parties' arguments, the Court finds that Plaintiff has failed to establish that Defendants violated his rights of due process and equal protection under the United States and Rhode Island Constitutions. Furthermore, the Court finds that Plaintiff has not proven a violation of the Ex Post Facto Clause of Article I, § 12 of the Rhode Island Constitution or Article I, § 10 of the U.S. Constitution. Judgment shall therefore enter for the Defendants and against the Plaintiff.

I. Findings of Fact¹

Plaintiff Joseph A. Pelland (Pelland or Plaintiff), a resident of North Providence, Rhode Island, pled guilty to second degree child molestation in Kent County Superior Court on January 10, 1990. He received a ten year suspended sentence to the Adult Correctional Institutions in Cranston, Rhode Island, and fifteen years probation and sex offender counseling. On the day of his plea, Plaintiff signed a form entitled "Conditions of Probation" that contained the following provision:

During the probationary term herein fixed, you shall abide by the following terms and conditions:

. . . . .

Second, You shall not leave the State of Rhode Island without the permission of the Court.

The parties are in agreement that Plaintiff could satisfy the "permission of the Court" requirement by obtaining permission to leave Rhode Island either from the court that sentenced him or from the Department of Corrections (Department).

For roughly the next ten years, Plaintiff traveled outside Rhode Island both with and without "permission of the Court," as defined above. He would travel out-of-state without seeking or obtaining the permission of the Court for single days at a time to work, shop, visit family and friends, and attend sporting, political and cultural events.² Pelland testified that it was his understanding, based on the representations made to him by his probation officer and the unwritten policy then in effect, that it was unnecessary to obtain formal permission from the Department for casual travel lasting less than twenty-four hours. On three occasions, Plaintiff obtained permission from the Department to travel out-of-state for longer periods of time, either for vacation in New Hampshire or to visit with family in Florida.

In April or May 2000, Plaintiff obtained employment as an automobile parts deliveryman for Empire Auto Parts (Empire) in Foxborough, Massachusetts. Sometime thereafter, Plaintiff sought a permit from the Department to engage in this employment, despite his understanding that he did not need a permit for out-of-state travel lasting twenty-four hours or less.³

On November 28, 2000, the Department made effective a new policy and procedure regulating the out-of-state travel of sex offender probationers (Policy). The Policy banned all out-of-state travel by sex offender probationers subject to five exceptions: (1) emergency, defined as death or serious illness of a family member; (2) appropriate to treatment goals, the reason for which must be discussed with and sanctioned by the therapist working with the offender; (3) employment, where the offender works in a bordering state in a job that presents no risk to the community, and the offender was employed in that job prior to the implementation of the Policy; (4) medical, defined as the offender's medical treatment in a bordering state or travel to another state for a medical consultation that is verified; (5) religion, where the purpose of the out-of-state travel is to attend religious services provided that there is no risk to the community, and the offender has at least a one-year history with the church.⁴ The Policy tacitly bars both casual, same-day travel and more extended travel for vacation.

On January 4, 2001, Plaintiff met with his new probation officer, Christine Imbriglio, to discuss the Policy. At the time of that meeting, Plaintiff had left Empire and was working for Domino's Pizza. Plaintiff was concerned that the Policy might affect his ability to continue to work for Domino's Pizza, but he was informed by Ms. Imbriglio that the Policy did not apply to him. In April 2001, Plaintiff had ceased employment at Domino's Pizza and had begun to work as an automobile parts deliveryman for Astro Automotive (Astro) in Franklin, Massachusetts. He obtained this employment without seeking permission from the Department.

On June 11, 2001, Pelland testified that he telephoned Ms. Imbriglio in fulfillment of his regular check-in requirement with the Department. At the time of the call, Plaintiff was in Cape Cod, Massachusetts, delivering car parts for Astro. Ms. Imbriglio told Plaintiff that he was in violation of the Policy and instructed him to return to Rhode Island. Subsequently, the two met and Ms. Imbriglio reiterated that Plaintiff, by working at Astro, had violated the Policy and would not be permitted to continue working there. Plaintiff consequently resigned from his job at Astro.

In August 2002, Plaintiff made a request to travel to Florida in December 2002 to visit with family. The Department denied the request because it failed to fall into any of the exceptions to the Policy. Plaintiff also made a request dated March 27, 2003 to work at Astro which was eventually denied.

Plaintiff complains that there are no exceptions in the Policy for (1) casual, same-day travel out-of-state; (2) scheduled vacations out-of-state or visits with family or friends for anything except "emergencies"; (3) passing through a neighboring state on the way to Rhode Island; and (4) expediting the permit approval process for emergencies. There is also allegedly no notice or opportunity to be heard as to the application of the Policy — it applies to all "sex offenders," although the term is nowhere defined — and no consideration is given to date of conviction, unique circumstances of the offender or the offense, or the degree of danger posed by the offender.

Plaintiff filed this Complaint and Motion for Temporary Restraining Order and Preliminary Injunction in Rhode Island Superior Court alleging: (I) a violation of R.I. Gen. Laws § 42-35-1 and 42-56-7, in that Defendants promulgated the Policy without complying with applicable state law procedures; (II) a violation of the Rhode Island "State constitutional separation of powers," again as a result of the failure to follow state law procedures in promulgating the policy; (III) impairment of the right to travel in violation of the Equal Protection Clause of the Rhode Island Constitution; (IV) impairment of the right to travel in violation of the Equal Protection Clause of the U.S. Constitution, pursuant to 42 U.S.C. § 1983; (V) a violation of the Due Process Clause under the Rhode Island Constitution; (VI) a violation of the Due Process Clause of the U.S. Constitution, pursuant to 42 U.S.C. § 1983; (VII) imposition of an ex post facto law in violation of the Rhode Island Constitution; and (VIII) imposition of an ex post facto law in violation of Article I, § 10 of the U.S. Constitution, brought pursuant to 42 U.S.C. § 1983. Defendants removed the action here, but Chief Judge Ernest C. Torres remanded Counts I and II to the Superior Court on December 6, 2001.⁵

II. Conclusions of Law

The core of Plaintiff's claims concerns the operation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment with respect to his right, as a sex offender on probation, to travel interstate.

A. The Federal Due Process Clause: Do Probationers Have a Fundamental Right to Interstate Travel?

The Due Process Clause⁶ of the Fourteenth Amendment applies when government action deprives a person of liberty. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). American citizens enjoy the constitutionally protected liberty to travel across state borders. See Shapiro v. Thompson, 394 U.S. 618, 629-30, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (all citizens have the liberty "to travel throughout the ... land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement"). Ordinarily, a state may not impose restrictions on this fundamental right without demonstrating a compelling governmental interest in curtailing it. Id. at 634, 89 S.Ct. 1322.

A probationer, however, loses much of the liberty that he possessed prior to his criminal conviction. "[I]t is always true of probationers (as we have said it to be true of parolees)⁷ that they do not enjoy `the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrict...