Brandt v. Pallito ( 2017 )

Brandt v. Pallito, 638-10-15 Wncv (Teachout, J., Oct. 27, 2017)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 638-10-15 Wncv
JEFFREY-MICHAEL BRANDT
Plaintiff
v.
ANDREW PALLITO, Commissioner, Vermont
Department of Corrections, and
DAVID TURNER, Facilities Executive
Defendants
ENTRY
Motion to Reconsider
Mr. Brandt seeks reconsideration of the court’s September 1, 2017 summary judgment
decision. He objects that the court erred in accepting that the State’s compelling governmental
interest in preventing sexual violence in its prisons is served by its policy of prohibiting the
introduction into those facilities of explicit photographs of pierced genitalia and nipples. He
argues that Holt v. Hobbs, 135 S.Ct. 853, 863 (2015), requires more of the State than what the
summary judgment record included when the court decided this issue.
Mr. Brandt’s motion is denied. In Holt, the trial court expressly knew that the policy at
issue, as applied to the inmate, did not advance the asserted governmental interest. It
nevertheless ruled in favor of the government out of pure deference. The Supreme Court ruled
that “unquestioning deference” is impermissible under RLUIPA. “Prison officials are experts in
running prisons and evaluating the likely effects of altering prison rules, and courts should
respect that expertise. But that respect does not justify the abdication of the responsibility,
conferred by Congress, to apply RLUIPA’s rigorous standard.” Holt, 135 S.Ct. at 864.
Unlike in Holt, summary judgment here did not depend on unquestioning deference. The
record included an affidavit asserting the governmental interest and need to further it by
restricting materials of a graphic sexual nature. That is not “hard to swallow.” Id. It is
reasonable on its face and supported by the record.
Mr. Brandt also argues that the policy cannot further the asserted governmental interest
because the policy permits some depictions of nudity. The policy, he argues, must prohibit all
depictions of nudity of any kind or it per se cannot serve the asserted governmental interest. He
provides no reasoning or legal support for this assertion and the court does not find it persuasive.
Mr. Brandt’s motion to reconsider is denied.
Dated at Montpelier, Vermont this ____ day of October 2017.
_____________________________
Mary Miles Teachout,
Superior Judge
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