Brandt v. Pallito ( 2017 )

Brandt v. Pallito, 607-9-15 Wncv (Teachout, J., Dec. 15, 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
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 607-9-15 Wncv
JEFFREY-MICHAEL BRANDT
Plaintiff
v.
ANDREW PALLITO, Commissioner,
Vermont Department of Corrections, et al.
Defendants
DECISION
Plaintiff’s Motion for Contempt, filed November 6, 2017
(originally filed in wrong court on September 20, 2017)
In a prior case, the court ruled that the Vermont Department of Corrections had
improperly relied on 28 V.S.A. § 802 and DOC Directive 409.05 to bar Jeffrey-Michael Brandt,
an inmate in the custody of the Commissioner of the Department of Corrections, from
corresponding with a Colorado inmate, Ms. Lee Dougherty, merely because both were prisoners.
Brandt v. Hale, No. 280-4-12 Wncv, Decision (Vt. Sup. Ct. July 5, 2013). The Vermont statute
and rule only per se barred such correspondence between two Vermont inmates and no other
basis for restricting communication existed. The State did not appeal and that decision became
final.
In this case, originally filed in 2015, the DOC had per se barred Mr. Brandt from
corresponding with a different person, a Kentucky prisoner named Holly Britz. All material
circumstances of this case were the same as the prior case but for the identity of the non-
Vermont correspondent. The parties to this case eventually stipulated to a settlement agreement
essentially incorporating the terms of the decision from the earlier case. Paragraph 4 of the
Stipulation states:
That consistent with said ruling the Defendants hereby agree not to prohibit
communication between Plaintiff and any inmate who is not committed to the care and
custody of the Vermont Department of Corrections on the basis that said communication
constitutes an inmate-to-inmate correspondence, as set forth in 28 V.S.A. § 802 and
VTDOC Directive 409.05.
(Emphasis added.)
Neither the earlier decision nor the settlement agreement in this case give Mr. Brandt the
absolute right to correspond with Holly Britz or anyone else in her circumstances. Both merely
prohibit the DOC from enforcing a per se bar against correspondence between a Vermont and
non-Vermont prisoner for the reason that 28 V.S.A. § 802 and DOC Directive 409.05 bar such
correspondence only between two Vermont prisoners. Neither the decision nor the settlement
agreement would prevent restrictions on communications for other legitimate reasons.
Mr. Brandt recently sought to reopen this case to enforce the terms of the settlement
agreement. In the pending Motion for Contempt, he seeks such enforcement.
After the settlement agreement, Mr. Brandt was relocated to a prison facility in
Pennsylvania, which applied its own rules to bar correspondence between Mr. Brandt and Ms.
Britz. Pennsylvania is a Compact state. See 28 V.S.A. §§ 1601–1621 (Interstate Corrections
Compact). Mr. Brandt therefore “shall be treated equally with such similar inmates of the
receiving state [Pennsylvania] as may be confined in the same institution.” Id. § 1604(e); see
also Daye v. State, 171 Vt. 475, 482 (2000) (“A common sense reading of these provisions must
allow authorities having daily, physical custody of a transferred inmate to determine the
discipline, visitation, classification, and grooming aspects of the inmate’s incarceration.”
(quoting Glick v. Holden, 889 P.2d 1389, 1393 (Utah Ct. App. 1995)).
The parties agree, and the court accepts for purposes of this decision, that Pennsylvania,
as a Compact state, is entitled to enforce its own inmate correspondence policy. Mr. Brandt
suggests that his transfer to Pennsylvania undermines the decision from the prior case and his
settlement agreement in this case and is contemptuous of the court approval of the prior terms of
settlement.
The relief to which Mr. Brandt was entitled under the decision in the prior case and the
settlement agreement in this case is quite narrow. Under both, the DOC was limited from
interpreting 28 V.S.A. § 802 and DOC Directive 409.05 as creating a per se bar on
correspondence between Mr. Brandt and two particular non-Vermont prisoners. Neither created
a broad right to correspond with Holly Britz under any and all circumstances, nor did they create
a right not to be transferred to a different facility such as a Compact state prison with different
rules.
The terms of the settlement applied to the circumstances at the time. They did not
establish a right that overrides the DOC’s authority to transfer Mr. Brandt to a place of
confinement in a different facility in a Compact state, where different rules would apply. While
he is in Pennsylvania, Pennsylvania’s rules apply with respect to correspondence with non-
inmates, as that falls within the category of “visitation,” one of the aspects of incarceration over
which the local prison has authority. Daye v. State, 171 Vt. 475, 482 (2000).
There is no allegation that the DOC intentionally transferred Mr. Brandt specifically to
evade the effect of the decision or the settlement agreement. Mr. Brandt was in a DOC facility in
Michigan and was transferred en masse with other Vermont prisoners to Pennsylvania. The
DOC, not the court, has “the authority to designate the place of confinement where the sentence
shall be served.” 28 V.S.A. § 701(b).
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ORDER
For the foregoing reasons, Mr. Brandt’s motion for contempt is denied.
Dated at Montpelier, Vermont this ____ day of December 2017.
_____________________________
Mary Miles Teachout
Superior Judge
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