Wool v. Pallito, No. 759-12-13 Wncv (Teachout, J., August 14, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 759-12-13 Wncv

KIRK WOOL
     Plaintiff

           v.

ANDREW PALLITO, Commissioner,
Vermont Department of Corrections
     Defendant

                                                              DECISION
                                                            Pending Motions

        In this case, Mr. Kirk Wool, an inmate in the custody of the Vermont Department of
Corrections (DOC), alleges that the DOC has classified him as a Level C offender. He claims
that no such Level C designation, and its punitive implications, existed at the time of his
conviction. His sole claim in this case is that the DOC at some point after his conviction
replaced the then-existing classification regime that did not include Level C with one that did,
then classified him as Level C, and that having done so eliminates or severely prolongs any
opportunity he might have for early release in violation of the Ex Post Facto Clause of the United
States Constitution, U.S. Const. art. I, § 10.

        Previously in this case, Mr. Wool’s equal protection claim was dismissed. It also was
determined that Mr. Wool is not seeking Rule 75 review of the decision to classify him as Level
C, whether due to the use of “false facts,” intentional manipulation of recidivism screening tools,
or any other reason. In short, the sole claim in this case is that the classification scheme that
includes Level C is, as applied to him, ex post facto. Mr. Wool, in this case, is not seeking to
establish that he should not have been classified as Level C.

       Pending before the court are the State’s motion to dismiss and numerous motions and
requests concerning discovery.


           The State’s motion to dismiss

        The State seeks dismissal for lack of subject matter jurisdiction of Mr. Wool’s claims
challenging the correctness of his Level C classification. The State filed an earlier motion
arguing exactly the same. The earlier motion led to the clarification that Mr. Wool is not trying
to raise independent claims about the correctness of his Level C classification. The State’s
confusion is understandable, however, because Mr. Wool continues to argue about and seek
discovery apparently related to the wisdom of the classification decision as zealously after the
clarification as before. According to the State, the fact of Mr. Wool’s Level C classification is
material to his Ex Post Facto claim but the wisdom of the classification is irrelevant: if use of a
new classification system is determined to amount to a violation of the Ex Post Facto clause,
then the judgment will make the new classification system inapplicable. If the ex post facto
claim is not shown, the case is over. The case does not include review of the correctness of the
Level C or any other classification.

        Mr. Wool has never, in the record, articulated his ex post facto claim in the context of a
meaningful factual record (whether evidence or allegations) offered to support it.1 While the
claim is clear at a general level, as described above, the specifics are not. Mr. Wool seems to
think that he has been misclassified as Level C and that proving the misclassification somehow
will help to prove his ex post facto claim. The State argues that any “misclassification” is legally
irrelevant to this case.

        The State’s argument is correct. See Miller v. Ignacio, 

, 885 (Nev. 1996)
(per curiam) (explaining that the ex post facto inquiry is objective in nature); Giroud v.
Hofmann, 

, ¶ 8, 

(“Whether there is an increase in punishment is based
upon an objective evaluation of the effect of the amended legislation on the prisoner’s
sentence.”). However, its motion seeks dismissal for lack of subject matter jurisdiction though
there is agreement that Mr. Wool’s only claim is for an ex post facto violation, and there can be
no serious dispute that this court has jurisdiction to hear an ex post facto claim. A dismissal
motion is not an effective way to confront the manner by which the State anticipates that Mr.
Wool will attempt to support his claim. A claim is no less within the court’s subject matter
jurisdiction because it lacks merit.

        The State’s motion to dismiss must be denied.


        Discovery

       There are numerous motions, requests, and other filings pending regarding discovery.
The court reiterates now what Judge Toor noted earlier: a flood of filings addressing the same
general matter is chaotic, unproductive, and results in little other than more unnecessary delay.
See Entry Order dated July 24, 2014 (“Court explains it cannot work with 14 filings on one
motion, and needs the issues to be clarified in a new motion.”). This has been a persistent
problem in this case.

        On May 8, 2015, the court ruled clearly on remaining discovery disputes as follows:

        The Court will schedule a hearing to determine enforcement of discovery
        obligations after Mr. Wool has filed the following with the court: a specific
        numbered list clarifying in detail the discovery material or event for which he
        seeks discovery enforcement. Atty McLean shall respond to the numbered
        paragraphs prior to the hearing. The Clerk shall not issue subpoenas until after

1
 Indeed, there is no explanation in the record of what the Level C classification fully means and how it changed
what preceded it.


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         this hearing has occurred.

Mr. Wool responded to this order in a May 20 filing. The State filed its opposition on May 29.
This order and these filings frame the discovery disputes at this point.2

        Mr. Wool requests the following: (1) copies of the “actuarial tests,” including the LSI-R,
VRAG, SORAG, and PCL-R, that are used in the process of deciding to classify an inmate at
Level C; (2) to depose Claire Gilligan, the consultant (independent contractor) who conducted a
risk assessment of Mr. Wool; and (3) to depose the Executive Director of the Vermont Parole
Board. The State opposes these requests and additionally opposes Mr. Wool’s pending request
to depose Commissioner Pallito.


                  Actuarial tests and Claire Gilligan

        The State opposes Mr. Wool’s requests for copies of the actuarial tests used in the
process of determining his Level C classification and to depose Claire Gilligan, one of the
persons who evaluated him. The State argues that it does not possess the tests—Claire Gilligan
does, and she is an independent contractor who was hired to evaluate Mr. Wool (and who Mr.
Wool is suing in a separate case). The State also argues that the content of the tests and the
testimony of Ms. Gilligan are irrelevant to this case. Mr. Wool offers that this discovery is
necessary to help him show how the DOC exercises its discretion and because his own expert
will opine that his evaluation of Mr. Wool produced different results.

        The court fails to see the relevance of this line of discovery, which appears to be
calculated to lead to evidence that Mr. Wool should have been classified at Level B rather than
Level C. Mr. Wool has not articulated in any manner how his belief about how he should have
been classified has any bearing on his ex post facto claim. Even if he were to be able to prove
that a different decision-maker might have arrived at a different or wiser classification decision,
that fact has no apparent relevance. There is no perceptible way that in ultimately evaluating
whether there is an ex post facto violation that this court will be deciding whether the DOC
abused its discretion by classifying Mr. Wool at Level C. Mr. Wool’s requests for this discovery
are denied.


                  Executive Director of the Vermont Parole Board

        Mr. Wool asserts that he needs to depose the Executive Director of the Vermont Parole
Board to gather evidence establishing a link between his Level C classification or its
repercussions and his prospects for parole. The court presumes that, similar to the analogous
matter in Giroud v. Hofmann, 

, ¶ 11, 

, Mr. Wool seeks to demonstrate
that the Parole Board has an unwritten policy that forecloses positive parole decisions for Level
C offenders. This is a legitimate avenue of inquiry for the same reasons it was in Giroud.


2
  While the court indicated that these discovery issues would be resolved at a hearing, the parties have presented
them clearly and succinctly. The court is able to rule without a hearing and does so to avoid further delay.

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        However, the State argues that the Executive Director is a high-ranking official who
should be shielded from a deposition, and that Mr. Wool can seek the discovery he needs in other
less obtrusive ways and from lower ranking officials.

       Mr. Wool has articulated no need to depose the Executive Director personally. He seeks
evidence of institutional knowledge in aid of a proof of an unwritten policy. He can pursue a
Rule 30(b)(6) deposition in which the DOC, on its own or on the Board’s behalf, designates one
or more responsive deponents.


               Commissioner Pallito

       The State opposes Mr. Wool’s request to depose Commissioner Pallito because he is a
high-ranking official and because the testimony Mr. Wool seeks to elicit is irrelevant to this case.

       Mr. Wool offers the following with regard to deposing Commissioner Pallito:

       There is no-one else who can testify as to Mr. Pallito’s thought process in
       deciding to approve the Level C designation, nor his personal reasoning for
       denying my appeal of that Level C designation. In addition, other staff are
       required, per DOC policy, to carry out yearly audits of the Level C designation.
       Mr. McLean has advised me that those yearly audits have never been done, and
       only Mr. Pallito has the power to allow staff to refuse to perform those audits thus
       only Mr. Pallito can reveal just why he allowed (and continues to allow) his
       subordinates to violate Level C Policy that requires those audits.

Mr. Wool’s Response 2 (filed May 30, 2015).

        Mr. Wool has not articulated any reason why Commissioner Pallito’s private thoughts
about the decision to classify Mr. Wool at Level C and the denial of an appeal from that
classification decision are relevant to this case and none is apparent to the court. The same is so
with regard to internal audits. This line of discovery is irrelevant and denied.




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                                            ORDER

       For the foregoing reasons, the court rules as follows:

       (1)    The State’s motion to dismiss is denied;
       (2)    Mr. Wool’s request for production of the actuarial tests is denied;
       (3)    Mr. Wool’s request to depose Claire Gilligan is denied;
       (4)    Mr. Wool’s request to depose the Executive Director of the Parole Board is
denied, but Mr. Wool may have the DOC designate one or more witnesses responsive to Mr.
Wool’s need for evidence related to the Parole Board pursuant to Rule 30(b)(6);
       (5)    Mr. Wool’s request to depose Commissioner Pallito is denied; and
       (6)    all other pending motions or requests are denied.
       (7)    The court amends pretrial deadlines as follows:
                      September 10, 2015 – discovery requests
                      October 12, 2015       – completion of discovery
                      November 10, 2015 – motions deadline.

       Dated at Montpelier, Vermont this ____ day of August 2015.

                                                     _____________________________
                                                     Mary Miles Teachout,
                                                     Superior Judge




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