NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2018 VT 23
No. 2017-044
Kirk Wool Supreme Court
On Appeal from
v. Superior Court, Washington Unit,
Civil Division
Lisa Menard, Commissioner, September Term, 2017
Vermont Department of Corrections
Mary Miles Teachout, J.
Kirk Wool, Pro Se, Baldwin, Michigan, Plaintiff-Appellant.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Robert C. Menzel, Jr.,
Assistant Attorney General, Waterbury, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. REIBER, C.J. Plaintiff Kirk Wool is an inmate in the custody of the Vermont
Department of Corrections (DOC). He appeals the dismissal of his claim that DOC and its
Commissioner violated a statutory obligation to negotiate and award a contract to provide
telephone services to inmates in state correctional facilities in a manner that provides for the lowest
reasonable cost to inmates. We affirm the trial court’s dismissal of plaintiff’s claim for money
damages, but reverse the dismissal of plaintiff’s claim for mandamus relief and remand for further
proceedings.
¶ 2. In June 2016, plaintiff filed a complaint against defendants in the civil division. He
alleged that for the past several years, DOC had violated 28 V.S.A. § 802a(d) and Vermont law by
failing to use a competitive process to obtain telephone services for inmates. Instead, he alleged,
DOC had purchased telephone services from the only company from which it sought a bid.
Plaintiff alleged that under “Vermont law,” such “sole source” contracts may only be used in
“extraordinary circumstances,” which did not exist here. According to plaintiff, the company with
which DOC contracted charged approximately $8.00 per hour for a telephone call, while
competing firms offered rates closer to $3.00 per hour. He argued that DOC had not negotiated
and awarded the contract in a manner that provided for the lowest reasonable costs to inmates, as
required by § 802a(d), which states that “[a]ny contract to provide telephone services to inmates
in state correctional facilities shall be negotiated and awarded in a manner that provides for the
lowest reasonable cost to inmates, to their families, and to others communicating with inmates.”
Plaintiff sought damages equivalent to the difference between the current rates and the lower rates
he alleged would be offered by other contractors for calls he had placed.1
¶ 3. Defendants moved to dismiss plaintiff’s claim. Defendants argued that plaintiff
lacked standing to challenge the contract because he was not an intended third-party beneficiary
of the contract. They further argued that plaintiff’s claim for damages was barred by sovereign
immunity because it was based upon defendants’ performance of a discretionary function and did
not have a private analog. Plaintiff opposed the motion to dismiss, arguing that § 802a(d) limited
DOC’s discretion. He also filed a claim for a writ of mandamus, asserting that DOC had a
nondiscretionary duty to provide telephone services at the lowest reasonable costs to inmates.2
1
Plaintiff asserted, and DOC did not dispute, that he had exhausted his administrative
remedies with regard to his claims.
2
Plaintiff’s claim for mandamus relief was filed after DOC served its motion to dismiss.
Although plaintiff did not expressly request permission to amend his complaint, the trial court
implicitly treated his mandamus claim as an amendment and considered the claim in its decision
on defendant’s motion to dismiss. See V.R.C.P. 15(a) (explaining that party may amend pleading
after responsive pleading has been served only by leave of court or written consent of adverse
party, and “leave shall be freely given when justice so requires”). We therefore consider the
mandamus claim as part of plaintiff’s complaint for purposes of reviewing the order of dismissal.
2
¶ 4. The trial court ruled that plaintiff’s damages claim was barred by the State’s
sovereign immunity. It held that plaintiff’s claim for relief in the nature of mandamus also failed
because plaintiff did not seek enforcement of a purely ministerial act. The court therefore
dismissed plaintiff’s claims.
¶ 5. On appeal, plaintiff argues that the trial court erred in dismissing his claims for
damages and mandamus relief. Although his brief is not a model of clarity, we understand his
argument to be that DOC had a nondiscretionary duty to negotiate and award the telephone services
contract in a manner that led to the lowest reasonable costs for inmates, specifically by using a
competitive bidding process to select the contractor, and that DOC violated this duty. He seeks
damages and an order compelling DOC to reopen the bidding process.
¶ 6. We review the trial court’s determination of a motion to dismiss de novo, accepting
as true all allegations made by the non-moving party. Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188
Vt. 1, 998 A.2d 1040; In re Estate of Holbrook, 2016 VT 13, ¶ 14, 201 Vt. 254, 140 A.3d 788.
“Motions to dismiss for failure to state a claim are disfavored and should be rarely granted.” Bock
v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). A court should not grant a motion
to dismiss for failure to state a claim “unless it appears beyond doubt that there exist no facts or
circumstances that would entitle the plaintiff to relief.” Amiot v. Ames, 166 Vt. 288, 291, 693
A.2d 675, 677 (1997) (quotation omitted).
I. Damages Claim
¶ 7. We first consider whether the trial court properly dismissed plaintiff’s damages
claim. We conclude that plaintiff failed to demonstrate that the State waived its sovereign
immunity such that he may obtain money damages for the alleged violation of § 802a(d), and
affirm the trial court’s ruling on this issue.
¶ 8. Sovereign immunity protects the State and its components from liability for money
damages unless immunity is waived by statute. Jacobs v. State Teachers’ Ret. Sys. of Vt., 174 Vt.
3
404, 408, 816 A.2d 517, 521 (2002). “[I]f a statute is silent regarding a waiver of sovereign
immunity, then no such waiver exists.” Depot Square Pizzeria, LLC v. Dep’t of Taxes, 2017 VT
29, ¶ 5, __Vt.__, 169 A.3d 204. The statute at issue here, 28 V.S.A. § 802a, does not provide for
an aggrieved party to obtain money damages in such an action. It therefore does not provide an
avenue for plaintiff to obtain the relief he seeks. See In re Williams, 166 Vt. 21, 24, 686 A.2d 964,
966 (1996) (declining to imply waiver of sovereign immunity from statutory silence).
¶ 9. The State has waived its immunity for certain tort claims under 12 V.S.A. § 5601.
Section 5601 provides that the State can be held liable for injury to persons or property caused by
the negligent or wrongful act or omission of a State employee while acting in the scope of his or
her employment, provided that the claim is “comparable to a recognized cause of action against a
private person.” Sabia v. State, 164 Vt. 293, 298, 669 A.2d 1187, 1191 (1995); 12 V.S.A.
§ 5601(a). The State remains immune for governmental functions for which there is no private
analog. LaShay v. Dep’t of Soc. & Rehab. Servs., 160 Vt. 60, 68, 625 A.2d 224, 229 (1993). In
order to bring a tort claim for damages against the State, the plaintiff must demonstrate that a
private analog exists and that no exception to the State’s waiver of sovereign immunity applies.
Mellin v. Flood Brook Union Sch. Dist., 173 Vt. 202, 218-19, 790 A.2d 408, 423 (2001).
¶ 10. In this case, the trial court found that there was no private analog that would permit
plaintiff’s damages claim under § 5601(a). Plaintiff does not challenge this determination on
appeal. Instead, he focuses solely on challenging the court’s holding that the discretionary function
exception set forth in § 5601(e)(1) also barred his claim. Plaintiff’s brief is “wholly inadequate”
on the issue of availability of damages “because it omits discussion of an essential element of [his]
claim.” Mellin, 173 Vt. at 219, 790 A.2d at 423. Even if plaintiff were correct that his damages
claim is not barred by the discretionary function exception, he has failed to show that a private
analog exists, as is required to state a claim for relief under 12 V.S.A. § 5601(a). We therefore
decline to disturb the trial court’s ruling that plaintiff’s claim for damages was barred by sovereign
4
immunity. See id. at 219, 790 A.2d at 423 (holding that Court would not address plaintiff’s
argument on appeal that trial court erred in dismissing negligence claim against State on basis of
sovereign immunity where plaintiff presented no argument on how her claim was comparable to
recognized cause of action against private person, and focused only on discretionary function
exception).
II. Claim for Mandamus Relief
¶ 11. However, we agree with plaintiff that the trial court acted prematurely in dismissing
his claim for relief in the nature of mandamus. Mandamus is a command from the court to an
official, agency, or lower tribunal “to perform a simple and definite ministerial duty imposed by
law.” Vt. State Emps.’ Ass’n, Inc. v. Vt. Criminal Justice Training Council, 167 Vt. 191, 195, 704
A.2d 769, 771 (1997); see also Bargman v. Brewer, 142 Vt. 367, 369–70, 454 A.2d 1253, 1255
(1983). In order for a court to issue a writ of mandamus, there are three requirements:
(1) the petitioner must have a clear and certain right to the action
sought by the request for a writ; (2) the writ must be for the
enforcement of ministerial duties, but not for review of the
performance of official acts that involve the exercise of the official’s
judgment or discretion; and (3) there must be no other adequate
remedy at law.
In re Fairchild, 159 Vt. 125, 130, 616 A.2d 228, 231 (1992).
¶ 12. In Fairchild, we affirmed the trial court’s determination that the petitioners, who
were neighboring landowners and interested persons, were entitled to a writ of mandamus
compelling the town to enjoin owners of a building from using the property in violation of the
town’s zoning ordinance. We determined that petitioners met all three criteria for mandamus
relief. Id. First, as interested persons, they were affected by the zoning violations and were entitled
to enforcement of the ordinance. Id. Second, the statute imposed a ministerial duty on the zoning
officer to enforce the ordinance. Id. Third, the official’s refusal to perform this nondiscretionary
duty left the petitioners without an adequate remedy at law. Id. at 130-31, 616 A.2d at 231.
5
¶ 13. Similarly, in Bargman v. Brewer, we reversed the trial court’s dismissal of a
petition for a writ of mandamus. 142 Vt. 367, 369, 454 A.2d 1253, 1255 (1983). The petition was
filed by nonresident landowners, who sought to compel the listers and selectboard of their town to
comply with a statutory requirement to lodge a book containing the grand list and the abstracts of
individual lists with the town clerk for the taxpayers’ inspection. The petitioners also alleged that
the defendants had failed to include the statutorily required description of each parcel of real estate
in the grand list. We determined that the duties the petitioners sought to enforce were ministerial
in nature and that the tax appraisal grievance process did not provide an adequate alternative legal
remedy. Id. at 371-72, 454 A.2d at 1256. We accordingly held that “since plaintiffs have alleged
facts which, if true, would permit an order in the nature of mandamus, they must be given an
opportunity at least to introduce evidence in support of those allegations.” Id. at 373, 454 A.2d at
1257.
¶ 14. Here, plaintiff alleges that DOC failed to use a competitive bidding process in
contracting for telephone services, and thus failed to obtain the lowest reasonable costs for inmates
as required by 28 V.S.A. § 802a(d), which provides that “[a]ny contract to provide telephone
services to inmates in state correctional facilities shall be negotiated and awarded in a manner that
provides for the lowest reasonable cost to inmates, to their families, and to others communicating
with inmates.” The court found that § 802a(d) did not purport to control the manner in which DOC
negotiated telephone services contracts for inmates, and therefore did not impose a ministerial duty
that plaintiff could enforce through mandamus. The court did not address plaintiff’s allegation
that DOC violated “Vermont law” by failing to use a competitive bidding process to contract for
telephone services.
¶ 15. However, as plaintiff alleged, DOC was required by Vermont law—albeit not
specifically and exclusively by the statute he identified in his complaint—to use a competitive
bidding process in contracting for telephone services for inmates. Section 122 of Title 28 provides:
6
For the purpose of securing programming and services for
offenders, the Department of Corrections shall publicly advertise or
invite three or more bids. The contract for any such programming
and services shall be awarded to one of the three lowest responsible
bidders, conforming to specification, with consideration being given
to the time required for provision of services, the purpose for which
it is required, competency and responsibility of bidder, and his or
her ability to render satisfactory services; but the Commissioner
with the approval of the Secretary of Human Services shall have the
right to reject any and all bids and to invite other bids.
28 V.S.A. § 122. Section 122 imposes a nondiscretionary duty upon DOC to solicit three or more
bids whenever it seeks to contract for services for offenders, and to award the contract to one of
the three lowest responsible bidders unless those bids are rejected. We find no indication that this
provision, which was enacted in 2011, is somehow inapplicable to contracts for telephone
services.3 Although DOC ultimately has discretion to determine the terms of the contract and
which bidders are “responsible,” it is expressly obligated by § 122 to use a competitive bidding
process in entering any contract for programming or services for inmates. The requirement to
solicit multiple bids is a “purely ministerial act, that is, an act regarding which nothing is left to
discretion—a simple and definite duty, imposed by law.” Bargman, 142 Vt. at 369, 454 A.2d at
1255 (quotation omitted).
¶ 16. Although plaintiff did not specifically cite § 122 in his pleadings, his allegations
were sufficient to give fair notice to DOC of the claim and the grounds upon which it rested. “The
sufficiency of a complaint depends on whether it provides fair notice of the claim and the grounds
upon which it rests.” Richards v. Town of Norwich, 169 Vt. 44, 49, 726 A.2d 81, 85 (1999). “The
failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a
claim. Factual allegations alone are what matters.” Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d
3
Plaintiff alleged in his June 2016 complaint that DOC had been using a sole-source
contract “[f]or the past 3-4 years.” Drawing the inference most favorable to plaintiff, as we must
in reviewing a motion to dismiss, this means that the contract was negotiated, at the earliest, at
some point in 2012. Section 122 therefore would have been applicable. Of course, this is a matter
that plaintiff will have the burden of proving on remand.
7
Cir. 1988) (declining to dismiss claim on ground that plaintiffs failed to cite statute under which
they sought relief in complaint); see also Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008)
(“Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of
action, statutes or legal theories. . . . A complaint need not identify the statutory or constitutional
source of the claim raised in order to survive a motion to dismiss.”). Plaintiff’s allegation that
“Vermont law” required DOC to use competitive bidding to contract for telephone services and
that DOC violated this requirement by using a sole-source contract provided DOC with sufficient
notice of the basis of his claim. As the agency responsible for administering Title 28 generally,
and § 122 more specifically, DOC cannot claim that it was unaware of the nondiscretionary
competitive bidding requirement.
¶ 17. We turn, then, to whether plaintiff’s allegations are sufficient to meet the other
elements required for mandamus relief. In addition to seeking the enforcement of a ministerial
duty, the plaintiff must show that he or she has a clear legal right to the action sought in the petition
and that there is no other adequate remedy at law. Fairchild, 159 Vt. at 130, 616 A.2d at 231.
Assuming that plaintiff’s allegations are true, the latter requirement is plainly satisfied here, as
DOC’s alleged refusal to follow the nondiscretionary procedure for contracting for telephone
services leaves plaintiff without an adequate alternative remedy. See id. at 131, 616 A.2d at 231
(“Refusal of an official to perform nondiscretionary duties leaves the petitioners without an
adequate remedy at law.”); Menut & Parks Co. v. Cray, 114 Vt. 41, 51, 39 A.2d 342, 347 (1944)
(holding that officials’ refusal “to perform the duties enjoined upon them, or to act at all in
contemplation of the law” left petitioners with no remedy besides mandamus).
¶ 18. Plaintiff has also alleged sufficient facts to show that he has a clear legal right to
the relief sought. As an inmate in the custody of DOC, plaintiff has the right to have telephone
services provided to him at the “lowest reasonable cost.” 28 V.S.A.
§ 802a(d); Wool v. Gorczyk, No. 2004-535, 2006 WL 5868426, at *1 (Vt. Mar. 1, 2006)
8
(unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo04-535.pdf
[https://perma.cc/TC5D-E669] (“Section 802a(d) requires that any contract negotiated by the DOC
for telephone services provide the lowest costs to inmates and their families.”). Section 122
prescribes a mandatory method, competitive bidding, for DOC to negotiate and award contracts to
achieve the lowest reasonable cost. Cf. Franklin Cnty. Sheriff’s Office v. St. Albans City Police
Dep’t, 2012 VT 62, ¶ 16, 192 Vt. 188, 58 A.3d 207 (holding that sheriff’s office had no legally
protected right to fair competition to provide police services to town because applicable statute
provided that municipalities “may” contract for police services and did not mandate bidding
process). “The purpose behind competitive bidding requirements is to safeguard the public against
fraud, favoritism, graft, extravagance, improvidence, and corruption and to ensure honest
competition for the best work or supplies at the lowest reasonable cost.” Gariup Constr. Co. v.
Carras-Szany-Kuhn & Assocs., P.C., 945 N.E.2d 227, 235 (Ind. Ct. App. 2011) (emphasis added);
accord Acme Bus Corp. v. Orange Cty., 68 N.E.3d 671, 675 (N.Y. 2016); Domar Elec., Inc. v.
City of Los Angeles, 885 P.2d 934, 940 (Cal. 1994); Meadowbrook Carting Co. v. Borough of
Island Heights, 650 A.2d 748, 750–51 (N.J. 1994). As an inmate, the alleged extra cost of
telephone services that result from DOC’s failure to engage in competitive bidding falls directly
on plaintiff. See Groves v. Dep’t of Corr., 811 N.W.2d 563, 567 (Mich. Ct. App. 2011) (holding
that disappointed bidder for prison telephone services contract lacked standing as taxpayer to
challenge alleged improper bidding process, because it did not allege cognizable injury; taxpayers
as a whole were not harmed because “[a]dditional costs of the winning bid will instead be charged
only to inmates and the people they call from prison”).
¶ 19. DOC argues that plaintiff lacks standing to pursue his claim because he is no more
than an incidental beneficiary to the contract between DOC and the telephone services provider.
We reject this argument because plaintiff has not asserted a breach-of-contract claim. His case is
therefore distinguishable from the cases relied upon by DOC, all of which involved attempts by
9
plaintiffs to enforce the terms of a public contract between the government and an independent
contractor. See McMurphy v. State, 171 Vt. 9, 16, 757 A.2d 1043, 1049 (2000) (holding that
plaintiffs lacked standing to bring claim that city breached its contractual agreement with State to
maintain highway intersection because plaintiffs were only incidental beneficiaries to contract);
Sisney v. State, 2008 SD 71, ¶¶ 11-13, 754 N.W.2d 639, 644 (holding that inmate lacked standing
to enforce provisions of contract between state and food services contractor); Dumont v. Corr.
Corp. of Am., No. 2:14-CV-209, 2016 WL 3129163, at *4 (D. Vt. June 2, 2016) (explaining that
inmate could not enforce terms of contract between state and private correctional facility because
inmate was only incidental beneficiary to contract). Here, plaintiff seeks to enforce the statutory
bidding requirements for entering into the contract, rather than the terms of the contract itself. His
standing to bring such a claim does not depend on whether he is a third-party beneficiary to the
contract.
¶ 20. Instead, plaintiff’s claim must be analyzed under the general constitutional and
prudential requirements for standing. In order to bring a case in a Vermont court, “a plaintiff must
allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct, which is
likely to be redressed by the requested relief.” Parker v. Town of Milton, 169 Vt. 74, 78, 726 A.2d
477, 480 (1998). “The injury must be an ‘invasion of a legally protected interest,’ not a generalized
harm to the public.” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). In
addition, the plaintiff’s claim must fall “within the zone of interests to be protected or regulated
by the statute or constitutional guarantee in question.” Hinesburg Sand & Gravel Co. v. State, 166
Vt. 337, 342, 693 A.2d 1045, 1048 (1997) (quotation and emphasis omitted).
¶ 21. As discussed above, plaintiff alleged that he has been personally harmed by DOC’s
failure to follow the dictates of § 802a(d) and § 122 and use a competitive bidding process for
contracting for telephone services, because he has had to pay more for those services than he would
have if DOC had solicited multiple bids. Plaintiff’s interest in paying the lowest reasonable costs
10
for telephone services is protected by § 802a(d). He is a member of the class of persons on whom
the financial burden of a higher-priced prison telephone services contract falls. Plaintiff’s alleged
injury therefore falls within the zone of interests sought to be protected by § 802a(d) and § 122.
See Marone v. Nassau Cnty., 967 N.Y.S.2d 583, 588-89 (Sup. Ct. 2013) (holding that inmates who
suffered from lack of medical care in prison had standing to sue to compel county executive to
appoint civilian oversight board mandated by county charter because inmates were within zone of
interests sought to be protected by charter). Accordingly, we conclude that he has standing to
pursue his claim.
¶ 22. Assuming that plaintiff can prove the allegations he made in his complaint, he may
be entitled to mandamus relief. See Bargman, 142 Vt. at 373, 454 A.2d at 1257. We therefore
reverse the trial court’s dismissal of that claim.4
Reversed and remanded for further proceedings in accordance with this opinion.
FOR THE COURT:
Chief Justice
4
We do not address the possibility that petitioner’s claim for mandamus may now be moot
due to his relocation to another correctional facility, because neither party has raised the issue.
11