dissenting. I disagree with the result reached by the majority for two reasons. First, the trial court struck too *120soon and failed to give plaintiff an opportunity to develop a factual record, and second, the conclusion that plaintiff lacks a protected liberty interest is inconsistent with our Vermont constitutional jurisprudence as most recently explained in G.T. v. Stone, 159 Vt. 607, 622 A.2d 491 (1992). Accordingly, I respectfully dissent.
A review of the facts available in the limited record will help illustrate the reasons why the trial court ruled precipitously. Although it is important to emphasize that the trial court granted defendants’ motion to dismiss without holding an evidentiary hearing, this first point of disagreement with the majority is highlighted by its statement that the reasons for revoking plaintiff’s furlough are “not before us.” In fact, defendants attached internal memoranda and reports to their motion to dismiss showing that plaintiff was dismissed from the Vermont Treatment Program for Sexual Aggressors (VTPSA), thereby terminating the associated furlough rights, because he engaged in sexual activity with two other inmates on September 17,1990. The corrections staff disbelieved plaintiff’s denial that the incident occurred.
As shown by the complaint, as well as the reports filed by defendants, there is more at stake in this case than furlough status, despite the exclusive focus of both the trial court and this Court on that issue. Because of his removal from the VTPSA, plaintiff was transferred to another correctional center. More important, he lost the expectation that he would be paroled within 90 days, which accompanied his status in the treatment program. Corrections personnel reclassified plaintiff, thereby excluding him from eligibility for parole. Very likely, plaintiff will face a significant lengthening of his sentence as a result of the sexual misconduct found by the corrections staff. Moreover, plaintiff claims a contractual right to a reduced sentence as part of the agreement under which he participated in the VTPSA.
Given this context, therefore, it is important to note that this civil rights action was filed pro se, and plaintiff did not have counsel either in this Court or the trial court. In a similar case, the United States Supreme Court has held:
Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allega*121tions such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). We cannot say “beyond doubt” that plaintiff can prove no set of facts to justify his claim. Even the limited information we have reveals that the liberty interest implicated here is much greater than the furlough status addressed by this Court and the trial court.
Further, it is likely that internal corrections regulations exist regarding classification and eligibility for sexual abuse treatment. Such regulations may be sufficient to create a protected liberty interest even under the narrow United States Supreme Court precedents. As another case pending in this Court shows, these regulations have not been promulgated pursuant to the Administrative Procedure Act and must therefore be the subject of evidentiary development.
In addition to meeting the Haines standard, defendants also faced certain procedural requirements in filing their motion to dismiss. Where matters outside the pleadings are presented with a motion to dismiss under V.R.C.P. 12 and are “not excluded by the court,” the motion to dismiss must be treated as a motion for summary judgment and disposed of under Rule 56. V.R.C.P. 12(c); Nash v. Coxon, 152 Vt. 313, 314-15, 565 A.2d 1360, 1361 (1989). Further, the court must notify the parties of the changed status. Nash, 152 Vt. at 315, 565 A.2d at 1361. The trial court did not give notice that it treated defendants’ motion as made under Rule 56, nor did it exclude the material filed by defendants. It appears to have relied on that material in its decision, as shown by this excerpt:
Here, defendants determined that plaintiff’s furlough status should be revoked because of the termination of his participation in the VTPSA resulting from his lack of progress in the program. There is no evidence that defendants intended to punish plaintiff. Furthermore, defendants’ deci*122sion to deny plaintiff furlough status is reasonably related to his failure to meet the requirements of community release.
The trial court’s method of handling the motion violated the Nash requirements.
My second point of disagreement goes to the heart of the majority opinion. Even if this case had a proper evidentiary record showing that it solely concerned furlough revocation, I cannot agree that we should adopt as the Vermont constitutional standard the United States Supreme Court’s ever-narrowing analytical approach to prisoner liberty interests, most recently re iterated in Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 461 (1989). I believe that current federal jurisprudence in the area of inmate due process rights misapprehends, and consequently diminishes, the nature of the interests at stake. By relying on this approach, the majority adopts for Vermont a view of due process that significantly dilutes an essential safeguard against arbitrary state deprivation of personal liberty.
Chapter I, Article 10 of the Vermont Constitution should be construed to encompass a higher level of due process protection for prison inmates than the eviscerated federal standard recognizes.* This Court already has made clear its fundamental disagreement with the federal view of the constitutional rights of prisoners. In State v. Berard, 154 Vt. 306, 310, 576 A.2d 118, 120 (1990), we rejected the Supreme Court’s conclusion that the constitutional prohibition against unreasonable searches and seizures has no application in the prison context, holding that the Vermont Constitution does not permit the complete eradication of this right upon incarceration. We noted that the Supreme Court based its view on “implicit, fixed assumptions about the nature of prison life and prison administration that override the facts of particular cases and remove from the courts the critical job of reviewing the facts.” Id. We declined to *123adopt a standard based on such assumptions because it necessarily results in the sanctioning of “any official conduct whatsoever in the name of ‘legitimate institutional interests.’” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 549 (1984) (Stevens, J., dissenting)). Our objection to this approach should apply with equal force in the present case, as the Supreme Court’s prison due process analysis “tends to derogate the central role of the judiciary” in our constitutional jurisprudence. Id.
For more than a decade, the Supreme Court has retreated from the view of prison due process set forth in Morrissey v. Brewer, 408 U.S. 471 (1972). In that case, the Court declared that:
[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee and often on others. ... By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.
Id. at 482. Although this decision was narrowly written, with an emphasis on the conditional permission given to a parolee to live outside the prison, the Court “necessarily held that the individual possesses a residuum of constitutionally protected liberty while in legal custody pursuant to a valid conviction. For release on parole is merely conditional, and it does not interrupt the State’s legal custody.” Meachum v. Fano, 427 U.S. 215, 231-32 (1976) (Stevens, J., dissenting). Criminal conviction may reduce, but cannot terminate, all of a prisoner’s liberty interests. Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974) (prisoners are not “wholly stripped” of constitutional protections when imprisoned, and there “is no iron curtain drawn between the Constitution and the prisons of this country”).
Because inmates retain liberty interests independent of state laws or regulations, “the relevant question is whether [any] change [in the conditions of imprisonment] constitutes a sufficiently ‘grievous loss’ to trigger the protection of due process.” Olim v. Wakinekona, 461 U.S. 238, 252 (1983) (Marshall, J., dissenting). “Put another way, the retained liberty interest protected by the Constitution encompasses the right to be free from arbitrary governmental action affecting significant per*124sonal interests.” Thompson, 490 U.S. at 467-68 (Marshall, J., dissenting). The Supreme Court’s decisions have backed steadily away from these basic principles, and have severely circumscribed the retained liberty interests of prisoners. The Court now looks almost exclusively to state law to “create” prisoner liberty interests.
This Court, however, has looked recently to Morrissey for the principles on which it decided a case involving issues comparable to the ones present here. In G.T. v. Stone, 159 Vt. at 613, 622 A.2d at 493, we held that the Vermont Constitution requires a mental health patient, who had been conditionally discharged from the state mental institution and placed in the community, to be given a hearing before that discharge is revoked. The decision in G.T. is based in large part on the analysis in Morrissey. See 408 U.S. at 481. In both Morrissey and G.T., the plaintiffs were granted conditional release, and both remained subject to numerous restrictions on their personal liberty. We held that the liberty interests involved in G.T. were similar to those in Morrissey, and concluded that due process protections attached because “plaintiff makes a convincing case that he is far freer outside of [Vermont State Hospital] than inside it to form the ‘enduring attachments of normal life’ and enjoy ‘many of the core values of unqualified liberty.’” G.T., 159 Vt. at 611, 622 A.2d at 493 (quoting Morrissey, 408 U.S. at 482). After so recently endorsing the analytical framework of Morrissey, I fail to understand the majority’s refusal to apply it here.
Although the majority points to distinctions between parole and furlough release, these differences, as was the case in G.T., are overwhelmed by the substantial similarity of the interests involved. Like a parolee, a prisoner on furlough release may be permitted to pursue employment or education, enjoy more extended contact with family and friends, and engage in shopping and recreational activities. A furloughed inmate has a type of freedom that makes the prison experience qualitatively different from that of inmates denied furlough release; there is little doubt that termination of furlough status qualifies as a “grievous loss.” See Crafton v. Luttrell, 378 F. Supp. 521, 534-35 (M.D. Tenn. 1974) (because of the magnitude of the loss, and because the inmate’s interest in avoiding the loss outweighed any interest of the state in summarily removing him from the *125program, due process required procedural safeguards prior to termination of inmate’s participation in work release program).
The restrictive terms of furlough release do not negate the inmate’s liberty interest. Although the liberty granted through furlough release is more limited than that given a parolee, the difference is one of degree only. Durso v. Rowe, 579 F.2d 1365, 1371 (7th Cir. 1978). The crucial factor is the nature, not the weight, of the affected interest. Morrissey, 408 U.S. at 481. The majority’s assertion that the rationale of Morrissey stops at the prison walls ignores the fact that a furloughed inmate does not remain continuously behind those walls.
I also cannot accept the majority’s adoption of the Thompson “mandatory language” test. The Supreme Court’s insistence that state laws cannot “create” liberty interests unless they contain mandatory language champions form over substance, and is a poor basis for determining whether particular facts implicate due process concerns. In the context of the standards commonly applied in prisons, it is illusory to condition the creation of a liberty interest on the supposition that the decisions of prison administrators will vary with the nature of the “mandatory” or “permissive” language appended to a given standard of inmate conduct. Such a mechanistic approach to rights creation insulates the court from an assessment of the very factors that count most in traditional due process jurisprudence: the inherent importance of the rights at issue and the potential grievousness of the loss of those rights. Consideration of these factors should not be shunted aside and replaced with an empty formula.
I also find the search for state-created liberty rights from mandatory language impossible to administer in a fair and principled fashion. Some federal courts following Thompson have expressed unease about the emphasis on mandatory language. See Patchette v. Nix, 952 F.2d 158, 161 (8th Cir. 1991) (despite absence of the “usual mandatory form of words,” court concluded that “mandatory” language was used); Smith v. Shettle, 946 F.2d 1250, 1253 (7th Cir. 1991) (“We are skeptical about placing so much weight on grammatical distinctions, such as those between the imperative and declarative moods.”). Even members of the Thompson majority have expressed dissatisfaction with the emphasis on form over substance, where applica*126tion of the mandatory language standard yielded a result not to their liking. See Board of Pardons v. Allen, 482 U.S. 369, 381 (1987) (O’Connor, J., dissenting) (majority opinion was improperly “[rjelying on semantics”).
Reliance on a “mandatory language” test to locate liberty interests is particularly misguided in a case like this. Plaintiff’s furlough rights were revoked because corrections’ staff determined that he engaged in sexual activity on a specific date at a specific place. We are not dealing here with questions of professional judgment or discretion; the sole issue is whether plaintiff committed the act that caused his furlough revocation. Whether plaintiff has a clear legal right to a furlough is beside the point; the drafting of the furlough statute will never have any effect on how a case like this is handled within the institution, or the cause and effect relationship. In these circumstances, the price of due process is small, while the gain in protection against arbitrary action is great.
Not surprisingly, commentators have been critical of the Supreme Court jurisprudence. See Herman, Prisoners and Due Process Litigation: An Invitation to the State Courts, in 1 Prisoners and the Law 5-3 (I. Robbins ed. 1993). Moreover, a number of state courts have recognized that the Supreme Court’s due process jurisprudence is unacceptably narrow and provides insufficient protection for the citizens of their states. See, e.g., McGinnis v. Stevens, 543 P.2d 1221, 1236-37 (Alaska 1975) (describing additional procedural protections that Alaska constitution affords prisoners above those recognized by federal courts), modified and remanded on other grounds, 570 P.2d 735 (Alaska 1977); In re Jackson, 731 P.2d 36, 42, 233 Cal. Rptr. 911, 917-18 (1987) (unlike federal approach, due process analysis under California constitution involves assessment of the procedural protections required in light of the interests at stake); Cooper v. Morin, 399 N.E.2d 1188, 1193-94, 424 N.Y.S.2d 168, 174-75 (1979) (state constitution provides prisoners certain procedural protections not required by federal due process); Watson v. Whyte, 245 S.E.2d 916, 918-19 (W. Va. 1978) (criticizing Supreme Court’s approach to prisoner liberty interest assessment). We should follow their lead in the specific circumstances present here. I would reverse.
I am authorized to state that Justice Johnson joins in this dissent.
*127 On Motion for Reargument
Appellant’s motion for reargument, filed July 23,1993, fails to identify points of law or fact misapprehended or overlooked by this Court. The motion is therefore denied. V.R.A.P. 40.
The issue of appellant’s right to counsel was not preserved. It was not raised in the trial court; it was not briefed or argued before this Court. This case is, therefore, distinguishable from our recent decision in Fletcher v. Gorczyk, 159 Vt. 631, 632, 624 A.2d 1132, 1133 (1992), in which we held that an inmate who requested counsel on a habeas petition was wrongfully denied it on the grounds that the defender general’s office was unable to handle the case.
Moreover, in Fletcher, the inmate was involved in a habeas proceeding for which counsel is expressly provided in 13 V.S.A. § 5232(2). No equivalent statutory right exists for representation in disciplinary proceedings. See 28 V.S.A. §§ 851-902.
This Court has never held that trial courts must sua sponte assign counsel to all actions involving inmates, regardless of the nature of the action. To the contrary, we have stated that disciplinary proceedings are not criminal in nature, and inmates involved in them do not receive “‘the full panoply of rights’ of a criminal prosection.” In re Nash, 151 Vt. 1, 2, 556 A.2d 88, 89 (1988) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). Instead, we analogized prison disciplinary hearings to small claims proceedings, “where the parties are encouraged to appear without counsel, and the court is expected to conduct the questioning of witnesses,” and held that inmates do not have a right to retained or appointed counsel in disciplinary hearings. Id. (citing Baxter v. Palmigiano, 425 U.S. 308, 315 (1976)); see also In re Chapman, 155 Vt. 162, 167, 581 A.2d 1041, 1043 (1990) (no federal constitutional right to counsel in post-conviction review because it is civil proceeding).
Representation by counsel may have improved the quality of argument in this case, but it is neither statutorily nor constitutionally required. Requiring it at this juncture would, furthermore, create an overbroad precedent both for appointment of counsel and for the standard for motions to reargue.
Article 10, while concerned largely with the rights of persons accused of a crime, also states: “nor can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers.” This Court has held that this language is synonymous with “due process of law.” State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 743 (1985).