Verrier v. Colorado Department of Corrections

Judge TAUBMAN

concurring in part and dissenting in part.

I concur with part I of the majority opinion. However, because I agree with plaintiff, Russ E. Verrier, that defendants' refusal to grant him earned time was a quasi-judicial determination, I disagree with part II of the majority opinion and respectfully dissent.

After Verrier received the initial denial of his request for earned time credit, he filed a grievance with DOC and completed the three-step grievance process. His grievances alleged he satisfied the requirements for educational earned time provided by statute because he had taken horticultural and painting classes and made "positive progress" as required. He also alleged that the underlying DOC policy, which rendered him ineligible, did not conform with the statutory requirements. Similarly, Verrier's complaint in the district court alleged that DOC's regulation concerning earned time was improperly applied to him.

One test for determining quasi-judicial actions focuses on three factors. See, e.g., Jones v. Colo. Dep't of Corr., 53 P.3d 1187, 1191 (Colo.App.2002); Baldauf v. Roberts, 37 P.3d 483, 484 (Colo.App.2001). However, as the majority acknowledges, another test for determining a quasi-judicial action focuses on the governmental decision and whether it was based on the application of criteria to a specific cireumstance. Under this test, in the absence of statutory notice and hearing requirements, an action may nevertheless be quasi-judicial if "the governmental decision is likely to adversely affect the protected interests of specific individuals, and if a decision is to be reached through the application of preexisting legal standards or policy considerations to present or past facts." Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203, 1207 (Colo.App.2000)(quoting Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622, 627 (Colo.1988)).

An inmate has no fundamental or constitutional right to time off for good behavior, and any entitlement to such a sentence reduction exists only as created by statute. People v. Alderman, 720 P.2d 1000, 1001 (Colo.App.1986).

The earned time statutes, §§ 17-22.5-302 and 17-22.5-405, C.R.8.2002, do not provide for notice or a hearing before action is taken. Section 17-22.5-802(1.5)(a) specifically mandates that if an inmate makes positive progress in a correctional education program, he or she "shall receive earned time pursuant to section 17-22.5-405." Section 17-22.5-405(1), in turn, provides that earned time "may be deducted from the inmate's sentence upon a demonstration to the department by the inmate, which is certified by the inmate's case manager or parole officer, that he has made consistent progress in the following catego*881ries as required by the department of corree-tions," and correctional education programs are a enumerated category.

Under DOC policy, only vocational student inmates classified as level 5 are eligible for education earned time, and "[nljo other vocational students are eligible[ ]" based upon their academic and vocational initial needs assessment level, which is administered to all DOC inmates. See Correctional Education Program Memorandum from Eric Brookeres, Director of Academic Education, and Tony Romero, Director of Vocational Education, to Program Managers, Academic and Voeational Teachers, Colorado Department of Corree-tions (Sept. 27, 2000)(CEP Memo.). Level 5 is defined as "SPECIAL NEEDS-Has some form of disability which prevents full-time employment. May be eligible to receive disability payments." CEP Memo. 2. Verrier's vocational classification was level 1. Level 1 is defined as "ESTABLISHED VOCATIONAL CAREER Has a vocational career established for at least four years, to which he/she plans to return upon release from the D.0.C. Has a journeyman's or master's license in a trade to which he/she can return. Is retired. Has no need of vocational programs." CEP Memo. 2.

DOC Admin. Reg. No. 850-04 provides a grievance process for inmate complaints, and all inmates are given written notification of the procedure upon entering the DOC. An inmate must first attempt to resolve his or her complaint informally. After that, the grievance procedure involves a three-step process. Inmates are given a grievance form for description of the complaint, which states, "If you are dissatisfied with the response to this Step 1 or Step 2 grievance, you may obtain further review by submitting the next step to your [clase manager or the [glrievance [o]lfficer{ ]." Finally, the regulation provides a time limit for DOC to respond to all inmate grievances.

In Baldauf a division of this court held that DOC's administrative segregation action constituted quasi-judicial action subject to review under CR.C.P. 106(a)(d). There, DOC's regulations required notice and a hearing before an inmate could be placed in administrative segregation and required a determination made at a hearing. Baldauf v. Roberts, supra.

However, in Jones, a division of this court held that DOC's regulation requiring withholding of twenty percent of the deposits in inmate accounts to satisfy outstanding restitution obligations was not a judicial or quasi-judicial action. The Jones division based its conclusion on the fact that this regulation applied generally to all prisoners owing restitution. Thus, DOC's enforcement of the regulation was not specifically targeted at the inmate. Jones v. Colo. Dep't of Corr., supra.

Here, unlike Jones, Verrier's DOC grievance and the complaint filed in district court challenged DOC's earned time policy as it applied to him. Thus, Jones is distinguishable from the present case.

In my view, DOC's determination was a quasi-judicial action. By statute, earned time may be deducted from an inmate's sentence where he or she makes consistent progress in a correctional education program. See § 17-22.5-405(1)(g), C.R.8.2002. To the extent that the earned time statutes provide criteria for a sentence reduction, Verrier has a protected interest in earned time, even though he does not have entitlement to earned time. See People v. Alderman, supra. Additionally, DOC applied its policy concerning education earned time eredit to Verrier's particular cireumstances and concluded that he was not eligible for earned time.

Therefore, DOC's decision constituted quasi-judicial action because it was likely to adversely affect Verrier's protected interest, and the decision was based upon application of DOC's policy to Verrier. See Prairie Dog Advocates v. City of Lakewood, supra.

Consequently, I would conclude that the trial court erred in not addressing Verrier's claim on the merits. See Morgan v. Colo. Dep't of Health Care Policy & Fin., 56 P.3d 1136, 1141 (Colo.App.2002)(under delegation doctrine, sufficient statutory and administrative standards must be provided to ensure agency action is rational and consistent and must provide for meaningful appellate review).

*882Accordingly, I would remand the matter to the trial court for a determination on the merits.