Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2012-180 

 NOVEMBER TERM, 2012 

Allen Rheaume } APPEALED FROM: 

} 

} Superior Court, Windsor Unit, 

 v. } Civil Division 

} 

} 

Andrew A. Pallito, Commissioner of the 

Department of Corrections 

} 

} 

DOCKET NO. 817-11-09 Wrcv 

 

 Trial Judge: Theresa S. DiMauro 

In the above-entitled cause, the Clerk will enter: 

Plaintiff inmate appeals the superior court’s summary judgment determination that his 

action challenging his classification as a high-risk sex offender was time-barred. We affirm. 

On November 13, 2009, plaintiff filed a petition for review of governmental action under 

Vermont Rule of Civil Procedure 75 challenging the Department of Correction’s decision 

classifying him as a high-risk sex offender and requiring certain programming based on that 

classification. In August 2010, the superior court granted the Department’s motion to dismiss 

the action, concluding that review under Rule 75 was unavailable for the Department’s 

classification and programming decisions. This Court reversed and remanded, holding in 

relevant part that the classification decision was reviewable under 13 V.S.A. § 5411b(b), and that 

a disputed question of material fact existed as to whether plaintiff filed his Rule 75 action within 

thirty days of receiving notice of the classification. See Rheaume v. Pallito, 2011 VT 72, ¶ 4, 

190 Vt. 245. We reasoned that while it was difficult to harmonize defendant’s claim that he had 

not received notice of the classification until mid-December 2009 when he had challenged the 

classification in an initial grievance filed in July of that same year, we concluded that “exactly 

when petitioner was given notice of his designation remains a question of fact and was improper 

for disposal on the pleadings.” Id. 

On remand, both plaintiff and the Department filed motions for summary judgment and 

submitted accompanying affidavits. The Department submitted to the superior court the same 

letter that it had relied upon earlier in the proceedings. The letter is dated July 24, 2007 and is 

addressed to plaintiff from the chair of the sex offender review committee. The letter informs 

plaintiff that he has been classified a high-risk sex offender and that he has thirty days to contest 

the classification. On the second page of the letter are the signatures of plaintiff and his 

caseworker. Plaintiff’s signature is dated August 3, 2007. The State also submitted to the court 

a second letter dated July 24, 2007 from the chair of the committee to the caseworker telling her 

to deliver the first letter to plaintiff, to review its contents with him, and to have him sign the 

bottom of the letter to verify that the letter had been delivered to him. The Department also 

submitted into evidence an affidavit from the caseworker stating that she had received both 

letters on July 24, 2007, that she had met with plaintiff on August 3, 2007, as documented in her 
2 

attached case notes, and that plaintiff’s signature, with which she was familiar, appears on the 

notification letter and is dated August 3, 2007. 

In response, plaintiff filed an affidavit stating that the caseworker never notified him of 

the classification decision and never gave him the notification letter from the sex offender review 

committee. In his opposition to the Department’s summary judgment motion, he notes that his 

signature is not at the “bottom” of the notification letter, as instructed in the letter to the 

caseworker, but rather on a separate blank piece of paper. Plaintiff raises the same point on 

appeal and argues that there was a genuine issue of material fact in dispute as to whether he was 

notified of the classification decision. 

We find plaintiff’s argument unavailing. He does not deny that the signature submitted 

by the Department in its exhibit is his signature. Nor does he deny that the signature is dated 

August 3, 2007, the same day that the caseworker’s notes indicate that she met with plaintiff. 

Although his signature, along with that of the caseworker, is on a separate page from the body of 

the notification letter, plaintiff cannot avoid the undisputed fact that he and his caseworker 

signed the second page of the letter on August 3, 2007. Because he cannot demonstrate that 

there is any genuine issue of material fact in dispute as to whether he acknowledged being 

notified of the high-risk sex offender designation on August 3, 2007, summary judgment in favor 

of the Department was appropriate on the grounds that plaintiff’s Rule 75 action was timebarred. See Poplaski v. Lamphere, 152 Vt. 251, 254-55 (1989) (stating that summary judgment 

is mandated when, after adequate period of time for discovery, party fails to establish elements 

essential to his case). 

At oral argument, plaintiff argued for the first time that 13 V.S.A. § 5411b(b)-(c) requires 

that he be given notice of an opportunity to request a hearing before his designation as a highrisk sex offender, and that the Department’s failure to provide such notice before its initial 

classification decision violated his constitutional right to due process. We do not consider this 

argument insofar as it was raised for the first time at oral argument. See TD Banknorth, N.A. v. 

Dep’t of Taxes, 2008 VT 120, ¶ 33, 185 Vt. 45 (noting that Supreme Court “will not address 

arguments raised for the first time at oral argument”). 

Affirmed. 

 

BY THE COURT: 

_______________________________________ 

John A. Dooley, Associate Justice 

_______________________________________ 

Marilyn S. Skoglund, Associate Justice 

_______________________________________ 

Brian L. Burgess, Associate Justice