VermontSuperiorCourtFiled12/1223Washingtonmt

### VERMONTSUPERIOR

### COURTWashingtonUnit65StateStreetMontpelier

### VT05602802—828—2091WWW.Verrn0ntiudiciarV.0rQ

### CIVILDIVISIONCaseNo.22-CV-00587

### OpinionandOrderonthe

### State’sMotionfor

### Summarv

### JudgmentDefendantthe

### VermontDepartmentofCorrections

### (DOC)designated

### PlaintiffKyleZanks,an

### inmate

### inthe

### DOC’scustody,

### “high-risksexoffender.”

### Hechallenged

### thatdesignation

### administrativelyWithoutsuccessandhas

### takenstatutoryappealdenovoto

### thisCourt.See13

### V.S.A.5411b(b)

### (indicatingthatthe

### review

### availableis“appealdenovo”andsubjectto

### Vt.R.Civ.P.75procedure).

### TheStatehas

### filedmotionfor

### summary

### judgment

### askingthe

### Courtto

### affirm

### Mr.

### Zanks’

### high-riskdesignation.

### TheCourtmakesthe

### followingdeterminations.I.

### Standardof

### ReviewInpriororder

### followingthe

### parties’summary

### judgmentbriefing,the

### Courtindicated

### itsintenttoconduct

### itsreview

### inthiscaseunderthe

### principlesdescribed

### inLockwoodv.

### Baker,N0.21-CV—1206,2022

### WL16758031

### (Vt.Super.

### Ct.,Oct.28,2022)and

### Sylvesterv.Touchette,No.312-6-19

### Wncv,2020

### WL13260810

### (Vt.Super.

### Ct.,

### May28,2020).

### TheCourtsummarizedasfollows:

### TosummarizethepurportofLockwood:the

### statutoryexpressionappealdenovo

### in5411b(b)contemplatesformofrecordreviewfor

### whichdeferencetotheagencyis,tosomeextent,appropriate.

### Itdoesnotcontemplatedenovo

### hearingor

### trial.Whilethe

### underlying

### administrativeprocessincludesan

### opportunityfortheoffendertopresent

### argumentandevidencetothesexoffender

### reviewcommittee

### (Committee),

### thatopportunity

### isnotan

### adversarial,

### quasi-judicialhearing.

### Itisan

### opportunityfortheoffenderto

### influencethe

### Committee’sexerciseofOrderPageof22—CV-00587KyleZanksNicholasDernlKyleZanksNicholasDemlOrder Page 2 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml discretion based on the record before it. Similarly, the Court’s review does not contemplate a de novo evidentiary proceeding.

In this case, the record before the Committee, including the transcript of the

administrative hearing, is in the record of this case. Under Lockwood /Sylvester

,

this Court’s role is to review the administrative record and determine whether it

agrees with the agency’s decision, giving the agency appropriate deference. Mr.

Zanks’ role is to show that the agency got it wrong, and the Court therefore should

“disagr ee” with it. See 3 Charles H. Koch, Jr. and Richard Murphy, Admin. L. &

Prac. § 9:2 2 (3d ed.) ( “The challenger, like any other plaintiff, must show by a

preponderance in the judicial record that the agency decision is wrong.” ).

Because the parties’ summary judgment briefing did not clearly reflect the

nature of the Court’s review , the Court invited further briefing as to that matter

before ruling on the State’s motion. The State responded by clarifying its view

that Lockwood and Sylvester correctly describe the Court’s review in this case.

Mr. Zanks responded by arguing that 13 V.S.A. § 5411b(b) requires a de novo

hearing or trial, a completely new evidentiary proceeding

, as though the administrative

proceeding never happened , while conceding that the DOC remains entitled to

appropriate deference

. 1 In so arguing, Mr. Zanks d oes not discuss the analysis of

Lockwood and Sylvester or the pivotal distinction made in State v. Madison , 163 Vt. 360,

368

– 70 (1995) , which is central to both decisions, between de novo review (or, as here,

appeal de novo ) , a form of record review, and a de novo hearing or trial , a brand new

evidentiary proceeding . Instead, Mr. Zanks urges the latter , relying on these five cases:

1 While both sides ac knowledge some level of deference, in this case, the Court ’s

determinations would be the same without affording such deference.Order Page 3 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml Town of Killington v. Dep ’ t of Taxes , 2003 VT 88, 176 Vt. 70 ; Shaffer v. Town of

Waitsfield , 2008 VT 44, 183 Vt. 428 ; Mollica v. Div. of Prop. Valuation & Rev ., 2008 VT

60, 184 Vt. 83 ; In re ANR Permits in Lowell Mountain Wind Project , 2014 VT 50, 196 Vt.

467 ; Plum Creek Maine Timberlands, LLC v. Vermont Dep’t of Forests, Parks &

Recreation , 2016 VT 103, ¶ 6, 203 Vt. 197

. All the cited cases arise in the de novo

hearing context, and all address issues as to the appropriateness of agency deference in

different circumstances . N one , however, address es the distinction between a de novo

hearing and de novo record review in any manner that is useful here , and none sheds

light on the relevant conclusions in Lockwood and Sylvester

. The Court does not find Mr.

Zanks’ citations helpful and is not persuaded to depart from Lockwood and Sylvester in

this case.

The administrative record is before the Court for review. There is no need to take

evidence.

II. The Decision on Appeal

The Sex Offender Review Committee determined as follows :

During the hearing, you were given the opportunity to be heard and to present any relevant evidence to the Committee.

You presented a written statement to the committee which stated, in

summary, as a youthful offender, you did not think about the effects of your actions and behaviors to others as well as not taking programming and probation conditions seriously. You also stated, in summary, you are looking forward to self

- improvement and finding ways of interacting with

others in a safe manner.

Your attorney, Patricia Lancaster asked Victoria Marini

- Bowley, Ph.D. to attend the hearing to discuss the results of a psychosexual evaluation and review that was conducted by Vermont Forensic Associates,

Dr. John Holt and herself. When asked of her evaluation of Mr. Zanks’ risk,

Dr. Victoria Marini

- Bowley stated her opinion is that you have pattern of opportunistic sexual offending rather than predatory. She further statedOrder Page 4 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml you have a pattern of offending that will continue without interventions such as high

– intensity treatment.

The Committee designated you high risk based on your pattern of predatory sexual offending. “Predatory” means an act directed at stranger, or person with whom relationship has been established or promoted for the primary purpose of victimization. “Pattern” means having two or more sexual offense victims and typically, one or more prior sex offense

convictions. The Committee did not find your presentation compelling enough to alter our decision.

The Committee considered the evidence you presented, and based upon the facts outlined above, the Committee has [determined to maintain the designation].

III. Analysis

Mr. Zanks argues that the Committee arrived at the wrong result because there is

no pattern of predatory sexual offending in the record, his expert so testified at the

hearing before the Committee, and there is no basis for deferring to the Committee’s

apparent interpretation of “predatory” because that term is unambiguous, leaving no

room for administrative discretion. Mr. Zanks a sserts t hat none of the sexual offenses

described in the record were predatory because none involved strangers or anyone he

cultivated for the purpose of victimization.

Mr. Zanks’ heavy emphasis on the term predatory requires some context. The

DOC’s statutory mandate under 13 V.S.A. § 5411b(a) is to determine which sex offenders

are “high risk,” an expression that is defined by statute. “ ‘ Risk ’ means the degree of

dangerousness that a sex offender poses to others. ‘ High

- risk ’ means a high degree of

dangerousness that a sex offender poses to others. Dangerousness includes the

probability of a sexual reoffense. ” 13 V.S.A. § 5401(16). “ Predatory ” and “sexually

violent predator” are defined terms, but for other statutory purposes. 13 V.S.A. §Order Page 5 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml 5401(7), (12). The high

- risk inquiry focuses on danger to others, and whether one is a

“predator” is not a necessary component of the inquiry.

It should be no surprise, then, that the DOC’s rule controlling high

- risk

designations does not even mention the word predator. See Designation of a High

- Risk

Sex Offender, Vt. Admin. Code 12

- 8

- 4:4 (High

- Risk Rule) . Rather, the rule properly

focuses the Committee ’s attention on the statutory inquiry into the danger posed to

others. “ The Committee must determine by a preponderance of the evidence that the

offender poses a high degree of dangerousness to others. ‘ Dangerousness ’ includes the

probability t hat the offender will commit a new sexual offense. ” High

- Risk Rule 4.4.1.

Thus, nothing in the relevant statute and rule incorporates the predator concept into a

high

- risk designation. The focus is simply on the danger posed to others.

However, a “pattern of predatory sexual offending” is listed in the DOC’s policies

as one possible reason initiall y t o refer an inmate to the Committee for a potential high

risk designation even if certain other factors might not suggest it. Sex Offender Registry

Requirements Manual at 27. The Manua l, though, is an internal operating policy. It is

not a binding rule adopted under the Administrative Procedures Act, 3 V.S.A. § § 800

–

848. It does not purport to control the determination s made by the Commit tee or the

Court on appeal.

The Court acknowledges that the Committee in this case designated Mr. Zanks

high

- risk based on its determination that he has a pattern of predatory sexual offen ding

.

Mr. Zanks thus has endeavored to show that his offenses are not predatory because they

were not directed at stranger s or at person s with whom he established a relationship for

the primary purpose of victimization.Order Page 6 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml The Court has two responses to this argument. I f the Committee erred at all in

focusing on the predatory nature of Mr. Zanks’ offenses rather than the fundamental

inquiry into whether he present s a high risk of danger to others, review here is de novo

,

and the Court is not bound by the details of the Committee’s decision. In that regard, the

Court notes that the record is replete with examples of opportunistic sexual offenses

reflecting no consideration on Mr. Zanks’ part as to the gravity of his conduct and its

impact on others (or, indeed, on himself) . Th ose examples clearly appear in the record

,

are discussed expressly in briefing, and need not be recounted here. See , e.g., St ate ’ s

October 1 8, 2023 Reply Memo randum

, ¶¶ 1

- 19. Nor does anything in the record indicate

that, at least at this point, Mr. Zanks has undertaken any sort of programming or

rehabilitation that one day might hold some promise of better conduct in the future.

Mr. Zanks ’ own clinical psychology expert testified at his hearing as follows :

So this, you know, [risk assessment tool] does put him in that above average risk, puts him in the above average risk category, and he certainly has quite

a bit of treatment need. And when we had, we identified, you know, numerous areas of need for him and had recommended the high intensity of treatment for him that, you know, this pattern of what we saw was a pattern of opportunistic offending, and that would, you know, be I think quite likely to continue without intervention. It has continued to some

de gree in, you know, the facility in that there was a [Prison Rape Elimination Act, 34 U.S.C. § § 30301

– 30309] investigation. And so, you know, he’s certainly in need of treatment and a high intensity of that.

Based on the entirety of the administrative record, the Court independently concludes

that Mr. Zanks poses a high degree of dangerous ness to others, and the Committee

, thus

,

properly designated him high

- risk.

Separately, t o the extent that Mr. Zanks has focused on the definition of predator

rather than the danger posed to others, the Court notes that the Committee did not make

detailed findings as to whether individual victims either were strangers or constitutedOrder Page 7 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml relationship s that were cultivated for victimization purposes. The record does not

suggest the latter. The Court assumes that the Committee believed that the victims

were strangers. The Committee’s findings do not explain why it felt the victims were

strangers or precisely what it thought the word stranger means in this context. Mr.

Zanks, in arguing that the victims obviously were not strangers, has not offered a

definition ; n or do the relevant statutes, rule, or manual. Stranger could suggest, as Mr.

Zanks seems to assume, an encounter between people who had never before seen each

other

. The Court is not persuaded, however, that it must mean that in this context. I t

might, for example, also include a mere acquaintance or one with whom the offender does

not have a current, developed relationship, which appears to describe mos t or all of Mr.

Zanks’ victims

. In any event, the Court need not resolve this issue because it is

unnecessary to the Court’s de novo review. 2

The Court has revi ewed the record de novo . T he Court concludes Mr. Zanks was

properly designated high

- risk because he presents a high degree o f danger to others. He

has engaged in a clear pattern of opportu nistic and serious sexual offenses that his own

clinical psychology expert has concluded is “quite likely ” to continue absent substantial

rehabilitative interventions that have not yet occurr ed, and there is nothing in the record

to indicate that he appreciates the harm his behavior has cau sed and that it will not

recur in the future. High

- Risk Rule 4.4.1.

2 A similar result follows as to whether Mr. Zanks fostered any of the relationships for purposes of victimization. The Court need not reach the question.Order Page 8 of 8

22

- CV

- 00587 Kyle Zanks v Nicholas Deml Con clusion

For the foregoing reasons, the State’s motion for summary judgment is granted

.

Electronically signed on Monday, December 11, 2023 , p er V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi Superior Court Judge