Vermont Constitutional law. Employee cannot rely on Article 4 to create a property interest in claimed employment rights because employee has no state law right to overtime wages.

 Flint v. Department of Labor,  2017 VT 89 [filed 10/06/2017]

A former employee of the Vermont Department of Labor appeals from a judgment on the pleadings denying his suit against the Department seeking unpaid overtime pay. Employee argues that he is entitled to overtime pay for hours worked in excess of forty hours per and that that state employees have a private right of action to enforce those claimed rights through Article 4 of the Vermont Constitution. Vt. Const. ch. I, art. 4. We affirm.

Chapter I, Article 4 of the Vermont Constitution provides: 

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; comformably to the laws.

Vt. Const. Ch. I, Art 4

 We have held that Article 4 is “the equivalent to the federal Due Process Clause.” Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). However, we have also held that Article 4 “does not create substantive rights,” but rather “ensure[s] access to the judicial process.” Shields v. Gerhart, 163 Vt. 219, 223, 658 A.2d 924, 928 (1995).

Article 4 provides a remedy only if employee can show that he has a pre-existing property interest in those employment rights. See Quesnel, 167 Vt. at 258, 706 A.2d at 439 (“There being no statutory or common-law cause of action for plaintiffs’ injuries resulting from their son’s death, plaintiffs have not been denied due process of law or their rights under Article 4.”); see also Hallsmith v. City of Montpelier, 2015 VT 83, ¶ 10, 199 Vt. 488, 125 A.3d 882 (“To show a  violation of procedural due process, an individual must (1) identify a protected property right, (2) show that the state or a state actor has deprived the individual of that right[,] and (3) show that the deprivation was effected without due process.”).

Employee asserts that those pre-existing property rights have a statutory basis—that they come from § 384(b)(7). But § 384(b)(7) explicitly excludes state employees from its protections because state employees’ minimum wage and overtime rights are already covered by FLSA.

Employee therefore has no state law right to overtime wages..

SCOVT NOTE. Compare Nelson v. Town of St. Johnsbury, 2015 Vt. 5, where the Court held a town manager who alleged wrongful termination was entitled to procedural due process under Article 4 and that Article 4 is self executing.

That Article 4 protects only recourse to the judicial process and does not create substantive rights see also Gallipo v. City of Rutland, 2005 VT 83; USGenNew England, Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927; Levinsky v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989).

That access to courts is not absolute see State v. de Macedo Soares, 2011 VT 56 (requiring litigant to incur costs for filing fees and a transcript does not violate Article 4 ); Handverger v. City of Winooski, 2011 VT 130. ¶ 13 (Article 4 does not provide relief from explicit provisions of a city charter precluding appeal from termination of employment); Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572, 816 A.2d 490 (2002)( five-year statute of limitations in the Occupational Disease Act does not violate Article 4.).

Defamation. Statements made as preliminary steps to judicial or quasi-judicial proceedings are absolutely privileged.

Couture v. Trainer, 2017 VT 73 [filed August 25, 2017]

REIBER, C.J. Father appeals from a summary judgment order dismissing his defamation claims against mother and her sister (aunt). In his complaint, father alleged that mother and aunt coached daughter into saying "Daddy hit me" and submitted defamatory audio and video recordings of daughter's statements to his parole officer. Father also alleged that mother made false statements to his parole officer and in mother's petition for relief from abuse. The trial court ruled that these recordings and statements were absolutely privileged.. On appeal, father argues that the court erred in concluding that the recordings and statements are protected by absolute privilege and that they should instead be protected only by qualified privilege,. We affirm the superior court's entry of summary judgment.

If absolute privilege applies in the present case, summary judgment in favor of mother and aunt would be appropriate for father's defamation claim because one of the six elements of defamation is "lack of privilege in the publication." Lent v. Huntoon, 143 Vt. 539, 546-7, 470 A.2d 1162, 1168 (1983). at 546-47, 470 A.2d at 1168.

In Vermont, we have long recognized that statements within a judicial proceeding are absolutely privileged if they are relevant to the matter at hand. See Mower v. Watson, 11 Vt. 536, 540 (1839). Courts in many other states have concluded that absolute privilege is the appropriate level of protection for statements made in the preliminary stages of judicial and quasi-judicial proceedings. The Restatement supports the extension of absolute privilege to "communications preliminary to a proposed judicial proceeding" Restatement (Second) of Torts § 587 (1977) Public policy favors the extension of absolute privilege to statements and recordings made or produced in the context of parole violation reports and petitions for relief from abuse.

All the statements and recordings at issue in this case were made as preliminary steps to judicial or quasi-judicial proceedings. We hold that absolute privilege applies to the statements and recordings in this case.

SCOVT NOTE

In a careful opinion by Judge Redfiled in Mower v. Watson, 11 Vt. 536, 540 (1839) the Court concluded that an action against a witness for slander is maintainable if the false statements were irrelevant and malicious.

In 2006 The local federal court summarized Vermont law on this subject as follows: 

Defamatory statements published by parties in the course of judicial proceedings, however, are absolutely privileged, so long as they bear some relation to the proceedings. Letourneau v. Hickey, 807 A.2d 437, 441 (Vt. 2002). To sustain an action for slander based on statements arising out of a judicial proceeding, a plaintiff "must show that the words spoken were not pertinent to the matter then in progress, and that they were spoken maliciously and with a view to defame." Id. (quoting Mower v. Watson, 11 Vt. 536, 539-40 (Vt. 1839); see also Wilkinson v. Balsam, 885 F. Supp. 651, 659 (D. Vt. 1995) (holding that Vermont would likely adopt the Restatement principle that a witness is absolutely privileged to publish defamatory matter in communications preliminary to proposed judicial proceedings). Courts take a liberal approach to determining whether a statement is "pertinent" to the proceedings. Letourneau, 807 A.2d at 442 (the standard requires that a statement have only "some reasonable relation or reference to the subject of inquiry, or be one that may possibly be pertinent, with all doubts resolved in favor of the defendant") (quoting Prosser and Keeton on the Law of Torts § 114, at 817-18 (5th ed. 1984)).

Okemo Mountain, Inc. v. Sikorski, No. 1:93-CV-22, 2006 WL 335858, at *3 (D. Vt. Feb. 14, 2006)