SCOVT affirms summary judgment that 21 V.S.A. § 640(c) did not require prior employer to reimburse claimant for lost wages, holding claimant had no standing to assert constitutional rights of new employer.

Mahmutovic v. Washington County Mental Health Services, Inc., 2023 VT 37

COHEN, J. Claimant Semir Mahmutovic appeals a decision of the Commissioner of the Vermont Department of Labor concluding that claimant’s prior employer was not obligated to reimburse claimant for lost wages under 21 V.S.A. § 640(c), and that the statute was not unconstitutional as applied to claimant. We determine that claimant has conceded that the Commissioner properly interpreted § 640(c), and further conclude that claimant does not have standing to challenge the constitutionality of § 640(c). Therefore, we affirm the Commissioner’s decision granting summary judgment to prior employer.

 

Claimant submitted a reimbursement request to prior employer for $152.72 of lost wages. Prior employer denied payment on the ground that 21 V.S.A. § 640(c), which governs workers' compensation payments for medical benefits, shifts the financial burden of covering wages to current employer.

Claimant argued below that requiring a subsequent employer to cover lost wages is unconstitutional. Prior employer argued that claimant did not have standing to bring the constitutional claim.

This Court has adopted a three-part test for standing originally articulated for federal courts: (1) injury in fact; (2) causation; and (3) redressability.  Ferry v. City of Montpelier, 2023 VT 4, ¶ 12, In other words, standing requires a litigant to demonstrate they "have suffered a particular injury that is attributable to the defendant and that can be redressed by a court of law." Parker v. Town of Milton, 169 Vt. 74, 77 (1998).

The Commissioner concluded that claimant has standing because he suffered an injury in fact when he requested lost wages and prior employer declined to pay them.

We disagree.  Even assuming that claimant's $152.72 in lost wages due under § 640(c) is an injury in fact, claimant has not demonstrated that this injury is "fairly traceable to [prior employer]'s allegedly unlawful conduct." Id. at 78, 726 A.2d at 480. Claimant has essentially accepted that the Commissioner's interpretation of the statute does not obligate prior employer to compensate him for lost wages. Therefore, his injury—his alleged loss of the property interest created by § 640(c)—is not a result of prior employer's actions. We therefore conclude that claimant does not have standing to bring this as-applied constitutional challenge.

In his briefing, claimant additionally asks us to consider his standing as a third-party beneficiary to pursue a constitutional challenge on behalf of current employer. However, "[l]ike the federal courts, we generally do not allow third-party standing." Baird v. City of Burlington, 2016 VT 6, ¶ 15, 201 Vt. 112, 136 A.3d 223 (finding no exception to general rule against third-party standing because litigants failed to show those potentially harmed in future would likely not be able to assert their own constitutional claims). Claimant provides no basis to allow him to present this constitutional claim on behalf of current employer, and we therefore conclude that he does not have third-party standing in this matter.

Affirmed.

How cited

SCOVT declines to overrule 200-year-old precedent and holds that the voter- citizenship requirement of Chapter II, § 42 of the Vermont Constitution does not apply to municipal elections.

 Ferry  v. City of Montpelier, 2023 VT 4 [filed 1/20/2023]

EATON, J. In this declaratory-judgment action, we are asked to consider whether a statute allowing noncitizens to vote in City of Montpelier elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution. We conclude that the statute allowing noncitizens to vote in local Montpelier elections does not violate Chapter II, § 42 because that constitutional provision does not apply to local elections. We accordingly affirm the trial court’s grant of the City’s motion to dismiss.

Chapter II, § 42 of the Vermont Constitution provides: Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:

Because § 42 is an older constitutional provision with a complicated history, our analysis of the text requires historical analysis. When we look to the plain text of a constitutional provision, we often simultaneously rely “on historical context to illuminate [its] meaning.” State v. Misch, 2021 VT 10, ¶ 12, 214 Vt. 309, 256 A.3d 519 (per curiam) 

From this history, we know that “voter” in § 42 is synonymous with “freeman,” and since 1828, at the latest, citizenship has been required to exercise the “privileges of a freeman in this State.” The operative question then becomes: what does it mean to have the “privileges of a freeman” under § 42? ¶ 33. Our precedents answer this question.

Marsh and Woodcock demonstrate that a “freeman” is an individual with the ability to vote in statewide elections in Vermont. State v. Marsh, N. Chip. 17 (1789); Woodcock v. Bolster, 35 Vt. 632 (1863) Therefore, under § 42, to exercise the “privileges of a freeman in this State” is to vote in statewide elections. These cases dictate that § 42 does not apply to municipal elections.

Plaintiffs assert that this conclusion is incorrect. First, they argue that the plain text of § 42 clearly applies to voters in all Vermont elections. Second,they argue Woodcock and Marsh , “outmoded” and should not be applied because of changes over time. 

Principles of stare decisis are a necessary lens through which to evaluate these arguments. “[T]his Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.” State v. Carrolton, 2011 VT 131, ¶ 15; see Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14 (recognizing that changes in social and economic circumstances over time may require deviation from precedent). 

Plaintiffs’ arguments do not convince us that Woodcock and surrounding precedents were wrongly decided then or that changed circumstances since those decisions require us to reach a different conclusion now.

Plaintiffs claim was properly dismissed on the merits because our precedents demonstrate that § 42 does not apply to municipal elections and we decline to overrule or abrogate those precedents in this case. 

Affirmed.

 How cited

SCOVT NOTES: 

 

1) NONCITIZEN VOTING

Noncitizen voting is not a novel idea. The right to vote is not an incident of U. S. citizenship, but is a matter of state law.  Historically, other states have permitted foreigners to vote:

The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 88 US. 162 (1875)  It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution. The State might provide that persons of foreign birth could vote without being naturalized.

Pope v. Williams, 193 US 621, 632-33 (1904) (citing Minor v. Happersett for its statement that under certain circumstance's the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, Missouri and Texas permit voting by persons of foreign birth before naturalization.)

2) STARE DECISIS and CONSTITUTIONAL INTERPRETATION

This case -- involving a test of an ancient interpretation the Vermont Constitution -- recites a standard requiring “plain justification" supported by evolving community experience, to overrule the precedent. 

The cases cited by the Ferry Court for this standard did not involve a constitutional issue. State v. Carrolton, 2011 VT 131, ¶ 15; Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14.  They are in a line of authority that says “mere disagreement” is not grounds to overrule recent precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem); see also Haupt v. Triggs , 2022 VT 61.

Just months ago the Court overruled a constititional interpretation simply because it was “decided incorrectly.” State v. Downing, 2020 VT 101 ¶ 22 (overruling a case that misinterpreted a bail statute expressed in terms identical to the Constitution). The Ferry Court holds the challenged precedent was correctly decided, thus leaving the requirement of “plain justification” in constitutional cases mere dictum.

Downing is consistent with decisions of the U. S. Supreme Court that the rule of stare decisis is relaxed in constitutional cases, because judicial action is the only recourse short of constitutional amendment. E.g. Smith v. Allwright, 321 U.S. 649, 665 (1944). But cf. Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands "special justification")

Indeed, some recent Vermont Supreme Court cases involving statutory interpretation do not follow the O’Connor caution. Instead, the Court has said it will overrule prior case law when it  determines the  earlier decision is "simply wrong." In re SD, 2022 VT 44 (overruling a 2007 case and holding the statutes grant no right for the State to appeal the dismissal of a delinquency petition). This simply-wrong standard traces back to a comment of Justice Jackson that there is “no reason why [the Court] should be consciously wrong today because [it] was unconsciously wrong yesterday."  Massachusetts v. United States, 333 U.S. 611, 639-40, (1948) (Jackson, J., dissenting).

It appears that "plain justification" is not necessarily required to overrule even a statutory interpretation, and that  Ferry is better viewed as an independent interpretation of the Constitution, rather than as an application of stare decisis to decide the constitutional question.

Divided Court affirms suppression under Chapter I, Article 11 of the Vermont Constitution, of fruits of warrantless “open fields” search, despite argument that purpose of search was to enforce fish and game regulations and defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute.

State v. Ronald Dupuis, 2018 VT 86 [filed August 17, 2018]

ROBINSON, J. In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of “open fields” when the landowner objectively demonstrates his or her intent for privacy through actions such as posting “no trespass” signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont’s regulations for posting against hunting. The State appeals from the trial court’s grant of defendant Ronald Dupuis’s motion to suppress evidence arising from a game warden’s warrantless search of his property, arguing that because defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

The State’s argument follows two steps. First, because defendant did not comply with § 5201 by failing to specify in his signs that hunting was prohibited, and by failing to record the signs with his town clerk for that calendar year,  members of the public could legally enter his property in order to hunt, notwithstanding his general notices against trespass. Second, because hunters could lawfully enter his property for hunting purposes, it follows that he had no reasonable expectation of privacy that would prevent game wardens seeking to enforce state fish and game laws from entering his property.

 The foundation of our analysis rests on the constitutional requirement that police get a warrant before searching most private property. That this requirement can apply to open fields when a property owner has taken sufficient steps to exclude others is well established. We reject the State’s suggestion that the Vermont constitutional provisions concerning hunting, fishing, and trapping create an exemption to the warrant requirement for game wardens investigating hunting violations on private property.

  

It does not follow that a landowner who has effectively put strangers on notice that they are not welcome on the private property surrenders the corresponding reasonable expectation of privacy by failing to take the more burdensome specific steps required to cut off the narrower right of access afforded to hunters. Defendant’s failure to provide notice satisfying the statutory requirements for posting against hunters does not constitute willing exposure of his property to the public—or to law enforcement.

CARROLL, J., dissenting.  The question in this case is not one of fact—whether the landowner put in place sufficient tangible indications such that law enforcement should have known a warrant was required for entry—but one of law—whether posting against general trespassing, but not against entry for purposes of hunting or fishing, is sufficiently indicative of a landowner’s reasonable expectation of privacy to preclude all law enforcement entry regardless of the purpose of the entry. Vt. Const. ch. II, § 67 reserves a right for Vermonters to access privately held lands for the purposes of taking fish and game under regulations promulgated by the Commissioner of Fish and Wildlife as long as those lands are not “inclosed.” It is questionable whether the objective inquiry in the reasonable expectation of privacy test is satisfied here where our Constitution reserves a right of entry onto private lands for persons engaged in taking wild fish and game and defendant took no action to exclude those engaged in the activity. And if the objective prong of the reasonable expectation of privacy test is not met, then the test in general is not met, and a warrant is not required for law enforcement entry. I believe that a rule granting the State the ability to enforce fish and game regulations where the public is, in fact, permitted to hunt and fish is simple logic I am authorized to state that Justice Eaton joins this dissent.

Taxpayers have standing to challenge public management of federal funds used to repair a church; but preliminary injunction vacated because success unlikely on merits of claim that Compelled Support Clause of the Vermont Constitution is violated by public funding for physical repairs to a place of worship used also for secular purposes.

Taylor v. Town of Cabot, 2017 VT 92 [filed 10/6/2017]


ROBINSON, J. This case involves a challenge under the Compelled Support Clause of the Vermont Constitution to the Town of Cabot’s grant of federally derived but municipally managed funds for the purpose of repairs to a historic church. On interlocutory appeal, we consider whether plaintiffs have standing to pursue their claims and whether the trial court erred in issuing a preliminary injunction prohibiting the Town from paying the grant funds pending further order of the court. We conclude that plaintiffs do have municipal taxpayer standing, but vacate the trial court’s award of a preliminary injunction and remand for further proceedings to resolve the case on the merits.

Municipal taxpayer standing under our law encompasses claims that municipal assets have been improperly wasted, and the record in this case supports the conclusion that the grant funds here are municipal assets notwithstanding the fact that the funds originated from the U.S. Treasury. The Town has held part or all of the former federal grant funds with no requirement for accounting to HUD regarding the Town's use of the funds, and subject only to the limitation that the Town use the funds for a broad range of purposes that may supplant municipal general fund expenditures. Under these circumstances, the funds are municipal assets for the purpose of municipal taxpayer standing.

The trial court here rightly identified the main factors guiding its review under Vermont law: (1) the threat of irreparable harm to the movant; (2) the potential harm to the other parties; (3) the likelihood of success on the merits; and (4) the public interest. In re J.G., 160 Vt. 250, 255 n.2, 627 A.2d 362, 365 n.2 (1993). We do not adopt the federal test of "sufficiently serious questions as to the merits plus a balance of hardships that tips decidedly in their favor." While we affirm the preliminary injunction standard applied by the trial court, we conclude that the trial court erred in awarding the preliminary injunction because it overestimated the plaintiffs' likelihood of success on the merits, and erred in concluding that plaintiffs would suffer irreparable injury in the absence of an injunction.

Our analysis is framed by the Compelled Support Clause of Chapter I, Article Three of the Vermont Constitution and our caselaw thereunder, limitations arising from the Free Exercise Clause of the First Amendment to the U.S. Constitution, and the record in this case. In light of these considerations, plaintiffs face strong headwinds in arguing that the Compelled Support Clause embodies a categorical prohibition against any public funding for physical repairs to a place of worship, and plaintiffs have not yet presented sufficient evidence to demonstrate a high likelihood of success on a narrower claim.

The focus of the Compelled Support Clause is the support for "worship" itself. The fact that the recipient of government support is a religious organization is not itself determinative under the Compelled Support Clause; whether the funds are used to support religious worship is the critical question. The grant funds in this case were undisputedly allocated for the purpose of maintenance and repairs to a building that serves as a place of worship, is available for many nonsectarian community events and gatherings, and is an important and historic building in the town. Where funding is available on a neutral and non-discriminatory basis to a broad and diverse group of potential recipients in order to promote a squarely secular goal of the broader community, there is no indication that the funds are intended to or do advantage religious organizations or activity, and the funds are used for structural repairs rather than, for example, erecting religious symbols, we cannot conclude that such funds support worship within the meaning of Article Three.

We affirm the trial court’s denial of the Town’s motion to dismiss on standing grounds, and vacate the preliminary injunction in this case. Affirmed in part, vacated in part, and remanded for further proceedings.

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.).

Police not required to warn suspect of consequences of refusing field sobriety test.

State v. Farrow, 2016 VT 30 (filed March 11, 2016).

ROBINSON, .J. This case calls upon us to consider the admissibility of evidence of defendant's decision not to complete a field sobriety exercise as requested by a police officer in the context of an answer to a question we left open in a prior decision: Under the Vermont Constitution, is a defendant's refusal or failure to perform voluntary field sobriety exercises admissible if the defendant was not advised at the time of the refusal that evidence of a refusal to perform the exercises may be admissible in court? We conclude that the refusal evidence is admissible without regard to whether police advised the individual that a refusal to perform the exercises could be admitted as evidence in court. Because we reject defendant's argument to the contrary on this point, as well as her arguments that on the record in this case the evidence in question was irrelevant and unduly prejudicial, we affirm.


Defendant challenges the trial court's admission of the video recording and the trooper's testimony concerning defendant's conduct and ultimate cessation of the MRT on the basis of the Vermont Rules of Evidence According to defendant, in light of the absence of any evidence supporting the validity of the exercise in the first place, and the presence of many explanations for her decision to stop the exercise, the evidence in question proved nothing, and its admission was prejudicial because it suggested otherwise to the jury. We conclude that the trial court did not abuse its discretion in admitting the evidence to show that defendant discontinued her participation in the exercise because: (1) the evidence may have some probative value in showing consciousness of guilt, and (2) especially given its instructions to the jury, the trial court could reasonably conclude that the prejudicial effect of the evidence did not substantially outweigh its probative value.


Defendant's appeal raises a question that this Court has previously left unresolved: whether the Vermont Constitution requires—as a prerequisite to use of the individual's refusal as evidence in court—that an officer advise an individual that refusal to perform a field sobriety exercise may be admitted as evidence of consciousness of guilt. We reject defendant's Fourth Amendment argument. It is well established that police may, without a warrant but upon reasonable suspicion, ask a driver to perform field sobriety exercises. To the extent defendant is arguing that the Fourth Amendment, and its Vermont Constitution analog in Chapter 1, Article 11, nevertheless require some sort of warning to an individual asked to perform field sobriety exercises, she makes no argument linking those constitutional provisions to the claimed warning requirement.


Defendant argues that the protections against compelled self-incrimination in the Vermont Constitution extend to nontestimonial evidence because Article 10 provides that a person cannot be compelled to "give evidence against oneself," whereas the Fifth Amendment provides that a person cannot be compelled to be "a witness against himself." The logic of defendant's argument might support a conclusion that evidence of an individual's refusal to perform an exercise is inadmissible in court—an issue we do not revisit here. But defendant does not provide a logical connection between Article 10, as she understands it, and a requirement that an individual be warned. We emphasize that the strength of our holding on this point is limited by the vagueness of defendant's arguments on appeal.

PCR statute applies to juvenile delinquency proceedings.

In re D.C., Juvenile, 2016 VT 72 (filed June 24 2016)

DOOLEY, J. The Vermont Constitution provides, "The Writ of Habeas Corpus shall in no case be suspended. It shall be a writ issuable of right; and the General Assembly shall make provision to render it a speedy and effectual remedy in all cases proper therefor." VT Const. CH II, § 41.

Petitioner appeals the dismissal of a complaint for post-conviction relief (PCR) under 13 V.S.A. § 7131 alleging that the change-of-plea hearing that preceded his adjudication of juvenile delinquency was constitutionally inadequate. The superior court held that the PCR statute does not apply to juvenile delinquency proceedings and that the remedy available to petitioner under 33 V.S.A. § 5113 and Vermont Rule of Civil Procedure 60(b), was foreclosed because petitioner’s claim was not timely raised. On appeal, petitioner argues the fact he is over the age of majority and no longer committed to state custody does not moot the case, and that the PCR statutes permit juveniles to collaterally attack their adjudications. We agree, reverse the superior court’s order dismissing petitioner’s PCR complaint, and remand for further proceedings.

The State -- as appellee -- can raise mootness for the first time on appeal. Town of Charlotte v. Richmond, 158 Vt. 354, 357-58, 609 A.2d 638, 640 (1992) .

In a criminal case “when a petitioner moves under § 7131 to challenge a conviction while still in custody for that challenged conviction, the trial court possesses jurisdiction to hear the claim and the expiration of the custodial term will not render the cause moot.” In re Chandler, 2013 VT 10, ¶ 6. Adverse collateral consequences of a criminal conviction are presumed and need not be proven in the individual case to avoid mootness. 2013 VT 10, ¶ 13. The Chandler rule applies here because juvenile delinquency proceedings have significant collateral consequences. We hold that petitioner’s PCR case is not moot under Chandler.

Accordingly, we proceed to the question of whether a juvenile can challenge a delinquency adjudication using the PCR statute to collaterally attack an unconstitutional delinquency conviction, or a delinquency conviction based on a guilty plea that did not comply with Criminal Procedure Rule 11, or whether the juvenile must rely exclusively on 33 V.S.A. § 5113 for any post-conviction review challenge.

In consideration of the history and significance of the Great Writ, the construction of the applicable statutes, and case law from Vermont and other jurisdictions, we conclude a person adjudicated a juvenile delinquent may bring a PCR petition to challenge an admission of guilt based on due process and Criminal Procedure Rule 11 and that the availability of PCR relief was not impliedly eliminated by the enactment of 33 V.S.A. § 5113 and Civil Procedure Rule 60.

Like other citizens of this state, juveniles have a constitutional right to petition for relief from unlawful restraint from the government, Vt. Const. ch. II, § 41, a right that does not evanesce simply due to “the condition of being a boy.” In re Gault, 387 U.S. at 28. See Shuttle v. Patrissi, 158 Vt. 127, 129-30, 605 A.2d 845, 847 (1992) (noting Vermont’s Constitution guarantees writ “ ‘shall in no case be suspended’ ” and that, while originally limited to situations resulting in immediate release from custody, habeas corpus today protects “broad range of liberty interests” (quoting Vt. Const. ch. II, § 41)); Shequin v. Smith, 129 Vt. 578, 581, 285 A.2d 708, 710 (1971) (“While a legislature may regulate the procedure with respect to habeas corpus, and to some extent, the purposes for which it may be used, the writ may not be abrogated or its efficiency curtailed by legislative action.”).

Reversed and remanded for proceedings consistent with this opinion.

Twelve percent statutory interest passes federal constitutional muster.

Concord General Mutual Insurance Co. v. Gritman, 2016 Vt. 46 (filed April 22, 2016)

ROBINSON, J. Defendant Dylan Stinson appeals from a judgment finding him liable to plaintiffs for damage to their vacation home. Stinson contends that the pre and postjudgment interest rate awarded by the trial court was unconstitutional under the U.S. and Vermont Constitutions. We affirm.

Stinson argues that the trial court's award of statutory interest pursuant to 9 V.S.A. § 41a(a) (prejudgment interest) and 12 V.S.A. § 2903(c) (postjudgment interest) is unconstitutional, because it deprives him of property without due process of the law in violation of Fifth and Fourteenth Amendments to the U.S. Constitution. 

Stinson also raises a constitutional challenge under Articles 1, 4, 9, and 18 of the Vermont Constitution; however, he fails to provide any analysis tying his challenge to the statutory interest rates to those provisions. He simply raises the provisions and never elaborates on these contentions other than to list the provisions. We will not address state constitutional claims where they are insufficiently raised and inadequately briefed.

All parties agree that the rational-basis test applies to Stinson's Federal constitutional claim. If there are any reasonably conceivable state of facts that could provide a rational basis for the 12% rate, the statute must be upheld. Providing one contrary explanation does not in and of itself show that the 12% rate is not reasonably related to the statute's purpose. 

Although we acknowledge that the statutory rate is incongruous in the context of today's market conditions, we conclude that the 12% rate is reasonably related to making plaintiffs whole, and as a result, passes rational-basis review.

Vt. Constitution, Chapter I, Article 4 is a self-executing clause that protects against deprivation of property rights without due process.

Nelson v. Town of St. Johnsbury, 2015 VT 5 [Filed January 16, 2015]

DOOLEY, J. Plaintiff, the former town manager of St. Johnsbury, appeals from a trial court decision granting partial summary judgment to defendants, the Town of St. Johnsbury and its individual selectboard members, on his claims of violation of Chapter I, Article 4 of the Vermont Constitution. We reverse and remand.

Plaintiff sought a preliminary injunction reinstating him as town manager; compensatory and punitive damages; and attorney's fees and costs. After a hearing, the trial court refused to grant a preliminary injunction. On summary judgment the court held that plaintiff has no legal interest in his employment because his employment was at will; the selectboard members are entitled to qualified immunity for their alleged violation of the Civil Rights Act, 42 U.S.C. § 1983; plaintiff has no private right of action for a violation of Chapter I, Article 4 of the Vermont Constitution; and plaintiff failed to satisfy all the required elements of promissory estoppel. This appeal followed.

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; conformably to the laws.

Vt. Const., ch. I, art. 4.

We have considered Article 4 the equivalent to the federal Due Process Clause. It does not create substantive rights; it merely provides access to the courts. Where a substantive right—e.g., a property interest—already exists, conferred by statute or common law, Article 4 can protect a plaintiff against deprivation of that right without due process.

Plaintiff claims that when the selectboard allegedly deprived him of his employment without due process, that deprivation offended the guarantees of Article 4. The Town contends that Article 4 does not provide a private right of action. The trial court agreed with the Town and granted its motion for summary judgment. We disagree with the trial court and reverse the grant of summary judgment to the Town.

The question of whether a private right of action can be based on a provision of the Vermont Constitution may be bifurcated into two questions. The first is whether the constitutional provision is self-executing—that is, whether a plaintiff can bring an action for a violation of the provision without implementing legislation. The second is whether the remedy that a plaintiff seeks, typically damages, exists for the violation.

A Vermont constitutional provision is self-executing "if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, . . . and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given force of law.” That is, "a self-executing provision should do more than express only general principles; it may describe the right in detail, including the means for its enjoyment and protection.” We have concluded that Article 7, and Article 13 are self executed because each "expresses a ... fundamental right" and that right is "so certain and definite in character as to form rules for judicial decisions."

Article 4 is about access to the judicial branch to enforce the law. We recognize that we are dealing with a very broad concept, stated in language from an earlier century. To say that the language is too vague and general to enforce ignores the immense body of law that has developed and applied the principles of due process. We find Article 4 no more broad or general than Article 7, which we held as self-executing.

We therefore hold that Chapter I, Article 4, of the Vermont Constitution is self-executing and that plaintiff properly invoked the Article in his complaint.

We stress that we have not addressed the remedy plaintiff might receive if he proves a violation of the provision. We have almost no precedents in which Article 4, rather than the Fourteenth Amendment to the United States Constitution, is the primary basis for decision and none in which the party invoking Article 4 is seeking relief within or because of an administrative process. The trial court will have to address how it meets the claims and facts before it. We reverse the trial court's grant of summary judgment to the Town and hold that plaintiff is entitled to due process under Chapter I, Article 4 of the Vermont Constitution.

We remand to the trial court to decide if the selectboard furnished plaintiff with adequate notice and hearing upon termination.

Property tax. Town can tax property with subdivision permit differently from property that does not need a permit to be subdivided.

Lathrop v. Monkton, 2014 VT 9 (24-Jan-2014)

CRAWFORD, J. The Town of Monkton brings this consolidated appeal from decisions of the state appraiser in three property tax cases challenging the Town’s 2011 assessment. The state appraiser ruled that the Town had treated taxpayers inequitably by adding additional “home-site values” to undeveloped parcels that have a subdivision permit, but not to other undeveloped parcels that are eligible for subdivision without a permit.  We reverse.

Taxpayers’ position, accepted by the state appraiser, is that the Town’s taxation scheme violates the Proportional Contribution Clause of the Vermont Constitution and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because similarly situated taxpayers—i.e., those who own parcels divided by roads or containing contiguous lots created by deed prior to 1978, and those whose land is subject to a subdivision permit—are treated differently. The Town argues that it acted fairly in applying different valuation methods to properties with different characteristics, and that land that could be subdivided witout a permit is not similarly situated for purposes of tax appraisal.

Fair market value is based on the highest and best use of the property. The Town is not required to treat an undivided parcel as one economic unit for appraisal purposes if the highest and best use of the property is as subdivided lots. The development potential of property is an appropriate factor to consider in fixing appraised values.

The practice of adding the additional home-site value to permitted lots is only the starting point for the determination of appraised values. A taxpayer who has obtained a permit remains free to present evidence that the property lacks development potential despite the issuance of the permit. Conversely, the Town may increase the value of an undeveloped parcel to reflect development value even in the absence of a permit.

A permit operates as prima facie evidence that the highest and best use for the permitted parcel is to subdivide it into multiple home sites. The fact that other owners have the right to subdivide without a permit does not necessarily demonstrate that the highest and best use of their property is as multiple house sites.

The state and federal guarantees of equal treatment do not require identical treatment. We conclude that the Town’s practice of assigning additional home-site values to permitted subdivisions has a rational basis and is constitutionally valid. There is a sufficient difference between lots with actual permits in place and lots which are potentially subject to division without a permit to justify the different treatment by the Town. The state appraiser therefore erred in reducing the assessed value of taxpayers’ land.

Reversed and remanded for the amendment of the assessed values of taxpayers’ land consistent with this opinion.

Vt. Constitution does not apply to federal search and seizure at Hartford “border” .

 State v. Rennis, 2014 VT 8 (17-Jan-2014)

DOOLEY, J. Defendant appeals the decision of the superior court, which held that evidence seized by federal border patrol agents in compliance with the Federal Constitution and federal border patrol policies may not be suppressed based on an alleged violation of Article 11 of the Vermont Constitution when offered by the State in a state prosecution. We affirm.

The U.S. Border Patrol maintains a checkpoint in Hartford, Vermont, south of the intersection of highways I-91 and I-89 and approximately ninety-seven miles south of the Canadian border. Federal courts have theoretically validated checkpoints up to one hundred air miles from the physical border of the United States. Since the constitutionality of the Hartford checkpoint under the Fourth Amendment is not before us, we assume without deciding that the Hartford checkpoint meets the criteria for the “functional equivalent” of the U.S. border.

We find this case to be squarely controlled by our precedent in State v. Coburn, 165 Vt. 318, 683 A.2d 1343 (1996). The key holding of Coburn is that “the Vermont Constitution does not apply to the conduct of federal government officials acting under the exclusive federal authority to safeguard the borders of the United States.” Id. at 325,  Where Article 11 does not apply, it also does not provide the remedy of the exclusionary rule. Defendant’s motion to suppress was therefore properly denied.

We stress that we have not reached the question of whether, if the roadblock had been established by state officers, or if state officers had used the dog or searched the backpack, the search would have complied with Article 11. We hold only that this border search by federal officers, conducted in compliance with the Fourth Amendment as acknowledged by defendant, cannot be challenged under Article 11

The litigation privilege: “free access to the courts is an essential right recognized by the Vermont Constitution.”

The litigation privilege, exemplified by Jacobsen v. Garzo, 149 Vt. 205, 209 (1988) and Kollar v. Martin, 167 Vt. 592, 593 (1997), precludes any claim, however labeled, for damages arising out of the threat or prosecution of litigation, unless the elements of abuse of process or malicious prosecution are satisfied.

As explained in Jacobsen, "[F]ree access to the courts is an essential right recognized by our state constitution." Jacobsen v. Garzo, 149 Vt. 205, 209 (1988); see Vt. Const. ch. I, art. 4 (remedy at law secured to all). The Court has limited the remedy for abuses of this right to two carefully restricted torts: abuse of process and malicious prosecution. Jacobsen, at 209.

“If the well-reasoned balance thereby struck between free access and remedy for serious abuse is really to mean anything then we must not permit circumvention by affording an unrestricted action under a different label.”

Id. (emphasis added; internal quotations omitted.) Jacobsen held, "as a matter of law, the filing of a lawsuit alone cannot constitute tortious interference with contractual relations." Id. at 209.

Kollar extended the holding in Jacobsen to the threat of litigation. Kollar states that the threat of filing a lawsuit is also protected by the constitutional right to access the courts. Thus a threat to file a lawsuit alone cannot constitute tortious interference with contractual relations. Kollar v. Martin, 167 Vt. 592, 594 (1997).

Rule 75 review of termination of retirement benefits not precluded by “final say” provision of ordinance.

Preston v. Burlington City Reitrement System, 2013 VT 56 (12-Jul-2013)

BURGESS, J. Defendant City of Burlington Retirement System appeals from a superior court judgment reversing the City’s decision to terminate the disability retirement of plaintiff, a former City firefighter. The City contends  the trial court lacked subject matter jurisdiction. We affirm.

Plaintiff appealed the decision to the superior court under Vermont Rule of Civil Procedure 75(a), which provides for review of government action not otherwise expressly appealable by statute under Rule 74, “if such review is otherwise available by law.” The City moved for summary judgment, asserting that the court lacked subject matter jurisdiction, citin a provision in the City’s retirement ordinance to the effect that “[t]he retirement board shall have the final say as to all decisions required to be made pursuant to the provisions of this section.” Burlington Code of Ordinances § 24-23(j) (emphasis added). The court rejected the City’s jurisdictional argument.  The court acknowledged our holding in Mason v. Thetford School Board that a statute may preclude judicial review of an administrative decision by providing that the decision “shall be final.” 142 Vt. 495, 498, 457 A.2d 647, 649 (1983). The court relied, however, on our subsequent ruling in Campbell v. Manchester Board of School Directors, which reaffirmed the principle that “an otherwise final decision may be amenable to review by writ of certiorari . . . where the decision was made by one acting in a judicial or quasi-judicial position.” 152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989) (mem.). Because the Board’s decision was quasi-judicial in nature subject to review under the traditional writ of certiorari, the court concluded it was subject to appeal under Rule 75. We agree there was jurisdiction for different reasons.

Our Constitution generally affords “[e]very person within this state . . . a certain remedy, by having recourse to the laws,” Vt. Const. ch. I, art. 4. We thus have cautioned that courts should be “hesitant to interpret arguably ambiguous legislation as foreclosing judicial review of administrative agency decisions.” Vincent v. Vt. State Ret. Bd., 148 Vt. 531, 534 n.2, (1987), We have acknowledged, to be sure, that judicial review of government agency actions may be precluded where a statute or ordinance unequivocally bars review. See, e.g., Handverger v. City of Winooski, 2011 VT 130, ¶¶ 4, 13, ­191 Vt. 556, 38 A.3d 1153 (mem.) (upholding dismissal of Rule 75 complaint by former city manager under charter provision specifically providing that city council’s “action . . . in suspending or removing the manager shall not be subject to review by any court or agency”). No such explicit expression of intent to preclude judicial review is evident here. Although “final” may have broader meaning in other contexts, in this context it is reasonable to expect that, had the City actually intended to deprive its employees of the same opportunity for judicial review enjoyed by other public-sector employees in Vermont, it would have expressed that intent in clear and unmistakable terms. We thus hold that the trial court correctly construed the City’s ordinance to mean that the Board’s decision shall constitute final administrative action, and correctly concluded that it had jurisdiction under Rule 75 to review the Board’s decision terminating plaintiff’s disability retirement.

Spoliation: mistaken destruction of independent blood sample is no statutory or constitutional grounds for dismissal of DUI charges.

State v. Gentes, 2013 VT 14 (21-Feb-2013) (mem.)   

Defendant entered a conditional guilty plea to the charge of driving while intoxicated (DWI). He argues on appeal that the superior court’s criminal division erred by denying his motion to dismiss both the criminal charge and the civil suspension of his license.  Defendant argued for dismissal based his claim that the Vermont Department of Health’s negligence deprived him of his statutory right to obtain an independent blood test result.  We affirm.

It was the Department that failed to correctly label the sample, resulting in it being misfiled and eventually destroyed.  Because defendant’s inability to obtain an independent test was not “prevented or denied by the enforcement officer,” there is no basis in the statute for suppression of the remaining evidence, and no call in the statute for dismissal.  21 V.S.A. § 1203a(a).

Defendant maintains that the department’s negligent handling of his blood sample deprived him of his constitutional right to “call for evidence in his favor” as set forth in Chapter I, Article 10 of the Vermont Constitution.  Under the applicable Bailey test, “if a defendant shows a reasonable possibility that the lost evidence would be exculpatory,” then the proper sanction for its absence depends upon a pragmatic balancing of the following three factors: “(1) the degree of negligence or bad faith on the part of the government; (2) the importance of the evidence lost; and (3) other evidence of guilt adduced at trial.”  Id. (quotation omitted).  Essentially, defendant argues that the trial court erred in failing to dismiss the charge against him based on an application of the Bailey test.  Having weighed the Bailey factors, we find no constitutional violation and agree with the trial court that dismissal of the charge against defendant was not an appropriate remedy for the mistakenly destroyed evidence in the context of this particular case.

Biological rights. Where putative father’s claim is based on biology alone, Vt law constitutionally precludes a second parentage action after final judgment in first parentage action to which the putative father was not party.

Columbia v. Lawton, 2013 VT 2 (Robinson, J.)  

This case requires us to consider the constitutional rights of a putative biological father who seeks an order of parentage when a court has already issued a parentage order determining the minor child’s parents. We conclude that Vermont’s parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent and that constitutional considerations do not require the court in this case to entertain the second parentage case.

In this case, even if plaintiff is the genetic parent of the minor child, he does not have constitutionally-protected parental rights. He did not seek to establish a legal tie to the minor child until more than two years after the child’s birth, and never had any significant custodial, personal, or financial relationship with the minor child despite ample opportunity to formally declare and pursue his assertion of parentage.  After the child's birth he wrote  mother from jail requesting photos of the child, but the request for pictures, without accompanying efforts to take responsibility for the child by establishing a relationship, providing nurturing, offering support, or asserting his legal rights was not enough. When he did step forward, more than two years after the child's birth, he could not claim any indicia of parenthood other than, possibly, a genetic connection. Accordingly, we affirm the trial court’s decision denying plaintiff’s motion for genetic testing and dismissing his complaint for establishment of parentage.

Justiciability; ripeness: constitutional issue not decided below is not ripe.

 State v. M.W. (2011-229) (03-Aug-2012) (Burgess, J.)   

The Windsor County State’s Attorney filed this interlocutory collateral final order appeal seeking review on the question of whether 13 V.S.A. § 4815(g)(1) violates the Vermont Constitution’s separation-of-powers provision by divesting the trial court of the authority to order an inpatient mental health evaluation of a potentially incompetent defendant.  The Attorney General intervened on behalf of the State, arguing that the appeal was improvidently granted, and that the statute is constitutional.  We conclude that there is no justiciable claim because the necessity of an inpatient evaluation and the constitutionality of the statute were not decided below.  Therefore, we dismiss the appeal.

We do not reach the separation-of-powers question because we dismiss the appeal for lack of a justiciable controversy in this case.  An appeal of a collateral final order is appropriate if the court’s ruling: (1) conclusively determines a disputed question; (2) is separate from the merits of the case; and (3) will be unreviewable on appeal from final judgment.  V.R.A.P. 5.1(a); see In re F.E.F., 156 Vt. 503, 507, 594 A.2d 897, 900 (1991).  Here, there was no conclusive determination of the disputed question—namely, whether § 4815(g)(1) unconstitutionally precluded the court from ordering a necessary inpatient evaluation. 

Ripeness is part of justiciability and is built on the premise “that courts should not render decisions absent a genuine need to resolve a real dispute.”  Claims are ripe when there is a “sufficiently concrete case or controversy” and when the exercise of judicial power is justified by “prudential considerations.”  “The Vermont Constitution confers judicial authority only to determine actual controversies arising between adverse litigants, and issuing an advisory opinion . . . would exceed our constitutional mandate.”   The exception to the mootness doctrine for issues that are capable of repetition yet evade review does not apply to the ripeness analyis.   The issue was not once live and now moot; the mere possibility of future injury does not transform a nonjusticiable controversy into a justiciable one.

Without a conclusive determination on the issue, there is no controversy to appeal. 

Public trust, boatable waters: State has not authorized muncipality to prohibit recreational use of municipal water supply.

City of Montpelier v. Barnett, 2012 VT 32 (Dooley, J.)

 
Defendants appeal from a judgment ruling that the City of Montpelier may prohibit boating, fishing, and swimming in Berlin Pond, a public body of water located outside the City and used as the City’s drinking water supply.  The City contends that the restrictions are supported by both a state health order and the powers granted to the City by the State.  The trial court issued a permanent injunction preventing defendants from engaging in the listed recreational activities and from trespassing upon land surrounding the pond that is owned by the City.   We reverse the part of the judgment enjoining defendants from boating, fishing, and swimming in Berlin Pond.

Berlin Pond is a natural body of water, roughly two miles long and covering approximately 256 acres.  Berlin Pond has supplied Montpelier with a gravity-fed water supply since 1884. Over the years, the City has acquired almost all the land surrounding the pond.  The only exception is an eighty-five-foot access strip that is owned by the Town of Berlin.  The City has placed “no trespassing” signs around Berlin Pond and has posted the land around it against hunting and fishing.  The City has has passed an ordinance aimed at protecting the water supply.

On September 6, 2009, Cedric and Leslie Sanborn ventured out on Berlin Pond in kayaks.  The Montpelier Police Department arrested them and charged them with violation of Montpelier’s  ordinance against misusing a reservoir; and violation of Montpelier’s ordinance prohibiting trespassing on city property or resources.  A few months later, Barnett obtained a permit to hold an ice fishing derby on Berlin Pond.  These events prompted the City of Montpelier to initiate the present action against the defendants seeking a declaratory judgment that boating, fishing, and bathing is prohibited

We first reject defendant’s argument that the trial court erred in dismissing the State as a party. The State was properly joined as a necessary party defendant under Rule 19(a), because the State has an interest in Berlin Pond as public trustee, and protection of that interest might have been impaired in its absence by a decision in favor of the City. After being joined, the State refused to align its interests with either party, essentially avowing to the court that it did not have an interest that would be jeopardized by deciding this case in its absence.  This removed the basis for Rule 19 joinder, so there was no error in dismissing the State.

Montpelier does not “own” Berlin pond; it owns most of the land surrounding the pond and has a right to take water from the pond.    Both the public trust doctrine and Dillon’s Rule support the proposition that the City of Montpelier cannot regulate the use of Berlin Pond unless its authority derives from the State—as both trustee over public waters and as the source of municipal powers generally.

Since 1777 the Vermont Constitution has recognized the public trust doctrine:

The inhabitants of this State shall have liberty in seasonable times, ... to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.

Vt. Const. ch. II, § 67 A municipality may assume the state’s authority to regulate public waters consistent with the public trust, but only where that authority has been conveyed to the municipality by the state.

The City makes two arguments to show that the State has authorized a prohibition on activities in and around Berlin Pond.  The first relies on a 1926 order by the state Board of Health that prohibited boating, fishing, and bathing in Berlin Pond.  The City contends that the content of this order is still in force today.  We reject this argument.  Although there clearly was for many years a state health order prohibiting recreational use of Berlin Pond, that order is no longer valid and has not been implicitly adopted by ANR.

Second, the City argues that the State granted it the power to regulate Berlin Pond when it ratified the city charter and that therefore its regulation is a proper exercise of delegated authority.   After careful examination of the state statutes and the City’s charter, we are unable to find any direct or indirect authorization for the City to regulate recreational use of Berlin Pond.  On the contrary, the State has developed its own regulatory schemes to govern both public water sources and recreational use of public waters.  Under neither of these schemes has the State prohibited the recreational uses at issue here.  

Our opinion today does not hold that recreational use of Berlin Pond must be permitted. Our decision reflects the fact that, under the laws of this state, the recreational use of Berlin Pond is a matter of state concern requiring a resolution at the state level. Cf. Cent. Vt. Ry., 153 Vt. at 346, 571 A.2d at 1132 ("[T]he state's power to supervise trust property in perpetuity is coupled with the ineluctable duty to exercise this power."). We determine only that the City's current powers are limited to preventing trespass upon its property.  We conclude only that valid regulation would require action by the State—either by direct regulation or by delegating such power to the City—and this has not yet occurred.

Public records / Constitutional law. Internal police investigations are not public records as relating to “the management and direction of a law enforcement agency.” Accountability Clause of Vermont Constitution, Chapter I, Article 6, is not self-executing.

Rutland Herald v. Vermont State Police, 2012 VT 24 (Skoglund, J.) (Dooley, J., concurring in part and dissenting in part.)

This case concerns public access to records of a criminal investigation of possession of child pornography by employees of the Criminal Justice Training Council at the Vermont Police Academy.  The Herald appeals from a trial court decision granting summary judgment to the State denying disclosure of the records under the Access to Public Records Act (PRA), 1 V.S.A. §§ 315-320.  The court concluded that the records sought by the Herald, which included inquest records, were exempt from disclosure as “records dealing with the detection and investigation of crime” under § 317(c)(5).   The Herald has not challenged this threshold determination, and we accept the trial court’s characterization of these records. The Herald asserts that disclosure is appropriate because the investigation is complete, and the public interest favors disclosure.  The Herald also argues  that the records at issue must be disclosed because they “relat[e] to [the] management and direction of a law enforcement agency”  within the exception to the criminal record exemption, 1 V.S.A. § 317(c)(5).  Finally the Herald asserts that the Vermont Constitution, particularly Chapter I, Article 6, mandates disclosure. We reject these arguments and affirm.

The statute is broadly worded and it provides a categorical exemption for certain records irrespective of their specific content. The statute exempts “records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation.”  1 V.S.A. § 317(c)(5) (emphases added).  Investigation records are “maintained” or kept on individuals on an ongoing basis, after active “detection and investigation” is complete.   The words “maintained” and “compiled” suggest that the Legislature anticipated keeping investigatory records exempt after an active investigation had ended.    Had the Legislature intended the exemption to exist only during an ongoing investigation, it could have been much more specific.  The PRA  contains other exemptions with specific temporal limitations. Other state courts have  determined that, in the absence of specific temporal language, there is no temporal limitation on an exemption of disclosure of records related to the detection or investigation of crime.  Because § 317(c)(5) provides a record-based, rather than content-based, limitation, it is not appropriate to read a temporal limit or a balancing test into the statute.  

Section 317(c)(5) contains an exception that makes public “records relating to management and direction of a law enforcement agency.”  According to the Herald, any investigation into illegal activity by law enforcement individuals, by definition, falls within this proviso.  The Herald’s interpretation finds no support in the plain language of the statute or in its legislative history. The statute draws no distinction between those records that deal with a criminal investigation of a police officer, and those involving a criminal investigation of other citizens. Indeed the Legislature has specifically exempted “records of the office of internal investigation of the department of public safety” from public view.  1 V.S.A. § 317(c)(18); see also id. § 317(c)(1) (exempting from disclosure “records which by law are designated confidential”); 20 V.S.A. § 1923(d) (stating that records of the office of internal investigation shall be confidential with exceptions not relevant here). Classifying the records here as falling within the management proviso would obviate the language that specifically addresses and exempts records dealing with the detection and investigation of crime.  It would swallow the exemption.   Nothing in the legislative history shows that the management proviso was intended to make public actual investigation files such as those at issue here.  As the trial court found, the records here were directly related to a specific investigation; they were not related to policy, employment practices, or other activities that would fall within a common sense understanding of the term “management and direction of a law enforcement agency.”

Chapter I, Article 6, of the Vermont Constitution states, “[t]hat all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”   The provision was originally present in the Vermont Constitution of 1777, ch. I, art. 5, having there been lifted nearly verbatim from the Pennsylvania Constitution of 1776.  Pa. Const. of 1776, Declaration of Rights, cl. IV.  The framers of the Pennsylvania Constitution drew their inspiration, in turn, from the Virginia Constitution of 1776, drafted by George Mason, which provided “[t]hat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  Va. Const. of 1776, Bill of Rights, § 2.  We have explained that Article 6 cannot normally be the basis for judicially enforceable rights.  “Article 6 is but a truism of a republican form of government, and provides no private right of action. “   Welch v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980). Article 6 does not provide the specificity necessary to create legal entitlements with definite character, and is not self-executing.  To say that Article 6 is not self-executing is to say that the Legislature may select the means and details of executing the broad principles articulated in Article 6.   To the extent that § 317(c)(5) exempts from disclosure the records in this case, the Legislature has determined that the principle embodied in Article 6 does not mandate disclosure.  We will not second-guess that determination.

Dooely, J., dissents from the majority decision with respect to the inquest records, but concurs with with the majority decision that 1 V.S.A. § 317(c)(5) exempts from public access executive branch records dealing with the detection and investigation of crime, even if the criminal investigation is complete, and also with the majority decision that  the statute, so construed, does not violate Article 6 of Chapter I of the Vermont Constitution.  Justice Dooley also agrees that the proviso in § 317(c)(5) for “records relating to management and direction of a law enforcement agency” does not apply here, although for reasons different from the majority.  The Legislature may have wanted transparency if the investigation of crime involves investigating the actions of a law enforcement agency or its employees.  Thus, Justice Dooley does not agree with the majority’s conclusion that the Herald’s position would “swallow the exemption.”  The proviso is needed because the wording of § 317(c)(5) threatens to make opaque all records of the agency—even those that do not involve investigation of particular cases but instead with the overall management and direction of the agency.  Since the records the Herald seeks do not relate to the management and direction of the VSP, the proviso does not apply.