Construction.

Although plaintiffs argued that Department of Social and Rehabilitation Services’s failure to act denied them their right to “safety” as guaranteed by this article, this argument could not withstand Court’s decision in Shields v. Gerhart, 163 Vt. 219, 226, 658 A.2d 924, 932 (1995), that this article is not self-executing and does not provide rights to individuals that may be vindicated in a judicial action. Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1995 Vt. LEXIS 107 (1995).

Article 1 of the Vermont Constitution expresses fundamental, general principles that underlie more specific statements of rights and powers set forth elsewhere in the Constitution. Benning v. State, 161 Vt. 472, 641 A.2d 757, 1994 Vt. LEXIS 19 (1994).

Legislation.

The rights recited in this article may be controlled or modified by the laws of the land. Lincoln v. Smith, 27 Vt. 328, 1855 Vt. LEXIS 40 (1855).

Liberty.

The U.S. and State Constitutions do not require the State to prove that a mentally ill patient is “a person in need of treatment” in order for the court to revoke order of nonhospitalization, as the “patient in need of further treatment” complies with due process of law. There is no constitutional barrier to using a predictive dangerousness standard where the patient is receiving adequate treatment, required by statute, and the State has evidence of the result of withdrawal of that treatment. Also, the State must have adequate tools to enforce the conditions of its nonhospitalization order, and due process does not deprive the State of the remedy of rehospitalization where appropriate and necessary. In re P.S., 167 Vt. 63, 702 A.2d 98, 1997 Vt. LEXIS 235 (1997).

There is no heightened concern for personal liberty embedded in the Vermont Constitution that would render motorcycle helmet law unconstitutional. Benning v. State, 161 Vt. 472, 641 A.2d 757, 1994 Vt. LEXIS 19 (1994).

The State permits appellate review of commitment proceedings, and consequently equal protection requires that indigents involuntarily committed have equal access to the review process, although because cost is a relevant factor, State need not automatically provide a transcript to every indigent in danger of being involuntarily confined, but rather it must provide some means of affording adequate and effective appellate review to indigents. In re L.G., 158 Vt. 639, 603 A.2d 381, 1992 Vt. LEXIS 6 (1992) (mem.).

Involuntary commitment at State Hospital is a massive curtailment of liberty, and procedures that lead to it must comply with due process. In re L.G., 158 Vt. 639, 603 A.2d 381, 1992 Vt. LEXIS 6 (1992) (mem.).

Property rights.

By providing both general and specific standards for Planned Residential Development (PRD) review, a bylaw struck an appropriate balance between providing guidance to the planning commission and avoiding inflexible requirements that would defeat the creativity and flexibility required to effectuate the goals of the PRD alternative to traditional development. The list of particular requirements set forth in the bylaw provided sufficient standards for the commission, and for the court upon review, to evaluate a proposed project’s compliance with the bylaws while avoiding inflexibility. In re Pierce Subdivision Application, 2008 VT 100, 184 Vt. 365, 965 A.2d 468, 2008 Vt. LEXIS 94 (2008).

Although Chapter I, Article 1 of the Vermont Constitution includes the right to possess and protect property, that right is listed “amongst” the “certain natural, inherent, and unalienable rights”; this suggests that Article I does not establish an enforceable property right, but merely lists it to flesh out philosophical truisms. Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

Because Chapter I, Article 1 of the Vermont Constitution makes no mention of private plaintiff’s recourse for State interference with property rights, Article 1 contains no directive that State Legislature act to implement asserted property right, and drafting history that exists suggests that Constitution is basically philosophic document, evidence did not support plaintiff’s contention that Article 1 was intended to be self-executing. Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

Trial court properly dismissed plaintiff’s claim for wrongful deprivation of property, which was based on revocation of her day care license by Social and Rehabilitation Services, because Chapter I, Article 1 of the Vermont Constitution is not self-executing and does not provide rights to individuals that may be vindicated in a judicial action. Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

Plaintiff had an adequate remedy for the loss of her day care facility license and denial of her registration application either by administrative appeal to the Human Services Board or, if access to administrative remedies had been unfairly denied, by judicial action. Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

Application of eviction provision of Mobile Home Parks Act to mobile home renters did not violate Vermont Constitution; owners of mobile homes were not prevented from selling them, but rather would have to sell them subject to tenancy of renters, unless one of the grounds for eviction applied. State v. Bisson, 161 Vt. 8, 632 A.2d 34, 1993 Vt. LEXIS 85 (1993).

Guaranties of this article relating to the right of acquiring, possessing, and protecting property, including right of disposal, cease to operate at the death of the possessor. In re Estate of Hagar, 98 Vt. 235, 126 A. 507, 1924 Vt. LEXIS 159 (1924).

This article does not guarantee citizens an inherent and inalienable right to acquire and possess property without the legislative restraint of taxation. State v. Harrington, 68 Vt. 622, 35 A. 515, 1896 Vt. LEXIS 123 (1896).

Cited.

Cited in Selectmen of Windsor v. Jacob, 2 Tyl. 192 (1802); Young v. Davis, Brayt. 124 (1817); Sparhawk v. Administrator of Buell, 9 Vt. 41, 1837 Vt. LEXIS 5 (1837); Gill v. Parker, 31 Vt. 610, 1859 Vt. LEXIS 32 (1859); Quimby v. Hazen, 54 Vt. 132, 1881 Vt. LEXIS 82 (1881); State v. Cadigan, 73 Vt. 245, 50 A. 1079, 1901 Vt. LEXIS 165 (1901); Lawrence v. Rutland Railroad, 80 Vt. 370, 67 A. 1091, 1907 Vt. LEXIS 115 (1907); State v. Haskell, 84 Vt. 429, 79 A. 852, 1911 Vt. LEXIS 286 (1911); State v. Carruth, 85 Vt. 271, 81 A. 922, 1911 Vt. LEXIS 237 (1911); Fitzgerald v. Connors, 88 Vt. 365, 92 A. 456, 1914 Vt. LEXIS 232 (1914); Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 650, 1930 Vt. LEXIS 108 (1930); Rafus v. Daley, 103 Vt. 426, 154 A. 695, 1931 Vt. LEXIS 187 (1931); Town of Hartland v. Damon's Estate, 103 Vt. 519, 156 A. 518, 1931 Vt. LEXIS 201 (1931); Colgate v. Harvey, 107 Vt. 28, 175 A. 352, 1934 Vt. LEXIS 138 (1934); Great Atlantic & Pacific Tea Co. v. Harvey, 107 Vt. 215, 177 A. 423, 1935 Vt. LEXIS 165 (1935); Green Mountain Post No. 1 v. Liquor Control Board, 117 Vt. 405, 94 A.2d 230, 1953 Vt. LEXIS 107 (1953); Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A.2d 271, 1954 Vt. LEXIS 105 (1954); Miserak v. Terrill, 130 Vt. 7, 285 A.2d 753, 1971 Vt. LEXIS 214 (1971); Bieling v. Malloy, 133 Vt. 522, 346 A.2d 204, 1975 Vt. LEXIS 444 (1975); In re G.K., 147 Vt. 174, 514 A.2d 1031, 1986 Vt. LEXIS 390 (1986); State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987); State v. Record, 150 Vt. 84, 548 A.2d 422, 1988 Vt. LEXIS 100 (1988); State v. Weller, 152 Vt. 8, 563 A.2d 1318, 1989 Vt. LEXIS 108 (1989); In re J.S., 153 Vt. 365, 571 A.2d 658, 1989 Vt. LEXIS 265 (1989); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); State v. Oakes, 157 Vt. 171, 598 A.2d 119, 1991 Vt. LEXIS 187 (1991); G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992); LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224, 1993 Vt. LEXIS 25 (1993).

Law Reviews —

For comment, “A Counsellor’s Crisis: Protecting Witnesses’ Privacy Rights in Sexual Assault Prosecutions,” see 12 Vt. L. Rev. 497 (1987).

Amount of damage caused.

In view of this article, right of riparian owner to enjoin village from maintaining dam at increased height was not affected by fact that little damage would result to him by such by maintenance compared with village’s damage in being compelled to lower the dam. Doty v. Village of Johnson, 84 Vt. 15, 77 A. 866, 1910 Vt. LEXIS 156 (1910).

Basis of liability.

Liability under this article is not dependent on negligence, but on taking of private property, and this unlawful taking gives the right of action. Griswold v. Town School District of Weathersfield, 117 Vt. 224, 88 A.2d 829, 1952 Vt. LEXIS 126 (1952); Makela v. State, 124 Vt. 407, 205 A.2d 813, 1964 Vt. LEXIS 123 (1964); Timms v. State, 139 Vt. 343, 428 A.2d 1125, 1981 Vt. LEXIS 477 (1981), overruled as stated in Krull v. Town of Huntington (Vt. Super. Ct. 2017).

If railroad company, by construction of embankments and culverts, collected and discharged surface water in such a manner as to injure adjoining lands, it was liable for damages thereby ensuing, and if the company did not construct this railroad originally, nevertheless if it took and maintained it as so constructed it would be liable as of the date when it went into possession. Wead v. St. Johnsbury & Lake Champlain Railroad, 64 Vt. 52, 24 A. 361, 1891 Vt. LEXIS 60 (1891).

Corporate property.

Since there is no implied contract by State in charter of turnpike or other private corporation, that its property, or even its franchise, shall be exempt from the common liability of the property of individuals to be taken for public use, the property or franchise may be taken, on proper compensation being made. White River Turnpike Co. v. Vermont Central Rail Road, 21 Vt. 590, 1849 Vt. LEXIS 80 (1849).

Pursuant to this article, Legislature could authorize Supreme and county courts to take franchise of a turnpike corporation for a public highway. Armington v. Town of Barnet, 15 Vt. 745, 1843 Vt. LEXIS 120 (1843).

Judicial review.

Developer’s substantive due process and regulatory takings claims were not ripe for review, where developer had never sought compensation in Vermont State courts in connection with denial of land use permit; since Vermont Supreme Court recognized cause of action under State Constitution for compensation for taking of property generally, developer could not establish that Vermont’s procedure was either unavailable or inadequate. Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992), cert. denied, 507 U.S. 987, 113 S. Ct. 1586, 123 L. Ed. 2d 153, 1993 U.S. LEXIS 2199 (1993).

Limitations.

An abutting landowner may not recover damages because his access to a public road is discontinued, if there is another reasonable access to the landowner’s property. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219, 2000 Vt. LEXIS 174 (2000).

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 and conduct border searches; consequently, when customs officials seized marijuana that defendant, a Vermont resident, was carrying into the country, the conduct of the officials was not subject to the Vermont Constitution because with regard to safeguarding the United States border or its functional equivalent, federal law and interest prevail. State v. Coburn, 165 Vt. 318, 683 A.2d 1343, 1996 Vt. LEXIS 80 (1996).

Legislature cannot make public waters that Constitution declares private. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895).

Municipal property.

Property held by a municipality in its public, as distinguished from its proprietary, function may be taken by the State for public use without compensation to the subordinate unit. City of Winooski v. State Highway Board, 124 Vt. 496, 207 A.2d 255, 1965 Vt. LEXIS 279 (1965).

Necessity.

In condemnation proceedings, question of public necessity is one of fact. Rutland Railway, Light & Power Co. v. Clarendon Power Co., 86 Vt. 45, 83 A. 332, 1912 Vt. LEXIS 148 (1912).

The question of the necessity of taking private property for public use is ultimately a judicial one. Stearns v. City of Barre, 73 Vt. 281, 50 A. 1086, 1901 Vt. LEXIS 174 (1901).

Existence of necessity is the foundation of the right to take under this article, and ascertainment of necessity should precede or accompany and not follow the taking, since this article guarantees the protection of a right rather than the redress of a wrong. Stearns v. City of Barre, 73 Vt. 281, 50 A. 1086, 1901 Vt. LEXIS 174 (1901).

Whenever the use is public, the Legislature has full power to determine whether a necessity for taking for such use in any class of cases exists or not, and has the sole prerogative of determining as to the propriety of exercising the power. Tyler v. Beacher, 44 Vt. 648, 1871 Vt. LEXIS 110 (1871).

Private use.

The right of eminent domain can never be exercised for any merely private purpose, however much the public utility or convenience may be thereby subserved. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895).

The State is not authorized to take private property for private use without the consent of the owner, since this article, by declaring that private property ought to be subservient to public uses when necessity requires it, by implication declares that it ought not to be subservient to any other uses without the consent of the owner. In re Barre Water Co., 62 Vt. 27, 20 A. 109, 1889 Vt. LEXIS 102 (1889); Snow v. Town of Sandgate, 66 Vt. 451, 29 A. 673, 1894 Vt. LEXIS 118 (1894).

Proceedings.

This article does not grant condemning authority the judicial power to try title to land claimed by condemnor itself. Demers v. City of Montpelier, 120 Vt. 380, 141 A.2d 676, 1958 Vt. LEXIS 115 (1958).

Municipality may not proceed to condemn land and, within framework of condemnation proceeding itself, set up paramount title by dedication and acceptance. Demers v. City of Montpelier, 120 Vt. 380, 141 A.2d 676, 1958 Vt. LEXIS 115 (1958).

Rule that permits taking of property for public use without proof of right to do so and casts upon owner the burden of instituting proceedings to save his property does not meet the spirit of this article. Stearns v. City of Barre, 73 Vt. 281, 50 A. 1086, 1901 Vt. LEXIS 174 (1901).

Property.

Plaintiff’s attorney fees and engineering and consulting costs were not “property” taken under this article. Hinesburg Sand & Gravel Co. v. Chittenden Solid Waste District, 959 F. Supp. 652, 1997 U.S. Dist. LEXIS 4548 (D. Vt. 1997).

Public use.

State constitutional claim that denial of zoning permit and variance applications established plaintiff’s property as subservient to public uses was barred where plaintiff failed to appeal the zoning board decisions and instead raised claim on collateral declaratory judgment action. Hinsdale v. Village of Essex Junction, 153 Vt. 618, 572 A.2d 925, 1990 Vt. LEXIS 29 (1990).

A valid grant of the power of eminent domain can be made only when the taking is for a public use within the meaning of this article. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 77 A. 862, 1910 Vt. LEXIS 229 (1910).

It is not necessary to the public use which is essential to a valid exercise of the power of eminent domain that the whole public, or any considerable portion thereof, participate in that use; the use may be, and frequently is, limited to a small locality and yet is public within the meaning of this article. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 77 A. 862, 1910 Vt. LEXIS 229 (1910).

The end to be accomplished is the ultimate test of whether a contemplated exercise of the power of eminent domain is for a public use within the meaning of this article, and it is wholly immaterial whether the actuating motive of the enterprise is private gain, or whether the title or control of the property taken is vested in a natural or artificial person. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 77 A. 862, 1910 Vt. LEXIS 229 (1910).

This article does not authorize the taking of private property for a mere public benefit. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 77 A. 862, 1910 Vt. LEXIS 229 (1910).

Furnishing of electricity to municipalities to light streets and public buildings was a public use within the meaning of this article. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 77 A. 862, 1910 Vt. LEXIS 229 (1910).

To invoke the power of eminent domain, the conditions which make the use a public one within the meaning of this article must exist at time of the taking. Avery v. Vermont Electric Co., 75 Vt. 235, 54 A. 179, 1903 Vt. LEXIS 121 (1903).

Generation of electricity by an individual, for purpose of supplying a railroad with power to operate its road, was not a public use within the meaning of this article. Avery v. Vermont Electric Co., 75 Vt. 235, 54 A. 179, 1903 Vt. LEXIS 121 (1903).

Under this article, private property, upon compensation made in money, is subservient to public uses when necessity requires it, but to no other uses. Tyler v. Beacher, 44 Vt. 648, 1871 Vt. LEXIS 110 (1871).

Attempt of Legislature to exercise right of eminent domain does not settle that it has the right; the question whether taking was for public use remains to be determined by courts. Tyler v. Beacher, 44 Vt. 648, 1871 Vt. LEXIS 110 (1871).

Taking of land for location of a district school-house is for a public use, and an act providing for taking land in invitum for that purpose, and having the damages appraised and paid, is not void under this article. Williams v. School District No. 6, 33 Vt. 271, 1860 Vt. LEXIS 105 (1860).

Sovereign immunity.

The doctrine of sovereign immunity does not apply where the injury complained of is the taking of private property for public use without compensation. Makela v. State, 124 Vt. 407, 205 A.2d 813, 1964 Vt. LEXIS 123 (1964).

Taking.

There was no taking by a city with respect to its sewage/stormwater system, as the sewage backups on plaintiffs’ property had been intermittent, limited, and transient. Lorman v. City of Rutland, 2018 VT 64, 207 Vt. 599, 193 A.3d 1174, 2018 Vt. LEXIS 74 (June 29, 2018).

Landowner was not entitled to relief under a theory of inverse condemnation based on snow throw and water runoff caused by snowplowing done by the Vermont Agency of Transportation. There was no allegation that the Agency had created a permanent physical occupation of landowner’s property; the intermittent snow throw and water runoff here was an incidental incursion only and did not represent the kind of invasion that would amount to a taking; and the burden of receiving snow throw and water runoff was distributed among all property owners who abutted properly maintained highways, even if the landowner’s building was closer to the road than the buildings of other landowners. Ondovchik Family Limited Partnership v. Agency of Transportation, 2010 VT 35, 187 Vt. 556, 996 A.2d 1179, 2010 Vt. LEXIS 35 (2010).

When winter road maintenance activities result in intermittent snow throw and water runoff, it is an incidental incursion only and does not represent the kind of invasion that would amount to a taking. Ondovchik Family Limited Partnership v. Agency of Transportation, 2010 VT 35, 187 Vt. 556, 996 A.2d 1179, 2010 Vt. LEXIS 35 (2010).

Timms v. State, 139 Vt. 343 (1981), where a landowner’s well was destroyed by the State’s non-negligent salting of roads, and where this was held to be a taking, is no longer good law. Ondovchik Family Limited Partnership v. Agency of Transportation, 2010 VT 35, 187 Vt. 556, 996 A.2d 1179, 2010 Vt. LEXIS 35 (2010).

The prohibition of the Vermont and U.S. Constitutions against takings of private property for public purposes without compensation applies not only when the government takes property for its own use through the formal procedures of eminent domain, but also when government regulation results in the loss of a property interest. Alger v. Department of Labor & Industry, 2006 VT 115, 181 Vt. 309, 917 A.2d 508, 2006 Vt. LEXIS 315 (2006).

Under the Takings Clauses of the Vermont and U.S. Constitutions, the property interest lost need not be an ownership interest; a leasehold is an interest in property subject to analysis under the Takings Clause. Moreover, the loss need not be permanent; a temporary taking of property can be compensable. Alger v. Department of Labor & Industry, 2006 VT 115, 181 Vt. 309, 917 A.2d 508, 2006 Vt. LEXIS 315 (2006).

The prohibition on takings without compensation is not absolute. An exercise of the police power to abate a public nuisance, and specifically, to abate a fire hazard, is not a compensable taking . . . thus, where the State seeks to sustain regulation that deprives land of all economically beneficial use, it may refuse to compensate a property owner only if the regulation prohibits a use of the land that was “not part of his title to begin with”. When the challenged State action is consistent with background principles of the State’s law of property and nuisance, no property interest has been taken, and no just compensation is due. Alger v. Department of Labor & Industry, 2006 VT 115, 181 Vt. 309, 917 A.2d 508, 2006 Vt. LEXIS 315 (2006).

Even though Vermont law allows a tenant to remain in a dwelling after a landlord’s violation of the warranty of habitability, this does not mean that tenants are entitled to remain in a building when doing so threatens the surrounding community, as in cases where occupancy of the building poses a fire hazard. Accordingly, to the extent plaintiffs’ claims challenged the ultimate decision of defendant Vermont Department of Labor and Industry to order that their homes be vacated or their utility service be terminated, their allegations did not state valid takings claims. Alger v. Department of Labor & Industry, 2006 VT 115, 181 Vt. 309, 917 A.2d 508, 2006 Vt. LEXIS 315 (2006).

Plaintiff tenant’s complaint stated valid takings claims where it alleged that defendant Vermont Department of Labor and Industry knew of relevant code violations, and that in the face of the landlords’ refusal to take corrective action, it chose to allow the violations to continue until they became serious enough to require removal of the plaintiffs or termination of utility service. But for defendant’s failure to act, there would have been no nuisance to abate, and plaintiffs’ property would not have been taken. If plaintiffs could prove the allegations, they would be entitled to just compensation. Alger v. Department of Labor & Industry, 2006 VT 115, 181 Vt. 309, 917 A.2d 508, 2006 Vt. LEXIS 315 (2006).

State’s denial of property owner’s right to access road in winter represented a taking of a property right without compensation, proper remedy for which was an action to recover damages for inverse condemnation. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219, 2000 Vt. LEXIS 174 (2000).

A fundamental requirement for any taking is that the challenged governmental action create legal compulsion. Hinesburg Sand & Gravel Co. v. Chittenden Solid Waste District, 959 F. Supp. 652, 1997 U.S. Dist. LEXIS 4548 (D. Vt. 1997).

A “taking for public use,” with resulting damages, did not occur where a municipality denied a variance and the denial was reversed on appeal. The application of a general zoning law to particular property effects a taking only if the ordinance in question does not substantially advance legitimate state interests or denies an owner of all economically viable use of his land. Chioffi v. City of Winooski, 165 Vt. 37, 676 A.2d 786, 1996 Vt. LEXIS 25 (1996).

Whether a regulatory takings claim resulting from an Act 250 denial of a permit application for a development or subdivision is ripe for litigation must be determined by the two-part test set out in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985); the first part of the test determining ripeness for review requires plaintiff to have obtained a final decision regarding the application of the government regulations to plaintiff’s property, and the second part requires plaintiff to have utilized State procedures for obtaining just compensation. Killington, Ltd. v. State, 164 Vt. 253, 668 A.2d 1278, 1995 Vt. LEXIS 106 (1995).

To have a ripe takings claim, plaintiff must have exhausted all administrative remedies, including variance procedures, and failure to do so results in a takings claim that is not ripe. Killington, Ltd. v. State, 164 Vt. 253, 668 A.2d 1278, 1995 Vt. LEXIS 106 (1995).

Permanent physical damage to property to the point of depriving the owner of its beneficial use constitutes a taking. Timms v. State, 139 Vt. 343, 428 A.2d 1125, 1981 Vt. LEXIS 477 (1981), overruled as stated in Krull v. Town of Huntington (Vt. Super. Ct. 2017).

The flooding of private property by a municipality constitutes a taking for which the municipality must compensate. Sargent v. Town of Cornwall, 130 Vt. 323, 292 A.2d 818, 1972 Vt. LEXIS 278 (1972).

A fire hazard is a nuisance, the abatement of which is not a taking of property for which compensation must be made. Eno v. City of Burlington, 125 Vt. 8, 209 A.2d 499, 1965 Vt. LEXIS 190 (1965).

Any permanent occupation of private property for public use to exclusion of owner’s beneficial use and enjoyment, by eminent domain, is taking within the meaning of this article, and accordingly must be compensated for by the equivalent in money. Demers v. City of Montpelier, 120 Vt. 380, 141 A.2d 676, 1958 Vt. LEXIS 115 (1958).

Exercise of police power through revocation of pinball licenses could not be construed as taking of private property for public use without payment of compensation in violation of this article. Sowma v. Parker, 112 Vt. 241, 22 A.2d 513, 1941 Vt. LEXIS 163 (1941).

Action of municipal authorities in raising the grade of a street from time to time did not constitute an unlawful taking of private property within meaning of this article. Hoyt v. Village of North Troy, 93 Vt. 8, 105 A. 33, 1918 Vt. LEXIS 141 (1918).

Municipality, for purpose of repairing a bridge that the law required it to maintain, could insist upon necessary lowering of pond without compensating owner of power dam, because such interference with use of the dam was not a taking of property within meaning of this article. Town of East Montpelier v. Wheelock, 70 Vt. 391, 41 A. 432, 1898 Vt. LEXIS 51 (1898).

Destruction by public authorities of plaintiff’s mill and dam during a freshet, to prevent river from washing out highway, was not a taking of plaintiff’s property under this article, but a destruction of it under police power of State to avert imminent public injury. Aitken v. Village of Wells River, 70 Vt. 308, 40 A. 829, 1898 Vt. LEXIS 43 (1898).

Where railroad company occupied a portion of public highway with its roadbed, an additional burden was thereby imposed upon the land and there was a taking within the meaning of this article. Wead v. St. Johnsbury & Lake Champlain Railroad, 64 Vt. 52, 24 A. 361, 1891 Vt. LEXIS 60 (1891).

When railroad company, without objection of municipal authorities, made a fill upon a public highway, not for purpose of supporting its road-bed, but to enable public to have access to its station, no additional burden was thereby imposed, and the owner of the fee could not recover damages pursuant to this article. Wead v. St. Johnsbury & Lake Champlain Railroad, 64 Vt. 52, 24 A. 361, 1891 Vt. LEXIS 60 (1891).

Any injury to the property of an individual that deprives him of the ordinary use of it is equivalent to a taking within the meaning of this article and entitles him to compensation. Foster v. Stafford National Bank, 57 Vt. 128, 1884 Vt. LEXIS 9 (1884).

Cited.

Cited in State v. Theriault, 70 Vt. 617, 41 A. 1030, 1898 Vt. LEXIS 92 (1898); Niebyski v. Welcome, 93 Vt. 418, 108 A. 341, 1919 Vt. LEXIS 181 (1919); Elliott v. State Fish & Game Commission, 117 Vt. 61, 84 A.2d 588, 1951 Vt. LEXIS 102 (1951); Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875, 1959 Vt. LEXIS 90 (1959); American Oil Co. v. State Highway Board, 122 Vt. 496, 177 A.2d 358, 1962 Vt. LEXIS 127 (1962); Bailey v. Town of Cabot, 124 Vt. 153, 197 A.2d 783, 1964 Vt. LEXIS 74 (1964); 1964-66 Vt. Op. Att'y Gen. 128; Bogie v. Town of Barnet, 129 Vt. 46, 270 A.2d 898, 1970 Vt. LEXIS 199 (1970); State v. Brown, 151 Vt. 533, 562 A.2d 1057, 1989 Vt. LEXIS 85 (1989); Southview Assocs. v. Individual Members of Vermont Environmental Bd., 782 F. Supp. 279, 1991 U.S. Dist. LEXIS 19208 (D. Vt. 1991).

Law Reviews —

For comment, “A Counsellor’s Crisis: Protecting Witnesses’ Privacy Rights in Sexual Assault Prosecutions,” see 12 Vt. L. Rev. 497 (1987).

For note, “Transferable Development Rights in Vermont: Is There a Taking Problem?,” see 13 Vt. L. Rev. 715 (1989).

Construction.

Plaintiffs, who had sought a preliminary injunction against the grant of federally derived but municipally managed funds for the purpose of repairs to a historic church, had not shown that they were likely to succeed on the merits of their claim that the grant violated the Compelled Support Clause, as the funds were available to a broad group of potential grantees without regard to religious affiliation, and the grant was limited to painting three exterior sides of the church and assessing its window sills and covered only a fraction of the church’s renovation project. Taylor v. Town of Cabot, 2017 VT 92, 205 Vt. 586, 178 A.3d 313, 2017 Vt. LEXIS 114 (2017).

With respect to the Compelled Support Clause, 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, the Vermont Supreme Court cannot conclude that such funds support worship within the meaning of the clause. Taylor v. Town of Cabot, 2017 VT 92, 205 Vt. 586, 178 A.3d 313, 2017 Vt. LEXIS 114 (2017).

Compelled Support Clause of Vermont Constitution is not offended by mere compelled support for a place of worship, unless compelled support is for the actual worship itself. Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98, cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518, 1999 U.S. LEXIS 8352 (1999).

Free exercise of religion.

Challenge by town clerks to the civil unions law asserting that their obligation under the law to issue a civil union license, or to appoint an assistant to do so, violates their sincerely held religious beliefs under this article failed to allege facts sufficient to state a claim on which relief could be granted. Brady v. Dean, 173 Vt. 542, 790 A.2d 428, 2001 Vt. LEXIS 427 (2001) (mem.).

In considering religion and religious practices in child custody cases, the State and federal right to free exercise of religion may be implicated; therefore, in balancing the relevant interests, the Supreme Court must minimize the degree of interference with religious liberty and use the least restrictive means to accomplish the legitimate objectives that warrant the interference. Varnum v. Varnum, 155 Vt. 376, 586 A.2d 1107, 1990 Vt. LEXIS 255 (1990).

In order for a religious practice to be considered in determining child custody, the practice must have a direct and immediate negative impact on the physical or mental health of the child. Varnum v. Varnum, 155 Vt. 376, 586 A.2d 1107, 1990 Vt. LEXIS 255 (1990).

A state may impinge upon the practice of a sincere religious belief only if the state’s interest is of sufficient magnitude to override the interest claiming protection under the free exercise of religion clause of this article. State v. Chambers, 144 Vt. 234, 477 A.2d 110, 1984 Vt. LEXIS 470 (1984).

Conduct based on subjective evaluation and rejection of the contemporary secular values accepted by the majority has a philosophical and personal rather than religious basis and does not rise to the demands of the religion clause of this article. State v. Chambers, 144 Vt. 234, 477 A.2d 110, 1984 Vt. LEXIS 470 (1984).

A party claiming a violation of his or her rights to free exercise of religion must show that the conduct the State is interfering with is based on a legitimate religious belief and not on purely secular considerations. State v. Chambers, 144 Vt. 234, 477 A.2d 110, 1984 Vt. LEXIS 470 (1984).

Where medical examiner refused to sign a death certificate for defendant’s daughter, a prerequisite for obtaining a burial permit, because defendant refused to allow an autopsy, claiming that his religious beliefs forbade the performance of autopsies, defendant’s conviction for burying the body without a burial permit did not violate his right to the free exercise of his religion, since defendant failed to show that his church believed in the practice of burying the dead without autopsies, the record showed that the tenets of defendant’s church did not prohibit the performance of autopsies, and thus, defendant’s decision not to allow an autopsy was an individual one, based on a particular situation and not a fundamental belief of the members of his church. State v. Chambers, 144 Vt. 234, 477 A.2d 110, 1984 Vt. LEXIS 470 (1984).

Provision of codicil to will that bequeathed land and stock to town for the purpose of erecting an academy and that required that there should never be more than one trustee among the five trustees of the academy’s board belonging to any one religious church or denomination violated the provision of this article governing the free exercise of religious worship and was therefore unconstitutional where an appointee would be required to either abandon his faith or convert in order to participate in the administration of his local school board and such an infringement on the free exercise of religion was a substantial one. Beauregard v. City of St. Albans, 141 Vt. 624, 450 A.2d 1148, 1982 Vt. LEXIS 571 (1982).

Schools.

School district’s tuition-payment policy violated Compelled Support Clause of Vermont Constitution by authorizing tuition reimbursement to sectarian schools, where neither tuition payment statutes nor Board of Education rules imposed any restrictions that prevented use of public money to fund religious education. Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98, cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518, 1999 U.S. LEXIS 8352 (1999).

Vermont Constitution did not afford greater protection of religious liberty than did the First Amendment to the United States Constitution, in context of constitutional challenge to truancy conviction of parents whose child was enrolled in a religious school not in compliance with private school reporting statute, and neither constitution required dismissal of truancy conviction. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

Cited.

Cited in Lyon v. Strong, 6 Vt. 219, 1834 Vt. LEXIS 41 (1834); Ferriter v. Tyler, 48 Vt. 444, 1876 Vt. LEXIS 34 (1876); Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514, 1961 Vt. LEXIS 54 (1961); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 1968 Vt. LEXIS 220 (1968); Mikell v. Town of Williston, 129 Vt. 586, 285 A.2d 713, 1971 Vt. LEXIS 309 (1971); State v. Emery, 156 Vt. 364, 593 A.2d 77, 1991 Vt. LEXIS 90 (1991); Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635, 1994 Vt. LEXIS 183 (1994).

Abuse of access to courts.

A threat to file a lawsuit cannot alone constitute tortious interference with contractual relations; both filing a lawsuit and threatening to file a lawsuit are protected by the constitutional right to access the courts. Kollar v. Martin, 167 Vt. 592, 706 A.2d 945, 1997 Vt. LEXIS 287 (1997) (mem.).

To curb the more serious abuses of the right to free access to the courts, two carefully restricted torts are recognized: abuse of process and malicious prosecution. Jacobsen v. Garzo, 149 Vt. 205, 542 A.2d 265, 1988 Vt. LEXIS 13 (1988).

A claim for tortious interference with contractual relations cannot be predicated upon an allegedly improper filing of a lawsuit; the appropriate remedy, if any, lies in an action for malicious prosecution, because this tort operates to protect the counter-policy of free access to the courts. Jacobsen v. Garzo, 149 Vt. 205, 542 A.2d 265, 1988 Vt. LEXIS 13 (1988).

Actions barred.

Denial of reimbursement to defendant of interim payments of workers’ compensation benefits it made to plaintiff did not deprive defendant of its right to legal recourse under the Vermont Constitution because the constitutional provision protects recourse to the judicial process; it does not grant substantive rights. Gallipo v. City of Rutland, 2005 VT 83, 178 Vt. 244, 882 A.2d 1177, 2005 Vt. LEXIS 173 (2005).

Plaintiff failed in her argument that right to a remedy at law provided by the Vermont Constitution militates against applying claim preclusion because doing so would be unfair. Faulkner v. Caledonia County Fair Ass'n, 2004 VT 123, 178 Vt. 51, 869 A.2d 103, 2004 Vt. LEXIS 331 (2004).

Because of the plain language of the former occupational disease law, and because the Legislature chose not to apply 21 V.S.A. § 660(b) retroactively, plaintiff lacked a statutory or common law cause of action and his claim that he was denied a constitutional right to a remedy was without merit as it is within the Legislature’s authority to define and limit a cause of action. Carter v. Fred's Plumbing & Heating, Inc., 174 Vt. 572, 816 A.2d 1280 (2002) (mem.).

Denying plaintiffs, parents of a deceased who died with a surviving wife and child, wrongful death damages was not violative of Vt. Const. Ch. I, Art. 4. This article does not create substantive rights; it merely provides access to the courts. There was no statutory or common-law cause of action for plaintiffs’ injuries resulting from their son’s death. Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436, 1997 Vt. LEXIS 270 (1997).

General rule that the statute of limitations applicable to any action is the one in effect at the date the cause of action accrued gives way to exception where application of the rule would deprive plaintiff of his constitutional right to a remedy. Lillicrap v. Martin, 156 Vt. 165, 591 A.2d 41, 1989 Vt. LEXIS 281 (1989), sub. op. in part, 156 Vt. 165, 591 A.2d 41, 1991 Vt. LEXIS 50 (1991).

Employee who received workers’ compensation settlement was not denied a remedy under law because his negligence suit against his employer was barred by 21 V.S.A. § 622 ; he was denied only particular common law remedy he sought. Sienkiewycz v. Dressell, 151 Vt. 421, 561 A.2d 415, 1989 Vt. LEXIS 53 (1989).

Attorney’s fees.

21 V.S.A. § 678(b) , authorizing an award of attorney’s fees to a workers’ compensation claimant who prevails on appeal, does not deny an employer access to justice or force it to purchase justice in violation of this article. Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703, 1988 Vt. LEXIS 27 (1988).

Construction.

Article 4 of the Vermont Constitution is self-executing, and therefore remand was required to determine if a selectboard furnished plaintiff, a town manager who had invoked the article in his complaint, with adequate notice and hearing upon termination. Nelson v. Town of St. Johnsbury, 2015 VT 5, 198 Vt. 277, 115 A.3d 423, 2015 Vt. LEXIS 5 (2015).

This article does not give substantive law protection to “character” or establish a fundamental privacy right against defamation by public officials, but rather protects recourse to judicial process. Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073, 1989 Vt. LEXIS 34 (1989).

Costs.

In a speeding case, the requirement that defendant pay filing fees and the cost of a hearing transcript did not violate Vt. Const. Ch. I, Art. 4. While there was a fundamental right to access the courts, there was no constitutional guarantee that a litigant would be able to do so without expense. State v. de Macedo Soares, 2011 VT 56, 190 Vt. 549, 26 A.3d 37, 2011 Vt. LEXIS 58 (2011).

Directed verdict.

Plaintiff’s constitutional right to a remedy at law for decedent’s death was not violated by trial court’s decision to grant defendant’s motion for a directed verdict on the basis of a lack of proof of any damages. Mobbs v. Central Vermont Railway, 150 Vt. 311, 553 A.2d 1092, 1988 Vt. LEXIS 180 (1988).

Hearing.

Towns failed to meet their burden of demonstrating that the Public Service Board violated their constitutional right to due process by not holding an evidentiary hearing on whether a utility’s efforts were sufficient to address the damage caused to easement parcels. The Board informed the parties in advance of the process to be followed, and it would create substantial procedural expense for the parties and for the Board to hold a full-blown technical hearing every time there was a post-certification claim that any number of certificate-of-public-good conditions had not been complied with. In re Joint Petition of Green Mountain Power Corp., 2012 VT 89, 192 Vt. 429, 60 A.3d 654, 2012 Vt. LEXIS 83 (2012).

Motion practice.

Because State in DWI proceeding did not respond to either defendant’s motion to suppress or his motion to reconsider, there was no factual dispute and court was therefore not required to make findings of fact or hold an evidentiary hearing before denying motions. State v. Tongue, 170 Vt. 409, 753 A.2d 356, 2000 Vt. LEXIS 32 (2000).

District court in DWI proceeding did not err in summarily denying defendant’s motion to reconsider without reaching the merits, even though defendant alleged additional facts in his motion. State v. Tongue, 170 Vt. 409, 753 A.2d 356, 2000 Vt. LEXIS 32 (2000).

Parental rights and responsibilities hearing.

There was no merit to a mother’s argument that the trial court violated her due process rights by converting a hearing on modification of parent-child contact under a stipulated temporary order into a final hearing on parental rights and responsibilities without providing her adequate notice. The mother’s own counsel urged the trial court to advance the final hearing to accommodate the mother’s planned departure for California, and the mother did not object when the trial court asked whether the parents were prepared to proceed with a final hearing; the evidence clearly indicated that the mother was on notice and waived any objection. Thompson v. Pafundi, 2010 VT 80, 188 Vt. 605, 8 A.3d 476, 2010 Vt. LEXIS 80 (2010) (mem.).

Person.

A married woman is a “person” under this Constitution, and is entitled to all the rights guaranteed to a person under this article. Richard v. Richard, 131 Vt. 98, 300 A.2d 637, 1973 Vt. LEXIS 274 (1973).

Pleading.

Where plaintiff’s complaint alleged only that defendants denied her “procedural and substantive due process and liberty in violation of the . . . Vermont constitution[],” her allegation did not fairly apprise defendants that her claim arose under this article because it could also be construed to refer to Article 10, which prohibits the State from depriving a person of liberty without due process; thus, it could not be said that the grounds upon which plaintiff’s State constitutional claims rested were readily discernible from the face of the complaint, and the trial court did not err by dismissing the claims for lack of specificity. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

Pre-accusation delay.

Pre-indictment delay did not violate defendant’s due process rights under the United States Constitution or the Vermont Constitution. Defendant was not substantially prejudiced by the delay due to the dimming memories of the complainant and a witness and in fact was able to impeach them with their inconsistent statements, and there was no evidence that the State delayed in order to gain a tactical advantage or to advance some other impermissible purpose, but rather it delayed to be certain that the complainant would support the charges and would be willing to proceed with the case. State v. King, 2016 VT 131, 204 Vt. 228, 165 A.3d 107, 2016 Vt. LEXIS 136 (2016).

Prosecutorial discretion.

Authority to charge aggravated murder, rather than felony murder, was of no more practical concern than the unfettered and broad discretion exercised daily by Vermont prosecutors. Certainly, on the record of this case, which failed to reflect any discriminatory treatment, it was of no constitutional concern either. State v. Rooney, 2011 VT 14, 189 Vt. 306, 19 A.3d 92, 2011 Vt. LEXIS 11 (2011).

Right to appeal.

Trial court properly dismissed a former city manager’s claim, alleging that he was improperly terminated from employment without a hearing by the city council, as judicial review was precluded by the explicit provisions of the city charter; the due process provision of the State Constitution did not provide relief. Handverger v. City of Winooski, 2011 VT 130, 191 Vt. 556, 38 A.3d 1153, 2010 Vt. LEXIS 126 (2011) (mem.).

Town employer failed in its claim that the effect of the scheme of unemployment statutes in depriving it of an appeal to the Supreme Court violated the provision of the Vermont Constitution mandating access to the courts because the effect of the statutory scheme did not result in a violation of the U.S. Constitution’s Due Process Clause and a similar result should obtain under the Vermont Constitution. Holton v. Department of Employment and Training, 2005 VT 42, 178 Vt. 147, 878 A.2d 1051, 2005 Vt. LEXIS 71 (2005).

Legislative acts freezing the grand list valuation for hydroelectric generating facilities did not violate plaintiff’s constitutional right to a remedy by barring judicial review of appraisal value for three years because the freeze did not affect plaintiff’s access to the judicial process: its right to bring a tax appeal pursuant to statute. USGen New Eng., Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927, 2003 Vt. LEXIS 293 (2003).

On appeal from decision in attorney malpractice case, plaintiff’s State constitutional claims that application of three-year statute of limitations would violate right to remedy at law and to an open court would not be considered where plaintiff failed to delineate how her rights under these provisions had been violated. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

In order to warrant reversal of a conviction under this article on the ground of appellate delay, defendant must show that substantial prejudice has resulted from the delay. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

Summons issued pursuant to 13 V.S.A. §§ 6641-6649 , the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, which directed appellant to leave her home and travel to New Jersey to appear as a witness before a grand jury was a final order from which she had a right to an appeal to the Supreme Court, since to hold otherwise would, in effect, preclude appellant from any right of review at all, and this would be clearly contrary to her guaranteed right to a remedy at law. In re Stoddard, 144 Vt. 6, 470 A.2d 1185, 1983 Vt. LEXIS 591 (1983).

Sanctions.

Applying a Rule 11 sanction essentially enjoining plaintiff from appearing pro se to “any pleading, complaint, motion, letter or other document” in the trial court was overbroad when there were no findings below of similar abuses by plaintiff in other litigation; accordingly, the sanction was revised to apply only to the present case and any derivatives raising the same claims. The sanction also required revision to permit plaintiff, pro se, to assert and prove that he was without the means to retain an attorney as necessary to comply with the order, because if plaintiff were indigent or without viable resources, the sanction as written would deny him access to justice. Zorn v. Smith, 2011 VT 10, 189 Vt. 219, 19 A.3d 112, 2011 Vt. LEXIS 10 (2011).

Scope of protection.

Article 4 of the Vermont Constitution is the equivalent to the federal Due Process Clause; however, Article 4 does not create substantive rights, but rather ensures access to the judicial process. Thus, because appellant did not have a State-law statutory property right to overtime pay, he had no remedy under Article 4. Flint v. Department of Labor, 2017 VT 89, 205 Vt. 558, 177 A.3d 1080, 2017 Vt. LEXIS 110 (2017).

Free and uninhibited access to the courts is an important right of all citizens enshrined in the Vermont Constitution. There is simply no suggestion in the case law that this right is in any way circumscribed by a citizen’s educational or professional background. Weinstein v. Leonard, 2015 VT 136, 200 Vt. 615, 134 A.3d 547, 2015 Vt. LEXIS 114 (2015).

Sentence.

The right to a speedy disposition in this article does not include sentence reconsideration decisions. State v. Dean, 148 Vt. 510, 536 A.2d 909, 1987 Vt. LEXIS 560 (1987).

Speedy trial.

Defendant’s speedy trial rights under the Sixth Amendment and the Vermont Constitution had not been violated by the 23-month delay. Only five months of the delay were clearly attributable to the State, and while defendant timely asserted his speedy trial right, he was out on bail the entire time and had identified few specific claims of prejudice. State v. Reynolds, 2014 VT 16, 196 Vt. 113, 95 A.3d 973, 2014 Vt. LEXIS 15 (2014).

Summary judgment.

Granting summary judgment to an applicant for a development project that was challenged pro se by a resident did not violate the resident’s constitutional right to cross-examine and present witnesses. Summary judgment was constitutional, and the court’s review of the record indicated that there was no genuine issue for trial. In re Deer View LLC Subdivision Permit, 2009 VT 20, 186 Vt. 536, 973 A.2d 1181, 2009 Vt. LEXIS 20 (2009) (mem.).

Temporary delay.

Actions that may delay or condition the jury trial right do not by themselves infringe on that right, and a temporary delay in access to a civil jury trial is not equivalent to denial of the right. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Temporary moratorium of approximately five months on all civil jury trials created by a Supreme Court administrative directive in response to reduction in appropriation to support the courts did not offend State constitutional jury trial provisions; petitioners failed to show specific prejudice or that their trials were being delayed unreasonably, and administrative directive gave administrative judge authority to permit exceptions to the moratorium where justice required. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Petition for extraordinary relief challenging the constitutionality of an administrative directive of the Supreme Court creating a five-month moratorium on civil jury trials was properly before the Supreme Court only with respect to those of the petitioners who not only sought relief in Superior Court but who, following dismissal of the Superior Court action, sought an exception to the directive from the administrative judge. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Cited.

Cited in Lincoln v. Smith, 27 Vt. 328, 1855 Vt. LEXIS 40 (1855); Gill v. Parker, 31 Vt. 610, 1859 Vt. LEXIS 32 (1859); State v. Cadigan, 73 Vt. 245, 50 A. 1079, 1901 Vt. LEXIS 165 (1901); Cady v. Lang, 95 Vt. 287, 115 A. 140, 1921 Vt. LEXIS 212 (1921); Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 650, 1930 Vt. LEXIS 108 (1930); Sowma v. Parker, 112 Vt. 241, 22 A.2d 513, 1941 Vt. LEXIS 163 (1941); McFeeters v. Parker, 113 Vt. 139, 30 A.2d 300, 1943 Vt. LEXIS 145 (1943); In re Monaghan, 122 Vt. 199, 167 A.2d 81, 1961 Vt. LEXIS 56 (1961); Granai v. Witters, Longmoore, Akley & Brown, 123 Vt. 468, 194 A.2d 391, 1963 Vt. LEXIS 136 (1963); Miserak v. Terrill, 130 Vt. 7, 285 A.2d 753, 1971 Vt. LEXIS 214 (1971); Condosta v. Grussing, 144 Vt. 454, 479 A.2d 149, 1984 Vt. LEXIS 497 (1984); State v. Mecier, 145 Vt. 173, 488 A.2d 737, 1984 Vt. LEXIS 595 (1984); Derosia v. Book Press, Inc., 148 Vt. 217, 531 A.2d 905, 1987 Vt. LEXIS 477 (1987); Vincent v. Vermont State Retirement Board, 148 Vt. 531, 536 A.2d 925, 1987 Vt. LEXIS 545 (1987); In re Morrissey, 149 Vt. 1, 538 A.2d 678, 1987 Vt. LEXIS 579 (1987); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989); Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991); Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371, 1991 Vt. LEXIS 207 (1991); State v. O'Brien, 158 Vt. 275, 609 A.2d 981, 1992 Vt. LEXIS 52 (1992); Agency of Natural Resources v. Upper Valley Regional Landfill Corp., 159 Vt. 454, 621 A.2d 225, 1992 Vt. LEXIS 200 (1992); Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543, 1993 Vt. LEXIS 44 (1993); State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695, 1993 Vt. LEXIS 96 (1993); Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

Delegation.

Police power reserved to the Legislature under this article can properly be delegated in matters concerning protection or preservation of public morals, health, safety, and welfare. Elliott v. State Fish & Game Commission, 117 Vt. 61, 84 A.2d 588, 1951 Vt. LEXIS 102 (1951).

In the absence of constitutional restriction, police power reserved by this article may be delegated by State to municipal corporations, to be exercised by them within their corporate limits. Carty's Administrator v. Village of Winooski, 78 Vt. 104, 62 A. 45, 1905 Vt. LEXIS 89 (1905).

Limitations.

In exercising the police power reserved to it in this article, the Legislature cannot deprive a citizen of an essential constitutional right. State v. Hodgson, 66 Vt. 134, 28 A. 1089, 1893 Vt. LEXIS 23 (1893), aff'd, 168 U.S. 262, 18 S. Ct. 80, 42 L. Ed. 461, 1897 U.S. LEXIS 1723 (1897).

Scope.

By virtue of this article, the Legislature may provide for exercise of visitatorial and police powers to secure compliance with laws enacted under the general reserved powers never surrendered to federal government. Sabre v. Rutland Railroad, 86 Vt. 347, 85 A. 693, 1913 Vt. LEXIS 205 (1913).

This article clearly empowers the Legislature to pass such laws as, in its discretion, it might judge would be for the common benefit of the people of the State. State v. Theriault, 70 Vt. 617, 41 A. 1030, 1898 Vt. LEXIS 92 (1898).

The police power of the Legislature under this article extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. Thorpe v. Rutland & Burlington Railroad, 27 Vt. 140, 1854 Vt. LEXIS 111 (1854).

—Source.

The police power given to the people of the State by this article is an attribute of sovereignty inherent in the states. Sowma v. Parker, 112 Vt. 241, 22 A.2d 513, 1941 Vt. LEXIS 163 (1941).

Police power indicated in this article is founded on duty of State to conserve public health, safety, and morals and, as that power is an essential attribute of sovereignty, it cannot be abrogated. Bacon v. Boston & Maine Railroad, 83 Vt. 421, 76 A. 128, 1910 Vt. LEXIS 212 (1910).

Police power reserved by this article is a governmental function inherent in every sovereignty, founded upon duty of the State to protect public health, safety, and morals. Carty's Administrator v. Village of Winooski, 78 Vt. 104, 62 A. 45, 1905 Vt. LEXIS 89 (1905).

Cited.

Cited in State v. Conlin, 27 Vt. 318, 1855 Vt. LEXIS 38 (1855); State v. Peterson, 41 Vt. 504, 1869 Vt. LEXIS 1 (1869); State v. Smith, 55 Vt. 82, 1883 Vt. LEXIS 25 (1883); State v. O'Neil, 58 Vt. 140, 2 A. 586, 1885 Vt. LEXIS 20 (1885); State v. McCaferey, 69 Vt. 85, 37 A. 234, 1896 Vt. LEXIS 11 (1896); Clark v. City of Burlington, 101 Vt. 391, 143 A. 677, 1928 Vt. LEXIS 168 (1928); Alexander v. Town of Barton, 152 Vt. 148, 565 A.2d 1294, 1989 Vt. LEXIS 283 (1989); Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990); Stoneman v. Vergennes Union High School District # 5, 139 Vt. 50, 421 A.2d 1307, 1980 Vt. LEXIS 1395 (1980); State v. Curley-Egan, 2006 VT 95, 180 Vt. 305, 910 A.2d 200, 2006 Vt. LEXIS 180 (2006).

Construction with other law.

Vermont’s Open Meeting Law implements the State constitutional requirement that officers of government are trustees and servants of the people and are “at all times, in a legal way, accountable to them.” Town of Brattleboro v. Garfield, 2006 VT 56, 180 Vt. 90, 904 A.2d 1157, 2006 Vt. LEXIS 140 (2006).

State Constitution does not prevent Legislature from holding public bodies, under authority of officers of government, subject to mandates of Open Meeting Law. Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992).

Nature of provision.

To say that Article 6 of the Vermont Constitution 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. Thus, the realization of Article 6’s philosophical vision is subject to those reasonable practical contours that the Legislature should set forth. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Public records.

To the extent that the Access to Public Records Act’s exemption from disclosure for “records dealing with the detection and investigation of crime” exempted from disclosure the records relating to a criminal investigation sought here, the Legislature had determined that the principle embodied in Article 6 of the Vermont Constitution did not mandate disclosure. The Court would not second-guess that determination. Rutland Herald v. Vt. State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91, 2012 Vt. LEXIS 23 (2012).

Remedies.

Due process requires a judicial hearing prior to recommitment to a State hospital, whether or not requested by the patient, unless immediate recommitment is required because the person poses an imminent danger of harm to himself or another; in cases of immediate recommitment, a hospital staff member familiar with the person’s case and current circumstances must state in the recommitment order the specific facts that give rise to the imminent danger, and a constitutionally adequate hearing must be initiated promptly thereafter. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

Public’s right to attend meetings of public agencies is a truism of a republican form of government; for enforcement of such right plaintiffs must avail themselves of the legislative enactments giving effect to the constitutional principles that officers of government are servants of the people and that the doors of the General Assembly shall be open to the public. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

This article is but a truism of a republican form of government, contemplating a remedy by popular election, not by private right of action. Welch v. Seery, 138 Vt. 126, 411 A.2d 1351, 1980 Vt. LEXIS 1039 (1980).

Cited.

Cited in Clement v. Graham, 78 Vt. 290, 63 A. 146, 1906 Vt. LEXIS 151 (1906); Buttolph v. Osborn, 119 Vt. 116, 119 A.2d 686, 1956 Vt. LEXIS 89 (1956); Doe v. Salmon, 135 Vt. 443, 378 A.2d 512, 1977 Vt. LEXIS 649 (1977); Sprague v. University of Vermont, 661 F. Supp. 1132, 1987 U.S. Dist. LEXIS 4721 (D. Vt. 1987); Caledonian-Record Publishing Co. v. Walton, 154 Vt. 15, 573 A.2d 296, 1990 Vt. LEXIS 15 (1990); Doria v. University of Vermont, 156 Vt. 114, 589 A.2d 317, 1991 Vt. LEXIS 31 (1991).

Common benefits.

Plaintiff, who was involved in a traffic accident with a State Police officer but was found to have suffered no damages, had not shown deprivation of a common benefit under the Common Benefits Clause, as she had no legally cognizable interest in the officer’s prosecution, or any criminal or disciplinary consequences that might ensue. Therefore, she could not show any disparate or arbitrary treatment from others similarly situated. Brown v. State, 2018 VT 1, 206 Vt. 394, 182 A.3d 597, 2018 Vt. LEXIS 3 (2018).

Common Benefits Clause is self-executing and creates a specific right; it is more than a mere “truism” of republican government. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

Selectboard invidiously discriminated against a town resident in violation of due process and the Common Benefits Clause based on its repeated failure to provide fair and impartial decisionmaking, the result of a relentless bias against the resident and favoritism toward his neighbors. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

Monetary relief based on a violation of the Common Benefits Clause was proper when the harm to a town resident consisted of a selectboard’s intentional abuse of office over the course of more than a decade through decisions that prevented, obstructed, and delayed his efforts to access his property. These decisions were discriminatory and motivated by self-interest, and therefore violated the resident’s rights to due process and equal protection. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

When a town violated a resident’s rights under the Common Benefits Clause, the actual harm was not the speculative loss in development value, but the anguish and inconvenience to the resident caused by a biased selectboard and resulting from years of efforts to gain reasonable access to his property, together with any additional costs for road improvements caused by the delay. Accordingly, remand was required to recalculate the damages actually suffered by the resident. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

With regard to a constitutional tort action under the Common Benefits Clause, the Vermont Supreme Court does not hold that damages must be afforded when an alternative remedy does not completely compensate the injury. The Court recognizes, rather, that the law supports civil damages when an alternative remedy does not meaningfully compensate the injury. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

Whether damages must be made available for the violation of a constitutional right is necessarily determined by the specific facts and legal context in which it arises. In many if not most cases of improper treatment under the Common Benefits Clause, other remedies—equitable, statutory, or otherwise—may well suffice, rendering further litigation either unnecessary or unlikely to succeed. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

There are three core elements that must comprise any potential constitutional-tort claim based on a violation of the Common Benefits Clause. First, of course, a plaintiff must show the denial of a common benefit, and in doing so, the plaintiff must show disparate and arbitrary treatment when compared to others similarly situated; second, the plaintiff must show that the denial directly favors another particular individual or group; finally, because a court must defer to any reasonable and just basis supporting a discretionary judgment by a governmental decisionmaker, a plaintiff must demonstrate not only that the decision was wholly irrational and arbitrary, but also that it was actuated by personal motives unrelated to the duties of the defendant’s official position, such as ill will, vindictiveness, or financial gain. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

Requiring the showing of an entirely unjustified personal motive is necessary to bar routine suits aimed merely at forcing a political body to change its decision, not through representative politics, but through judicial action, as a constitutional tort action under the Common Benefits Clause is not designed to review the discretionary decisions of another branch of government but to remedy harms caused when a governmental body acts in a wholly arbitrary and unjustified manner in violation of the Clause. This end is served by requiring a showing that the discriminatory treatment of the plaintiff was not only irrational, but motivated solely by an actual desire to harm the plaintiff or by other unjustified personal motives such as self-enrichment or the enrichment of others. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012).

To give deference to the Legislature, the Vermont Supreme Court must follow at least a modified form of the approach taken by the United States Supreme Court in Clover Leaf Creamery for Common Benefits Clause purposes. The Court sees no inconsistency between its holding in Baker, which recognized that it must give deference to the legislature, and applying the Clover Leaf Creamery approach in appropriate cases; in doing so the Court is not adopting the federal rational basis standard for evaluating most equal protection claims. Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469, 2010 Vt. LEXIS 61 (2010).

Requirement that a nonmarital child who seeks to inherit from a putative father must establish paternity through a timely parentage action and motion for genetic testing before the child reaches the age of 21 does not violate the federal Constitution or the Common Benefits Clause of the Vermont Constitution. In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Because the purpose of legislative acts freezing the grand list valuation for hydroelectric generating facilities was to allow an opportunity for accurate appraisal of hydroelectric properties in light of fundamentally changing economic conditions and to maintain the revenue streams of towns hosting hydroelectric facilities while the reappraisal goes on there was no preferential benefit to any class of persons and, thus, no violation of the Common Benefits Clause. USGen New Eng., Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927, 2003 Vt. LEXIS 293 (2003).

In refusing to allow employer to discontinue workers’ compensation benefits during time of employee’s pregnancy, Commissioner of Labor and Industry did not create a special favored status for pregnant workers in violation of Common Benefits Clause of Vermont Constitution; rather, Commissioner applied a general policy not to disqualify a worker from temporary total disability benefits because of a condition that delayed treatment for a work-related disabling condition, but was not itself disabling. Wood v. Fletcher Allen Health Care, 169 Vt. 419, 739 A.2d 1201, 1999 Vt. LEXIS 221 (1999).

Federal statute controlled over State constitutional provision set forth in this article, on question of whether exclusion of certain tribes from federal Indian Child Welfare Act violated Common Benefits Clause. In re A.J., 169 Vt. 577, 733 A.2d 36, 1999 Vt. LEXIS 75 (1999) (mem.).

The denial of loss of consortium claims under the exclusivity provision of the workers’ compensation statute violates the Common Benefits Clause of the Vermont Constitution; there is no rational basis for allowing an injured employee to bring a tort action against a third party while denying a loss of consortium claim by the employee’s spouse. Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543, 1993 Vt. LEXIS 44 (1993).

Construction.

Common Benefits Clause of Vermont Constitution differs markedly from federal Equal Protection Clause in its language, historical origins, purpose, and development; while federal amendment may thus supplement protections afforded by Common Benefits Clause, it does not supplant it as first and primary safeguard of rights and liberties of all Vermonters. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

In analyzing laws challenged under Common Benefits Clause of Vermont Constitution, court must ultimately ascertain whether omission of a part of community from benefit, protection, and security of challenged law bears a reasonable and just relation to the governmental purpose; factors to be considered may include: (1) significance of benefits and protections of challenged law; (2) whether omission of members of community from benefits and protections of challenged law promotes government’s stated goals; and (3) whether classification is significantly underinclusive or overinclusive. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

Criminal penalties.

Aggravated murder statute and the first-degree murder statute themselves do not treat any particular individuals or classes of individuals differently; all are equally subject to the same legislatively conferred prosecutorial discretion to proceed under either statute as the circumstances may seem to justify in a given case. Defendants accused of murder during the course of a sexual assault are nowhere deemed or recognized as a protected class, and the risk that one prosecutor may pursue a mandatory life sentence while another may file for a more discretionary sentence in the event of different homicides arising from sexual assault is of no constitutional concern unless the choice results from impermissible racial, ethnic, or gender biases. State v. Rooney, 2011 VT 14, 189 Vt. 306, 19 A.3d 92, 2011 Vt. LEXIS 11 (2011).

Discrimination.

Applicant could not have sustained a claim for damages under the Common Benefits Clause because the applicant provided no evidence, nor did it even allege, that the moratorium on new water and wastewater allocations outside the city or the exemption for the sewer district was actuated by personal motives or ill will. Ingleside Equity Group, LP v. City of St. Albans, 2014 U.S. Dist. LEXIS 69599 (D. Vt. May 21, 2014).

In the absence of discrimination based on how a religious school is operated, a Christian school had no claim to exemption from unemployment compensation contributions under the First Amendment or under the Common Benefits Clause in the Vermont Constitution. The Vermont statute neither unconstitutionally burdens the free exercise of religion, nor establishes religion. Further, the statute does not unconstitutionally discriminate between independent schools, and those supported by a church, convention, or association. Mid Vermont Christian School v. Department of Employment and Training, 2005 VT 100, 178 Vt. 448, 885 A.2d 1210, 2005 Vt. LEXIS 241 (2005).

Theory offered to justify discrimination under former 15 V.S.A. § 448 , which allowed an adopted person to inherit only from the adopting parents and not collateral relatives, was that collateral or lineal relatives did not consent to the adoption, so that the adoption “contract,” although creating a legal relationship between the adoptive parents and the adopted child, could not bind those adoptive relatives who did not have any say in the adoption. However, the contractual theory rested on an impermissible premise that the adopted child is a second-class member of the adoptive family, the discriminatory application of the former statute was not reasonably related to a valid public purpose, and the statute was unconstitutional insofar as it denied adopted children the right to inherit from collateral heirs. MacCallum v. Seymour's Administrator, 165 Vt. 452, 686 A.2d 935, 1996 Vt. LEXIS 111 (1996).

Even if defendant challenging constitutionality of zoning ordinance amendment prohibiting storage of junk vehicles was the only one against whom amendment could be enforced at the time the amendment was passed, the statute was not unconstitutionally discriminatory as it was neutral on its face and its purposes were reasonably related to the public interest. Town of Sandgate v. Colehamer, 156 Vt. 77, 589 A.2d 1205, 1990 Vt. LEXIS 266 (1990).

The Legislature may impose a license tax upon one occupation and not upon another, so long as no discrimination is made among those engaged in the occupation taxed. State v. Harrington, 68 Vt. 622, 35 A. 515, 1896 Vt. LEXIS 123 (1896).

Education.

Plaintiffs’ hypothetical argument — that students in unspecified school districts at some point in the future might not obtain equal educational opportunities due to unequal levels of funding that could result from not obtaining tax incentives or qualifying for small-school grants — was purely speculative and could not be the basis for the court to declare Act 46, regarding the involuntary merger of school districts, unconstitutional under the Common Benefits Clause. Athens Sch. Dist. v. Vt. State Bd. of Educ., 2020 VT 52, 212 Vt. 455, 237 A.3d 671, 2020 Vt. LEXIS 61 (2020).

The current system for funding public education in Vermont is in violation of the State Constitution. A legitimate governmental purpose cannot be fathomed to justify the gross inequities in educational opportunities produced by this system, with its substantial dependence on local property taxes and resultant wide disparities in revenues available to local school districts. The distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child’s residence. Brigham v. State, 166 Vt. 246, 692 A.2d 384, 1997 Vt. LEXIS 13 (1997) (decided under facts existing before 1997 amendments to Title 16). .

While the State Constitution does not require exact equality of funding among school districts or prohibit minor disparities attributable to unavoidable local differences, it does prohibit substantial interdistrict funding disparities. Moreover, discrimination in the distribution of a constitutionally mandated right such as education may not be excused merely because a “minimal” or “adequate” level of opportunity is provided to all. The Legislature should act under the Vermont Constitution to make educational opportunity available on substantially equal terms, the specific means of discharging this broadly defined duty being properly left to its discretion. Brigham v. State, 166 Vt. 246, 692 A.2d 384, 1997 Vt. LEXIS 13 (1997) (decided under facts existing before 1997 amendments to Title 16). .

Elections.

Judicial resign-to-run rule meets the requirements of Vermont’s Common Benefit Clause. In re Hodgdon, 2011 VT 19, 189 Vt. 265, 19 A.3d 598, 2011 Vt. LEXIS 14 (2011).

Leasing.

A town received constitutionally adequate and reasonable benefits from plaintiffs in connection with a lease of municipally owned property. Specifically, the town received rental payments (although such payments amounted to only $138.60 per year), property taxes on improvements to the land, and the possibility of obtaining title to plaintiffs’ house, and the ability to convert the property into a public use upon expiration of the lease. L'Esperance v. Town of Charlotte, 167 Vt. 162, 704 A.2d 760, 1997 Vt. LEXIS 252 (1997).

Legislative classifications.

Baker requires that a classification scheme be reasonable and just in relation to the governmental purpose, and subsequent decisions support this formulation of the Baker test. Indeed, an inquiry into necessity would contravene the deference which must control a court’s inquiry and place the court in the position of reviewing the wisdom of legislative choices. Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469, 2010 Vt. LEXIS 61 (2010).

In action by plaintiff, adopted as a child, challenging, under both the federal Equal Protection Clause and Chapter I, Article 7 of the Vermont Constitution, the denial of her right to inherit from her uncle, the court determined that adopted persons are not a suspect class, and unless a fundamental right or suspect class is involved, an inquiry under Article 7 of the Vermont Constitution is whether the statute is reasonably related to the promotion of a valid public purpose. (finding former 15 V.S.A. § 448 unconstitutional as establishing a classification not reasonably related to a valid public purpose). MacCallum v. Seymour's Administrator, 165 Vt. 452, 686 A.2d 935, 1996 Vt. LEXIS 111 (1996).

Theory offered to justify discrimination under former 15 V.S.A. § 448 , which allowed an adopted person to inherit only from the adopting parents and not collateral relatives, that the Legislature could presume the intent of collateral relatives that their property pass only within the bloodline, was rejected; presumed intent is not a reasonable consideration of legislative policy, since the effect of the presumed-intent rationale is to make statutory discrimination lawful as if it were private discrimination. MacCallum v. Seymour's Administrator, 165 Vt. 452, 686 A.2d 935, 1996 Vt. LEXIS 111 (1996).

Prostitution statute was not unconstitutional under Vermont and U.S. Constitutions as applied to male defendant convicted of soliciting a female person for purpose of prostitution, rejecting argument that because the statute failed to proscribe solicitation of males for prostitution, it could not be constitutionally applied to male defendant for solicitation of a female. State v. George, 157 Vt. 580, 602 A.2d 953, 1991 Vt. LEXIS 230 (1991).

Equal protection is not violated under either U.S. or State Constitutions by statutory provision authorizing Commissioner of Labor and Industry to award reasonable attorney’s fees to prevailing claimants in workers’ compensation cases. Hodgeman v. Jard Co., 157 Vt. 461, 599 A.2d 1371, 1991 Vt. LEXIS 207 (1991).

Computation of good-time credit applicable to reduce criminal sentences did not implicate fundamental rights; therefore, upon equal protection challenge, discriminatory statutory classification based on length of time served was reviewable on rational-basis test. Venman v. Patrissi, 156 Vt. 257, 590 A.2d 897, 1991 Vt. LEXIS 53 (1991).

Statutory requirement that inmate of correctional facility serve at least one month with good behavior before becoming eligible to earn good-time credit bore a rational relation to the purpose of promoting internal prison administration and was therefore not violative of State or federal constitutional guarantees of equal protection of the laws. Venman v. Patrissi, 156 Vt. 257, 590 A.2d 897, 1991 Vt. LEXIS 53 (1991).

Listing of nonresidential property at 120% of fair market value pursuant to city charter did not violate this article; although it created classifications of taxpayers, goal of charter was to raise total city revenues and benefit the city’s inhabitants as a whole. In re One Church Street, 152 Vt. 260, 565 A.2d 1349, 1989 Vt. LEXIS 171 (1989).

This article prohibits legislative classifications that are arbitrary and unreasonable. Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620, 1973 Vt. LEXIS 263 (1973).

Legislative classification that is not arbitrary or irrational may be established in exercise of police power of State and is not invalid as contrary to this article. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

Legislative districts.

Creating legislative districts to avoid contests between incumbents is a legitimate consideration that may justify minor deviations from equal representation as long as there is adherence to constitutional and statutory criteria regarding redistricting. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

Evidence that boot-shaped legislative district breached county line did not establish violation of principles of compactness and contiguity where all towns in district shared at least one common border and network of State highways connected towns. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

In challenging the formation of a district, the fundamental question is whether constitutional or statutory criteria have been violated, not whether the legislators intended to obtain some political advantage. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

Residents of a town are not disenfranchised simply because they make up a minority of their district; members of a group are disenfranchised only when they are denied an opportunity to effectively influence the election results by securing the attention of the winning candidate. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

Mandatory retirement.

Mandatory retirement provision for Group C members does not violate the Common Benefits Clause at this time. Under the Clover Leaf Creamery approach, it would be inappropriate for the court to intrude under the clause into an ongoing political process that had not reached its end point. Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469, 2010 Vt. LEXIS 61 (2010).

Statutory exception to the Vermont Fair Employment Practices Act for law enforcement officers, authorizing the mandatory retirement of police officers, does not violate the Common Benefits Clause. Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469, 2010 Vt. LEXIS 61 (2010).

Mandatory retirement line currently drawn by the Legislature for public safety officers bears a reasonable and just relation to a legitimate State interest, and for that reason, there is no violation of the Common Benefits Clause. Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469, 2010 Vt. LEXIS 61 (2010).

Medical malpractice.

Statute governing certificates of merit in medical malpractice cases did not violate the Common Benefits Clause of the Vermont Constitution, as the situation experienced by plaintiff, whose case would be dismissed because he had failed to file the certificate with his complaint and was now time-barred, and similar litigants was created by their own inadvertence, their decision on when to file the action, and the operation of the applicable statute of limitations. Furthermore, both the certificate statute and the statute of limitations were reasonably related to legitimate governmental purposes. Quinlan v. Five-town Health Alliance, Inc., 2018 VT 53, 207 Vt. 503, 192 A.3d 390, 2018 Vt. LEXIS 53 (2018).

Preferential legislation.

Stated purpose of 13 V.S.A. § 3352 , governing Sunday closing, to promote the economic health of small business, which favored one part of the community over another, was totally irreconcilable with this article where the preference was based on a declaration that small business enterprises “are essential and fundamental to the economy of the state,” since the purpose of preferential legislation must be to further a goal independent of the preference awarded. State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791, 1982 Vt. LEXIS 516 (1982).

Recent legislative history demonstrated that the core purpose of 13 V.S.A. § 3351-3358 , governing Sunday closing, confirmed by legislative language, was the special protection of small, locally owned, retail stores, and the Sunday closing laws were, therefore, invalid under this article. State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791, 1982 Vt. LEXIS 516 (1982).

Statutes in furtherance of the public welfare generally must simultaneously confer varying benefits upon individuals, but so long as the public purpose is paramount and the enactments reasonably related to that purpose, the statutes are not made invalid thereby. Vermont Woolen Corp. v. Wackerman, 122 Vt. 219, 167 A.2d 533, 1961 Vt. LEXIS 60 (1961).

Under this article, power to pay gratuities to individuals is, in general, denied to the Legislature. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

Legislature may confer upon cities, villages, and school districts diverse privileges and powers without infringing this article. Town School District of Brattleboro v. School District No. 2 of Brattleboro, 72 Vt. 451, 48 A. 697, 1900 Vt. LEXIS 165 (1900).

Public funds.

Plaintiff’s federal civil rights claims that a municipal election to approve a school budget, as well as a bond proposal for the construction of school improvements, had been tainted by the school board’s funding, publication, and distribution, shortly before the election, of a newsletter advocating a “Yes” vote on the ballot proposals, did not even remotely approach the level of extremity, culpability, or undue influence on the electoral process necessary to warrant the extraordinary remedy of election invalidation. Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354, 1997 Vt. LEXIS 105 (1997).

Public purpose.

Any statutory exclusions from publicly conferred benefits and protections must be premised on an appropriate and overriding public interest. Having a mentally and physically capable police force is an appropriate or highly important purpose. Badgley v. Walton, 2010 VT 68, 188 Vt. 367, 10 A.3d 469, 2010 Vt. LEXIS 61 (2010).

Stated governmental purposes underlying Vermont marriage statutes—furthering the link between procreation and child rearing, and promoting commitment between married couples to promote security of their children and community as a whole—provided no reasonable basis for denying legal benefits and protections of marriage to same-sex couples. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

Unless a fundamental right or suspect class is involved, a statute does not offend equal protection if it reasonably relates to a legitimate public purpose. Benning v. State, 161 Vt. 472, 641 A.2d 757, 1994 Vt. LEXIS 19 (1994).

When no fundamental right or suspect class is involved, the test for validity of statutes under both the Common Benefits Clause of the Vermont Constitution and the Equal Protection Clause of the U.S. Constitution is whether the law is reasonably related to the promotion of a valid public purpose. Lorrain v. Ryan, 160 Vt. 202, 628 A.2d 543, 1993 Vt. LEXIS 44 (1993).

Equal protection guarantee under Vermont Constitution is similar to Equal Protection Clause of Fourteenth Amendment; as such, unless a fundamental right or suspect class is involved, a statute comports with the constitutional guarantees if it is reasonably related to a legitimate public purpose. State v. George, 157 Vt. 580, 602 A.2d 953, 1991 Vt. LEXIS 230 (1991).

The test in determining a law’s constitutionality under this article when no fundamental right or suspect class is involved is whether the law is reasonably related to the promotion of a valid public purpose. Choquette v. Perrault, 153 Vt. 45, 569 A.2d 455, 1989 Vt. LEXIS 228 (1989).

Purpose.

Common Benefits Clause of Vermont Constitution is intended to ensure that benefits and protections conferred by State are for common benefit of community and not for advantage of persons who are only a part of that community. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

This article is aimed at equality between persons rather than equality between areas of the State. Smith v. Town of St. Johnsbury, 150 Vt. 351, 554 A.2d 233, 1988 Vt. LEXIS 189 (1988).

Rational basis.

Rule requiring violent felons to serve their minimum sentences before becoming eligible for furlough met the “rational basis” standard and thus did not violate inmates’ substantive due process or equal protection rights. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

In equal protection challenge to motorcycle helmet law, there is rational basis for distinction between motorcyclists and automobile drivers, whose vehicles afford them substantially more protection than does a motorcycle; there is also rational basis for distinction between motorcyclists and moped riders, since the latter travel at a lower rate of speed and are forbidden from riding on State highways. Benning v. State, 161 Vt. 472, 641 A.2d 757, 1994 Vt. LEXIS 19 (1994).

Same-sex relationships.

Under Common Benefits Clause of Vermont Constitution, State of Vermont could not permissibly exclude same-sex couples from benefit, protection, and security that its laws provided to opposite-sex married couples, since none of the asserted State interests provided a reasonable and just basis for such continued exclusion. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

Same-sex couples were entitled, under Common Benefits Clause of Vermont Constitution, to obtain same benefits and protections afforded by Vermont law to married opposite-sex couples; Court’s judgment was suspended, however, and current statutory scheme governing marriages was to remain in effect for a reasonable period of time, to enable Legislature to consider and enact implementing legislation consistent with Court’s constitutional mandate. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

Taxation.

State “piggy-back” tax statute violated taxpayers’ equal protection rights in imposing State personal income tax on federal recapture of federal investment tax credit where taxpayers had not derived State income tax benefit from credit. Oxx v. Department of Taxes, 159 Vt. 371, 618 A.2d 1321, 1992 Vt. LEXIS 189 (1992).

Time limitations.

Provision requiring the Human Rights Commission to bring an action against the State within six months does not violate the Common Benefits Clause. The State is not specially protected from lawsuits, as the Commission is free to bring an action against the State at any point in the six-month period; moreover, the six-month time limitation applies not only to actions the Commission brings against the State, but to all the Commission’s actions. Vermont Human Rights Comm'n v. State, 2012 VT 88, 192 Vt. 552, 60 A.3d 702, 2012 Vt. LEXIS 90 (2012).

Vermont Supreme Court accords deference to the policy choices made by the Legislature and finds a six-month time limit for the Human Rights Commission to bring an action against a State agency after failure of conciliation to be reasonable, mandatory, and not in violation of the Common Benefits Clause of the Vermont Constitution. Thus, an action by the Commission against the State was properly dismissed as time-barred. Vermont Human Rights Comm'n v. State, 2012 VT 88, 192 Vt. 552, 60 A.3d 702, 2012 Vt. LEXIS 90 (2012).

Zoning.

Amendment to a zoning ordinance was not unconstitutional spot zoning. The amendment did not incite anomalous use but instead allowed the use of parcels to become more similar to current residential uses in residential zoning districts; the amendment had the potential to affect numerous parcels in medium-density residential districts; while an applicant’s proposal prompted the amendment, the removal of the limitation applied generally in the medium-density residential districts and would benefit other properties in addition to the applicant’s; and the amendment complied with the city’s municipal plan by encouraging an increase in residential development through the adaptive reuse of existing structures and gradually reducing nonconforming uses in the city. In re Hartland Group North Avenue Permit, 2008 VT 92, 184 Vt. 606, 958 A.2d 685, 2008 Vt. LEXIS 144 (2008) (mem.).

Cited.

Cited in State v. Cadigan, 73 Vt. 245, 50 A. 1079, 1901 Vt. LEXIS 165 (1901); Drouin v. Boston & Maine Railroad, 74 Vt. 343, 52 A. 957, 1902 Vt. LEXIS 141 (1902); State v. Haskell, 84 Vt. 429, 79 A. 852, 1911 Vt. LEXIS 286 (1911); Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 650, 1930 Vt. LEXIS 108 (1930); Colgate v. Harvey, 107 Vt. 28, 175 A. 352, 1934 Vt. LEXIS 138 (1934); Great Atlantic & Pacific Tea Co. v. Harvey, 107 Vt. 215, 177 A. 423, 1935 Vt. LEXIS 165 (1935); State v. Gamelin, 111 Vt. 245, 13 A.2d 204, 1940 Vt. LEXIS 153 (1940); Green Mountain Post No. 1 v. Liquor Control Board, 117 Vt. 405, 94 A.2d 230, 1953 Vt. LEXIS 107 (1953); Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A.2d 271, 1954 Vt. LEXIS 105 (1954); Buttolph v. Osborn, 119 Vt. 116, 119 A.2d 686, 1956 Vt. LEXIS 89 (1956); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 1968 Vt. LEXIS 220 (1968); Miserak v. Terrill, 130 Vt. 7, 285 A.2d 753, 1971 Vt. LEXIS 214 (1971); Trivento v. Commissioner of Corrections, 135 Vt. 475, 380 A.2d 69, 1977 Vt. LEXIS 660 (1977); Riddel v. Department of Employment Security, 140 Vt. 82, 436 A.2d 1086, 1981 Vt. LEXIS 576 (1981); Galvin v. Vermont, 598 F. Supp. 144, 1984 U.S. Dist. LEXIS 22097 (D. Vt. 1984); State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987); Dingemans v. Board of Bar Examiners, 152 Vt. 494, 568 A.2d 354, 1989 Vt. LEXIS 206 (1989); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989); Doria v. University of Vermont, 156 Vt. 114, 589 A.2d 317, 1991 Vt. LEXIS 31 (1991); State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991); Animal Legal Defense Fund, Inc. v. Institutional Animal Care & Use Committee, 159 Vt. 133, 616 A.2d 224, 1992 Vt. LEXIS 117 (1992); In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295, 1992 Vt. LEXIS 191 (1992); Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635, 1994 Vt. LEXIS 183 (1994); Brigham v. State, 2005 VT 105, 179 Vt. 525, 889 A.2d 715, 2005 Vt. LEXIS 253 (2005) (mem.).

Law Reviews —

For note, “Vermont’s Public School Finance System: A Constitutional Analysis,” see 12 Vt. L. Rev. 239 (1987).

For article, “Toward a Theory of State Constitutional Jurisprudence: A Judge’s Thoughts,” see 13 Vt. L. Rev. 145 (1988).

For article, “Vermont Civil Union: The Baker Case, Civil Unions, and the Recognition of our Common Humanity: An Introduction and a Speculation,” see 25 Vt. L. Rev. 5 (2001).

For article, “Vermont Civil Unions: The New Language of Marriage,” see 25 Vt. L. Rev. 15 (2001).

For article, “Beyond Baker: The Case for a Vermont Marriage Amendment,” see 25 Vt. L. Rev. 61 (2001).

For article, “An Essay on the Passive Virtue of Baker v. State,” see 25 Vt. L. Rev. 93 (2001).

For article, “But Why Not Marriage: An Essay on Vermont’s Civil Union Laws, Same-Sex Marriage, and Separate But (Un)equal,” see 25 Vt. L. Rev. 113 (2001).

For article, “For Today, I’m Gay: The Unfinished Battle for Same-Sex Marriage in Vermont,” see 25 Vt. L. Rev. 149 (2001).

For article, “In Opposition to Amending the Vermont Constitution,” see 25 Vt. L. Rev. 277 (2001).

For note, “Monkey See, Monkey Do: On Baker, Goodridge, and the Need for Consistency in Same-Sex Alternatives to Marriage,” see 26 Vt. L. Rev. 959 (2002).

—Required.

It is the intent of this article to prohibit the imposition of any tax without enabling legislation enacted by the Legislature. 1968-70 Vt. Op. Att'y Gen. 156.

Burden of proof.

Under Proportional Contribution Clause of this article, burden of demonstrating unconstitutionality rests upon the contesting taxpayer. In re Estate of Eddy, 135 Vt. 468, 380 A.2d 530, 1977 Vt. LEXIS 659 (1977).

—Methods.

Constitutional considerations of equal protection and proportional contribution require State Board of Appraisers to apply equalization ratio to subject property to ascertain its listed value. Vermont Electric Power Co. v. Town of Cavendish, 158 Vt. 369, 611 A.2d 389, 1992 Vt. LEXIS 56 (1992).

Fact that fair market value of plaintiff utility company’s property was established by methods other than review of sales of comparable properties does not make equalization ratio inapplicable; where equalization ratios are applied to property assessed at fair market value, constitutional considerations of equal protection and proportional contribution require that they be applied to all property so valued. Vermont Electric Power Co. v. Town of Cavendish, 158 Vt. 369, 611 A.2d 389, 1992 Vt. LEXIS 56 (1992).

This article requires that methods for evaluating property for tax purposes operate equally upon all inhabitants. Bookstaver v. Town of Westminster, 131 Vt. 133, 300 A.2d 891, 1973 Vt. LEXIS 280 (1973).

Classifications.

In determining whether a legislative classification of taxpayers violates this article, the Supreme Court does not compare legislative purposes, but rather looks for a reasonable relationship between the classification and its purposes. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

The constitutional requirement of proportional contributions for the support of the government was not intended to restrict the State to methods of taxation that operate equally upon all its inhabitants. In re One Church Street, 152 Vt. 260, 565 A.2d 1349, 1989 Vt. LEXIS 171 (1989).

Listing of nonresidential property at 120% of fair market value pursuant to city charter did not violate this article; tax classification distinguishing nonresidential and residential taxpayers was reasonably related to the valid legislative purpose of raising overall city revenues. In re One Church Street, 152 Vt. 260, 565 A.2d 1349, 1989 Vt. LEXIS 171 (1989).

Under the Proportional Contribution Clause of this article, legislative classifications may be imposed, if they are based upon a real and substantial difference, and are not purely arbitrary or irrational. In re Estate of Eddy, 135 Vt. 468, 380 A.2d 530, 1977 Vt. LEXIS 659 (1977).

Comparable property.

If a taxpayer shows that his property is appraised at a higher percentage of fair market value than comparable properties within the town, the taxpayer’s property must be listed at a corresponding value. Kruse v. Town of Westford, 145 Vt. 368, 488 A.2d 770, 1985 Vt. LEXIS 304 (1985).

Evidence offered by taxpayer that, for the years 1980 and 1981, his property was appraised at 108% of its 1980 selling price, while all other residential home sales in the town over $50,000 were appraised at an average of 106% and 103% above selling price, did not aid taxpayer’s claim that 1982 reappraisal of his property violated this article, since the past selling price of realty did not necessarily equate with its present fair market value and there was no indication on the record that the properties which sold for over $50,000 were comparables. Kruse v. Town of Westford, 145 Vt. 368, 488 A.2d 770, 1985 Vt. LEXIS 304 (1985).

If on appeal a taxpayer shows that his property is assessed at a higher percentage of fair market value than comparable properties in the town, the court must list the taxpayer’s property at a corresponding value. Heindel v. Town of Grafton, 140 Vt. 147, 435 A.2d 695, 1981 Vt. LEXIS 565 (1981).

Construction with United States Constitution.

The Proportional Contribution Clause of this article imposes no greater restriction on governmental action than the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; thus, the test of validity of governmental action under the Clause is the rational basis test used for federal equal protection analysis. USGen New Eng., Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927, 2003 Vt. LEXIS 293 (2003).

The Proportional Contribution Clause of this article and the Equal Protection Clause of the United States Constitution impose the same limits on the State’s powers of taxation. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

The Vermont and U.S. Constitutions impose no rule of equality of taxation, for reasonable schemes of taxation must have flexibility and variety; as a result, some discriminatory impact is virtually inevitable. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Proportional Contribution Clause of this article are the same in effect. Clark v. City of Burlington, 101 Vt. 391, 143 A. 677, 1928 Vt. LEXIS 168 (1928); Great Atlantic & Pacific Tea Co. v. Harvey, 107 Vt. 215, 177 A. 423, 1935 Vt. LEXIS 165 (1935); State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939); In re Estate of Eddy, 135 Vt. 468, 380 A.2d 530, 1977 Vt. LEXIS 659 (1977); Pabst v. Commissioner of Taxes, 136 Vt. 126, 388 A.2d 1181, 1978 Vt. LEXIS 702, app. dismissed, 439 U.S. 922, 99 S. Ct. 303, 58 L. Ed. 2d 315, 1978 U.S. LEXIS 3523 (1978); Leverson v. Conway, 144 Vt. 523, 481 A.2d 1029, 1984 Vt. LEXIS 512 (1984), app. dismissed, 469 U.S. 926, 105 S. Ct. 316, 83 L. Ed. 2d 255, 1984 U.S. LEXIS 4080 (1984), vacated, 472 U.S. 1014, 105 S. Ct. 3471, 87 L. Ed. 2d 608, 1985 U.S. LEXIS 2365 (1985).

Limitation imposed by this article does not forbid any classification of property for purpose of taxation, or adoption of any scheme of taxation, that does not offend the U.S. Constitution. Village of Hardwick v. Town of Wolcott, 98 Vt. 343, 129 A. 159, 1925 Vt. LEXIS 138 (1925); Clark v. City of Burlington, 101 Vt. 391, 143 A. 677, 1928 Vt. LEXIS 168 (1928).

Double taxation.

Double taxation is not per se unconstitutional where each imposition of a tax is firmly grounded in legislative intent. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

Taxing wood chips burned to produce electricity at an electric generating plant, in addition to taxing the plant’s use of electricity it generated, did not amount to impermissible double taxation, since two taxes were imposed on two separate transactions: (1) a tax on the purchase of tangible personal property, wood chips; and (2) a tax on the use of tangible personal property, electricity. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

Property owners have the right to be taxed only once on their land. Poulin v. Town of Danville, 128 Vt. 161, 260 A.2d 208, 1969 Vt. LEXIS 219 (1969).

Gratuities.

Under this article, power to pay gratuities to individuals is, in general, denied to the Legislature. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

Leasing.

Vt. Const. Ch. I, Art. 9, which prohibits the raising of a tax unless it furthers a public purpose, was not implicated in the leasing of municipally owned property, since the town was neither imposing a tax nor spending public funds, even though rent was calculated based on the tax rate. L'Esperance v. Town of Charlotte, 167 Vt. 162, 704 A.2d 760, 1997 Vt. LEXIS 252 (1997).

Pre-accusation delay.

Standard for establishing that pre-accusation delay violated the Vermont Constitution is the same as the standard for finding a due process violation under the United States Constitution. A defendant must demonstrate actual substantial prejudice and prosecutorial misconduct intended to gain a tactical advantage or to advance some other impermissible purpose that violates fundamental conceptions of justice or the community’s sense of fair play and decency. State v. King, 2016 VT 131, 204 Vt. 228, 165 A.3d 107, 2016 Vt. LEXIS 136 (2016).

Pre-indictment delay did not violate defendant’s due process rights under the United States Constitution or the Vermont Constitution. Defendant was not substantially prejudiced by the delay due to the dimming memories of the complainant and a witness and in fact was able to impeach them with their inconsistent statements, and there was no evidence that the State delayed in order to gain a tactical advantage or to advance some other impermissible purpose, but rather it delayed to be certain that the complainant would support the charges and would be willing to proceed with the case. State v. King, 2016 VT 131, 204 Vt. 228, 165 A.3d 107, 2016 Vt. LEXIS 136 (2016).

Public purpose.

The power of the Legislature to raise and appropriate public funds is limited by this article to public uses. Vermont Home Mortgage Credit Agency v. Montpelier National Bank, 128 Vt. 272, 262 A.2d 445, 1970 Vt. LEXIS 222 (1970).

If the general public benefit is the dominant interest served by an act appropriating public funds, the restraint of this article is not exceeded even though the administration of the act confers a benefit on private institutions or persons. Vermont Home Mortgage Credit Agency v. Montpelier National Bank, 128 Vt. 272, 262 A.2d 445, 1970 Vt. LEXIS 222 (1970).

If the general public benefit is the dominant interest served in enactment providing aid to education, demand of this article that public funds be expended for public purposes is not offended, even though the aid enures to the benefit of a private institution. Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 1968 Vt. LEXIS 220 (1968), app. dismissed, 396 U.S. 801, 90 S. Ct. 9, 24 L. Ed. 2d 58, 1969 U.S. LEXIS 1163 (1969).

State may make appropriation in discharge of moral obligation resting on it, and such appropriation must be regarded as being for public purpose. Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

What is a public purpose within this article is a question for the Legislature, as to which it has large discretion, which the courts can control, if at all, only in exceptional cases. City of Burlington v. Central Vermont Railway, 82 Vt. 5, 71 A. 826, 1909 Vt. LEXIS 237 (1909); Vermont Home Mortgage Credit Agency v. Montpelier National Bank, 128 Vt. 272, 262 A.2d 445, 1970 Vt. LEXIS 222 (1970).

Under this article, the purpose for which a tax is raised must be a public one. City of Burlington v. Central Vermont Railway, 82 Vt. 5, 71 A. 826, 1909 Vt. LEXIS 237 (1909); Gross v. Gates, 109 Vt. 156, 194 A.2d 465, 194 A. 465, 1937 Vt. LEXIS 129 (1937).

The ultimate advantage of the public as contradistinguished from that of the individual is the characteristic feature of a public use or purpose within the meaning of this article. Town of Bennington v. Park, 50 Vt. 178, 1877 Vt. LEXIS 83 (1877).

Reassessment.

In a case where a taxpayer owned noncontiguous parcels of land, one of which contained a home, the other of which was lakefront property, a town had selectively reappraised the property in violation of the Proportional Contribution Clause. Assuming that the reason that the town identified these parcels for reassessment—that separate, noncontiguous properties always sold together and thus should be considered as one more valuable property for tax purposes—it had not come forward with evidence justifying why it did not reassess the homesite and lakefront parcels of numerous other similarly situated property owners. Selectboard, Town of Castleton v. Parento, 2009 VT 65, 186 Vt. 616, 988 A.2d 158, 2009 Vt. LEXIS 120 (2009) (mem.).

Assessors may properly change assessment values between full-town appraisals if a legitimate nondiscriminatory reason exists and if equitably done to all similarly-situated properties. M.T. Associates v. Town of Randolph, 2005 VT 112, 179 Vt. 81, 889 A.2d 740, 2005 Vt. LEXIS 255 (2005).

“Rolling appraisal” method of property valuation, reassessing one class of property each year determined to be most in need, did not violate Proportional Contribution Clause of this article. Alexander v. Town of Barton, 152 Vt. 148, 565 A.2d 1294, 1989 Vt. LEXIS 283 (1989).

The Proportional Contribution Clause of this article does not mean that a town may not reassess certain properties; however, it does prohibit a town from reassessing property if the effect is a departure from a uniform rate. Heindel v. Town of Grafton, 140 Vt. 147, 435 A.2d 695, 1981 Vt. LEXIS 565 (1981).

Remedy for violation.

When a town had selectively reappraised a taxpayer’s property in 2007 in violation of the Proportional Contribution Clause, it would be inappropriate to remand the matter for a hearing on the property’s 2007 fair market value, as the taxpayer’s property had been subject to revaluation in 2007 when numerous other similarly situated properties inexplicably were not. Instead, the 2006 grand list figure was to be reinstated, and this figure was to become the basis for the grand list for the two next ensuing years. Selectboard, Town of Castleton v. Parento, 2009 VT 65, 186 Vt. 616, 988 A.2d 158, 2009 Vt. LEXIS 120 (2009) (mem.).

Sales and use tax.

Imposition of sales and use tax on wood chips burned to produce electricity at an electric generating plant did not unfairly discriminate against manufacturers who burned their raw materials, since the sales and use tax focused on retail sales, and manufacturers who burned wood chips represented the ultimate users of wood chips as fuel. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

Scope.

The Proportional Contribution Clause of this article is not restricted to any particular subject of taxation, but applies to the entire burden cast upon the taxpayer. In re Hickok's Estate, 78 Vt. 259, 62 A. 724, 1906 Vt. LEXIS 145 (1906); In re Estate of Eddy, 135 Vt. 468, 380 A.2d 530, 1977 Vt. LEXIS 659 (1977).

Standards.

Although Legislature must select the subjects of taxation and make that selection effective by necessary regulations for assessment, every species of property need not be specifically named for taxation, general words of description being sufficient. City of St. Albans v. Avery, 95 Vt. 249, 114 A. 31, 1921 Vt. LEXIS 208, cert. denied, 257 U.S. 640, 42 S. Ct. 51, 66 L. Ed. 411, 1921 U.S. LEXIS 1485 (1921).

To secure the protection against arbitrary injustice in the imposition of taxes provided by this article, legislative enactments must set up a standard, fix a rule, to be conformed to as a guide in all cases, uniform and certain so far as reasonably practicable, and not susceptible to different applications to different individuals of the class to which it applies. Barnes v. Dyer, 56 Vt. 469, 1884 Vt. LEXIS 73 (1884).

Statute empowering authorities of city to construct sidewalks and make local assessments on the property fronting the same “for so much of the expense thereof as they shall deem just and equitable” was unconstitutional in that there was no fixed, certain, and legal standard for assessment. Barnes v. Dyer, 56 Vt. 469, 1884 Vt. LEXIS 73 (1884).

Tax exemptions.

This article does not place it beyond the Legislature’s power to provide for a property tax exemption that is not conditioned upon the vote of the affected town. Governor Clinton Council, Inc. v. Koslowski, 137 Vt. 240, 403 A.2d 689, 1979 Vt. LEXIS 974 (1979).

This article does not abridge legislative power to make tax exemptions. Colton & More v. City of Montpelier, 71 Vt. 413, 45 A. 1039, 1899 Vt. LEXIS 207 (1899); In re Hickok's Estate, 78 Vt. 259, 62 A. 724, 1906 Vt. LEXIS 145 (1906); Governor Clinton Council, Inc. v. Koslowski, 137 Vt. 240, 403 A.2d 689, 1979 Vt. LEXIS 974 (1979).

Tests.

Two fundamental requirements exist for valid imposition of taxes in Vermont: first, any legislative classification of taxpayers must bear a reasonable relation to the purpose for which it is established; and second, the classification scheme must be fairly and equitably applied among like classes of taxpayers. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

Test of validity of governmental action under the Proportional Contribution Clause of this article must be rational basis test used for federal equal protection analysis. Alexander v. Town of Barton, 152 Vt. 148, 565 A.2d 1294, 1989 Vt. LEXIS 283 (1989).

Test of constitutionality under the Proportional Contribution Clause of this article is the rational basis test of the Equal Protection Clause of the United States Constitution. Stoneman v. Vergennes Union High School District # 5, 139 Vt. 50, 421 A.2d 1307, 1980 Vt. LEXIS 1395 (1980).

Uniformity.

To comply with the Proportional Contribution Clause of this article, a town must appraise its property at a uniform rate. Consequently, if a taxpayer demonstrates that the property at issue is assessed at a higher percentage of fair market value than comparable properties, the court must list the taxpayer’s property at a corresponding value. This does not mean that a town may not reassess certain properties, but the effect must be uniform. M.T. Associates v. Town of Randolph, 2005 VT 112, 179 Vt. 81, 889 A.2d 740, 2005 Vt. LEXIS 255 (2005).

Legislative acts freezing the grand list valuation for hydroelectric generating facilities did not violate the Proportional Contribution Clause of this article. USGen New Eng., Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927, 2003 Vt. LEXIS 293 (2003).

Trial court did not err affirming property tax assessments of commercial properties located within a specific geographic area of the town based on its finding that the district is an area distinct from other portions of the town and that its unique character showed that the selective reassessment had a rational basis and was not arbitrary or discriminatory. Williams v. Town of Lyndon, 2005 VT 27, 178 Vt. 507, 872 A.2d 341, 2005 Vt. LEXIS 36 (2005) (mem.).

Trial court did not err in failing to invalidate reassessment of a district based on its finding that the town’s decision to exclude several properties from the reappraisal lacked a rational basis because, despite the court’s finding that the reassessment was somewhat underinclusive (in that it excluded certain properties which the court found logically should have been included), it properly declined to invalidate the overall reassessment of the district on that basis. Williams v. Town of Lyndon, 2005 VT 27, 178 Vt. 507, 872 A.2d 341, 2005 Vt. LEXIS 36 (2005) (mem.).

Property in a town must be appraised at a uniform rate. Kruse v. Town of Westford, 145 Vt. 368, 488 A.2d 770, 1985 Vt. LEXIS 304 (1985).

The Proportional Contribution Clause of this article requires that property in a town be assessed at a uniform rate. Heindel v. Town of Grafton, 140 Vt. 147, 435 A.2d 695, 1981 Vt. LEXIS 565 (1981).

Town’s practice of assigning additional home-site values to permitted subdivisions had a rational basis and was constitutionally valid under the Equal Protection Clause and Vermont’s Proportional Contribution Clause. There was a sufficient difference between lots with actual permits in place and lots that were potentially subject to division without a permit to justify the different treatment by the town. Lathrop v. Town of Monkton, 2014 VT 9, 195 Vt. 564, 91 A.3d 378, 2014 Vt. LEXIS 9 (2014).

Unique property.

Where there are really no comparable properties, the Proportional Contribution Clause of this article mandates that the taxing community reduce the listed valuation of property to the valuation level of other properties in general. New England Power Co. v. Town of Barnet, 134 Vt. 498, 367 A.2d 1363, 1976 Vt. LEXIS 713 (1976).

Cited.

Cited in Lincoln v. Smith, 27 Vt. 328, 1855 Vt. LEXIS 40 (1855); Gill v. Parker, 31 Vt. 610, 1859 Vt. LEXIS 32 (1859); Butler v. Town of Putney, 43 Vt. 481, 1871 Vt. LEXIS 38 (1871); First National Bank of St. Johnsbury v. Town of Concord, 50 Vt. 257, 1877 Vt. LEXIS 93 (1877); Town of Hartland v. Damon's Estate, 103 Vt. 519, 156 A. 518, 1931 Vt. LEXIS 201 (1931); Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938); State v. Gamelin, 111 Vt. 245, 13 A.2d 204, 1940 Vt. LEXIS 153 (1940); Sowma v. Parker, 112 Vt. 241, 22 A.2d 513, 1941 Vt. LEXIS 163 (1941); Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A.2d 271, 1954 Vt. LEXIS 105 (1954); Bieling v. Malloy, 133 Vt. 522, 346 A.2d 204, 1975 Vt. LEXIS 444 (1975); Schweizer v. Town of Pomfret, 134 Vt. 436, 365 A.2d 134, 1976 Vt. LEXIS 696 (1976); In re Montpelier & Barre R.R., 135 Vt. 102, 369 A.2d 1379, 1977 Vt. LEXIS 566 (1977); Town of Barnet v. Palazzi Corp., 135 Vt. 298, 376 A.2d 24, 1977 Vt. LEXIS 612 (1977); Welch v. Town of Ludlow, 136 Vt. 83, 385 A.2d 1105, 1978 Vt. LEXIS 692 (1978); In re Estate of Webb, 136 Vt. 582, 397 A.2d 81, 1978 Vt. LEXIS 675 (1978); Brown v. Town of Windsor, 139 Vt. 129, 422 A.2d 1268, 1980 Vt. LEXIS 1485 (1980); Chittenden Trust Co. v. MacPherson, 139 Vt. 281, 427 A.2d 356, 1981 Vt. LEXIS 442 (1981); City of Barre v. Town of Orange, 139 Vt. 437, 430 A.2d 444, 1981 Vt. LEXIS 492 (1981); Fyles v. Schmidt, 141 Vt. 419, 449 A.2d 962, 1982 Vt. LEXIS 549 (1982); American Trucking Ass'ns v. Conway, 142 Vt. 17, 451 A.2d 42, 1982 Vt. LEXIS 575 (1982); Galvin v. Vermont, 598 F. Supp. 144, 1984 U.S. Dist. LEXIS 22097 (D. Vt. 1984); Bagley v. Vermont Department of Taxes, 146 Vt. 120, 500 A.2d 223, 1985 Vt. LEXIS 358 (1985); American Trucking Ass'ns v. Conway, 146 Vt. 579, 508 A.2d 408, 1986 Vt. LEXIS 331 (1986); Choquette v. Perrault, 153 Vt. 45, 569 A.2d 455, 1989 Vt. LEXIS 228 (1989); In re Twenty-Four Vermont Utilities, 159 Vt. 339, 618 A.2d 1295, 1992 Vt. LEXIS 191 (1992); Brigham v. State, 166 Vt. 246, 692 A.2d 384, 1997 Vt. LEXIS 13 (1997); Knollwood Building Condominiums v. Town of Rutland, 166 Vt. 529, 699 A.2d 31, 1997 Vt. LEXIS 99 (1997); Brigham v. State, 2005 VT 105, 179 Vt. 525, 889 A.2d 715, 2005 Vt. LEXIS 253 (2005) (mem.).

Law Reviews —

For note, “Vermont’s Public School Finance System: A Constitutional Analysis,” see 12 Vt. L. Rev. 239 (1987).

I. GENERALLY.

Common law procedure.

This article left the rules of the common law system of criminal procedure in force and to be administered, unless changed by statute, including the distinctions, obtaining or permissible, between prosecutions for felonies and prosecution for misdemeanors. State v. Prouty, 94 Vt. 359, 111 A. 559, 1920 Vt. LEXIS 218 (1920).

Criminal offenses.

Authority to charge aggravated murder, rather than felony murder, was of no more practical concern than the unfettered and broad discretion exercised daily by Vermont prosecutors. Certainly, on the record of this case, which failed to reflect any discriminatory treatment, it was of no constitutional concern either. State v. Rooney, 2011 VT 14, 189 Vt. 306, 19 A.3d 92, 2011 Vt. LEXIS 11 (2011).

Where instructions were clear as to the elements the jurors needed to unanimously find to reach a guilty verdict, and the evidence was sufficient for the jury to have so found with respect to all essential elements of the charges, the general instruction on unanimity was sufficient to safeguard defendant’s constitutional rights. State v. Green, 2006 VT 64, 180 Vt. 544, 904 A.2d 87, 2006 Vt. LEXIS 149 (2006) (mem.).

This article makes no distinction between felonies and misdemeanors in guaranteeing the right of trial by jury, and by the use of the words “criminal offenses” it embraces the two categories. State v. Becker, 130 Vt. 153, 287 A.2d 580, 1972 Vt. LEXIS 244 (1972).

The phrase, “all prosecutions for criminal offenses,” means all prosecutions for crimes and misdemeanors in the trial of which the “issue in fact” is proper for cognizance of a jury. State v. Peterson, 41 Vt. 504, 1869 Vt. LEXIS 1 (1869).

This article has reference to that class of criminal offenses usually denominated “high crimes,” the punishment of which affects life, liberty, and reputation, and exposes the offender to infamous corporal suffering; and has no application to those minor offenses that clearly concern the regulation of the internal police of the State. State v. Conlin, 27 Vt. 318, 1855 Vt. LEXIS 38 (1855).

The offenses referred to in this article are those made punishable by imprisonment, or some other personal disability, or by fine. In re Powers, 25 Vt. 261, 1853 Vt. LEXIS 37 (1853).

Pleas.

This article does not mandate that a plea of guilty be made personally by an accused. In re Southard, 125 Vt. 405, 217 A.2d 49, 1966 Vt. LEXIS 201 (1966).

Rights of juveniles.

Failure of 17-year-old suspect to take advantage of opportunity to consult privately with his father, outside atmosphere of police interrogation room, did not render detective’s subsequent interrogation violative of Vermont Constitution. State v. Mears, 170 Vt. 336, 749 A.2d 600, 2000 Vt. LEXIS 13 (2000).

The purpose of the interested adult rule is to guard against improvident waivers of constitutional rights resulting from the minor’s lack of sophistication or experience and to guarantee that his decision is as well considered as that of an adult under similar circumstances. State v. Piper, 143 Vt. 468, 468 A.2d 554, 1983 Vt. LEXIS 558 (1983).

The right to consult with an interested, informed, and independent adult before deciding whether to waive or assert the right to counsel and privilege against self-incrimination accrues to a person under the age of 18 at the commencement of a custodial interrogation simultaneously with the right to be given Miranda warnings. State v. Piper, 143 Vt. 468, 468 A.2d 554, 1983 Vt. LEXIS 558 (1983).

In the case of a juvenile who was found guilty of operating a motor vehicle on a public highway in a careless and negligent manner, incriminating statements made by the juvenile to the investigating officer when no interested, informed, and independent adult was present were not erroneously admitted into evidence, since the juvenile went to the police station where he made the statements voluntarily, was not under arrest or detention, was at all times during the investigation free to leave, and, therefore, was not “in custody” at the time the incriminating statements were made. State v. Piper, 143 Vt. 468, 468 A.2d 554, 1983 Vt. LEXIS 558 (1983).

Under this article a juvenile may waive his privilege against self-incrimination and his right to counsel only if the following conditions have been met: (1) he must be given the opportunity to consult with an adult; (2) the adult must be one who is not only genuinely interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, e.g., a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult must be informed and be aware of the rights guaranteed to the juvenile. In re E. T. C., 141 Vt. 375, 449 A.2d 937, 1982 Vt. LEXIS 538 (1982); State v. Piper, 143 Vt. 468, 468 A.2d 554, 1983 Vt. LEXIS 558 (1983).

Sentencing.

Defendant’s sentence on remand, which was a year higher than the one he originally received from a different judge, did not violate federal or State due process. Defendant had not argued that the second judge acted with actual vindictiveness, and nothing in the record indicated that she did; indeed, the record indicated that the second judge increased the sentence primarily due to defendant’s “staunch refusal to accept responsibility” for his crime, which indicated to her that his prospects for rehabilitation were negligible. State v. Hazelton, 2009 VT 93, 186 Vt. 342, 987 A.2d 915, 2009 Vt. LEXIS 94 (2009).

Defendant failed in his claim that the trial court violated the Vermont and United States Constitutions by enhancing his sentence based on the court’s findings of certain aggravating factors because he offered no basis to conclude that there would have been a different result had the jury been required to find the aggravating factors. State v. Stevens, 2003 VT 15, 175 Vt. 503, 825 A.2d 8, 2003 Vt. LEXIS 14 (2003) (mem.).

In a sentencing enhancement hearing, a defendant need not produce court records that affirmatively prove that counsel was denied in prior criminal prosecutions leading to convictions in violation of State v. DeRosa, 161 Vt. 78, 633 A.2d 277 (1993), if no such records exist. To challenge the use of a prior conviction for sentence enhancement purposes based on DeRosa, however, a defendant must affirmatively show that counsel was denied improperly, and may not simply rely on a record indicating that counsel was denied and a suspended sentence imposed. State v. Brown, 165 Vt. 79, 676 A.2d 350, 1996 Vt. LEXIS 22 (1996).

Provision of this article that “a person hath a right to be heard by himself and his counsel” does not create a constitutional right to allocution at sentencing. State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989).

Venue.

Provision in this article that defendant has a right to trial “by an impartial jury of the country” is some recognition of a common law right to be tried locally. Herald Association, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323, 1980 Vt. LEXIS 1362 (1980).

Change of venue in a criminal proceeding is a remedy that should not lightly be resorted to, since it erodes, at least in spirit, defendant’s right under this article to trial “by an impartial jury of the country.” Herald Association, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323, 1980 Vt. LEXIS 1362 (1980).

This article leaves broad discretion to the Legislature respecting place of trial. State v. Murphy, 134 Vt. 106, 353 A.2d 346, 1976 Vt. LEXIS 606 (1976).

The framers of the Constitution used the term “country” rather than “county” in this article for the purpose of enlarging the scope of legislative authority over the place of trials in criminal causes. State v. Brown, 103 Vt. 312, 154 A. 579, 1931 Vt. LEXIS 170 (1931).

II. RIGHT TO COUNSEL.

Assignment at expense of State.

The obligation of the State to provide and reimburse counsel ends with final appeal. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964).

Refusal of court to assign counsel at expense of State to criminal defendant, on ground that it believed he had means to defend himself, was within its discretion and not in violation of this article, respondent being represented at the trial by counsel paid by him. State v. Gomez, 89 Vt. 490, 96 A. 190, 1915 Vt. LEXIS 235 (1915).

Effective assistance.

Petitioner inmate’s post-conviction claim of ineffective assistance of counsel, which was filed before the expiration of his sentence for the challenged conviction, was not rendered moot by the inmate’s release from custody prior to a determination on the merits. In re Chandler, 2013 VT 10, 193 Vt. 246, 67 A.3d 261, 2013 Vt. LEXIS 10 (2013).

None of trial counsel’s alleged deficiencies prejudiced petitioner. The sentencing court was presented with substantial evidence of the victim’s history of alcohol-induced violence, and any additional testimony on the subject by petitioner or others would have been cumulative. In re Kimmick, 2013 VT 43, 194 Vt. 53, 72 A.3d 337, 2013 Vt. LEXIS 40 (2013).

Petitioner was not prejudiced by counsel’s alleged ineffectiveness. There was no showing that petitioner was misinformed about evidence at sentencing or that petitioner was prejudiced by any omissions in his statement to the court, and there was no prejudicial misunderstanding by trial counsel as to the nature of the plea. In re Kimmick, 2013 VT 43, 194 Vt. 53, 72 A.3d 337, 2013 Vt. LEXIS 40 (2013).

Petitioner was not entitled to postconviction relief on the grounds that he had received ineffective assistance of counsel and that his guilty pleas were not entered knowingly and voluntarily. Under the case law at the time, it was reasonable for counsel to doubt the merit of raising a multiplicity challenge to the child pornography statute; because this assessment was not unreasonable, it did not create a material misunderstanding upon which petitioner based his guilty pleas. In re Kirby, 2012 VT 72, 192 Vt. 640, 58 A.3d 230, 2012 Vt. LEXIS 73 (2012) (mem.).

Petitioner inmate’s counsel was not ineffective for failing to pursue bifurcation of the inmate’s criminal trial into phases involving guilt and insanity, or to inform the inmate of that possibility, as counsel credibly testified that the inmate had adamantly refused to pursue the insanity defense. In re Combs, 2011 VT 75, 190 Vt. 559, 27 A.3d 318, 2011 Vt. LEXIS 74 (2011).

Trial counsel was ineffective when she failed to obtain expert testimony to refute the most important—and weakest—element in the State’s case: whether petitioner fired his gun at the complaining witness. Because intent to injure was the central element to a charge of aggravated assault, the issue of shot direction was vital to the State’s case; counsel actually bolstered the State’s case by eliciting damaging testimony from a State’s witness, and she hamstrung petitioner’s case by lacking rebuttal evidence to support the contention that directionality could not be determined based on a muzzle flash. In re Russo, 2010 VT 16, 187 Vt. 367, 991 A.2d 1073, 2010 Vt. LEXIS 12 (2010).

Trial counsel’s decisions not to cross-examine prosecution witness, or to file motion in limine regarding evidence of threat to witness, did not fall below applicable standard of competency. In re Miller, 168 Vt. 585, 718 A.2d 422, 1998 Vt. LEXIS 148 (1998) (mem.).

A defendant who raises a challenge to his conviction on the basis of ineffective assistance of counsel must show by a preponderance of the evidence: (1) that counsel’s conduct fell below the prevailing standard of competency, and (2) that this failure to meet the standard contributed to the adverse outcome. In re Trombly, 160 Vt. 215, 627 A.2d 855, 1993 Vt. LEXIS 41 (1993).

Counsel’s representation was within range of acceptable assistance when, in advocating client’s chosen strategy to limit possible verdicts, counsel urged court to exclude manslaughter instruction and instruct only on first and second degree murder. In re Trombly, 160 Vt. 215, 627 A.2d 855, 1993 Vt. LEXIS 41 (1993).

A criminal defendant’s right to reasonably effective assistance of counsel is guaranteed by both State and U.S. Constitutions, and court will apply same test under each Constitution to determine whether right has been violated. In re Ross, 158 Vt. 122, 605 A.2d 524, 1992 Vt. LEXIS 7 (1992).

A defendant challenging adequacy of his counsel’s assistance must show by preponderance of evidence that counsel’s conduct fell below prevailing standard of a reasonably competent attorney, and that failure to meet that standard prejudiced defendant such that there is a reasonable probability that, but for counsel’s unprofessional errors, result of proceeding would have been different. In re Ross, 158 Vt. 122, 605 A.2d 524, 1992 Vt. LEXIS 7 (1992).

Defense counsel’s failure to object to expert testimony regarding credibility of child victim at sexual assault trial constituted ineffective assistance requiring new trial, where counsel had raised and briefed that issue before trial, State had conceded before trial that such testimony was improper, and there was a reasonable probability the outcome would have been different had counsel objected, since expert testified at end of case and improperly bolstered victim’s testimony. In re Ross, 158 Vt. 122, 605 A.2d 524, 1992 Vt. LEXIS 7 (1992).

A defendant who challenges adequacy of counsel’s assistance must show by a preponderance of evidence, first, that counsel’s conduct does not measure up to prevailing standard of reasonably competent attorney, and second, that counsel’s failure to meet standard prejudiced defendant such that there is a reasonable probability that, but for counsel’s unprofessional errors, result of proceeding would have been different. In re Ringler, 158 Vt. 118, 605 A.2d 522, 1992 Vt. LEXIS 11 (1992).

Issue of whether counsel errors in trial for lewd and lascivious conduct satisfied constitutional standard for ineffective assistance of counsel was remanded, since Superior Court failed to consider both prongs of test and that court was most appropriate judge of errors’ weight. In re Ringler, 158 Vt. 118, 605 A.2d 522, 1992 Vt. LEXIS 11 (1992).

A claim of ineffective assistance of counsel under this article must demonstrate a lack of reasonable competence and prejudice proven by a preponderance of the evidence. In re Fisher, 156 Vt. 448, 594 A.2d 889, 1991 Vt. LEXIS 108 (1991).

Petitioner was denied effective assistance of counsel where attorney advised petitioner to plead guilty and did not move to suppress statement petitioner made during custodial interrogation after his request to call an attorney was refused. In re Bruyette, 150 Vt. 557, 556 A.2d 568, 1988 Vt. LEXIS 217 (1988).

The standard employed for reviewing the effectiveness of counsel under this article is that of reasonable competence as measured by the prevailing standards in the conduct of the defendant’s case. In re Kasper, 142 Vt. 31, 451 A.2d 1125, 1982 Vt. LEXIS 592 (1982).

The right to counsel means the right to effective assistance to counsel and applies whether counsel is retained by the accused or appointed by the court. State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968).

Assigned counsel must have sufficient ability and experience to fairly represent defendant, to present his defense, and to protect his rights. State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968).

Presumption of competency.

Evaluation of defense counsel’s performance must be highly deferential, and court must accord counsel’s conduct a strong presumption that it falls within wide range of reasonable professional assistance. In re Ross, 158 Vt. 122, 605 A.2d 524, 1992 Vt. LEXIS 7 (1992).

Conduct of counsel at trial is presumed to be reasonable. In re Ringler, 158 Vt. 118, 605 A.2d 522, 1992 Vt. LEXIS 11 (1992).

When trial court appoints or accepts appearance of member of bar in good standing as counsel for defendant in criminal proceeding, there is presumption that counsel is competent. State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968).

Stages at which assistance is required.

A preindictment lineup is not the equivalent of a criminal prosecution and does not trigger a right to counsel under the Vermont Constitution. State v. Parizo, 163 Vt. 103, 655 A.2d 716, 1994 Vt. LEXIS 177 (1994).

The rights contained in the public defender act are not directly applicable to the right in the implied consent law to consult counsel before deciding whether to take a blood-alcohol test; the public defender act implements the general right to counsel provided by the Sixth Amendment to the United States Constitution as well as Article 10 of Chapter I of the Vermont Constitution while the right to consult with counsel contained in the implied consent law is purely statutory, created by 23 V.S.A. § 1202(c) , and is not constitutionally mandated because the decision whether to take the breath test is not a critical stage of the prosecution. State v. Fuller, 163 Vt. 523, 660 A.2d 302, 1995 Vt. LEXIS 51 (1995).

Ex parte granting of an order for a taking of a blood sample does not violate defendant’s right to counsel, since the taking of a nontestimonial identification evidence is not a critical stage at which the right to counsel attaches. State v. Kennison, 149 Vt. 643, 546 A.2d 190, 1987 Vt. LEXIS 629 (1987), cert. denied, 486 U.S. 1011, 108 S. Ct. 1743, 100 L. Ed. 2d 206, 1988 U.S. LEXIS 2153 (1988).

The taking of nontestimonial evidence is not a critical stage of criminal proceedings to which the right to counsel under this article attaches. State v. Howe, 136 Vt. 53, 386 A.2d 1125, 1978 Vt. LEXIS 686 (1978).

A respondent who pleads guilty to an offense is as much entitled to advice of counsel as one who denies the charge. In re Moses, 122 Vt. 36, 163 A.2d 868, 1960 Vt. LEXIS 97 (1960).

Waiver.

Defendant’s waiver of his right to counsel was valid, where he was ineligible for a public defender and his actions indicated that he wanted counsel and understood his right to counsel, but made a conscious choice based on his financial situation to represent himself. State v. Stenson, 169 Vt. 590, 738 A.2d 567, 1999 Vt. LEXIS 212 (1999) (mem.).

Constitutional protections available in criminal proceedings do not attach to statutory right to counsel under implied consent statute, either at the time a breath sample is requested, or at a subsequent license-suspension hearing, and therefore Miranda warnings do not apply to blood or chemical tests requested or taken under Vermont’s implied consent law. State v. Nemkovich, 168 Vt. 8, 712 A.2d 899, 1998 Vt. LEXIS 166 (1998).

Both the Vermont and United States Constitutions provide an accused a right to counsel, but the right can be waived if the waiver is made knowingly and intelligently; however, waiver of this right will not be inferred from doubtful conduct, and courts will indulge every reasonable presumption against waiver. State v. Bean, 163 Vt. 457, 658 A.2d 940, 1995 Vt. LEXIS 26 (1995).

A defendant is entitled to conduct his own trial, before a jury, if that be his choice, unless he is incompetent or incapable of making a rational decision on the matter. State v. Bliss, 133 Vt. 324, 340 A.2d 76, 1975 Vt. LEXIS 395 (1975).

A defendant in a criminal trial has a right under this article to defend himself without counsel provided he voluntarily and intelligently elects to do so. State v. Hartman, 134 Vt. 64, 349 A.2d 223, 1975 Vt. LEXIS 332 (1975).

A knowing and intelligent waiver of counsel depends on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused, and if he is ignorant of the available options necessary to protect his rights and is unaware of the nature of the charges and the range of the allowable punishment at the time of his decision to present himself, the waiver is invalid and is not made knowingly and intelligently. State v. Hartman, 134 Vt. 64, 349 A.2d 223, 1975 Vt. LEXIS 332 (1975).

Silence alone will never constitute a waiver of the right to counsel. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

Waiver of counsel may not be found from a mere plea of guilty, or from the appearance of defendant without counsel, or from failure to request counsel, or from a record which is completely silent on this point. In re Huard, 125 Vt. 189, 212 A.2d 640, 1965 Vt. LEXIS 223 (1965).

The right to counsel under this article may be waived, if done competently and intelligently. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964).

The right to be represented by counsel in a criminal proceeding is a personal right and may be waived. In re Greenough, 116 Vt. 277, 75 A.2d 569, 1950 Vt. LEXIS 147 (1950); In re Moses, 122 Vt. 36, 163 A.2d 868, 1960 Vt. LEXIS 97 (1960).

III. CAUSE AND NATURE OF ACCUSATION.

Amendment of indictment, information, or complaint.

Liberality of amendment of information can be exercised only at times or under conditions giving full protection to right under this article to know the nature of the charge. State v. Woodmansee, 124 Vt. 387, 205 A.2d 407, 1964 Vt. LEXIS 119 (1964).

Demand.

The language of this article, “in all prosecutions for criminal offenses, a person hath a right to demand the cause and nature of his accusation,” does not mean that it is necessary for accused to make actual demand for the information, but only that he is entitled to be informed of nature of charge brought against him. State v. Villa, 92 Vt. 121, 102 A. 935, 1918 Vt. LEXIS 151 (1918).

Disjunctive language.

The word “or,” when used in an indictment or information, is a fatal defect only when its use renders the statement of the offense uncertain. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Information charging commission of offense in two different ways, in alternative or disjunctive form, did not reasonably indicate the exact offense so as to enable respondent to make intelligent preparation for his defense, and was fatally defective under this article. State v. Rouillard, 107 Vt. 487, 180 A. 890, 1935 Vt. LEXIS 203 (1935).

Elements of offense.

Defendant’s conviction for driving with a suspended license was reversed, where information failed to apprise defendant of fact that, under amended statute, the reason for suspension was an element of the crime. State v. Williams, 160 Vt. 615, 627 A.2d 1254, 1993 Vt. LEXIS 39 (1993) (mem.).

An information that omits an essential element of the crime charged is defective and cannot serve as the basis of a conviction. State v. Kreth, 150 Vt. 406, 553 A.2d 554, 1988 Vt. LEXIS 190 (1988).

Judicial review.

Defendant may argue for the first time on appeal that an information was fatally defective. State v. Williams, 160 Vt. 615, 627 A.2d 1254, 1993 Vt. LEXIS 39 (1993) (mem.).

In determining sufficiency of an information, court considers whether charging document sufficiently informed defendant of basis and nature of charge so as to enable him to prepare his defense. State v. Williams, 160 Vt. 615, 627 A.2d 1254, 1993 Vt. LEXIS 39 (1993) (mem.).

Legislature authority.

The Legislature cannot legalize a form of criminal complaint that fails to meet the requirements of this article. State v. Comstock, 27 Vt. 553, 1854 Vt. LEXIS 126 (1854); State v. Villa, 92 Vt. 121, 102 A. 935, 1918 Vt. LEXIS 151 (1918).

Minor offenses affecting merely the police of the State are not within this article and in prosecutions for them, a complaint may be entirely dispensed with if Legislature so provides. In re Dougherty, 27 Vt. 325, 1855 Vt. LEXIS 39 (1855).

Manner in which offense was committed.

When it is not the act itself but the manner in which it is done that makes it criminal, the manner becomes a constituent part of the offense and must be set forth in the information. State v. Persons, 114 Vt. 435, 46 A.2d 854, 1946 Vt. LEXIS 91 (1946).

Particularity.

There had been no claim of surprise or prejudice where the information charging leaving the scene of an accident did not contain the word “immediately,” nor could there be. The information and accompanying affidavit clearly explained the charged conduct and related it directly to the statute in question; defendant’s ability to prepare his defense was in no way influenced. State v. Neisner, 2010 VT 112, 189 Vt. 160, 16 A.3d 597, 2010 Vt. LEXIS 117 (2010).

Information charging leaving the scene of an accident was not insufficient under the Vermont Constitution because it did not contain the word “immediately.” The plain meaning of the phrase “following the crash” and the allegation that there had been a serious injury to which defendant “did not render any assistance reasonably necessary” made clear that the State was not charging defendant with violating the statute by later driving past the scene after he had originally fled or when a trooper questioned him at his home. State v. Neisner, 2010 VT 112, 189 Vt. 160, 16 A.3d 597, 2010 Vt. LEXIS 117 (2010).

Where plaintiff’s complaint alleged only that defendants denied her “procedural and substantive due process and liberty in violation of the . . . Vermont constitution[],” her allegation did not fairly apprise defendants that her claim arose under Article 4 because it could also be construed to refer to this article; thus, it could not be said that the grounds upon which plaintiff’s State constitutional claims rested were readily discernible from the face of the complaint, and the trial court did not err by dismissing the claims for lack of specificity. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

Information charging parents with violation of truancy statute was not defective for failure to allege all essential elements of the crime; affidavit accompanying the information negated all statutory exceptions to the offense of truancy and parents had sufficient notice of the charges to form a defense. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

Information must set forth charges with sufficient particularity to allow defendant to make intelligent preparation of defense. State v. Roy, 151 Vt. 17, 557 A.2d 884, 1989 Vt. LEXIS 20 (1989).

An information must set forth charges with such particularity as will reasonably indicate the exact offense the accused is charged with, and will enable her to make intelligent preparation for her defense; to satisfy the requirement, an essential fact, affecting the degree of punishment, must be alleged in the information. State v. Bradley, 145 Vt. 492, 494 A.2d 129, 1985 Vt. LEXIS 319 (1985).

An information is sufficient if it sets forth charges with such particularity as will reasonably indicate the exact offense the accused is charged with, and will enable her to make intelligent preparation for her defense, and this is not a subjective inquiry as to what the accused actually understood, but rather a scrutiny of the charge, as made, to determine what offense is reasonably indicated by its language. State v. Phillips, 142 Vt. 283, 455 A.2d 325, 1982 Vt. LEXIS 636 (1982).

The complaint or other form of accusation of a criminal offense must set forth charges with such particularity as will reasonably indicate the exact offense the accused is charged with, and will enable him to make intelligent preparation for his defense. State v. Christman, 135 Vt. 59, 370 A.2d 624, 1977 Vt. LEXIS 554 (1977).

The prosecutor must frame his charge in the pleading in such a manner as to meet two general requirements: to properly give notice of the offense charged and to permit a plea in bar to a subsequent prosecution for one of the several offenses after either acquittal or conviction. State v. McDermott, 135 Vt. 47, 373 A.2d 510, 1977 Vt. LEXIS 551 (1977).

This article requires that the charge in a criminal complaint be set forth with such particularity as will reasonably indicate the exact offense charged. State v. Hastings, 133 Vt. 118, 330 A.2d 87, 1974 Vt. LEXIS 298 (1974).

An indictment or information must set forth the offense charged with certainty and particularity. State v. Chapman, 126 Vt. 167, 224 A.2d 925, 1966 Vt. LEXIS 188 (1966).

The averments in a criminal complaint must be such as to inform the accused of the exact nature of the charge brought against him. State v. Chapman, 126 Vt. 167, 224 A.2d 925, 1966 Vt. LEXIS 188 (1966).

Information stating several specific criminal offenses involving operation of motor vehicles with an “x” in box before offense of operating vehicle in excess of legal posted speed limit lacked certainty and particularity required by this article and was fatally defective in failing to inform defendant convicted of operating vehicle in excess of legal posted speed limit of exact charge against. State v. Chapman, 126 Vt. 167, 224 A.2d 925, 1966 Vt. LEXIS 188 (1966).

A defendant is entitled to have an information reasonably indicate the exact offense so as to enable him to make intelligent preparation for his defense. State v. Woodmansee, 124 Vt. 387, 205 A.2d 407, 1964 Vt. LEXIS 119 (1964).

A complaint or information that may apply to one of several definite offenses, without specifying which, is defective under this article. State v. Villa, 92 Vt. 121, 102 A. 935, 1918 Vt. LEXIS 151 (1918); State v. Van Ness, 109 Vt. 392, 199 A. 759, 1938 Vt. LEXIS 146 (1938); State v. Persons, 114 Vt. 435, 46 A.2d 854, 1946 Vt. LEXIS 91 (1946); State v. Chapman, 126 Vt. 167, 224 A.2d 925, 1966 Vt. LEXIS 188 (1966).

A form of accusation of a criminal offense is required by this article to set forth charges with such particularity as will reasonably indicate the exact offense accused is charged with, and will enable him to make intelligent preparation for his defense, and if the trial goes against him, to plead his conviction in a subsequent prosecution for the same offense. State v. Webber, 78 Vt. 463, 62 A. 1018, 1906 Vt. LEXIS 175 (1906); State v. Villa, 92 Vt. 121, 102 A. 935, 1918 Vt. LEXIS 151 (1918); State v. Van Ness, 109 Vt. 392, 199 A. 759, 1938 Vt. LEXIS 146 (1938); State v. Gosselin, 110 Vt. 361, 6 A.2d 14, 1939 Vt. LEXIS 152 (1939); State v. Persons, 114 Vt. 435, 46 A.2d 854, 1946 Vt. LEXIS 91 (1946); State v. Margie, 119 Vt. 137, 120 A.2d 807, 1956 Vt. LEXIS 92 (1956); State v. Parker, 123 Vt. 369, 189 A.2d 540, 1963 Vt. LEXIS 103 (1963); State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965); State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970); State v. McGrail, 134 Vt. 91, 353 A.2d 342, 1976 Vt. LEXIS 602 (1976); State v. Holden, 136 Vt. 158, 385 A.2d 1092, 1978 Vt. LEXIS 708 (1978).

Statutory language.

The criminal complaint must do more than merely cite the statutory language in order to inform both defendant and the court of the conduct which violates the applicable statute. State v. Phillips, 142 Vt. 283, 455 A.2d 325, 1982 Vt. LEXIS 636 (1982).

Where an offense is one created by statute it is generally sufficient for a complaint to describe the offense in the words of the statute. State v. McGrail, 134 Vt. 91, 353 A.2d 342, 1976 Vt. LEXIS 602 (1976).

An information in the words of the statute creating and defining the offense is sufficient. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

When a statutory definition of an offense uses “or” to mean “to wit,” that is, in explanation of what precedes, an indictment or information may charge an offense in the words of the statute. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

An offense is sufficiently charged by using the words of a statute if every fact necessary to constitute the offense is charged or necessarily implied by those words; but if, from the nature of the offense, the words of the statute do not clearly and definitely apprise the accused of the offense charged, greater particularity is required. State v. Persons, 114 Vt. 435, 46 A.2d 854, 1946 Vt. LEXIS 91 (1946); State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

IV. CONFRONTATION OF WITNESSES.

Compulsory process.

The burden is on defendant to show that the proffered testimony meets the criteria of competency, relevancy, and materiality and because defendant did not carry that burden, there was no error in failing to enforce a subpoena against a federal officer and no constitutional violation. State v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d 706, 2007 Vt. LEXIS 164 (July 20, 2007).

Compulsory process is mandated only where the witness to be called will offer testimony that is competent, relevant, and material to the defense. State v. Kennison, 149 Vt. 643, 546 A.2d 190, 1987 Vt. LEXIS 629 (1987), cert. denied, 486 U.S. 1011, 108 S. Ct. 1743, 100 L. Ed. 2d 206, 1988 U.S. LEXIS 2153 (1988).

Compulsory process for obtaining witnesses guaranteed by this article is only required where the witnesses to be called will offer competent and material testimony. State v. Kelly, 131 Vt. 582, 312 A.2d 906, 1973 Vt. LEXIS 358 (1973).

The right of an accused to obtain witnesses in his behalf guaranteed by this article does not require a court to issue compulsory process for anyone whom an accused may designate as a witness; such process is only required for competent and material witnesses whose expected testimony will be material to the defense. State v. Dragon, 130 Vt. 334, 292 A.2d 826, 1972 Vt. LEXIS 280 (1972).

Cross-examination.

In a prosecution for aggravated sexual assault, the trial court did not err when it limited defendant’s cross-examination of the victim, based on her prior deposition testimony, because the possibility of confusion to the witness and to the jury from asking a young child about matters that she had never been directly questioned about before outweighed the evidence’s power to impeach. State v. Hill, 174 Vt. 566, 816 A.2d 440, 2002 Vt. LEXIS 329 (2002) (mem.).

In appeal by electroencephalogram technician convicted on six counts of sexual misconduct against women hospital patients who suffered from mental disorders, argument was rejected that defendant was denied his right to effective cross-examination when the trial court refused defendant both access to the complainants’ psychiatric records, and to conduct an independent examination and evaluation of complainants; defendant received all the medical information (including limited access to hospital discharge and evaluation reports covering the time after the alleged assaults, and depositions of eleven psychiatrists, psychologists, and counselors concerning the complainants’ mental condition and competency) that he was entitled to through discovery and cross-examination, and despite the complainants’ mental disorders and some inconsistencies in details of their stories, there was substantial evidence that the stories were not fabricated so that each patient’s mental disorders were not particularly relevant under the circumstances. State v. Tonzola, 159 Vt. 491, 621 A.2d 243, 1993 Vt. LEXIS 5 (1993).

Trial court did not abuse its discretion by refusing to permit defendant to reopen cross-examination of witness five days after he had testified, for the purpose of exploring issues raised during direct and cross-examination of the witness on the first day of trial, where there was no reason that the questioning could not be completed fully during the initial cross-examination. State v. Valley, 153 Vt. 380, 571 A.2d 579, 1989 Vt. LEXIS 259 (1989).

Threshold question in examining Confrontation Clause claim is whether defendant was prohibited from engaging in otherwise appropriate cross-examination. State v. French, 152 Vt. 72, 564 A.2d 1058, 1989 Vt. LEXIS 130 (1989).

Trial court’s ruling, that cross-examination of witness regarding bad check charge that had been dropped after the amount of the checks had been paid was prejudicial, was within its discretion and did not violate defendant’s right to confrontation. State v. French, 152 Vt. 72, 564 A.2d 1058, 1989 Vt. LEXIS 130 (1989).

Trial court’s ruling sustaining prosecution’s objection to cross-examination of witness to show inconsistency in her testimony did not violate defendant’s right to confrontation, where question requiring witness to repeat her statement at earlier trial that account of facts during deposition was closer to truth than statements made during the trial was more prejudicial than probative and was cumulative, and defense counsel’s other question of witness inquired into veracity. State v. French, 152 Vt. 72, 564 A.2d 1058, 1989 Vt. LEXIS 130 (1989).

In child sexual assault case where trial court permitted defendant to cross-examine prosecution’s expert witness about whether, in her opinion, a prior sexual assault by another person might have been an alternative cause of the victim’s post-traumatic stress disorder, refusal to allow defendant to cross-examine the victim about the prior sexual assault did not deny defendant his right of confrontation. State v. Catsam, 148 Vt. 366, 534 A.2d 184, 1987 Vt. LEXIS 511 (1987).

The crux of a Confrontation Clause violation is the lack of an effective opportunity to cross-examine the person whose statement is being used against the defendant. State v. Paquette, 146 Vt. 1, 497 A.2d 358, 1985 Vt. LEXIS 419 (1985).

There was no Confrontation Clause violation where there was no denial of an opportunity to cross-examine the witnesses, even though the effectiveness of such cross-examination was limited because of the witnesses’ failure of memory. State v. Paquette, 146 Vt. 1, 497 A.2d 358, 1985 Vt. LEXIS 419 (1985).

The right to confront witnesses is an adoption of the common law, and insofar as this right covers cross-examination, it is subject to the common law exceptions and limitations. State v. Berard, 132 Vt. 138, 315 A.2d 501, 1974 Vt. LEXIS 315, cert. denied, 417 U.S. 950, 94 S. Ct. 3078, 41 L. Ed. 2d 671, 1974 U.S. LEXIS 2010 (1974).

Exceptions.

Exception to confrontation requirement when a witness is unavailable and has given testimony at a prior proceeding applies when the prior testimony was given under circumstances closely approximating those that surround the typical trial; these circumstances include: the declarant testified under oath; the defendant was represented by counsel; the defendant had the opportunity to cross-examine the declarant; and the proceedings were conducted before a judicial tribunal that recorded the hearing. State v. Sprague, 144 Vt. 385, 479 A.2d 128, 1984 Vt. LEXIS 495 (1984).

Plain error.

Trial court does not commit plain error by admitting, upon the parties’ stipulation, a videotaped deposition in lieu of the declarant’s live testimony. Accordingly, defendant could not now claim error under the Confrontation Clause regarding the course of action he impliedly, if not explicitly, agreed to, and there was no basis for finding plain error; furthermore, defendant did not explain how he was prejudiced by admission of the victim’s recorded statements. State v. Spooner, 2010 VT 75, 188 Vt. 356, 8 A.3d 469, 2010 Vt. LEXIS 75 (2010).

Purpose of right.

The primary objective of the right to confront witnesses is to assure, where possible, personal examination and cross-examination of the witnesses, in which the accused has an opportunity not only to test their recollection and sift their conscience, but also to compel them to stand face to face with the jury in order that the jury may look at them and judge by their demeanor and manner of testimony whether they are worthy of belief. State v. Berard, 132 Vt. 138, 315 A.2d 501, 1974 Vt. LEXIS 315, cert. denied, 417 U.S. 950, 94 S. Ct. 3078, 41 L. Ed. 2d 671, 1974 U.S. LEXIS 2010 (1974).

Scope of right.

Since the excluded evidence here was admissible, and was directed toward undermining the credibility of the State’s sole direct witness, the right to confrontation was implicated. State v. Herring, 2010 VT 106, 189 Vt. 211, 19 A.3d 81, 2010 Vt. LEXIS 105 (2010).

Where the State has provided a remedy in the Open Meeting law, 1 V.S.A. §§ 310-314 , for violations of the rights to observe and participate in the discussion and decision making of local government, a plaintiff cannot maintain a suit for damages for the same injury under Article 10. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 2003 U.S. Dist. LEXIS 3455 (D. Vt. 2003).

The protection provided by the Confrontation Clause of the Vermont Constitution is of no greater scope than that afforded by the Sixth Amendment to the U.S. Constitution.State v. Roberts, 154 Vt. 59, 574 A.2d 1248, 1990 Vt. LEXIS 52 (1990).

The right to confrontation is basically a trial right which includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. State v. Sprague, 144 Vt. 385, 479 A.2d 128, 1984 Vt. LEXIS 495 (1984).

The right to confront witnesses includes a right to establish identity of the witness so that jury can place him in his environment, know who he is, and weigh his evidence. State v. Berard, 132 Vt. 138, 315 A.2d 501, 1974 Vt. LEXIS 315, cert. denied, 417 U.S. 950, 94 S. Ct. 3078, 41 L. Ed. 2d 671, 1974 U.S. LEXIS 2010 (1974).

Right of defendant to confront witnesses against him is specifically related to criminal prosecutions, trials where guilt or innocence of an accused is at issue, and such right is not an essential ingredient in court’s determination of punishment of a person whose guilt has already been determined. State v. Morse, 126 Vt. 314, 229 A.2d 232, 1967 Vt. LEXIS 191 (1967).

Violations.

Defendant’s right to confrontation was not violated by the admission of laboratory reports as business records. They were procured at the instigation of defendant and his employer, not by police, almost a year before criminal charges were filed; the fact that the information could conceivably be used for future litigation did not establish that it was prepared for litigation rather than in the normal course of the laboratory’s business. State v. Erwin, 2011 VT 41, 189 Vt. 502, 26 A.3d 1, 2011 Vt. LEXIS 34 (2011).

In prohibiting defendant from presenting the full range of evidence on an incident where the complainant stated that she vomited profusely when defendant had her drink an over-the-counter remedy after forcing her to perform oral sex, the trial court not only blocked an arguably valid tactical decision, but also foreclosed defendant from his constitutional right to confrontation. The ruling was not justified by avoidance of undue prejudice to defendant, since it was directly waived by defendant’s own request, and was unexplained by the trial court in terms of other balancing to exclude relevant evidence. State v. Herring, 2010 VT 106, 189 Vt. 211, 19 A.3d 81, 2010 Vt. LEXIS 105 (2010).

Defendant, whose probation was dependent on his meeting certain requirements, including one requiring him to remain within the State unless he had his probation officer’s permission to leave, was denied his right to confront the witness as provided by the Confrontation Clause when an out-of-state police officer’s affidavit, rather than the officer in person, was presented at a violation-of-parole hearing to prove that defendant had violated the travel conditions of his parole. State v. Austin, 165 Vt. 389, 685 A.2d 1076, 1996 Vt. LEXIS 92 (1996).

V. EVIDENCE.

Admissibility.

In a prosecution for the sale of marijuana, the trial court erred by limiting defendant’s cross-examination of a detective regarding an informant’s actions in connection with drug purchases. State v. Findlay, 171 Vt. 594, 765 A.2d 483, 2000 Vt. LEXIS 313 (2000) (mem.).

Trial court’s decision to admit testimony about third person’s claims to have killed victim, while limiting certain testimony about circumstances in which statements were made, properly balanced risk of confusing issues and misleading jury against defendant’s constitutional right to present exculpatory evidence. State v. Corliss, 168 Vt. 333, 721 A.2d 438, 1998 Vt. LEXIS 17 (1998).

An affidavit of a New Hampshire police officer, which served as evidence in a violation-of-parole hearing that defendant had violated parole and left the State without permission as witnessed by New Hampshire officer who stopped defendant in a traffic stop, did not bear the traditional indicia of reliability that would permit admissibility of the affidavit over a valid objection on confrontation grounds. State v. Austin, 165 Vt. 389, 685 A.2d 1076, 1996 Vt. LEXIS 92 (1996).

Evidence concerning involvement of third party in the burglary and assault for which defendant was on trial was properly rejected where there was no evidence to incriminate the third party directly and the proffered evidence was likely only to confuse or mislead the jury. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

The right to present exculpatory evidence entitles a defendant to call witnesses and present evidence on his behalf, but the evidence must be otherwise admissible. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

Exculpatory evidence tending to show a third party’s involvement in a crime should be admitted as long as motive and opportunity have been shown and there is also some evidence to directly connect the third person to the crime charged. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

This article does not require admission of misleading or unduly prejudicial evidence. State v. Larose, 150 Vt. 363, 554 A.2d 227, 1988 Vt. LEXIS 184 (1988).

This article does not confer upon criminal defendant an independent right to introduce evidence at trial; the “evidence in his favor” must conform to the law of evidence in order to be admissible. State v. Potter, 148 Vt. 53, 529 A.2d 163, 1987 Vt. LEXIS 451 (1987).

Provision of this article that gives a criminal defendant the right “to call for evidence in his favor” does not guarantee the admission of unduly prejudicial or misleading evidence; such evidence must be otherwise admissible under the law of evidence. State v. Johnson, 143 Vt. 355, 465 A.2d 1366, 1983 Vt. LEXIS 523 (1983).

Harmless error.

Suppression of defendant’s statements about his alcohol consumption had no bearing on the outcome of his case because other evidence, including the result of a preliminary breath test and a trooper’s observations, was sufficient to support the trooper’s decision to arrest defendant for driving under the influence. Thus, any potential error under the Fifth Amendment and the Vermont Constitution was harmless. State v. McGuigan, 2008 VT 111, 184 Vt. 441, 965 A.2d 511, 2008 Vt. LEXIS 107 (2008).

Lost evidence.

Driving-while-intoxicated defendant whose blood sample was mislabeled and destroyed by the Department of Health had not been deprived of his right to call for evidence in his favor under the Vermont Constitution. The physical indicia of intoxication observed by the State trooper and the breath test results demonstrating that defendant was well over the “legal limit” of .08 did not suggest a reasonable possibility that an independent blood sample would have produced exculpatory evidence; furthermore, there was but mere negligence behind the loss of the evidence, and significant evidence of impairment. State v. Gentes, 2013 VT 14, 193 Vt. 669, 70 A.3d 967, 2013 Vt. LEXIS 12 (2013) (mem.).

Preclusion of witnesses.

In prosecution for rape, trial court’s exclusion of expert testimony, pertaining to accuracy of victim’s identification of the attacker, did not violate defendant’s constitutional rights to present evidence in his own defense. State v. Percy, 156 Vt. 468, 595 A.2d 248, 1990 Vt. LEXIS 268 (1990), cert. denied, 502 U.S. 927, 112 S. Ct. 344, 116 L. Ed. 2d 284, 1991 U.S. LEXIS 6217 (1991).

Neither the Sixth Amendment of the U.S. Constitution nor this article forbids preclusion of the testimony of a surprise witness as a discovery sanction in appropriate circumstances. State v. Gulley, 155 Vt. 65, 580 A.2d 980, 1990 Vt. LEXIS 161 (1990).

Preclusion of witnesses as a discovery sanction did not offend the defendant’s right to call for evidence in his favor under this article. State v. Edwards, 153 Vt. 649, 569 A.2d 1075, 1989 Vt. LEXIS 238 (1989) (mem.).

Suppression by prosecution.

The suppression by prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or the bad faith of the prosecution. State v. Goshea, 137 Vt. 69, 398 A.2d 289, 1979 Vt. LEXIS 924 (1979).

VI. SPEEDY TRIAL.

Appellate delay.

In order to warrant reversal of a conviction under this article on the ground of appellate delay, defendant must show that substantial prejudice has resulted from the delay. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

Assertion of right.

Motion to dismiss criminal complaint for lack of prosecution is not equated with assertion of speedy trial right. State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

A motion to dismiss based on an alleged violation of the right to a speedy trial is not the equivalent of a demand for an immediate trial. State v. Recor, 150 Vt. 40, 549 A.2d 1382, 1988 Vt. LEXIS 103 (1988).

Although the primary burden is on the courts and prosecutors to assure that cases are brought to trial, the failure of a defendant to assert his right to a speedy trial will make it difficult for him to prove that he was denied such a right. State v. Dragon, 130 Vt. 570, 298 A.2d 856, 1972 Vt. LEXIS 317 (1972).

Defendant who, upon first arraignment in October, was granted continuance for unsuccessful attempt to obtain counsel, whereupon counsel was appointed in January, was not denied a speedy trial by detention until subsequent arraignment in March, there having been no request for trial. State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968).

Right of an accused to a prompt trial may be invoked by any person accused of a criminal offense, whether admitted to bail or in confinement, and without regard to whether imprisonment is on complaint at issue or some unrelated offense. State v. Mahoney, 124 Vt. 488, 207 A.2d 143, 1965 Vt. LEXIS 277 (1965).

Dismissal of charges.

Where charges are dismissed and defendant is later served with a new citation for the same offense, defendant has no constitutional speedy trial rights during the interim period, since after dismissal, defendant is no longer an accused. State v. Snide, 144 Vt. 436, 479 A.2d 139, 1984 Vt. LEXIS 494 (1984).

Factors for determining violation of right.

Defendant’s speedy trial rights under the Sixth Amendment and the Vermont Constitution had not been violated by the 23-month delay. Only five months of the delay were clearly attributable to the State, and while defendant timely asserted his speedy trial right, he was out on bail the entire time and had identified few specific claims of prejudice. State v. Reynolds, 2014 VT 16, 196 Vt. 113, 95 A.3d 973, 2014 Vt. LEXIS 15 (2014).

Evidence concerning involvement of third party in the burglary and assault for which defendant was on trial was properly rejected where there was no evidence to incriminate the third party directly and the proffered evidence was likely only to confuse or mislead the jury. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

Defendant was not denied speedy trial where allegation of prejudice was unsupported, defendant never asserted speedy trial right, 6 1/2 months between arraignment and trial was only short period beyond administrative order standard for prompt disposition of criminal cases, defendant was not incarcerated, and delay was caused by difficulty in scheduling long trial. State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

There are four factors that are relevant in determining when a denial of the right to a speedy trial has occurred: the length of the delay, the reason for the delay, defendant’s assertion of his or her right, and prejudice to the defendant. State v. Recor, 150 Vt. 40, 549 A.2d 1382, 1988 Vt. LEXIS 103 (1988).

In examining a claim that speedy trial rights have been violated, at least four factors are relevant: length of the delay, reason for the delay, defendant’s assertion of his right, and prejudice to the defendant. State v. Snide, 144 Vt. 436, 479 A.2d 139, 1984 Vt. LEXIS 494 (1984).

A court confronted with a motion for dismissal on the ground that the defendant has been deprived of a speedy trial must make its decision on a balancing test in which the conduct of both the prosecution and the defendant must be weighed, and the factors that should be considered are the length of the delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant. State v. Dragon, 130 Vt. 570, 298 A.2d 856, 1972 Vt. LEXIS 317 (1972).

Length of delay.

The right to a speedy trial is a constitutional guarantee that cannot be quantified into a specific number of days or months. State v. Snide, 144 Vt. 436, 479 A.2d 139, 1984 Vt. LEXIS 494 (1984).

Prejudice.

Impact of pending Medicaid fraud case on defendant’s ability to carry on medical practice did not constitute type of prejudice causing dismissal of criminal complaint for denial of speedy trial. State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

Defendant’s claim that he was subjected to anxiety, embarrassment, and loss of employment because he was compelled to wait an inordinate amount of time before his case came to trial amounted to nothing more than an unsupported assertion that delay is per se prejudicial and was not sufficient to show prejudice. State v. Recor, 150 Vt. 40, 549 A.2d 1382, 1988 Vt. LEXIS 103 (1988).

In determining the existence of prejudice resulting from delay of trial, the most important consideration is prejudice to the defense at trial. State v. Recor, 150 Vt. 40, 549 A.2d 1382, 1988 Vt. LEXIS 103 (1988).

Where defendant was given a citation for driving under the influence of intoxicating liquor on June 27, 1982, the case was dismissed on October 1, 1982, defendant was served with a new citation for the same offense on November 10, 1982, and on January 6, 1983, filed a motion to dismiss for lack of a speedy trial, since the time between the first dismissal and the second citation could not be considered in computing the length of delay and the remaining total period of delay was less than six months, a time period insufficient to trigger a presumption of prejudice which would justify consideration of other factors, as of January 6, 1983, there had been no denial of defendant’s right to a speedy public trial. State v. Snide, 144 Vt. 436, 479 A.2d 139, 1984 Vt. LEXIS 494 (1984).

Prejudice is the most important factor to consider in analyzing speedy trial issues. State v. Bristol, 143 Vt. 245, 465 A.2d 278, 1983 Vt. LEXIS 504 (1983).

Where defendant, who claimed that his right to a speedy trial was denied because of delays attributable to the State, miscalculated the length of his incarceration prior to trial, failed to exclude from his calculation certain periods of delay in the proceedings that were of his own making, and showed no prejudice from any delays that did occur, defendant was not denied his right to speedy trial. State v. Bristol, 143 Vt. 245, 465 A.2d 278, 1983 Vt. LEXIS 504 (1983).

Purpose.

The right to a prompt trial protects an accused, if he is confined, against prolonged imprisonment prior to the determination of guilt or innocence, protects him against prolonged anxiety and public embarrassment, and protects him from the hazards of excessive delay that might deprive him of witnesses in behalf or dull their memories in the recall of the event and circumstances relevant to the charge. State v. Mahoney, 124 Vt. 488, 207 A.2d 143, 1965 Vt. LEXIS 277 (1965); State v. Dragon, 130 Vt. 570, 298 A.2d 856, 1972 Vt. LEXIS 317 (1972).

Reasons for delay.

Given that defendant largely brought delay upon himself through his motion practice and refusal of earlier trial dates, defendant was not denied a speedy trial. State v. Burke, 2012 VT 50, 192 Vt. 99, 54 A.3d 500, 2012 Vt. LEXIS 44, cert. denied, 568 U.S. 1072, 133 S. Ct. 795, 184 L. Ed. 2d 588, 2012 U.S. LEXIS 9545 (2012).

Where the delay in trial was caused as much by the failure of the defendant to prepare his defense as it was on the State to move for a speedier trial and defendant was afforded a trial in less than a month from the time he first started to prepare his defense and there was no showing he was hindered in efforts to prepare a defense or that the delay had caused him anxiety, concern, or embarrassment, the delay involved was not a denial of the right of speedy trial. State v. Dragon, 130 Vt. 570, 298 A.2d 856, 1972 Vt. LEXIS 317 (1972).

Accused was not denied a speedy trial, harassed, or subjected to oppressive use of the State’s accusative powers where he was indicted for manslaughter on Nov. 4, 1968, the case was set for hearing on Dec. 10, 1968, and the State nol-prossed it on that date and immediately filed an information charging manslaughter and four other offenses, and accused, following denial of his motion to quash the information, appealed by interlocutory order, which resulted in the lower court proceeding being delayed pending decision of that appeal. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Waiver of right.

Constitutional right to a speedy trial is personal and may be waived. State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968).

Accused can waive his constitutional right to a prompt trial. State v. Mahoney, 124 Vt. 488, 207 A.2d 143, 1965 Vt. LEXIS 277 (1965).

VII. JURY TRIAL.

Area from which jury is drawn.

This article does not require jurors to be drawn from all counties in a district court unit. State v. Murphy, 134 Vt. 106, 353 A.2d 346, 1976 Vt. LEXIS 606 (1976).

Where there is no systematic exclusion of classes of jurors, the restriction of the panel to areas of geographic convenience does not, standing alone, violate this article. State v. Murphy, 134 Vt. 106, 353 A.2d 346, 1976 Vt. LEXIS 606 (1976).

Delinquency proceedings.

Since statutes relating to delinquent children are protective rather than penal, the fact that a jury trial is not provided in proceedings thereunder does not violate this article. In re Gomez, 113 Vt. 224, 32 A.2d 138, 1943 Vt. LEXIS 159 (1943).

Determination of legal issues.

This article does not require submission to jury of disputed questions of fact regarding search or seizure; function of jury is to act as finder of facts, and threshold determinations of legal issues are properly committed to province of court. State v. Ryea, 153 Vt. 451, 571 A.2d 674, 1990 Vt. LEXIS 9 (1990).

Impartial jury.

Murder defendant’s right to an impartial jury was properly protected by the trial court, which conducted both general and individual voir dire of the jury to determine whether or not seeing three spectators wearing T-shirts with the victim’s name had in fact created bias among the jurors and determined that the jurors remained unbiased. Even if defendant had filed the proper challenges to certain jurors for cause, which was the proper procedural route instead of a motion for mistrial because the jurors had not yet been impaneled, the result was the same. State v. Herrick, 2011 VT 94, 190 Vt. 292, 30 A.3d 1285, 2011 Vt. LEXIS 91 (2011).

State constitutional guarantee to a fair cross-section in the jury selection process does not provide any greater protection than that afforded by the U.S. Constitution, and requires defendant to show prejudice in order to successfully challenge a jury array. State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991).

The power of the trial court to remove a juror in proper circumstances does not mean that either side is entitled to have removed any juror who, by some act or remark made during trial, has given the impression that he favors one side or the other; in order for trial court’s discharge of a juror to stand, due inquiry and specific findings, on the record, must be made. State v. Villeneuve, 155 Vt. 360, 584 A.2d 1123, 1990 Vt. LEXIS 234 (1990).

Where, after closing arguments and before jury charge, the trial court in an assault and robbery case conducted in chambers conference with counsel and a court officer who had raised a question as to a juror’s impartiality, the trial court’s discharge of the juror on the “remote possibility” she might lack impartiality without examination of her on the record violated defendant’s State constitutional right to a jury trial and required reversal. State v. Villeneuve, 155 Vt. 360, 584 A.2d 1123, 1990 Vt. LEXIS 234 (1990).

For purposes of constitutional challenge to jury selection process, State constitutional provisions that guarantee criminal defendants a right to an impartial jury and that provide that the right to jury trial should be held sacred afforded no greater protection than Sixth Amendment of the U.S. constitution.State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

Since due process is involved in the right to a trial before an impartial jury, the law is sensitive to any infringement or impairment. State v. Ovitt, 126 Vt. 320, 229 A.2d 237, 1967 Vt. LEXIS 192 (1967); In re Mandeville, 144 Vt. 608, 481 A.2d 1048, 1984 Vt. LEXIS 536 (1984).

If upon examination a juror shows a state of mind evincing that she could not exercise independent judgement, she is properly subject to challenge for cause. State v. Holden, 136 Vt. 158, 385 A.2d 1092, 1978 Vt. LEXIS 708 (1978); State v. White, 142 Vt. 73, 451 A.2d 1137, 1982 Vt. LEXIS 599 (1982).

An indication from presiding judge that he belittles, or looks with disfavor upon the conduct of counsel, might well be reflected in the consideration by the jury of rights of respondent whom that counsel represents and thus constitutes a violation of this article. State v. Hedding, 122 Vt. 379, 172 A.2d 599, 1961 Vt. LEXIS 87 (1961).

Number of jurors.

A defense counsel’s stipulation to an 11-member jury does not violate a defendant’s right to a jury trial under this article; since such a decision by defense counsel is a “tactical” or “strategic” one, it can be made by counsel with the defendant’s implied consent. State v. Machia, 155 Vt. 192, 583 A.2d 556, 1990 Vt. LEXIS 191 (1990).

At trial for simple assault in which only one alternate juror was impaneled, where defense counsel orally stipulated on the record to proceed with an 11-member jury if necessary during bench conference out of defendant’s presence and stipulation was confirmed in defendant’s presence, defendant was not deprived of his right to a jury trial under this article. State v. Machia, 155 Vt. 192, 583 A.2d 556, 1990 Vt. LEXIS 191 (1990).

The jury referred to in this article is the common law jury of 12. State v. Peterson, 41 Vt. 504, 1869 Vt. LEXIS 1 (1869); In re Kennedy, 55 Vt. 1, 1883 Vt. LEXIS 2 (1883); State v. Hirsch, 91 Vt. 330, 100 A. 877, 1917 Vt. LEXIS 252 (1917). (But see Rule 23(b), Vermont Rules of Criminal Procedure.) .

Refusal to submit to alcohol test.

Trial by jury was not required under this article at hearing under 23 V.S.A. § 1205 on refusal to submit to alcohol testing as proceeding is summary hearing of civil nature and is not criminal prosecution. Shaw v. District Court, 152 Vt. 1, 563 A.2d 636, 1989 Vt. LEXIS 121 (1989).

Unanimous verdict.

New trial on the false information count was required. Neither the charge nor the State’s trial evidence identified precisely what information the jury needed to evaluate with respect to this count, and given defendant’s multiple statements and the two distinct ways in which a violation of the statute could occur, the court could not be certain that the jury unanimously agreed that all, or at least one, of defendant’s statements met the same statutory elements. State v. Redmond, 2020 VT 36, 212 Vt. 242, 234 A.3d 958, 2020 Vt. LEXIS 39 (2020).

Trial court’s instruction on first-degree aggravated assault tracked the language of the statute and contained definitions for both recklessness and willfulness, gave the jury the diminished capacity instruction requested by defendant, and explicitly instructed the jurors to consider whether defendant’s intoxication negated his ability to form willful intent. Further, because the instructions were clear that the jury was only to consider diminished capacity with willful intent and because there was nothing restricting recklessness to be considered in the alternative, the jury was necessarily unanimous on the intent element. State v. Peatman, 2018 VT 28, 207 Vt. 97, 185 A.3d 1257, 2018 Vt. LEXIS 28 (2018).

Because all of the alleged acts took place over a span of six minutes as part of one continuous assault, the case fit within the exception to the election rule in multiple-act acts because the acts were inextricably intertwined as one continuous offense. Therefore, the trial court’s initial instructions, which included a list of alleged acts that the trial court suggested the jury consider, and its answer to the jury question, which clarified that the jury did not have to elect specific acts and instead had to be unanimous that the element was proven beyond a reasonable doubt, preserved defendant’s right to a unanimous verdict and were not in error. State v. Peatman, 2018 VT 28, 207 Vt. 97, 185 A.3d 1257, 2018 Vt. LEXIS 28 (2018).

In not requiring unanimity on the issue of the three possible mental states that could support a voluntary manslaughter conviction, the trial court did not violate defendant’s rights under the Vermont Constitution, even if defendant had not waived the issue. The three mental states of intent to kill, intent to do great bodily harm, and wanton disregard of the likelihood of death or great bodily harm were merely other ways to demonstrate defendant had the requisite intent; thus, as long as all jurors were unanimous on the ultimate issue of intent, which of the three alternative methods used to inform each decision as to intent was immaterial. State v. Boglioli, 2011 VT 60, 190 Vt. 542, 26 A.3d 44, 2011 Vt. LEXIS 63 (2011) (mem.).

There was no plain error violation of defendant’s right to a unanimous jury verdict based on a single offense where defendant’s participation with his brothers in a burglary and assault constituted a single, uninterrupted criminal transaction and where the jury was entitled to convict defendant as jointly culpable for the acts of his brothers. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

The right to a unanimous verdict based on a single offense requires that in circumstances where there is evidence of more than one act that would constitute the offense charged, the State must specify the act for which it seeks a conviction. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

Jury instructions in kidnapping case violated requirement of unanimous jury verdict under this article, where defendant was charged in a single count with forcibly confining five people and the court instructed the jury that the defendant could be convicted for confining “any one of the five” and did not require special verdicts by the jury, identifying each person unanimously concluded to have been forcibly confined; the possibility thus existed that not all jurors believed the defendant guilty of the same count or counts. State v. Couture, 146 Vt. 268, 502 A.2d 846, 1985 Vt. LEXIS 382 (1985).

Waiver of right.

Trial by jury in a criminal case is an individual right that may be waived. State v. Sequin, 153 Vt. 128, 569 A.2d 475, 1989 Vt. LEXIS 241 (1989).

Written waiver of jury trial, signed by defendant and counsel, which shows an understanding of the right to be waived, is sufficient to establish a knowing, intelligent, and voluntary waiver, in absence of evidence to contrary. State v. Conn, 152 Vt. 99, 565 A.2d 246, 1989 Vt. LEXIS 134 (1989).

It is better practice for trial court to engage defendant wishing to waive right to jury trial in a colloquy, on the record, to determine whether the waiver is voluntary, knowing, and intelligently made. State v. Conn, 152 Vt. 99, 565 A.2d 246, 1989 Vt. LEXIS 134 (1989).

Right to an unbiased jury is a personal right that may be waived only by defendant and only with a knowing and intelligent waiver. State v. Bailey, 144 Vt. 86, 475 A.2d 1045, 1984 Vt. LEXIS 420 (1984), overruled as stated in State v. Manning, 2017 VT 90, 205 Vt. 537, 177 A.3d 513, 2017 Vt. LEXIS 108 (2017).

Provision of this article governing waiver of jury trial does not apply where a defendant enters a plea of guilty. In re Morse, 138 Vt. 327, 415 A.2d 232, 1980 Vt. LEXIS 1217 (1980).

Under this article, it must affirmatively appear from a writing signed by the defendant, or from the oral record made in open court, that the defendant personally indicated, understandingly, his desire to waive jury trial. State v. Ibey, 134 Vt. 140, 352 A.2d 691, 1976 Vt. LEXIS 615 (1976).

To attempt to make a defendant believe that the right to trial by jury is conditional on his being represented by counsel may render any waiver of jury trial, even those in proper and constitutional form, involuntary. State v. Bliss, 133 Vt. 324, 340 A.2d 76, 1975 Vt. LEXIS 395 (1975).

Where waiver of jury trial was signed by defendant in open court and the waiver was filed with the court, requirement of this article that the consent of the prosecuting officer be entered of record was deemed to be complied with, when that officer proceeded to trial without questioning the waiver. State v. Blaine, 133 Vt. 345, 341 A.2d 16, 1975 Vt. LEXIS 402 (1975).

VIII. SELF-INCRIMINATION.

Generally.

Despite the historical recognition of the privilege against self-incrimination and the language of Chapter I, Article 10, in its application to adults, the Article 10 privilege against self-incrimination and that contained in the Fifth Amendment are synonymous. State v. Rheaume, 2004 VT 35, 176 Vt. 413, 853 A.2d 1259, 2004 Vt. LEXIS 37 (2004).

Claim was rejected that revocation of probation on violation of special condition requiring therapy was contrary to State Constitution, where special condition did not contravene the Fifth and Fourteenth Amendments to the United States Constitution, and defendant offered no explanation why State Constitution offered greater protection than United States Constitution. State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1990 Vt. LEXIS 60 (1990).

The privilege against self-incrimination is an option of refusal, not a prohibition of inquiry. State v. Duncan, 78 Vt. 364, 63 A. 225, 1906 Vt. LEXIS 158 (1906); In re Mackenzie, 100 Vt. 325, 137 A. 319, 1927 Vt. LEXIS 157 (1927).

Assertion of right.

Defendant who was charged with arson and who did not respond or appear for civil deposition required by his insurance company failed to assert his privilege against self-incrimination in a timely manner in response to the specific deposition questions, and he thus prevented court review of his privilege claim in the context of those questions; defendant could therefore not assert that prosecutor’s comment on his failure to appear at deposition violated his privilege. State v. McElreavy, 157 Vt. 18, 595 A.2d 1332, 1991 Vt. LEXIS 121 (1991).

Where defendant charged with arson failed to appear for civil deposition required by his insurance company, and gave no explanation for not appearing, this silence did not constitute an assertion of his privilege against self-incrimination. State v. McElreavy, 157 Vt. 18, 595 A.2d 1332, 1991 Vt. LEXIS 121 (1991).

When a witness places himself upon his privilege against self-incrimination, he will be protected, unless the court can see from the circumstances of the case that the witness is in error, or that it is a mere pretext to avoid answering, and that his answer cannot incriminate him. State v. Dewar, 102 Vt. 340, 148 A. 489, 1930 Vt. LEXIS 126 (1930).

Statement of witness that answer will tend to criminate him is not necessarily conclusive, but presents a question for determination of the court. In re Consolidated Rendering Co., 80 Vt. 55, 66 A. 790, 1907 Vt. LEXIS 77 (1907), aff'd, 207 U.S. 541, 28 S. Ct. 178, 52 L. Ed. 327, 1908 U.S. LEXIS 1413 (1908).

Blood alcohol content tests.

Since the right of an operator of a motor vehicle to refuse to submit to a test of alcohol content of breath or blood is a statutory rather than a constitutional right, the Legislature may properly condition the exercise of the right by providing that any refusal may be introduced as evidence in a criminal proceeding, and admission of refusal evidence does not violate privilege against self-incrimination secured by this article. State v. Brean, 136 Vt. 147, 385 A.2d 1085, 1978 Vt. LEXIS 706 (1978).

Admission of refusal to consent to breath test for blood alcohol content upon arrest for suspected driving while intoxicated does not violate the privilege against self-incrimination. State v. Welch, 136 Vt. 442, 394 A.2d 1115, 1978 Vt. LEXIS 771 (1978).

Comment by prosecution.

Assuming, without deciding, that it was an error for the trial court to allow the prosecution to elicit an officer’s testimony during its case in chief regarding defendant’s pre-arrest, pre-Miranda silence, such error was harmless. The cumulative nature of the offending testimony and the fact that defendant was the only potential perpetrator convinced the court that the outcome of the trial would not have been different had the officer’s testimony been excluded. State v. Kulzer, 2009 VT 79, 186 Vt. 264, 979 A.2d 1031, 2009 Vt. LEXIS 83 (2009).

There was no constitutional error in allowing the State to play a videotape of defendant in a holding cell during which defendant purportedly invoked his right to silence. The whole point of showing the tape, which was admitted to show defendant’s intoxication, was to show defendant’s behavior; there was no focus at all on the content of what defendant said or did not say. State v. Lee, 2008 VT 128, 185 Vt. 110, 967 A.2d 1161, 2008 Vt. LEXIS 146 (2008).

Although defendant argued that by asking defendant’s wife if she had evidence to dispute the allegations against her husband, the State commented on his silence, in violation of the Fifth Amendment to the United States Constitution, Chapter I, Article 10 of the Vermont Constitution and 13 V.S.A. § 6601 and that the court’s curative instruction was insufficient to remedy the harm caused, and that his convictions must therefore be reversed, the court promptly instructed the jury that the State bore the burden of proof, and that defendant had no obligation to present any evidence to disprove the allegations; whether or not the question asked of defendant’s wife was improper, the court’s instructions were sufficient to correct any possible prejudice. State v. Powers, 163 Vt. 98, 655 A.2d 712, 1994 Vt. LEXIS 178 (1994).

Confessions.

Defendant’s statements about drinking were not involuntary under the Vermont Constitution. She made the main admission she sought to suppress well after the comments to which she objected and after reaffirming her refusal to undergo field sobriety or evidentiary tests. State v. Sullivan, 2013 VT 71, 194 Vt. 361, 80 A.3d 67, 2013 Vt. LEXIS 70 (2013).

Even if the trial court erred in denying defendant’s motion to suppress certain statements, the fact that the State had ample evidence to demonstrate that defendant possessed the requisite state of mind for the crimes charged without the statements combined with the cumulative nature of the statements led the court to conclude that any error in admitting these statements was harmless beyond a reasonable doubt. There was ample evidence that defendant possessed the requisite mental state for murder, including (1) testimony from three people who interacted with defendant on the day of the shootings; (2) testimony from medical examiners and forensic investigators as to the location of the victims, the fact that multiple shots were fired, and (3) the fact that defendant shot all of his victims at close range; and the cross-examination of defendant’s own psychiatric expert, who indicated his belief that defendant was capable of, and indeed did, commit the murders and attempted murders with deliberation and premeditation. State v. Williams, 2010 VT 83, 188 Vt. 413, 8 A.3d 1053, 2010 Vt. LEXIS 82 (2010).

Confession to burglary and assault was not the result of police pressure where defendant arrived at police barracks uninvited and was told he was free to leave; although the officers discussed benefits to him resulting from his becoming a confidential informant, they never promised he would not be prosecuted if he admitted having committed a serious felony unrelated to the subject of their discussion, drug crime. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

A trial court’s findings in support of its decision to suppress or admit a confession must stand if they are supported by substantial evidence. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

A defendant’s confession, without any evidence of police coercion, may be voluntary, even where defendant is mentally ill and incapable of validly waiving right to remain silent. State v. Robinson, 158 Vt. 286, 611 A.2d 852, 1992 Vt. LEXIS 53 (1992).

Introduction of an involuntary confession into evidence is prohibited by the United States Constitution and the Vermont Constitution; whether a confession is involuntary is determined by examining the totality of the circumstances, the ultimate question being whether police officers’ threats, promises, or coercion were sufficient to overcome the defendant’s free will or rational intellect, causing the defendant to confess. State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

In order to be proven voluntary and hence admissible, a confession must be the product of a rational intellect and the unfettered exercise of free will; accordingly, it may not be induced by threats, improper influence, or physical or psychological pressure. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

An involuntary confession violates this article. State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982).

Torture to extort a confession of the truth from persons accused of crimes is contrary to this article. State v. Hobbs, 2 Tyl. 380 (Vt. Feb. 1, 1803).

Counsel.

When defendant had been arrested and was awaiting transportation to a corrections facility, the failure to contact a public defender within 15 minutes did not warrant suppression as a violation of the Public Defender Act or the Vermont Constitution. During the 15 minutes that elapsed after defendant invoked his rights and before he waived them, he was not subjected to custodial interrogation. State v. Robitaille, 2011 VT 135, 191 Vt. 91, 38 A.3d 52, 2011 Vt. LEXIS 135 (2011).

Exclusionary rule.

Vermont Constitution does not require the trial court to test voluntariness of a defendant’s confession on a standard of proof beyond a reasonable doubt; in judging a motion to suppress, the proper standard of proof for the court is preponderance of the evidence; Vermont’s adoption of the “Massachusetts rule” under which voluntariness is first considered by the trial court and then is reconsidered by the jury adequately protects defendants’ constitutional rights, as the standard of proof to be used by the jury is beyond a reasonable doubt. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

Trial court properly denied defendant’s motion to suppress evidence on basis that his confession was involuntary under State constitutional standards; the record as a whole supported the trial court’s findings that, despite some fatigue, fear, and evidence of alcohol ingestion, defendant’s thought processes were not impaired, and these findings support the decision that defendant’s confessions were voluntary. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

The Vermont Constitution prohibits the taking of involuntary confessions, and evidence obtained in violation of this prohibition cannot be admitted at trial. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

Involuntary confessions are inadmissible in all criminal trials in Vermont. State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982).

Where a second confession extracted from the defendant was clearly a direct product of an illegally obtained first confession, and where no intervening events purged the taint of the second confession, that confession was properly suppressed under this article. State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982).

The unlawful seizure of a person’s private papers for use against him in a criminal prosecution is equivalent to compelling him to be a witness against himself, and such papers are inadmissible under this article. State v. Slamon, 73 Vt. 212, 50 A. 1097, 1901 Vt. LEXIS 156 (1901).

Grand jury proceedings.

Order issued against a corporation directing it to produce certain documentary evidence before grand jury, and contempt proceedings against corporation for a violation thereof, were not contrary to this article, since corporation was not a party nor charged with any crime, but simply summoned to appear before grand jury with documentary evidence, where the privilege against self-incrimination could have been claimed if desired. In re Consolidated Rendering Co., 80 Vt. 55, 66 A. 790, 1907 Vt. LEXIS 77 (1907), aff'd, 207 U.S. 541, 28 S. Ct. 178, 52 L. Ed. 327, 1908 U.S. LEXIS 1413 (1908).

When person comes before grand jury as witness in obedience to a subpoena duly served upon him and is neither under arrest for nor charged with any crime, and his testimony, given without objection on his part, is properly received and considered by grand jury, although it tends to criminate him, said grand jury may subsequently, on the strength of such testimony, legally indict him of the crime concerning which he so testified. State v. Duncan, 78 Vt. 364, 63 A. 225, 1906 Vt. LEXIS 158 (1906).

That respondent did not know what was going on before grand jury, and was not advised of his privilege in respect of giving criminating evidence against himself was immaterial where it was not shown that at the time he so testified it had been ascertained that a crime had been committed or that he was in custody charged with a crime, or even suspected thereof. State v. Duncan, 78 Vt. 364, 63 A. 225, 1906 Vt. LEXIS 158 (1906).

Handwriting exemplars.

This article does not bar the use of handwriting exemplars as evidence in a criminal trial. State v. Picknell, 142 Vt. 215, 454 A.2d 711, 1982 Vt. LEXIS 621 (1982).

Impeachment of witness.

It is no invasion of guaranty against self-incrimination to impeach witness by compelling him to answer questions relative to the truthfulness of his previous testimony. In re Mackenzie, 100 Vt. 325, 137 A. 319, 1927 Vt. LEXIS 157 (1927).

Interrogation.

Trial court properly denied suppression of defendant’s statements in the police cruiser and processing room prior to the commencement of formal questioning. While defendant was in custody when she made the statements, and invoked her right to counsel partway through the statements, police at no point did or said anything reasonably likely to elicit incriminating statements, meaning the statements were not the product of custodial interrogation; rather, defendant’s statements were not in apparent response to anything police said or did but were part of a self-reflective monologue. State v. O'Neill, 2019 VT 19, 209 Vt. 599, 209 A.3d 1213, 2019 Vt. LEXIS 42 (2019).

Custodial interrogation initiated by law enforcement personnel is violative of one’s privilege against self-incrimination under this article unless the prosecution clearly demonstrates that one voluntarily and intelligently waived his right and that the prosecution followed certain safeguards in questioning the accused. State v. Killary, 133 Vt. 604, 349 A.2d 216, 1975 Vt. LEXIS 466 (1975).

In dealing with admissions obtained through interrogation of one accused of crime, instituted by representatives of the State, adequate observance of the commands of this article requires that the person interrogated be informed of his right of silence and that any statement he does make may be used as evidence against him. State v. Miner, 128 Vt. 55, 258 A.2d 815, 1969 Vt. LEXIS 202 (1969).

Lack of remorse.

Defendant’s right to remain silent under this article was not violated by trial court’s refusal to transfer his case to juvenile court on the ground that he lacked empathy or sadness for doing crimes, where defendant introduced issue of remorse. State v. Lafayette, 152 Vt. 108, 564 A.2d 1068, 1989 Vt. LEXIS 136 (1989).

Miranda warning.

Defendant was not in custody at the time of the questioning and thus was not entitled to Miranda warnings. The custody factors—particularly that a detective told defendant he was free to leave—indicated that a reasonable person in his situation would have felt at liberty to end the interview; the accusations of guilt and the detective’s false statements were not enough, by themselves or under the totality of circumstances, to establish custody. State v. Lambert, 2021 VT 23, 255 A.3d 747, 2021 Vt. LEXIS 41 (Vt. 2021).

Under the totality of the circumstances, including defendant’s prior experience with law enforcement and his assertions of innocence, detectives’ psychological tactics—namely, telling defendant that he was not a malicious person and that victims of sexual assault often become abusive themselves—and their lie that a witness saw defendant accompany the victim into the woods did not overbear defendant’s free will so as to render his statements involuntary. State v. Lambert, 2021 VT 23, 255 A.3d 747, 2021 Vt. LEXIS 41 (Vt. 2021).

Defendant, a 15-year-old juvenile, was “in custody” while being questioned by the police at his foster home without being apprised of his Miranda rights in violation of the Fifth and Sixth Amendments and the Vermont Constitution. The officer did not expressly inform him that he was free to terminate the questioning; furthermore, the officer communicated his belief in defendant’s guilt by asking him where the stolen car was, defendant’s foster parent was present but discussed the importance of honesty and doing the right thing, and while the interview took place in a home setting, defendant had been there only six to eight weeks and had been recently reported as a runaway. In re E.W., 2015 VT 7, 198 Vt. 311, 114 A.3d 112, 2015 Vt. LEXIS 7 (2015).

Confession obtained in violation of Miranda did not have to be excluded. The connection between defendant’s first interview and the statement 20 days later in a second interview was too attenuated to find the admissions in the second interview to be the fruit of the poisonous tree. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Although police interviewed defendant because he alleged that his wife had committed a crime, the interview necessarily included specific questions and answers about the conduct for which defendant had been charged. It was impossible to separate the questions about defendant’s conduct from those about his wife’s conduct; thus, defendant was subject to custodial interrogation without warnings, in violation of Miranda. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Defendant was not in custody when he voluntarily entered a detective’s vehicle; thus, Miranda warnings were not required. Defendant sought the interview and agreed to the location, and the officer began the interview in earnest by stating that defendant was not under arrest, was “free to leave at any time,” and did not have to talk to the officer. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Confession obtained in violation of Miranda did not have to be excluded. Defendant himself was the independent source for the evidence. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Given the independent basis for the seizure and search of a drug pouch, the fact that defendant told the officer what he was about to discover without having received Miranda warnings was of no moment. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Even if defendant was in custody at the time he provided consent to a search, requests for consent to search before Miranda warnings are given are permissible because such a request is not an interrogation. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

Where defendant was in custody at the time he was questioned about possible marijuana plants, and the police did not give defendant Miranda warnings at that time, statements leading police to the marijuana plants were made in response to interrogation that violated Miranda. Since it is undisputed that the marijuana plants were fruit of the poisonous tree, the District Court erred in failing to suppress them. State v. Peterson, 2007 VT 24, 181 Vt. 436, 923 A.2d 585, 2007 Vt. LEXIS 49 (2007).

Evidence obtained in violation of Miranda is also in violation of the privilege against self-incrimination in Article 10 of the Vermont Constitution. State v. Rheaume, 2004 VT 35, 176 Vt. 413, 853 A.2d 1259, 2004 Vt. LEXIS 37 (2004).

Miranda was not violated when the police requested and obtained from defendant identifying information during booking, despite the fact that defendant had invoked his right to remain silent. State v. Rheaume, 2004 VT 35, 176 Vt. 413, 853 A.2d 1259, 2004 Vt. LEXIS 37 (2004).

This article does not require proof of waiver of Miranda warning beyond a reasonable doubt. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

Argument was rejected that Vermont Constitution requires Miranda warnings at all roadside stops or, at the latest, once police officer has probable cause to believe that individual has committed or is in the process of committing a crime. State v. Zumbo, 157 Vt. 589, 601 A.2d 986, 1991 Vt. LEXIS 223 (1991).

Where Miranda warnings read to defendant were recited from clear and unambiguous forms and trial court properly found both that defendant suffered no serious impairment due to stress, fatigue, or intoxication at the time he waived these rights and that, based on his experience and background, he was able to comprehend the plain meaning of the warnings, trial court’s finding of waiver was not clearly erroneous and was supported by substantial evidence and would stand. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

Where defendant waived Miranda rights properly recited to him, fact defendant waived his rights orally but refused to sign waiver form did not invalidate the waiver. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

Under the Vermont Constitution, waiver of Miranda rights must be established only by a preponderance of the evidence and not by proof beyond a reasonable doubt. State v. Caron, 155 Vt. 492, 586 A.2d 1127, 1990 Vt. LEXIS 259 (1990).

Evidence obtained in violation of Miranda is also in violation of the privilege against self-incrimination in this article. State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987).

Probation revocation proceedings.

Requiring defendant, as a condition of his probation after a conviction of sexual assault, to admit his guilt as part of sex-offender therapy without providing any sort of immunity or protection from repercussions of his admission violated the defendant’s Fifth Amendment and Article 10 rights against self-incrimination, because a person in a probation setting cannot be forced to incriminate himself without first receiving immunity from criminal prosecution on the basis of the admission. State v. Cate, 165 Vt. 404, 683 A.2d 1010, 1996 Vt. LEXIS 91 (1996).

Assuming defendant’s probationary status required him to answer probation officer’s questions and refusal under claim of self-incrimination could be ground to revoke probation, defendant’s answers did not violate his constitutional privilege against self-incrimination, since compelled statements were not to be used in criminal proceeding, but probation revocation proceeding. State v. Steinhour, 158 Vt. 299, 607 A.2d 888, 1992 Vt. LEXIS 44 (1992).

Although probationer’s compelled answers to probation officer’s questions concerning probation conditions could not be used against him in criminal prosecution, State was not required to instruct probationer that such answers would not be so used before using answers in probation revocation proceeding. State v. Steinhour, 158 Vt. 299, 607 A.2d 888, 1992 Vt. LEXIS 44 (1992).

Recording statements.

This article does not require, as a component of due process, that police officers must tape-record inculpatory statements that a criminal suspect makes while in custody. State v. Gorton, 149 Vt. 602, 548 A.2d 419, 1988 Vt. LEXIS 92 (1988).

Standing.

The right to assert privilege against self-incrimination, or waive it, is personal to witness. State v. Crepeault, 126 Vt. 338, 229 A.2d 245, 1967 Vt. LEXIS 194, cert. denied, 389 U.S. 915, 88 S. Ct. 249, 19 L. Ed. 2d 267, 1967 U.S. LEXIS 477 (1967).

Defendant could not assert that testimony of accomplices was elicited in violation of their rights against self-incrimination. State v. Crepeault, 126 Vt. 338, 229 A.2d 245, 1967 Vt. LEXIS 194, cert. denied, 389 U.S. 915, 88 S. Ct. 249, 19 L. Ed. 2d 267, 1967 U.S. LEXIS 477 (1967).

The privilege against self-incrimination is a personal one. In re Mackenzie, 100 Vt. 325, 137 A. 319, 1927 Vt. LEXIS 157 (1927).

The privilege against self-incrimination is personal to a witness, and he alone must claim it. State v. Duncan, 78 Vt. 364, 63 A. 225, 1906 Vt. LEXIS 158 (1906).

Waiver of right.

Trial court’s decision denying defendant’s motion to suppress contained no consideration of factors indicating a knowing and intelligent waiver of Miranda rights and no consideration of factors indicating his awareness of his statutory rights and the consequences of waiving them as required by the waiver statute. Instead, as far as the court could tell from its order, the trial court reached its conclusion that defendant made a valid waiver of his rights by assuming that defendant possessed the requisite experience, education, background, and intelligence to understand the nature of his rights and the consequences of waiving them; thus, the trial court erred by failing to make the required inquiry. State v. Mumley, 2009 VT 48, 186 Vt. 52, 978 A.2d 6, 2009 Vt. LEXIS 43 (2009).

There was no plain error in trial court’s determination that defendant knowingly and intelligently waived his rights to silence and to counsel, where court inquired and then made substantial findings on defendant’s capacity to waive his rights, and defendant’s responses in court indicated a degree of understanding sufficient to establish a knowing, intelligent, and voluntary waiver. State v. Mears, 170 Vt. 336, 749 A.2d 600, 2000 Vt. LEXIS 13 (2000).

The privilege against self-incrimination may be waived, and is waived if not seasonably asserted. State v. Duncan, 78 Vt. 364, 63 A. 225, 1906 Vt. LEXIS 158 (1906).

Warning by court as to defendant’s silence.

Where there was no violation of the Vermont protection against self-incrimination in telling a jury that it could consider a defendant’s silence, there could not be a violation of the same clause when the trial court explicitly warned the jury that it was not to consider defendant’s silence against him. State v. Martin, 2007 VT 96, 182 Vt. 377, 944 A.2d 867, 2007 Vt. LEXIS 263 (2007).

Witness immunity.

Court declines to rule that the protection afforded by the civil operator’s license suspension immunity statute is coextensive with the constitutional privilege against compelled self-incrimination, even though the statute provides immunity to persons testifying voluntarily. State v. Neumann, 2007 VT 123, 183 Vt. 1, 944 A.2d 228, 2007 Vt. LEXIS 252 (2007).

The provision of use and derivative use immunity to a reluctant witness pursuant to 12 V.S.A. § 1664(a) is consistent with the self-incrimination privilege established by Vt. Const. Ch. I, Art. 10, as long as “derivative use” is defined sufficiently broadly to provide equivalent protection to that provided by the privilege and certain procedural protections, such as requiring the State to show nonuse of the compelled evidence, are afforded. State v. Ely, 167 Vt. 323, 708 A.2d 1332, 1997 Vt. LEXIS 286 (1997).

IX. LAW OF THE LAND; DUE PROCESS.

Administrative adjudications.

Due process requires that prisoners accused of disciplinary infractions not be punished for such actions unless their guilt can be shown by a preponderance of the evidence, and trial court correctly found that governing rule denied prisoners due process where it allowed hearing officers to impose discipline as long as there was “some evidence” of violation. LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695, 1993 Vt. LEXIS 96 (1993).

Burden of proof.

Use of preponderance of evidence as standard of proof in home-health nurse’s license suspension decision was appropriate and did not offend due process; license suspension hearing did not approximate a criminal action for purpose of establishing burden of proof, and statutory procedures, together with preponderance of evidence burden placed on State, afforded constitutional process due to nurse. In re Smith, 169 Vt. 162, 730 A.2d 605, 1999 Vt. LEXIS 76 (1999).

The test to determine whether a particular standard of proof satisfies due process under Vt. Const. Ch. I, Art. 10 and U.S. Const. Amend. XIV requires a balancing of the competing interests: (1) the private interest affected by the State action, (2) the risk of erroneously infringing on this interest under the applicable standard, (3) the governmental interest in the procedure, and (4) the burden on the government of imposing a higher standard. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

The first factor to consider in determining the constitutionality of the standard of proof required to establish a parole violation is the parolee’s interest in continued conditional liberty, which is at least as great as the interest of the prisoner in accurate fact-finding in a prison disciplinary proceeding and entails many of the core values of unqualified liberty, including, subject to conditions, the freedom to seek gainful employment and to be with family and friends. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

Applying any standard that calls for less than a preponderance of the evidence at the fact-finding stage of a parole-revocation proceeding invites error, allowing the Parole Board to revoke parole even where the evidence indicates that it is more likely than not that there has been no violation of conditions. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

At the fact-finding stage of a parole revocation proceeding, the government has an undeniably strong interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial but only if in fact he has failed to abide by the conditions of his parole; the government has no interest in revoking parole where the weight of evidence indicates there has been no parole violation. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

Imposing a preponderance-of-the-evidence standard to establish a parole revocation will present little if any administrative burden on the government as the parolee is entitled to an opportunity to be heard and to present witnesses, and has the right to confront and cross-examine witnesses, unless good cause is shown to deny confrontation and it will require little if any change in the current procedure to require that the findings be based on a preponderance of the evidence rather than simply on substantial evidence. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

Imposing the preponderance-of-the-evidence standard on the State in the fact-finding stage of a parole revocation proceeding will greatly reduce the risk of erroneous parole violations while imposing minimal burden on the government. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

The substantial evidence standard in 28 V.S.A. § 552(b)(2) violates the due process rights protected by Article 10, Chapter I of the State Constitution and thus proof of a parole violation must be established by a preponderance of the evidence. Relation v. Vermont Parole Board, 163 Vt. 534, 660 A.2d 318, 1995 Vt. LEXIS 49 (1995).

Rule placing burden of proving sanity upon the State derived from the status of sanity as an essential element of crime, not from a view that the due process provision of this article requires the State to prove the absence of mitigating or exculpatory matters. State v. Steinhour, 158 Vt. 299, 607 A.2d 888, 1992 Vt. LEXIS 44 (1992).

Construction.

For purposes of enhancing a charge of driving under the influence in Vermont, the appropriate measure of validity for defendants’ New York convictions is the New York and U.S. Constitutions. The prosecution requirements of the Vermont Constitution are not imposed on the conviction processes of every other state. State v. Pecora, 2007 VT 41, 181 Vt. 627, 928 A.2d 479, 2007 Vt. LEXIS 76 (2007) (mem.).

Due process did not require State to have reasonable suspicion that illegal activity was occurring before initiating an otherwise legal undercover investigation in defendant’s workplace. State v. Hayes, 170 Vt. 618, 752 A.2d 16, 2000 Vt. LEXIS 31 (2000) (mem.).

The term “laws of the land” in Chapter I, Article 10 of Vermont Constitution is synonymous with the term “due process of law” contained in Fourteenth Amendment of United States Constitution.Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

College handbook did not promise that disciplinary procedures would be in strict compliance with federal and State due process rights, in fact, the handbook allowed these rights only to the extent as the procedures of the college permitted; the procedures call for fundamental fairness not constitutional due process. Fellheimer v. Middlebury College, 869 F. Supp. 238, 1994 U.S. Dist. LEXIS 17249 (D. Vt. 1994).

Provision of this article that no person may be justly deprived of his liberty “except by the laws of the land” is synonymous with “due process of law.” State v. Messier, 145 Vt. 622, 497 A.2d 740, 1985 Vt. LEXIS 408 (1985).

The phrases, “the law of the land,” and “due process of law,” are synonymous, and mean the law in its regular course of administration through courts of justice. State v. Stimpson, 78 Vt. 124, 62 A. 14, 1905 Vt. LEXIS 91 (1905).

The phrase “law of the land” is synonymous with “due process of law.” Quimby v. Hazen, 54 Vt. 132, 1881 Vt. LEXIS 82 (1881).

Field sobriety tests.

Defendant did not provide a logical connection between the protection against self-incrimination in Article 10 of the Vermont Constitution, as she understood it, and a requirement that an individual be warned of the consequences of a refusal before deciding whether to refuse a request to perform field sobriety exercises. State v. Farrow, 2016 VT 30, 201 Vt. 437, 144 A.3d 1036, 2016 Vt. LEXIS 33 (2016).

Furlough.

Due process protections of Vermont Constitution did not prohibit Department of Corrections from denying furlough to inmates convicted of violent felonies until expiration of their minimum sentences. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

Insanity.

There is no impediment under the due process provision of this article to requiring the defendant in a criminal case to prove his insanity where he intends to rely upon a defense of insanity to excuse his conduct. State v. Messier, 145 Vt. 622, 497 A.2d 740, 1985 Vt. LEXIS 408 (1985).

Though a dangerously insane person may be temporarily restrained without legal process pending institution of judicial proceedings for determination of his mental condition, where such confinement is permanent, this article requires that it be only in pursuance of a judgement of a court of competent jurisdiction, after due notice to such person and an adequate opportunity to defend. In re Allen, 82 Vt. 365, 73 A. 1078, 1909 Vt. LEXIS 301 (1909).

Knowledge of prohibited conduct.

Conviction of an offender who is ignorant of the facts making his conduct criminal does not, for want of such knowledge, result in a denial of due process. State v. Cattanach, 129 Vt. 57, 271 A.2d 828, 1970 Vt. LEXIS 201 (1970).

Legislative functions.

The most appropriate means of prescribing rules to augment citizens’ due process rights is through legislation. State v. Gorton, 149 Vt. 602, 548 A.2d 419, 1988 Vt. LEXIS 92 (1988).

Notice and hearing.

Letter to plaintiff informing her that her permit to serve as a wildlife rehabilitator was “under review” did not purport to terminate — or threaten to terminate — her permit, and did not trigger due process obligations of notice of the charges and the right to a hearing. Winfield v. State, 172 Vt. 591, 779 A.2d 649, 2001 Vt. LEXIS 181 (2001) (mem.).

This article imposes all necessary due process requirements to protect defendants of notice and hearing for the determination of guilt. Aiken v. Malloy, 132 Vt. 200, 315 A.2d 488, 1974 Vt. LEXIS 324 (1974).

A conditional pardon is a matter of grace or favor upon the part of the state by its governor, and may be revoked without notice to the convict and without giving him an opportunity to be heard. In re Saucier, 122 Vt. 208, 167 A.2d 368, 1961 Vt. LEXIS 57 (1961).

Particular cases.

Petitioner, who had filed a disciplinary complainant against a psychologist, had no due process right under the Vermont Constitution to obtain from the Office of Professional Regulation records filed by the psychologist at the investigation stage of the proceedings, given the limited interest at issue, the procedural protections complainants already enjoyed in the disciplinary proceedings, and the availability of alternative proceedings to redress complainants’ grievances against psychologists. Wool v. Office of Prof'l Regulation, 2020 VT 44, 212 Vt. 305, 236 A.3d 1250, 2020 Vt. LEXIS 48 (2020).

Trial court’s decision to grant postconviction counsel’s motion to withdraw was neither arbitrary nor uninformed, and was fully consistent with any minimal due process protections against arbitrary action that might apply in this context. After being ordered to take a second look at his proposed withdrawal, counsel spoke with petitioner, reread pertinent portions of the record, reconsidered petitioner’s principal contention, and reviewed the case on which petitioner relied. In re Kimmick, 2013 VT 43, 194 Vt. 53, 72 A.3d 337, 2013 Vt. LEXIS 40 (2013).

Prosecution by indictment.

This article does not require prosecution by indictment for crimes carrying a life sentence. State v. Johnson, 158 Vt. 508, 615 A.2d 132, 1992 Vt. LEXIS 86 (1992).

Right to trial.

Notice of and opportunity to defend against permanent confinement are required by this article. In re Cornell, 111 Vt. 525, 18 A.2d 304, 1941 Vt. LEXIS 186 (1941).

Statutory vagueness.

The due process standard by which a criminal statute must be measured is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden. State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981).

The underlying principle of the Due Process Clause of this article is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981).

Tests and standards.

Due process analysis under Vermont Constitution requires a fact-sensitive examination of particular circumstances involved in each case, including consideration of nature and significance of interest at stake, potential impact of any decision resulting in deprivation of that interest, and role that procedural protections might play in such a decision. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

Rule requiring violent felons to serve their minimum sentences before becoming eligible for furlough met the “rational basis” standard and thus did not violate inmates’ substantive due process or equal protection rights. Parker v. Gorczyk, 170 Vt. 263, 744 A.2d 410, 1999 Vt. LEXIS 323 (1999).

X. RIGHT TO TESTIFY.

Generally.

Because defendant did not assert his right to testify on his own behalf, he could not claim that there was a violation of his right to testify under the Vermont Constitution. State v. Lee, 2008 VT 128, 185 Vt. 110, 967 A.2d 1161, 2008 Vt. LEXIS 146 (2008).

Defendant failed to reveal his desire to testify either before or at trial, and finally raised the issue in his motion to dismiss counsel, which came well after the jury returned a verdict of guilty. Having failed to assert the right in a timely fashion, he had waived it. State v. Lee, 2008 VT 128, 185 Vt. 110, 967 A.2d 1161, 2008 Vt. LEXIS 146 (2008).

The phrase in this article, “a person has a right to be heard by himself and his counsel,” explicitly includes the right to testify on one’s own behalf. State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987).

Impeachment of testimony.

Trial judge did not chill defendant’s right to testify by indicating that he could be impeached if he testified contrary to results of blood-alcohol test which had been suppressed, where judge’s statement was not a threat, but rather a statement of law. State v. Yudichak, 151 Vt. 400, 561 A.2d 407, 1989 Vt. LEXIS 76 (1989).

Where a criminal defendant testifies on direct or cross-examination to facts not bearing directly on the crime for which he or she is on trial, it is within the discretion of the trial court whether suppressed evidence that relates only to such collateral matters, and not to the crime charged, may be admitted for impeachment purposes. State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987).

Where the prosecution seeks to impeach a criminal defendant by use of suppressed evidence bearing directly on the crime charged, V.R.E. 611(b) is limited; only where a defendant has testified on direct examination to facts contradicted by previously suppressed evidence bearing directly on the crime charged may the prosecution use such evidence to impeach the defendant on cross-examination. State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987).

Previously suppressed evidence is unavailable to the State for impeachment purposes except when it is clear that defendant has testified during direct examination in a manner contrary to the suppressed evidence. State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987).

To permit the use of suppressed evidence to impeach testimony first brought out on cross-examination would impose an untenable chilling effect on defendant’s right to testify, in violation of this article. State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987).

XI. PUBLIC TRIAL.

Protection of witness.

Exclusion of defendant’s wife and a neighbor from the courtroom gallery while ten-year-old victim of lewd and lascivious conduct testified, on the ground that their presence would distress the victim and adversely affect her ability to testify, did not deny defendant the right to a public trial; court properly exercised its discretion under V.R.E. 611(a)(3) to protect the witness, and did not bar the public from attending the trial. State v. Rusin, 153 Vt. 36, 568 A.2d 403, 1989 Vt. LEXIS 209 (1989).

Right to present defense.

In expressing its unwillingness to continue the case when there was a risk that an ill witness could be readmitted to the hospital shortly before a rescheduled trial, the trial court prioritized speed over defendant’s right to present a defense. This insistence on speed, in the face of a justifiable request for continuance, violated both the Sixth Amendment and the Vermont Constitution. State v. Heffernan, 2017 VT 113, 206 Vt. 261, 180 A.3d 579, 2017 Vt. LEXIS 134 (2017).

Cited.

Cited in Lincoln v. Smith, 27 Vt. 328, 1855 Vt. LEXIS 40 (1855); Gill v. Parker, 31 Vt. 610, 1859 Vt. LEXIS 32 (1859); State v. Ward, 39 Vt. 225, 1867 Vt. LEXIS 7 (1867); In re Marron, 60 Vt. 199, 12 A. 523, 1887 Vt. LEXIS 83 (1887); State v. Noakes, 70 Vt. 247, 40 A. 249, 1897 Vt. LEXIS 39 (1897); State v. Marsh, 70 Vt. 288, 40 A. 836, 1898 Vt. LEXIS 42 (1898); State v. Murphy, 71 Vt. 127, 41 A. 1037, 1898 Vt. LEXIS 33 (1898); State v. Eastwood, 73 Vt. 205, 50 A. 1077, 1901 Vt. LEXIS 155 (1901); State v. Alfred, 87 Vt. 157, 88 A. 534, 1913 Vt. LEXIS 182 (1913); State v. Felch, 92 Vt. 477, 105 A. 23, 1918 Vt. LEXIS 203 (1918); State v. Mercier, 98 Vt. 368, 127 A. 715, 1925 Vt. LEXIS 140 (1925); State v. Kamuda, 98 Vt. 466, 129 A. 306, 1925 Vt. LEXIS 151 (1925); State v. Stacy, 104 Vt. 379, 160 A. 257, 1932 Vt. LEXIS 158 (1932); State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934); State v. Hallock, 114 Vt. 292, 44 A.2d 326, 1945 Vt. LEXIS 82 (1945); State v. Watson, 114 Vt. 543, 49 A.2d 174, 1946 Vt. LEXIS 105 (1946); State v. Baker, 115 Vt. 94, 53 A.2d 53, 1947 Vt. LEXIS 84 (1947); State v. Goyet, 120 Vt. 12, 132 A.2d 623, 1957 Vt. LEXIS 68 (1957); In re Charizio, 120 Vt. 208, 138 A.2d 430, 1958 Vt. LEXIS 95 (1958); In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959); Hackel v. Williams, 122 Vt. 168, 167 A.2d 364, 1961 Vt. LEXIS 52 (1961); United States ex rel. Brown v. Smith, 200 F. Supp. 885, 1961 U.S. Dist. LEXIS 2932 (D. Vt. 1961); State v. Brisson, 124 Vt. 211, 201 A.2d 881, 1964 Vt. LEXIS 85 (1964); State v. Robinson, 124 Vt. 225, 204 A.2d 163, 1964 Vt. LEXIS 91 (1964); In re Garceau, 125 Vt. 185, 212 A.2d 633, 1965 Vt. LEXIS 222 (1965); In re Westover, 125 Vt. 354, 215 A.2d 498, 1965 Vt. LEXIS 255 (1965); In re DeCelle, 125 Vt. 467, 218 A.2d 714, 1966 Vt. LEXIS 212 (1966); State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966); State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968); In re Murphy, 127 Vt. 198, 243 A.2d 788, 1968 Vt. LEXIS 201 (1968); In re Lamphere, 127 Vt. 604, 256 A.2d 29, 1969 Vt. LEXIS 287 (1969); State v. Dellveneri, 128 Vt. 85, 258 A.2d 834, 1969 Vt. LEXIS 204 (1969); Trivento v. Smith, 129 Vt. 346, 278 A.2d 722, 1971 Vt. LEXIS 270 (1971); In re Bashaw, 129 Vt. 393, 278 A.2d 752, 1971 Vt. LEXIS 278 (1971); State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971); In re Bowers, 130 Vt. 314, 292 A.2d 813, 1972 Vt. LEXIS 275 (1972); Woodmansee v. Smith, 130 Vt. 383, 296 A.2d 182, 1972 Vt. LEXIS 287 (1972); Wetmore v. Smith, 130 Vt. 618, 298 A.2d 567, 1972 Vt. LEXIS 325 (1972); Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620, 1973 Vt. LEXIS 263 (1973); State v. Dragon, 131 Vt. 500, 310 A.2d 24, 1973 Vt. LEXIS 339 (1973); Rebideau v. Moeykens, 132 Vt. 49, 312 A.2d 926, 1973 Vt. LEXIS 255 (1973); State v. Bleau, 132 Vt. 101, 315 A.2d 448, 1974 Vt. LEXIS 308 (1974); State v. Santi, 132 Vt. 615, 326 A.2d 149, 1974 Vt. LEXIS 404 (1974); State v. Woodard, 134 Vt. 154, 353 A.2d 321, 1976 Vt. LEXIS 618 (1976); In re J.F., 134 Vt. 478, 365 A.2d 258, 1976 Vt. LEXIS 707 (1976); State v. Hohman, 136 Vt. 341, 392 A.2d 935, 1978 Vt. LEXIS 627 (1978); State v. Franklin, 136 Vt. 568, 396 A.2d 138, 1978 Vt. LEXIS 668 (1978); Miner v. Chater, 137 Vt. 330, 403 A.2d 274, 1979 Vt. LEXIS 969 (1979); State v. Stevens, 137 Vt. 473, 408 A.2d 622, 1979 Vt. LEXIS 1071 (1979); In re Morse, 138 Vt. 327, 415 A.2d 232, 1980 Vt. LEXIS 1217 (1980); In re J.S., 139 Vt. 6, 420 A.2d 870, 1980 Vt. LEXIS 1377 (1980); In re J. L. M., 139 Vt. 448, 430 A.2d 448, 1981 Vt. LEXIS 480 (1981); State v. Shattuck, 141 Vt. 523, 450 A.2d 1122, 1982 Vt. LEXIS 572 (1982); State v. Towne, 142 Vt. 241, 453 A.2d 1133, 1982 Vt. LEXIS 635 (1982); State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983); In re Smith, 144 Vt. 494, 479 A.2d 152, 1984 Vt. LEXIS 498 (1984); State v. Rice, 145 Vt. 25, 483 A.2d 248, 1984 Vt. LEXIS 545 (1984); State v. Mecier, 145 Vt. 173, 488 A.2d 737, 1984 Vt. LEXIS 595 (1984); State v. Boise, 146 Vt. 46, 498 A.2d 495, 1985 Vt. LEXIS 345 (1985); State v. Ramsay, 146 Vt. 70, 499 A.2d 15, 1985 Vt. LEXIS 341 (1985); State v. Covell, 146 Vt. 338, 503 A.2d 542, 1985 Vt. LEXIS 439 (1985); State v. Benneig, 146 Vt. 391, 505 A.2d 1192, 1985 Vt. LEXIS 398 (1985); State v. Gonyaw, 146 Vt. 559, 507 A.2d 944, 1985 Vt. LEXIS 416 (1985); State v. Bushey, 147 Vt. 140, 513 A.2d 1177, 1986 Vt. LEXIS 377 (1986); State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986); In re Fadden, 148 Vt. 116, 530 A.2d 560, 1987 Vt. LEXIS 460 (1987); State v. Dean, 148 Vt. 510, 536 A.2d 909, 1987 Vt. LEXIS 560 (1987); State v. Raymond, 148 Vt. 617, 538 A.2d 164, 1987 Vt. LEXIS 581 (1987); In re Hval, 149 Vt. 58, 539 A.2d 537, 1987 Vt. LEXIS 591 (1987); State v. Shaw, 149 Vt. 275, 542 A.2d 1106, 1987 Vt. LEXIS 617 (1987); State v. Gabaree, 149 Vt. 229, 542 A.2d 272, 1988 Vt. LEXIS 16 (1988); State v. Byrne, 149 Vt. 257, 542 A.2d 667, 1988 Vt. LEXIS 8 (1988); State v. Fortier, 149 Vt. 599, 547 A.2d 1327, 1988 Vt. LEXIS 95 (1988); State v. Joy, 149 Vt. 607, 549 A.2d 1033, 1988 Vt. LEXIS 112 (1988); State v. Percy, 149 Vt. 623, 548 A.2d 408, 1988 Vt. LEXIS 84 (1988); State v. Gallagher, 150 Vt. 341, 554 A.2d 221, 1988 Vt. LEXIS 176 (1988); State v. Brunell, 150 Vt. 388, 554 A.2d 242, 1988 Vt. LEXIS 191 (1988); State v. Schmitt, 150 Vt. 503, 554 A.2d 666, 1988 Vt. LEXIS 209 (1988); State v. Muir, 150 Vt. 549, 554 A.2d 671, 1988 Vt. LEXIS 193 (1988); State v. Weller, 152 Vt. 8, 563 A.2d 1318, 1989 Vt. LEXIS 108 (1989); State v. Davignon, 152 Vt. 209, 565 A.2d 1301, 1989 Vt. LEXIS 149 (1989); State v. Briggs, 152 Vt. 531, 568 A.2d 779, 1989 Vt. LEXIS 204 (1989); State v. Coita, 153 Vt. 18, 568 A.2d 424, 1989 Vt. LEXIS 219 (1989); State v. Brown, 153 Vt. 263, 571 A.2d 643, 1989 Vt. LEXIS 272 (1989); In re J.S., 153 Vt. 365, 571 A.2d 658, 1989 Vt. LEXIS 265 (1989); State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990); In re Hamlin, 155 Vt. 98, 582 A.2d 129, 1990 Vt. LEXIS 176 (1990); State v. Wheel, 155 Vt. 587, 587 A.2d 933, 1990 Vt. LEXIS 262 (1990); State v. Hugo, 156 Vt. 339, 592 A.2d 875, 1991 Vt. LEXIS 87 (1991); State v. Curtis, 157 Vt. 275, 597 A.2d 770, 1991 Vt. LEXIS 176 (1991); State v. Barrows, 158 Vt. 445, 614 A.2d 377, 1992 Vt. LEXIS 78 (1992); State v. Cartee, 161 Vt. 73, 632 A.2d 1108, 1993 Vt. LEXIS 94 (1993); State v. DeRosa, 161 Vt. 78, 633 A.2d 277, 1993 Vt. LEXIS 93 (1993); Conway v. Cumming, 161 Vt. 113, 636 A.2d 735, 1993 Vt. LEXIS 115 (1993); State v. Roya, 167 Vt. 594, 708 A.2d 908, 1998 Vt. LEXIS 7 (1998) (mem.).

Law Reviews —

For note relating to powers and role of side judges in the legislative and judicial branches of government, see 10 Vt. L. Rev. 321 (1985).

For comment, “ State v. Catsam : A Clarification of Evidentiary Standards in Vermont Child Sexual Abuse Cases,” see 12 Vt. L. Rev. 485 (1987).

For comment, “A Counsellor’s Crisis: Protecting Witnesses’ Privacy rights in Sexual Assault Prosecutions,” see 12 Vt. L. Rev. 497 (1987).

For comment, “Living Without Principles: State v. Brunelle and the Vermont Supreme Court,” 13 Vt. L. Rev. 347 (1988).

For comment, “The ‘Sibling State’ Approach to the Vermont Constitution: Post-Arrest, Pre- Miranda Silence in Vermont,” see 13 Vt. L. Rev. 357 (1988).

For note, “The Lack of Privacy in Vermont,” see 24 Vt. L. Rev. 199 (1999).

Action for damages.

None of the State’s proffered alternative remedies would provide meaningful redress to plaintiff, who sought damages against the State for violation of his rights under Article 11 of the Vermont Constitution, as none of them could substitute as a viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most particularly in a case like this where plaintiff was not charged with a crime. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

Plaintiff seeking damages against the State directly under Article 11 of the Vermont Constitution based on a law enforcement officer’s alleged violation of that constitutional provision must show that: (1) the officer violated Article 11; (2) there is no meaningful alternative remedy in the context of that particular case; and (3) the officer either knew or should have known that the officer was violating clearly established law or the officer acted in bad faith. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

Amendment of complaint.

Where State’s Attorney attempted to amend complaint presented by his predecessor in office and such amendment was not stated to be made on oath of office of new State’s Attorney nor signed by him, under this article court had no jurisdiction of such amendment. State v. Harre, 109 Vt. 217, 195 A. 244, 1937 Vt. LEXIS 134 (1937).

Where the complaint of a private prosecutor was sworn to before warrant was issued, but no certificate of the oath was appended to the complaint, the defect was one of form, and an amendment adding the certificate of oath by the officer who administered it was allowable. State v. Freeman, 59 Vt. 661, 10 A. 752, 1887 Vt. LEXIS 167 (1887).

Application.

Coburn and Rennis do not govern the admissibility in state proceedings of evidence gathered during searches that take place outside the context of the border or its functional equivalent. Instead, searches conducted by federal border officials on roving patrol on interior Vermont roads are subject to Article 11’s protections. State v. Walker-Brazie, 2021 VT 75, 2021 Vt. LEXIS 98 (Vt. 2021).

Mere physical proximity to the Canadian border of the warrantless vehicle search conducted by federal border officials on roving patrol did not exempt it from the protections of Article 11. State v. Walker-Brazie, 2021 VT 75, 2021 Vt. LEXIS 98 (Vt. 2021).

Insofar as Article 11 of the Vermont Constitution unequivocally sets forth a single specific right of the people to be free from unwarranted searches and seizures of their persons, possessions, and property, that provision is manifestly self-executing. The extensive case law on Article 11 demonstrates that the right set forth therein is certain and definite enough to establish rules for the implementation of that right; moreover, because the right set forth in Article 11 is sufficiently specified, the absence of a legislative directive supports a conclusion that the provision is self-executing. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

Border search by federal officers, conducted in compliance with the Fourth Amendment as acknowledged by defendant, could not be challenged under the Vermont Constitution. State v. Rennis, 2014 VT 8, 195 Vt. 492, 90 A.3d 906, 2014 Vt. LEXIS 5 (2014).

Application for warrant.

Warrant application was supported by probable cause supplied from the records obtained through a subpoena, a neighbor’s evidence, and a detective’s background information on illicit wireless access. Given the rest of this evidence and information, an informant’s reliability and the provenance of his tip was irrelevant to probable cause for the warrant. State v. Simmons, 2011 VT 69, 190 Vt. 141, 27 A.3d 1065, 2011 Vt. LEXIS 65 (2011).

When defendant was arrested on Saturday, it was not unreasonable for police to wait until Monday morning to apply for a warrant to search his car. Assuming police could have contacted a judge over the weekend, no circumstances compelled them to do so in this case; defendant, who was in custody until two days after the warrant was obtained, alleged no prejudice or even inconvenience that would render the delay over the weekend unreasonable. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

Arrest.

Defendant’s arrest violated the Fourth Amendment and Vt. Const. Ch. I, Art. 11 because there was no probable cause to arrest him for negligent operation of a motor vehicle. His driving over a washed-out part of a driveway was not negligent, given that unpaved roads were commonplace in Vermont, and his speed of 25 mph did not change this conclusion since there was no evidence that his speed was excessive under the circumstances or unnecessary to traverse the washout as he did. State v. Hawkins, 2013 VT 5, 193 Vt. 297, 67 A.3d 230, 2013 Vt. LEXIS 3 (2013).

Several considerations supported the trial court’s determination that an informant’s information, which led to defendant’s warrantless arrest, was reliable on this occasion: first, there was strong evidence that the informant was involved in selling drugs at the retail level in Rutland; second, the informant described defendant’s vehicle, predicted the time and route of his arrival into Rutland, and personally identified him on three occasions; third, the identity of the confidential informant was known to the police, as well as to defendant and the trial court, and she gave a statement under oath describing her past involvement with defendant; fourth, the informant provided information that implicated her in commission of a crime. The fact that the informant made a self-serving declaration to try to prevent liability for an additional crime did not undercut the reliability assessment, nor did the informant’s motive in assisting the police. State v. Arrington, 2010 VT 87, 188 Vt. 460, 8 A.3d 483, 2010 Vt. LEXIS 86 (2010).

Odor of marijuana, detected by a trained and experienced police officer, can provide a reasonable basis to believe that marijuana is present. The odor alone may not always be sufficient to arrest an individual. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

When a trained and experienced police officer identifies the unmistakable odor of a controlled substance and can link it to a specific person, there is probable cause to arrest. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

Because police had probable cause to arrest defendant, the search of defendant’s person was permissible as incident to that arrest; it was of no significance that police did not formally arrest defendant before conducting the search of his person. Probable cause to arrest existed before the search, and the formal arrest came shortly thereafter. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

Odor of a controlled substance may provide probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the particular circumstances in which it is discovered or because other evidence at the scene or elsewhere links the odor to the person or persons. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

That petitioner for post-conviction relief was arrested under a warrant not supported by an affidavit confirming the truth of the facts alleged in the complaint was not an offense against this article invalidating the prosecution and conviction. In re Mahoney, 128 Vt. 462, 266 A.2d 444, 1970 Vt. LEXIS 255 (1970).

Under this article, a person may not be subjected to arrest on a complaint knowingly unfounded, in order that he may be at the disposal of the authorities while a case is discovered against him. In re Davis, 126 Vt. 142, 224 A.2d 905, 1966 Vt. LEXIS 179 (1966).

This article does not prohibit arrests without warrant in that class of cases where delay would be perilous. In re Powers, 25 Vt. 261, 1853 Vt. LEXIS 37 (1853).

Officers of government and in many instances private citizens have power to arrest without warrant a person disturbing or breaking the public peace. In re Powers, 25 Vt. 261, 1853 Vt. LEXIS 37 (1853).

Blood alcohol tests.

Because a defendant can argue that consent under Vermont’s implied consent law was not given voluntarily for purposes of Article 11, and the trial court here did not hold an evidentiary hearing on the issue of voluntariness after defendant raised it, erroneously deciding instead that such a challenge was precluded by the implied consent law, remand for an evidentiary hearing was required. State v. Edelman, 2018 VT 100, 208 Vt. 372, 198 A.3d 556, 2018 Vt. LEXIS 136 (2018).

Trooper’s decision to administer a preliminary breath test (PBT) to defendant rather than allow him to continue driving when defendant smelled of alcohol, admitted to drinking, and had bloodshot eyes was premised on a reasonable suspicion of driving under the influence (DUI), imposed a minimal intrusion on defendant’s liberty, and was aimed at preventing serious danger to the public; it did not violate either the Vermont or the United States Constitution. The results of the PBT, in turn, provided probable cause to arrest defendant for DUI. State v. Mara, 2009 VT 96, 2009 VT 96A, 186 Vt. 389, 987 A.2d 939, 2009 Vt. LEXIS 110 (2009).

At the point a preliminary breath test (PBT) was administered, an officer needed only to have some basis for believing that a suspect might be driving under the influence; thus, when an officer smelled alcohol and saw that defendant’s eyes were bloodshot and watery, this was enough to provide him with reasonable suspicion that defendant had been driving under the influence (DUI) and justified administration of the PBT and the subsequent dexterity tests. The results of those tests (including a 0.106 blood alcohol content and failure of six measures of dexterity) combined with the other observed indicia of intoxication provided the officer with probable cause to arrest defendant for DUI. State v. Santimore, 2009 VT 104, 186 Vt. 638, 987 A.2d 332, 2009 Vt. LEXIS 130 (2009) (mem.).

Preliminary breath test intrudes into an area that is the subject of legitimate expectations of privacy, and thus is a search under both the Vermont and United States Constitutions. State v. McGuigan, 2008 VT 111, 184 Vt. 441, 965 A.2d 511, 2008 Vt. LEXIS 107 (2008).

It is reasonable, under both the Fourth Amendment and the Vermont Constitution, for an officer to administer a preliminary breath test to a suspect if she can point to specific, articulable facts indicating that an individual has been driving under the influence of alcohol. State v. McGuigan, 2008 VT 111, 184 Vt. 441, 965 A.2d 511, 2008 Vt. LEXIS 107 (2008).

Community caretaking exception.

Police officer acted within the community caretaking exception to the warrant requirement based on facts showing that he was in a marked police cruiser when defendant flashed her lights at him, it was a particularly stormy night, defendant’s car was parked in an information booth parking lot, and, thus, he had every reason to believe that the driver or passengers were seeking his assistance. State v. Campbell, 173 Vt. 575, 789 A.2d 926, 2001 Vt. LEXIS 417 (2001) (mem.).

Condition of probation.

Warrantless-search probation condition violated Article 11 of the Vermont Constitution in that none of the specific items named were contraband, leaving only a residual condition that would not provide guidance as to when defendant could be searched without a warrant. State v. Bouchard, 2020 VT 10, 211 Vt. 454, 228 A.3d 349, 2020 Vt. LEXIS 9 (2020).

Because a probation condition imposed upon defendant, a sex offender, on its face authorized limitless monitoring of his computer and Internet use, it was not narrowly tailored to ensure a permissible balance between the government’s interests and defendant’s privacy rights, and was not reasonably necessary to help defendant lead a law-abiding life. State v. Bouchard, 2020 VT 10, 211 Vt. 454, 228 A.3d 349, 2020 Vt. LEXIS 9 (2020).

Home visit by a probation officer is not a search, and a home-visit requirement does not run afoul of the Vermont or U.S. Constitution’s search and seizure provisions. A home-visit condition such as the one here, which required defendant to allow his probation officer to visit him wherever he was staying, was a legitimate tool of probation administration and was valid. State v. Levitt, 2016 VT 60, 202 Vt. 193, 148 A.3d 204, 2016 Vt. LEXIS 58 (2016).

While a probation condition was narrowly tailored in that it authorized a search only for contraband, it required amendment in that neither a computer nor digital media could be considered contraband here, redrafting was required to eliminate the specification that the State’s search powers were based on some kind of waiver by defendant, and the condition should state explicitly that the State’s search rights were dependent on its having reasonable suspicion that evidence of a probation violation would be found. State v. Cornell, 2016 VT 47, 202 Vt. 19, 146 A.3d 895, 2016 Vt. LEXIS 44 (2016).

Probation condition providing for warrantless searches does not violate Article 11 of Vermont Constitution, if terms of probation are narrowly tailored to fit circumstances of individual probationer; and if officers have reasonable grounds to conduct search. State v. Lockwood, 160 Vt. 547, 632 A.2d 655, 1993 Vt. LEXIS 90 (1993).

Conditional reentry status.

In light of the clarity of the conditions agreed to by defendant, a convicted sex offender furloughed to his home under a conditional reentry agreement, their nexus to the State’s goals and defendant’s legitimate expectation of privacy, and defendant’s status on conditional reentry, defendant’s privacy interest was quite weak, and the State’s countervailing interests in promoting his rehabilitation and protecting the community was strong. Accordingly, reasonable individualized suspicion was not a prerequisite to the Department of Corrections’ search of defendant’s home and computer. State v. Bogert, 2013 VT 13, 2013 VT 13A, 197 Vt. 610, 109 A.3d 883, 2014 Vt. LEXIS 117 (2014).

Consent.

When police improperly expanded the scope of a valid traffic stop into a drug investigation, the unlawful detention invalidated defendant’s consent, as his consent arose directly from his illegal detention, with no intervening time and no intervening events. On the contrary, defendant acceded to the search of his car in response to the sheriff’s erroneous claim that he had probable cause to seize the car and “do up” a search warrant based on the thirty-day-old smell of burnt marijuana. State v. Nagel, 2020 VT 31, 212 Vt. 122, 232 A.3d 1081, 2020 Vt. LEXIS 30 (2020).

State had not shown that defendant’s girlfriend gave implied consent for the investigating officer to enter the couple’s residence, as the girlfriend’s actions of opening the front door, motioning toward defendant, saying, “He’s right here,” and walking into the kitchen were not sufficient to convey consent, and there was no evidence that the officer believed that the girlfriend’s actions provided consent. State v. Allis, 2017 VT 96, 205 Vt. 620, 178 A.3d 993, 2017 Vt. LEXIS 118 (2017).

Defendant’s consent to being transported to the police barracks for a full-body strip search was not voluntary. First, defendant agreed to a search only after a trooper explicitly told him that both he and his companion would be “seized” and taken to the police barracks to await a warrant; second, the trooper lacked the authority to transport defendant to the barracks against his will because neither the informant’s tip nor the trooper’s lengthy surveillance or later interaction with defendant provided probable cause. State v. Betts, 2013 VT 53, 194 Vt. 212, 75 A.3d 629, 2013 Vt. LEXIS 56 (2013).

There was no basis to disturb the trial court’s finding that defendant’s consent to the search of her house was voluntary. There was no evidence that the police coerced her consent to search through the use of physical force, threats, or intimidation; defendant’s concern that withholding consent might inconvenience her son did not amount to the sort of psychological pressure that courts view as impermissibly coercive; and an officer did not communicate that a warrant would automatically issue regardless of defendant’s decision or that her refusal would be a futile gesture, but indicated truthfully and accurately that a refusal would result in an application for a search warrant involving the submission of an affidavit. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

Numerous courts have upheld consensual searches where an officer’s statement that he would get or obtain a warrant is supported by probable cause. Here, officers’ plain-view observation of the marijuana in defendant’s hall was sufficient to establish probable cause for a search warrant. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

There were no grounds to require a pre-entry warning when the officers’ stated intentions in asking to come inside defendant’s house and talk to her were to confirm her brother’s identity and continue their investigation into drug dealing. Defendant did not claim, nor did the record show, that the police sought entry for the purpose of conducting a warrantless search; indeed, the undisputed evidence revealed that the search request occurred only after the officers entered and observed marijuana in plain view. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

Totality of the evidence supported the conclusion that defendant’s consent to the search of his car was voluntary. The trooper expressly told defendant that he did not have to agree to the search, that his permission had to be freely given, and that he could not be forced to consent; adding that the warrant process would result in his car being towed and in some delay was neither inaccurate nor disingenuous. State v. Sole, 2009 VT 24, 185 Vt. 504, 974 A.2d 587, 2009 Vt. LEXIS 22 (2009).

Court did not err in finding that defendant voluntarily consented to the police entry into his home, where the police did not exert any force or pressure to gain entry, they appeared in uniform, identified themselves, they asked for defendant’s consent to enter so that they could talk to him, the scope of the conversation was not limited or defined, and defendant did not ask them why they wanted to enter his home, or for what purpose they intended to talk, before inviting them into his home. State v. Sheehan, 171 Vt. 642, 768 A.2d 1275, 2000 Vt. LEXIS 393 (2000) (mem.).

Construction.

There was no error in the trial court’s general description of an attached structure on defendant’s property as a carport rather than as a garage, as neither were terms of art, neither had a technical or specialized meaning with respect to constitutional search and seizure, and the description of the structure did not affect application of constitutional principles. State v. Koenig, 2016 VT 65, 202 Vt. 243, 148 A.3d 977, 2016 Vt. LEXIS 63 (2016).

The warrant requirement of this article serves as a check on the executive power by guaranteeing review by a neutral and detached magistrate before a search is carried out, thereby deterring searches on doubtful grounds and assuring the people of an impartial objective assessment prior to a governmental invasion. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, 2007 Vt. LEXIS 45 (2007).

Although the core value of the privacy right protected by both the Vermont and U.S. Constitution is the right to be free from unreasonable government intrusions into legitimate expectations of privacy, Vermont jurisprudence has diverged from the United States Supreme Court’s analysis. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992); State v. Richardson, 158 Vt. 635, 603 A.2d 378, 1992 Vt. LEXIS 2 (1992) (mem.).

Requirement of warrant prior to search and seizure favors decision making by Judicial Branch, a neutral and detached magistrate, rather than by Executive Branch, the officer engaged in the often competitive enterprise of ferreting out crime. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

This article protects two kinds of rights: possessory rights, which are implicated in police seizures, and privacy rights, which are implicated in searches. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

This article’s prohibition against unlawful searches and seizures protects people, not places. State v. Zaccaro, 154 Vt. 83, 574 A.2d 1256, 1990 Vt. LEXIS 49 (1990).

The word “unreasonable,” in the context in which it appears in the Fourth Amendment to the United States Constitution, is implicit in this article in the same context. State v. Record, 150 Vt. 84, 548 A.2d 422, 1988 Vt. LEXIS 100 (1988).

By delineating the right protected by this article as a possessory interest, this article premises the protected right upon an objectively defined relationship between a person and the item seized or place searched, as opposed to a subjective evaluation of the legitimacy of the person’s expectation of privacy in the area searched. State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987).

The right of the people “to hold themselves, their houses, papers, and possessions free from search or seizure” defines a right dependent on a possessory interest, with equal recognition accorded to the item seized and the area intruded upon. State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987).

—Required.

An information brought unverified and not upon the State’s Attorney’s oath of office is void under this article. State v. Anderson, 119 Vt. 355, 125 A.2d 827, 1956 Vt. LEXIS 117 (1956).

Contents of warrant.

Warrant authorizing officers to search for and remove any animals at defendant’s home was not unconstitutionally broad, as the exceptionally neglected condition of a dog seen on defendant’s porch reasonably supported a probable cause finding to support a search for and seizure of not only that dog, but others reasonably believed to be at the home. On these facts, it was not necessary for the warrant to limit the search to a particular dog breed. State v. Sheperd, 2017 VT 39, 204 Vt. 592, 170 A.3d 616, 2017 Vt. LEXIS 64 (2017).

Property to be seized should be described as nearly as may be in a warrant. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

This article requires only that the place to be searched and the property to be seized should be described as nearly as may be. Lincoln v. Smith, 27 Vt. 328, 1855 Vt. LEXIS 40 (1855).

This article seems to be directed against general warrants, and general search warrants in particular, not specifically describing the persons, places, or property to be searched or arrested. In re Powers, 25 Vt. 261, 1853 Vt. LEXIS 37 (1853).

Curtilage.

Because there was no portion of the curtilage that was exempt from Fourth Amendment protection, and Article 11 likewise applied throughout the curtilage, the trial court erred by concluding that a trooper who found a bullet while walking on a driveway did not conduct a search on the ground that a driveway was a “semiprivate area” not constitutionally protected. As the evidence could support the conclusion that the trooper affirmatively searched for the bullet—albeit from a location where he was licensed to be—the court could not affirm the ruling denying defendant’s motion to suppress; thus, remand was required for findings regarding the trooper’s conduct. State v. Calabrese, 2021 VT 76, 2021 VT 76A, 268 A.3d 565, 2021 Vt. LEXIS 107 (Vt. 2021).

There was no constitutional violation by a trooper’s entry into an attached structure that was described as a “carport” because there was a reasonable, objective basis for the trooper’s belief that the entryway to the left was a business entrance, and that the remaining visible entryway, which was visible from the street, was a normal point of public access to the residence. State v. Koenig, 2016 VT 65, 202 Vt. 243, 148 A.3d 977, 2016 Vt. LEXIS 63 (2016).

Trial court properly concluded that warrantless air search of defendant’s property did not violate Vermont or U.S. Constitution, where area searched was an open field not within curtilage of defendant’s home, and where there was no evidence that airplane flew in airspace constitutionally protected. In re Cohen, 161 Vt. 432, 640 A.2d 34, 1994 Vt. LEXIS 3 (1994).

This article did not preclude State trooper’s approach of defendant in the unenclosed driveway of his residential premises for the purpose of conducting an investigative stop; although the driveway may have fallen within the curtilage, it served as the normal access route for anyone visiting the premises and therefore constituted a semiprivate area. State v. Ryea, 153 Vt. 451, 571 A.2d 674, 1990 Vt. LEXIS 9 (1990).

DNA samples.

Given the marginal weight of the State’s interest in DNA collection at the point of arraignment, balanced against the weight of the privacy interest retained by arraignees prior to conviction, the provisions that expand the DNA-sample requirement to defendants charged with qualifying crimes for which probable cause is found violates Article 11 of the Vermont Constitution. State v. Medina, 2014 VT 69, 197 Vt. 63, 102 A.3d 661, 2014 Vt. LEXIS 71 (2014).

State may, in keeping with the search and seizure provision of the Vermont Constitution, require convicted nonviolent felons to provide DNA samples for inclusion in State and federal DNA databases. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

DNA sampling, by blood draw or by cheek swab, is subject to constitutional protections. An initial taking of a DNA sample, either by blood draw or by buccal swab, and the subsequent analysis, storage, and searching of the DNA profile are independent intrusions upon personal security that merit scrutiny under the search and seizure provision of the Vermont Constitution. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

Searches the DNA sampling statute authorizes are subject to clear administrative guidelines and are performed uniformly on all felons subject to them. Accordingly, they do not raise the specter of unbridled officer discretion to harass particular individuals, against which the search and seizure provision of the Vermont Constitution is a bulwark of protection. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

Initial sampling in the DNA sampling statute, taken alone, does not violate the search and seizure provision of the Vermont Constitution. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

What the DNA sampling statute authorizes is the creation, storage, and searching of a unique alphanumeric identifier based on analysis of 13 locations on DNA that are not associated with any known physical trait. This identifier is the only information contained in each person’s database profile, and reveals no information about personal genetic traits that many people choose to keep private. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

DNA sampling statute does not offend the search and seizure provision of the Vermont Constitution as applied to nonviolent felons, whether they are incarcerated or not. The statute serves special needs beyond normal law enforcement and advances important State interests that outweigh the minimal intrusions upon protected interests. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

In light of the statutory limits on the analysis of genetic information, the post-sampling intrusion on protected privacy interests is closely akin to that occasioned by the retention and searching of fingerprint records; the data retained in the database serve only to prove identity, like a fingerprint. The information in the database, then, is not information defendants can reasonably expect to keep private as convicted felons. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

Driving under the influence.

Order that defendant exit her car was supported by an officer’s reasonable suspicion that she was operating a motor vehicle while under the influence of heroin, given his observation that defendant had constricted pupils on an overcast day, the alleged track marks on the back of her hands, his observation that she no longer appeared to have symptoms of withdrawal from narcotics, as she had earlier that day, and her implausible excuse that she was traveling to a town in Massachusetts that had been the scene of recent drug transactions in order to buy cake from a grocery store there. State v. Dubaniewicz, 2019 VT 13, 209 Vt. 490, 208 A.3d 619, 2019 Vt. LEXIS 33 (2019).

There was probable cause to arrest defendant for driving under the influence, as the arresting trooper’s experience with drunk drivers added weight and credibility to his observations and inferences; defendant ignored the trooper’s blue lights, drove home, ignored the trooper’s command to stay by his truck, and tried to enter his home; and defendant smelled of alcohol, slurred his speech, and was unsteady on his feet. State v. Richard, 2016 VT 75, 202 Vt. 519, 150 A.3d 1093, 2016 Vt. LEXIS 82 (2016).

To the extent defendant was challenging a police officer’s administration of the field sobriety tests at all, the challenge had no basis in the record or in law. To the extent she was arguing that the Fourth Amendment, and its Vermont Constitution analog, nevertheless required some sort of warning to an individual asked to perform field sobriety exercises, she made no argument linking those constitutional provisions to the claimed warning requirement. State v. Farrow, 2016 VT 30, 201 Vt. 437, 144 A.3d 1036, 2016 Vt. LEXIS 33 (2016).

Indicia of intoxication, such as an officer’s detection of the odor of alcohol emanating from a driver as well as observation of a driver’s watery and bloodshot eyes, are sufficient to establish reasonable suspicion of DUI. Here, the strong smell of alcohol and defendant’s slurred speech were sufficient indicia of driving under the influence to allow the officer to go further and initiate field sobriety exercises. State v. Young, 2010 VT 97, 189 Vt. 37, 12 A.3d 510, 2010 Vt. LEXIS 94 (2010).

Regardless of whether speeding in a snowstorm or being slow to pull over could properly be considered factors in the analysis, or whether the trooper could also properly consider the unopened bottles of beer in places such as defendant’s jacket pocket and the center console, the factors of an odor of alcohol, defendant’s admission to drinking, and the appearance of watery eyes were sufficient indicia of driving under the influence to validate an order for defendant to exit his vehicle. State v. Burgess, 2010 VT 64, 188 Vt. 235, 5 A.3d 911, 2010 Vt. LEXIS 59 (2010).

Court could not affirm the trial court’s conclusion that a trooper’s suspicion of driving under the influence became unreasonable for the sole reason that defendant passed two field sobriety tests; rather, the trooper was still faced with a situation in which defendant smelled of alcohol, had watery and bloodshot eyes, and admitted to drinking alcohol. The trooper testified that his training and experience suggested that the first two factors indicated possible impairment, and the third required no such training or experience to militate in favor of further investigation. State v. Mara, 2009 VT 96, 2009 VT 96A, 186 Vt. 389, 987 A.2d 939, 2009 Vt. LEXIS 110 (2009).

Although defendant’s performance on walk-and-turn and one-leg-stand tests might not, by itself, have supported a reasonable suspicion of driving under the influence, it also did not as a matter of law compel a trooper to cease his roadside investigation. Although defendant did not “fail” the tests, his performance was not flawless, and the officer did not have to evaluate the test results in a binary fashion. State v. Mara, 2009 VT 96, 2009 VT 96A, 186 Vt. 389, 987 A.2d 939, 2009 Vt. LEXIS 110 (2009).

Emergency assistance.

Search of defendant’s home following a 911 call reportedly made by defendant’s brother, who claimed to have been involved in a car accident 40 miles away, failed to satisfy the test for the emergency assistance exception, as there was no showing of an immediate need for police assistance at defendant’s home. There was no evidence upon which to surmise that the brother had arrived at defendant’s residence, injured or otherwise, between the time of the call and the dispatch of a trooper to the home, and the lack of a response to the trooper’s knocking, without more, was insufficient to support a belief that anyone was inside the house or that there was an immediate need for medical attention. State v. Ford, 2010 VT 39, 188 Vt. 17, 998 A.2d 684, 2010 Vt. LEXIS 42 (2010).

By searching the grounds of defendant’s home 40 miles from the site of a reported accident involving defendant’s brother and peering into the basement windows when there was insubstantial evidence at the residence that anyone—let alone the potentially injured motorist—was home, a trooper exceeded the scope of any emergency that arose from the reported car accident, especially given the scant evidence connecting defendant’s home with the 911 call. With the nature of the emergency very vague and no basis to associate defendant’s empty house with that emergency, the scope of a permissible search had likewise contracted. State v. Ford, 2010 VT 39, 188 Vt. 17, 998 A.2d 684, 2010 Vt. LEXIS 42 (2010).

Elements of the emergency assistance exception to warrantless entry are: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by intent to arrest and seize evidence; (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Mountford, 171 Vt. 487, 769 A.2d 639, 2000 Vt. LEXIS 389 (2000).

Exclusionary rule.

Outside of the border or its functional equivalent and within the interior of Vermont, the federal interest the Vermont Supreme Court identified in Coburn no longer outweighs the state interest in protecting the privacy and dignity of Vermont citizens. The court therefore holds that where federal border officials on roving patrol obtain evidence in a manner that violates Article 11, as the warrantless vehicle search here did, that evidence may not be introduced at trial in a state criminal proceeding. State v. Walker-Brazie, 2021 VT 75, 2021 Vt. LEXIS 98 (Vt. 2021).

Even assuming the warrant application provided probable cause to search, the illegal seizure of defendant’s vehicle was so closely related to the subsequent application for the warrant and search of defendant’s vehicle as to require exclusion of the evidence obtained. If the vehicle had not been seized, defendant would have been able to drive it away before a warrant was obtained and the search occurred. State v. Clinton-Aimable, 2020 VT 30, 212 Vt. 107, 232 A.3d 1092, 2020 Vt. LEXIS 32 (2020).

Evidence found outside a police cruiser after defendant was taken to the police barracks for a strip search, and his subsequent confession, should have been suppressed. Defendant’s presence at the barracks resulted directly from his invalidly obtained consent to the search, and his confession to possessing drugs flowed directly from the discovery of the illegally obtained evidence. State v. Betts, 2013 VT 53, 194 Vt. 212, 75 A.3d 629, 2013 Vt. LEXIS 56 (2013).

When officers’ interest in the house of defendant’s sister flowed from a taxi dispatcher’s initial identification of the house as the address where a taxi was regularly sent from a suspected drug-dealing operation, they had ample information independent of the money and drugs illegally seized from defendant’s person to investigate the residence. That evidence did not, therefore, taint the additional evidence seized from the house, and its suppression was not required. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

When an aerial surveillance was a warrantless search forbidden by the Vermont Constitution, and the warrant authorizing the subsequent search of defendant’s premises for marijuana plants was obtained solely on the basis of the aerial observations, the evidence seized upon executing the warrant should therefore have been excluded from defendant’s trial. Since the error was clearly prejudicial, his conviction had to be overturned. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

Exclusionary rule applied to civil driver’s license suspension proceedings and was not limited to challenges to reasonableness of underlying stop, but could also be invoked by defendant challenging lawfulness of his arrest on jurisdictional grounds. State v. Nickerson, 170 Vt. 654, 756 A.2d 1240, 2000 Vt. LEXIS 158 (2000) (mem.).

Although driver’s license suspension proceedings were civil in nature and did not demand all procedural safeguards required in criminal proceedings, exclusionary rule was properly applied in such proceedings in order to protect core value of privacy embraced in Vermont Constitution, to promote public’s trust in judicial system, and to assure that unlawful police conduct was not encouraged. State v. Lussier, 171 Vt. 19, 757 A.2d 1017, 2000 Vt. LEXIS 170 (2000).

Where only impermissible conduct in government informant’s entries into defendant’s home was the use of an electronic body wire, and information conveyed electronically was not taken into consideration by trial court, informant’s entries could not be viewed as illegal under totality of circumstances, and there was no reversible error in trial court’s denial of defendant’s motion to quash resulting search warrant as the product of an unconstitutional search. State v. Emmi, 160 Vt. 377, 628 A.2d 939, 1993 Vt. LEXIS 53 (1993).

State exclusionary rule for violations of this article should not be limited by the “good faith” exception articulated by the United States Supreme Court in United States v. Leon , 468 U.S. 897 (1984). State v. Oakes, 157 Vt. 171, 598 A.2d 119, 1991 Vt. LEXIS 187 (1991).

Where police officers, acting on an informant’s tip that marijuana was growing on defendant’s land, without warrant entered the property, which consisted of thirty-nine acres of woods, swamp, and meadows and which was extensively posted with “no trespassing” and “private property” signs, their warrantless search violated defendant’s right to privacy under the Vermont Constitution, and reversal of conviction for cultivating marijuana based on evidentiary fruits of the search was required. State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

Where evidence did not indicate that but for illegal search and seizure of gun defendant would not have confessed to murder, defendant’s confession was not fruit of search and properly admitted at trial. State v. Hunt, 150 Vt. 483, 555 A.2d 369, 1988 Vt. LEXIS 213 (1988), cert. denied, 489 U.S. 1026, 109 S. Ct. 1155, 103 L. Ed. 2d 214, 1989 U.S. LEXIS 790 (1989).

In ruling on motion to suppress evidence in criminal trial in federal court, federal, rather than State, exclusionary rule would be applied, even though underlying investigation leading to prosecution was conducted solely by State officials. United States v. Pforzheimer, 826 F.2d 200, 1987 U.S. App. LEXIS 11187 (2d Cir. 1987).

Persons who claim to have been subjected to an illegal pat-down search for weapons may file a motion to suppress any evidence discovered as a result of such a search, but must establish a causal nexus between the constitutional violation and the evidence sought to be suppressed in order to prevail. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

Test for determining whether evidence discovered as a result of an illegal search should be suppressed is whether, granting establishment of the primary illegality, the evidence to which objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

Evidence obtained in violation of this article, or as the result of a violation, cannot be admitted at trial. State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982).

Rule excluding from evidence the products of an illegal search and seizure covers indirect as well as direct products. State v. Dupaw, 134 Vt. 451, 365 A.2d 967, 1976 Vt. LEXIS 700 (1976).

The standard by which the proper scope of the rule excluding the products of an illegal search and seizure from evidence is to be determined is whether the evidence objected to was obtained by exploitation of the illegality, or by means sufficiently distinguishable to be purged of the primary taint. State v. Dupaw, 134 Vt. 451, 365 A.2d 967, 1976 Vt. LEXIS 700 (1976).

A paper taken by an officer from the person of the respondent, in violation of his right under this article to freedom from unlawful search and seizure, will not be received in evidence against the respondent, if he invokes such constitutional right. State v. Slamon, 73 Vt. 212, 50 A. 1097, 1901 Vt. LEXIS 156 (1901).

Execution of warrant.

Police are not prohibited from searching a home pursuant to a valid search warrant even though occupant is not present and even though exigent circumstances are absent. State v. Meyer, 167 Vt. 608, 708 A.2d 1343, 1998 Vt. LEXIS 19 (1998) (mem.).

Where defendant rebuffed proper official requests for access to his pharmacy records, despite requirements of State and federal regulations that he make such records available for inspection when requested, and as a result, it was impossible for investigators to ascertain exactly what records defendant had, the phrase “drug price listings” in the affidavit supporting State’s request for a search warrant, defined in the affidavit as original business records reflecting the prices charged for drugs at defendant’s pharmacy, sufficiently described defendant’s prescription receipt log to justify its seizure under the warrant. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

An officer, who while searching the person of the respondent for stolen goods by virtue of a warrant authorizing such search, took from the person of the respondent against his will a letter written to the respondent, violated this article. State v. Slamon, 73 Vt. 212, 50 A. 1097, 1901 Vt. LEXIS 156 (1901).

Exigent circumstances.

Because defendant consented to the search of her car, the State was not required to show exigent circumstances or to obtain a warrant. Therefore, the court rejected defendant’s argument that the search of her purse, which was inside the car, violated the Vermont Constitution because no exigent circumstances existed. State v. Lamonda, 2011 VT 101, 190 Vt. 618, 30 A.3d 687, 2011 Vt. LEXIS 105 (2011).

Defendant’s threats of violence and means to carry them out presented sufficiently exigent circumstances to justify warrantless police entry of home during domestic disturbance involving defendant’s girlfriend and their infant daughter; there was therefore no violation of defendant’s federal or State constitutional rights, and trial court did not err in refusing to suppress evidence or in denying defendant’s motion for acquittal of assault charges stemming from his altercation with officers. State v. Petruccelli, 170 Vt. 51, 743 A.2d 1062, 1999 Vt. LEXIS 309 (1999).

Because the vehicle of defendant, who was charged with driving under the influence and possession of marijuana, would have remained in the public parking lot where defendant was arrested and would have been accessible to the two other occupants of the vehicle who were not arrested, the State proved exigent circumstances existed, since the evidence, which was an open container of alcohol discovered by the arresting officer, could have been removed before a warrant was obtained; therefore, the third prong of the plain-view exception to the warrant requirement, which requires exigent circumstances to give an officer lawful access to the evidence, was satisfied. State v. Trudeau, 165 Vt. 355, 683 A.2d 725, 1996 Vt. LEXIS 82 (1996).

A container that can be seized, removed from a vehicle, and secured by the police does not ordinarily present a reasonable exigent circumstance to dispense with a warrant to search the container. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

An otherwise unreasonable warrantless search may be justified by exigent circumstances. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Any exceptions to search warrant requirement must be factually and narrowly tied to exigent circumstances and reasonable expectations of privacy, and bright-line tests are rejected because they fail to do justice to values underlying this article. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Mobility of evidence is not per se an exigent circumstance justifying exception to search warrant requirement, and burden is on government to show that evidence might be lost before a warrant could be obtained. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Expectation of privacy.

Protections of the Vermont Constitution for hunting, trapping, and fishing, and the associated implementing statutes, do not diminish a landowner’s expectation of privacy against warrantless intrusion and do not require a reframing or exception to the framework established in Kirchoff, in which the Court held that Article 11 protected against warrantless searches of “open fields” when the landowner objectively demonstrated his or her intent for privacy. State v. Dupuis, 2018 VT 86, 208 Vt. 196, 197 A.3d 343, 2018 Vt. LEXIS 125 (2018).

By posting approximately thirty signs roughly 100 feet apart around the perimeter of his property, and by placing a gate with “no trespassing” signs at the entrance to the main thoroughfare onto his property, defendant objectively signaled to the outside world that strangers were not welcome, and thus had an expectation of privacy under Kirchoff even though he had not strictly abided by Vermont’s regulations for posting against hunting. State v. Dupuis, 2018 VT 86, 208 Vt. 196, 197 A.3d 343, 2018 Vt. LEXIS 125 (2018).

Mandatory testing and disclosure of HIV status threaten privacy interests beyond the taking of a blood sample, particularly because of the social stigma, harassment, and discrimination often suffered by individuals who have AIDS or who are HIV-positive. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

While a person may have a reasonable expectation that face-to-face conversations with another person in his or her own home are not being broadcast outside the home, the Court does not believe that a person who broadcasts his or her own conversation to those outside the home without knowledge of the circumstances at the other end of the conversation has an expectation of privacy in that conversation that society would deem reasonable. Thus, the trial court properly allowed a detective to testify about a telephone conversation between defendant and an informant to which he listened. State v. Wetter, 2011 VT 111, 190 Vt. 476, 35 A.3d 962, 2011 Vt. LEXIS 108 (2011).

Vermont’s Constitution affords no privacy protection in an Internet service provider’s subscriber address or use information disclosing noncontent data. State v. Simmons, 2011 VT 69, 190 Vt. 141, 27 A.3d 1065, 2011 Vt. LEXIS 65 (2011).

Given the necessary and willing exposure of an Internet user’s access point identification and frequency of use to third party Internet service providers, such information cannot reasonably be considered confidential for purposes of the Vermont Constitution, especially when a provider openly declares a policy of disclosure; the information appears no more private than a phone number and the number of calls made, or a street address or post office box and volume of mail, neither of which could plausibly be considered private. Accordingly, subpoenaing information about the address defendant used to access a social networking site and the frequency of his use did not violate the Vermont Constitution. State v. Simmons, 2011 VT 69, 190 Vt. 141, 27 A.3d 1065, 2011 Vt. LEXIS 65 (2011).

Regardless of the openness of the drug transaction between defendant and an informant, the transaction was obviously not open to the general public, and the object of the transaction was contained in a closed backpack. Thus, the trial court correctly ruled that defendant’s actions manifested an actual expectation of privacy. State v. Birchard, 2010 VT 57, 188 Vt. 172, 5 A.3d 879, 2010 Vt. LEXIS 55 (2010).

Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

Scope of the Vermont Constitution’s protection does not turn on whether the activity disclosed by a search is illegal or innocuous; the interest protected by the Vermont Constitution, like the Fourth Amendment, is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life. The scope of constitutional protection must reflect the impact of a practice on the sense of security that is the true concern of the Constitution’s protection of privacy. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

Legality of the altitude at which aerial surveillance takes place can be relevant to the determination of whether an individual has a legitimate expectation of privacy in his real property; indeed, the citizens of Vermont likely expect that law enforcement personnel as well as other air travelers will abide by safety rules and other applicable laws and regulations when flying over their homes. However, it simply does not follow that whether a member of the public is abiding by the law in occupying a particular spot in the public airspace is an adequate test of whether government surveillance from that same spot is constitutional; therefore, the Supreme Court of Vermont disagrees with those courts that would use the legality of an aircraft’s position alone to evaluate the constitutionality of the surveillance conducted aboard it. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

Warrantless aerial surveillance was a patent violation of defendant’s legitimate expectations of privacy when defendant had demonstrated that he had a subjective expectation of privacy in his back yard by taking precautions to exclude others from his back yard by posting his land and by communicating to a local forest official that he did not want people trespassing on his land; it was of no moment that defendant could not effectively post his sky. Furthermore, defendant’s subjective expectation that he would be free from this intrusion—an aerial surveillance that targeted defendant’s home and curtilage, was highly intrusive, and was in violation of laws governing helicopter flight—was legitimate. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

With technological advances in surveillance techniques, the privacy-protection question is no longer whether police have physically invaded a constitutionally protected area; rather, the inquiry is whether the surveillance invaded a constitutionally protected legitimate expectation of privacy. A targeted, low-level helicopter surveillance by the police of activities in an enclosed backyard is not consistent with that expectation—not without a warrant. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

Nothing about the fact that the search occurs in a vehicle would justify a reduced probable-cause standard. Indeed, while it has been acknowledged that vehicles support a somewhat diminished expectation of privacy, this is not to say that they carry no expectation of privacy, or that an arrest of the driver obviates the need to establish specific probable cause to search. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, 2007 Vt. LEXIS 45 (2007).

Under the Vermont Constitution, the question of whether an individual has a legitimate expectation of privacy hinges on the essence of underlying constitutional values—including respect for both private, subjective expectations and public norms. Accordingly, the provision requires first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. State v. Rheaume, 2005 VT 106, 179 Vt. 39, 889 A.2d 711, 2005 Vt. LEXIS 245 (2005).

While it is true that the public at large may not freely access the emergency area of a hospital, medical personnel, hospital staff, patients and their families, and emergency workers—including police officers—are, as a matter of course, frequently, and not unexpectedly, moving through the area. Against this background, a patient undergoing treatment for only a brief period of time cannot reasonably expect either to restrict access to the area, or to control whether other patients, their families, or the other categories of personnel are present in the area. State v. Rheaume, 2005 VT 106, 179 Vt. 39, 889 A.2d 711, 2005 Vt. LEXIS 245 (2005).

Where police detectives, investigating an allegation that defendant had engaged in sexual acts with a child, were invited by defendant into his residence and secretly tape recorded an interview with defendant, because the officers did not establish a reasonable justification for the recording before a neutral magistrate, the tape was properly suppressed. State v. Geraw, 173 Vt. 350, 795 A.2d 1219, 2002 Vt. LEXIS 50 (2002).

Where defendant exposed his illegal activity to informant, an inquiring co-worker not armed with electronic surveillance equipment, defendant was held to have foregone a reasonable expectation of privacy and there was no transgression of this article. State v. Hayes, 170 Vt. 618, 752 A.2d 16, 2000 Vt. LEXIS 31 (2000) (mem.).

Warrantless video surveillance that recorded defendant tending marijuana plants about 150 feet from his home was not unconstitutional, and videotape was not required to be suppressed; defendant had no reasonable expectation of privacy in area of marijuana garden because he took no steps to exclude the public, and video camera recorded only what an officer standing in the same position would have observed with the naked eye. State v. Costin, 168 Vt. 175, 720 A.2d 866, 1998 Vt. LEXIS 228 (1998).

Seizure of a bag of marijuana found in defendant’s vehicle when defendant was pulled over for driving under the influence, which was lawful under the plain-view exception to the warrant requirement since the officer viewed the partially exposed baggie while lawfully reaching inside the vehicle to seize an open beer can and had probable cause to believe the baggie contained contraband, infringed on no privacy or possessory interests. State v. Trudeau, 165 Vt. 355, 683 A.2d 725, 1996 Vt. LEXIS 82 (1996).

The Vermont Constitution protects persons from warrantless police searches into the contents of secured opaque trash bags left at curbside for garbage collection and disposal. Because persons have an objectively reasonable privacy interest in the contents of such containers, police must obtain a warrant before searching through them. State v. Morris, 165 Vt. 111, 680 A.2d 90, 1996 Vt. LEXIS 40 (1996).

In determining whether persons have a privacy interest in any given area or activity, such as to be constitutionally protected against unreasonable searches and seizures, both private subjective expectations and general social norms must be examined. State v. Morris, 165 Vt. 111, 680 A.2d 90, 1996 Vt. LEXIS 40 (1996).

The privacy interest in one’s trash is not equivalent to the privacy interest in one’s home; accordingly, the seizure of trash bags is permitted without a warrant given the exigency of the situation. Once the police have seized the bags, however, they cannot search them before obtaining a warrant based on probable cause. State v. Morris, 165 Vt. 111, 680 A.2d 90, 1996 Vt. LEXIS 40 (1996).

Since paramount concern in search and seizure cases is to give effect to core values of privacy underlying provision of Vermont Constitution, Vermont Supreme Court does not hesitate to depart from parallel federal law when necessary to accomplish this goal. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Shield created by vegetation or topographical barriers fails to demonstrate landowner’s intent to exclude public since not clearing land does not constitute affirmative action demonstrating concern for privacy. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Since Vermont Constitution does not protect areas willingly exposed to the public, where defendants took no steps to prevent public from reaching place of observation or to prevent observation, they knowingly exposed garden to public. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Defendants exhibited no expectation of privacy where they did nothing to exclude persons from walking through woods on their land, allowed existence of path at point of entry to serve as invitation for such a walk, distance was short, and presence of cameras, spotlights, and sheep fencing around garden showed that defendants expected garden to be observed but wanted to prevent theft. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Although a person’s home is a place where one can generally expect privacy, determination of need for warrant prior to search involves an objective inquiry: whether a reasonable person should know that the occupant has sought to exclude the public. State v. Roberts, 160 Vt. 385, 631 A.2d 835, 1993 Vt. LEXIS 66 (1993).

In view of disarray of premises and numerous unanswered phone calls concerning overdue rent, it was reasonable for investigating officer to conclude that lessee of property no longer sought to exclude public; police therefore did not violate defendant’s federal or State constitutional rights when entering house without a warrant, and trial court did not err in refusing to suppress fruits of subsequent search. State v. Roberts, 160 Vt. 385, 631 A.2d 835, 1993 Vt. LEXIS 66 (1993).

Defendant, charged with concealing material facts in obtaining prescriptions for regulated drugs, had standing under Vermont Constitution to raise claim that right to privacy was violated by a warrantless inspection of her prescription records; privacy interest arose from expectation that such records cannot be arbitrarily disclosed. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

In deciding whether a defendant has standing to assert a privacy claim under the Vermont Constitution, the Supreme Court looks at the objective relationship of the person to the place searched or items seized, as opposed to a subjective evaluation of the legitimacy of the person’s expectation of privacy; a defendant need only assert a possessory, proprietary, or participatory interest in the item seized or the area searched to establish standing to assert a challenge. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Analysis under this article, in automobile search context, must be grounded on defendant’s expectation of privacy in packages contained in vehicle, and person have a separate and higher expectation of privacy for containers used to transport personal possessions than for objects exposed to plain view within automobile’s interior. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

This article does not protect areas willingly exposed to public, but instead requires objective inquiry into whether a reasonable person would know that someone placing articles as defendant did intended to exclude them from public view. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Defendant had legitimate expectation of privacy in contents of brown paper bag in which marijuana, contained in plastic bags, was found; functionally, paper bag was a closed container that effectively concealed its contents from public eye, plastic bags were also opaque and concealed their contents, and packaging was not so distinctive as to give away the contents. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Where conversation between defendant and informant equipped with electronic transmitter took place in defendant’s home and there was no indication in record to suggest he expected conversations to be transmitted beyond immediate environs, especially through electronic enhancement, defendant did not knowingly expose conversations to outside world, and he therefore exhibited a clear subjective expectation of privacy. State v. Blow, 157 Vt. 513, 602 A.2d 552, 1991 Vt. LEXIS 222 (1991).

Determination that police activities amount to prohibited search and seizure under Vermont Constitution depends on whether defendant conveyed an expectation of privacy in such a way that a reasonable person would conclude he sought to exclude the public. State v. Blow, 157 Vt. 513, 602 A.2d 552, 1991 Vt. LEXIS 222 (1991).

Regardless of what he actually expected, defendant whose incriminating conversation with informant was electronically recorded did not enjoy a reasonable expectation of privacy in a public parking lot. State v. Brooks, 157 Vt. 490, 601 A.2d 963, 1991 Vt. LEXIS 219 (1991).

Foundation.

Probable cause to issue search warrant was supported by substantial evidence based on totality of circumstances, where packages which contained marijuana came from a false address and false sender, sender misstated contents, defendant’s mailbox was marked for delivery only on day of delivery, person to whom packages were addressed was not at delivery address, and defendant appeared “very nervous” while accepting packages. State v. Defranceaux, 170 Vt. 561, 743 A.2d 1074, 1999 Vt. LEXIS 328 (1999) (mem.).

Search warrant was not invalidated by officer’s failure to include, in application for warrant, information concerning unsuccessful initial search conducted near defendant’s residence pursuant to an informant’s tip; informant’s factual assertions were substantiated by officer upon returning to area with informant, and officer’s subsequent first-hand knowledge of marijuana growing in defendant’s yard was sufficient by itself to establish probable cause to issue warrant. State v. Hall, 168 Vt. 327, 719 A.2d 435, 1998 Vt. LEXIS 255 (1998).

There was sufficient probable cause to believe that evidence of crime would be found within defendant’s home; fact that marijuana plant in defendant’s back yard appeared cultivated, as opposed to untended, supported inference that materials for manufacture and cultivation of marijuana existed at the residence, and informant had also provided information about drug paraphernalia located inside defendant’s house. State v. Hall, 168 Vt. 327, 719 A.2d 435, 1998 Vt. LEXIS 255 (1998).

Acknowledgments that merely create a suspicion of an informant’s involvement in criminal activity, such as that the informant was present during a drug transaction or had smoked marijuana before, will not suffice as admissions against penal interest, such as to support the issuance of a search warrant. State v. Morris, 165 Vt. 111, 680 A.2d 90, 1996 Vt. LEXIS 40 (1996).

Where application for search warrant was closely preceded by supervised entry of defendant’s home by government informant who had previously executed controlled buy in the same premises, credibility of informant was buttressed by proof that information he supplied was reliable, and judicial officer could independently conclude there was adequate basis for warrant. State v. Emmi, 160 Vt. 377, 628 A.2d 939, 1993 Vt. LEXIS 53 (1993).

Rather than strict reliance on informant’s credibility, evidence gathered from a controlled drug purchase may be used to establish reliability of information received for purposes of determining probable cause to search. State v. Emmi, 160 Vt. 377, 628 A.2d 939, 1993 Vt. LEXIS 53 (1993).

A State’s Attorney shall not set his hand to an official complaint by which a criminal prosecution is commenced, unless he has gone far enough in a preliminary investigation to satisfy himself of the probable guilt of the party to be charged; to fail to do so violates this article. In re Davis, 126 Vt. 142, 224 A.2d 905, 1966 Vt. LEXIS 179 (1966); In re Lebo, 126 Vt. 146, 224 A.2d 907, 1966 Vt. LEXIS 181 (1966); In re Rushford, 126 Vt. 148, 224 A.2d 907, 1966 Vt. LEXIS 183 (1966); State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Where State’s Attorney attached his official signature to a blank form to be filled out if and when occasion required a prosecution for one crime or another, by some person other than himself and without his direction, knowledge or assent, complaint so prepared was void, since warrants without oath or affirmation are forbidden by this article. State v. Donaldson, 101 Vt. 483, 144 A. 684, 1929 Vt. LEXIS 194 (1929).

Governmental immunity.

Common law doctrine of sovereign immunity did not act as a jurisdictional bar to plaintiff’s civil damage suit against the State alleging that a State officer deprived him of the protection from government interference guaranteed by Article 11 of the Vermont Constitution. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

The standard applied to evaluate defendant’s immunity from plaintiff’s State law claims alleging violations of the State constitutional right to be free from unreasonable searches is the objective good faith standard under which “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”; the good faith inquiry does not ask whether plaintiff’s rights were violated, but rather whether the official reasonably should have known that what was being done violated plaintiff’s rights. Stevens v. Stearns, 2003 VT 74, 175 Vt. 428, 833 A.2d 835, 2003 Vt. LEXIS 152 (2003).

Even where a State court has concluded that an individual is entitled to recover money damages for injuries resulting from the violation of a State constitutional right to be free from unreasonable searches, the test for qualified immunity is the same; it remains the same under any action arising from the State Constitution. Stevens v. Stearns, 2003 VT 74, 175 Vt. 428, 833 A.2d 835, 2003 Vt. LEXIS 152 (2003).

Harmless error.

Because the bag last searched was not the same as the bag lawfully seized and opened by agents earlier, there was no “continuation of the legal search” of the same container tantamount to reviewing the same contraband once already in an officer’s plain view. Thus, the introduction of evidence from the illegal search was not harmless. State v. Birchard, 2010 VT 57, 188 Vt. 172, 5 A.3d 879, 2010 Vt. LEXIS 55 (2010).

Inventory searches.

There is no requirement that police obtain search warrants for vehicles immediately; such warrants must be obtained in a reasonable amount of time. The Rules of Criminal Procedure require that detained persons be brought before a judicial officer without delay, but do not contain a similar provision for automobiles. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

Courts have approved inventory searches of lawfully impounded vehicles to protect the owner’s property while in police custody, and have upheld the admission of evidence that the police would have “inevitably discovered” during such a search. The doctrine had no application where, prior to the illegal search, the officer testified that they had determined only to “ground” the vehicle, i.e., to leave it in place in the private lot where it was parked. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, 2007 Vt. LEXIS 45 (2007).

Investigative detention.

Officer had reasonable suspicion under the Fourth Amendment and the Vermont Constitution to expand the scope of his suspended-license investigation into a drug investigation, permitting him to ask defendant to exit his vehicle and to interview defendant about a prescription bottle. Defendant was sitting in his car in an area of a parking lot known for drug activity; defendant made furtive movements as if shuffling an object in the front seat of the car when he saw the officer approaching; the object defendant appeared to hide from the officer was a prescription pill bottle with a worn label; defendant was nervous and shaking when asked for his identification; and defendant’s wallet contained a large amount of crumpled bills. State v. Manning, 2015 VT 124, 200 Vt. 423, 132 A.3d 716, 2015 Vt. LEXIS 107 (2015).

When an officer approached and woke defendant, talked with him and informed him that he was free to go to sleep, and then returned with a second trooper, woke defendant again, and asked him pointed questions about criminal activity, the officer’s field inquiry was converted into a Terry stop under the Fourth Amendment and the Vermont Constitution at the outset of the second encounter when the officer asked pointed questions of defendant. State v. Winters, 2015 VT 116, 200 Vt. 296, 131 A.3d 186, 2015 Vt. LEXIS 90 (2015).

Officer did not have reasonable suspicion of criminal activity, as he had not gleaned any information on his previous approach of defendant to indicate that defendant had any contraband, defendant’s stale arrest record nearly a decade earlier did not provide the officer with reasonable suspicion, and defendant’s comments that he had been coming from Massachusetts hardly supported a suspicion of drug possession. State v. Winters, 2015 VT 116, 200 Vt. 296, 131 A.3d 186, 2015 Vt. LEXIS 90 (2015).

Exit request is constitutionally permissible when it is supported by objective facts that support a reasonable suspicion that the safety of investigating officers or members of the public is at risk or that a crime has been committed; several states have held that the smell of burning marijuana gives investigating officers at least such a reasonable suspicion. Therefore, when an officer found a car matching one described by an informant, smelled marijuana coming from the car, and followed snow tracks from the car into an apartment, his request that defendant and others who had been in the car accompany him outside did not constitute an unconstitutional seizure. State v. Ford, 2007 VT 107, 182 Vt. 421, 940 A.2d 687, 2007 Vt. LEXIS 251 (2007).

It was reasonable for a trooper to require defendant to leave her vehicle to conduct further investigation where, prior to the order, he observed her cross the centerline in the face of oncoming traffic, smelled an odor of intoxicants coming from the car, observed that defendant’s speech was slightly slurred, and noted that her eyes were watery and bloodshot and did not appear to focus. State v. Freeman, 2004 VT 56, 177 Vt. 478, 857 A.2d 295, 2004 Vt. LEXIS 175 (2004) (mem.).

An order to exit one’s vehicle after the initial investigatory stop is a further seizure within the meaning of this article. State v. Freeman, 2004 VT 56, 177 Vt. 478, 857 A.2d 295, 2004 Vt. LEXIS 175 (2004) (mem.).

Even though a police officer did not personally observe any incriminating behavior by the driver, he could reasonably detain a vehicle where he was acting upon an anonymous tip that accurately described the vehicle, accurately predicted its route and location upon the highway, and indicated that it was behaving in a fashion indicative of drunk driving. State v. Boyea, 171 Vt. 401, 765 A.2d 862, 2000 Vt. LEXIS 322 (2000), cert. denied, 533 U.S. 917, 121 S. Ct. 2524, 150 L. Ed. 2d 696, 2001 U.S. LEXIS 4563 (2001).

Police officer was justified in stopping defendant’s car after being told by another motorist “there’s something wrong with that man”; although officer had no reasonable and articulable suspicion that defendant was committing crime, because she did not see him engage in any unusual behavior or violate any motor vehicle law, investigatory stop of defendant’s vehicle was a reasonable police response under the circumstances, because police have an essential role as public servants to assist those in distress and to maintain and foster public safety. State v. Marcello, 157 Vt. 657, 599 A.2d 357, 1991 Vt. LEXIS 190 (1991) (mem.).

Investigatory stops are permitted where specific and articulable facts, together with the rational inference taken therefrom, reasonably warrant the intrusion, and the requisite level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. State v. Siergiey, 155 Vt. 78, 582 A.2d 119, 1990 Vt. LEXIS 169 (1990).

For purposes of reasonable suspicion adequate to justify an investigatory stop, generally information about criminal or suspicious activity from a citizen who is not a paid informant and is unconnected with the police is presumed to be reliable. State v. Siergiey, 155 Vt. 78, 582 A.2d 119, 1990 Vt. LEXIS 169 (1990).

Officer’s investigatory stop of driver based on citizen’s complaint of erratic driving and officer’s observation of extremely slow driving by defendant was sufficiently based on reasonable suspicion to warrant stop. State v. Siergiey, 155 Vt. 78, 582 A.2d 119, 1990 Vt. LEXIS 169 (1990).

An investigatory stop of a vehicle and detention of its passengers is a seizure. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

A limited search for weapons, whether it be legally or illegally conducted, does not convert an investigative stop into a full-blown arrest. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

When an officer’s observations lead him reasonably to suspect that an individual is driving under the influence of intoxicating liquor, he may stop the vehicle and investigate the circumstances that provoke suspicion. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

State trooper who had reasonable grounds to suspect that defendant was driving while under the influence of intoxicating liquor could lawfully order defendant to get out of his car in order to confirm or negate his suspicions regarding probable cause to arrest. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

Investigative stop.

Police officers violated the Vermont Constitution by expanding the scope of a valid traffic stop into a drug investigation without reasonable suspicion of drug-related criminal activity when before issuing the suspended-license citation or returning defendant’s license, they asked defendant to exit his vehicle, patted him down, asked to search his car and incorrectly told him that they had authority to seize it, said that they would request a canine unit to search the car, questioned him about his contacts with persons and places associated with drug-related crime, and purposely delayed completing the traffic stop. State v. Nagel, 2020 VT 31, 212 Vt. 122, 232 A.3d 1081, 2020 Vt. LEXIS 30 (2020).

Officer did not have a reasonable suspicion to expand the scope of a stop for suspected driving under the influence into a drug investigation, as he gained no information after the exit order that justified such an expansion, and therefore defendant’s conviction of possession of heroin had to be reversed. The officer testified that after having defendant exit the vehicle and speak with him in his cruiser, he was not concerned that she was operating impaired; he did not mention any objective factual basis to support his suspicion that drugs would likely be found in the vehicle or in defendant’s possession. State v. Dubaniewicz, 2019 VT 13, 209 Vt. 490, 208 A.3d 619, 2019 Vt. LEXIS 33 (2019).

Stop of plaintiff’s vehicle violated Article 11 of the Vermont Constitution because at the time of the stop, an obscured registration sticker did not violate the statute dealing with the manner of display of a license plate. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

Stops of two vehicles after troopers learned that they were each owned by a person with a suspended license were supported by reasonable suspicion based on the troopers’ knowledge that the owner of each car was under license suspension, and the reasonable inference that the driver of a car could be its owner. In neither case was there any assertion that the troopers were aware of information, such as the operator’s gender, ethnicity, or age, inconsistent with the identity of the known registered owner. State v. Edmonds, 2012 VT 81, 192 Vt. 400, 58 A.3d 961, 2012 Vt. LEXIS 80 (2012).

In holding that after a traffic stop, defendant was properly detained to wait for a canine unit, the trial court erred in relying on the officer’s knowledge of defendant’s drug possession 12 days before the stop in question. Many courts have concluded that the fact of a prior arrest does not support a reasonable suspicion of current criminal activity; accordingly, the officer’s knowledge of defendant’s prior arrest did not—even in combination with an anonymous tip and the purportedly suspicious vehicles driving by the traffic stop—satisfy the Vermont Constitution. State v. Cunningham, 2008 VT 43, 183 Vt. 401, 954 A.2d 1290, 2008 Vt. LEXIS 44 (2008).

Defendant’s nervousness provided only meager support for a reasonable, articulable suspicion of drug activity. It is certainly not uncommon for a citizen stopped by police to be nervous, and many courts have found nervousness to be of limited significance in determining reasonable suspicion. State v. Cunningham, 2008 VT 43, 183 Vt. 401, 954 A.2d 1290, 2008 Vt. LEXIS 44 (2008).

While defendant’s failure to prove ownership of the vehicle he was driving, produce identification, or show proof of insurance did justify a detention long enough to write citations for them, without more they provided inadequate support for an officer’s suspicion of drug activity at the time of the stop. State v. Cunningham, 2008 VT 43, 183 Vt. 401, 954 A.2d 1290, 2008 Vt. LEXIS 44 (2008).

Defendant was simply present—openly and in broad daylight—on a public thoroughfare in a town about 15 miles from his home. That he told the officer who stopped him for a traffic violation that there was “no particular reason” he was there did not bear any weight in establishing a reasonable suspicion of criminal activity. State v. Cunningham, 2008 VT 43, 183 Vt. 401, 954 A.2d 1290, 2008 Vt. LEXIS 44 (2008).

In order not to become a full arrest, a frisk must be brief, its scope reasonably related to the justification for the stop and inquiry; thus, the excessive “intrusion” prohibited is defined primarily by the length and scope of a frisk. Neither the weather, a defendant’s wish to be questioned indoors, nor the nature of the offense enter into a constitutional analysis of such a stop under either the United States or Vermont Constitutions, and the trial court erred in concluding otherwise. State v. Ford, 2007 VT 107, 182 Vt. 421, 940 A.2d 687, 2007 Vt. LEXIS 251 (2007).

The trial court did not abuse its factfinding authority when it weighed the officer’s testimony against the video of his stop of defendant, where he described her vehicle touching the center line and gliding onto the fog line at least twice before he turned on his mobile video recorder, and then continuing this pattern at least two more times after he began to record, but, beyond this brief description of her driving, he never testified that the intra-lane weaving supported a suspicion that she might be driving while under the influence, and, additionally, he never testified that in his opinion, and based on his training and experience, when she touched the fog line, she committed a traffic violation sufficient to justify the stop. State v. Davis, 2007 VT 71, 182 Vt. 573, 933 A.2d 224, 2007 Vt. LEXIS 171 (2007) (mem.).

No legitimate law enforcement or community caretaking function was fulfilled by a motor-vehicle stop of defendant who prematurely activated his high-beam headlights when passing a trooper. State v. St. Martin, 2007 VT 20, 181 Vt. 581, 925 A.2d 999, 2007 Vt. LEXIS 48 (2007) (mem.).

Where a named informant provided police with a detailed description of defendant’s vehicle, its make, model, license plate number, route, and direction of travel, and also reported that the operator “was possibly intoxicated and driving,” the informant’s tip contained sufficient indicia of reliability to justify the stop. State v. Riefenstahl, 172 Vt. 597, 779 A.2d 675, 2001 Vt. LEXIS 188 (2001) (mem.).

Police officer lacked a reasonable and articulable suspicion of criminal activity to justify the stop of defendant, who was a local man, driving down the public street at 8:30 in the evening, traveling in the direction of his home (a fact known to the officer), who stopped in a driveway approximately thirty minutes after and approximately two miles from reported criminal activity in which there was no reason to suspect he was involved. State v. Warner, 172 Vt. 552, 773 A.2d 273, 2001 Vt. LEXIS 39 (2001).

Marijuana possession.

If an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544, 2008 Vt. LEXIS 97 (2008).

Nontestimonial identification.

Vermont Constitution did not require that prosecution demonstrate probable cause in order to obtain a nontestimonial identification order for collection of saliva from defendant’s mouth; rather, a finding of reasonable suspicion to suspect defendant committed the offense was sufficient. In re Nontestimonial Identification Order Directed to R.H., 171 Vt. 227, 762 A.2d 1239, 2000 Vt. LEXIS 246 (2000).

Plain view.

The plain-view doctrine is predicated on two principles: first, that when an officer has observed an object in plain view from a legal vantage point the owner’s privacy interests are forfeited; and second, that requiring a warrant once the police have obtained a first-hand perception of the object would be a needless inconvenience. Thus, decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. To modify the doctrine by allowing the seizure of objects which the officers did not observe would eviscerate its fundamental evidentiary and legal grounding. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, 2007 Vt. LEXIS 45 (2007).

Where, after smelling alcohol and marijuana on the defendant’s person and conducting field sobriety tests, a police officer determined that defendant had been driving while under the influence, and where the officer returned to the vehicle to retrieve an open alcohol container as evidence and noticed a partially exposed clear-plastic baggie containing marijuana, the seizure of the marijuana was valid under the “plain view” exception to the warrant requirement. State v. Trudeau, 165 Vt. 355, 683 A.2d 725, 1996 Vt. LEXIS 82 (1996).

Because the vehicle belonging to defendant, who was charged with driving under the influence (DUI) and the possession of marijuana, was located in a public parking lot, the arresting officer was lawfully present when he shined his flashlight into the car and observed the open container of alcohol, thus satisfying the first prong of the plain-view exception to warrant requirement, that the officer has not violated the Fourth Amendment in arriving at the place from which the evidence can be plainly viewed; and because the arresting officer had probable cause to associate with the crime of DUI a partially full beer can in a vehicle driven by a person who had failed a field sobriety test, the second prong of the plain-view exception, requiring probable cause to associate the evidence that is in plain view with criminal activity, was also satisfied. State v. Trudeau, 165 Vt. 355, 683 A.2d 725, 1996 Vt. LEXIS 82 (1996).

Preservation for review.

Aside from a bald assertion that the evidence should be suppressed “pursuant to . . . the Vermont Constitution, Chapter 1, Article 11,” defendant proffered no particular argument or analysis to the trial court as to why this should be so. Thus, defendant waived his Article 11 argument. State v. Simmons, 2011 VT 69, 190 Vt. 141, 27 A.3d 1065, 2011 Vt. LEXIS 65 (2011).

Prison cell searches.

A warrant based on generalized probable cause is not required for random prison cell searches. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

This article is applicable to the rights of a prison inmate. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

The State does not have an unfettered right to invade the privacy of prison inmates and, in conducting random searches, must adhere to basic safeguards. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

In the context of a prison cell search, random selection for searching on any particular date does not amount to arbitrary selection. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

Prison environment presents special needs that make the warrant and probable cause requirement of this article impracticable as a prerequisite to a random search of an inmate’s cell. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

The reasonableness of a warrantless and random search of a prisoner’s cell hinges on a balancing of the governmental interest in the security of its prisoners against the privacy and possessory interests of the prisoner. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

Random, warrantless search of a prisoner’s cell at correctional center, conducted pursuant to a written plan, was reasonable and did not violate the State Constitution, where the written plan itself was not unreasonable and was adhered to during the search, and where the prisoner did not demonstrate any particularized unfairness in the conduct of the search. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

Purpose.

Overriding function of the search and seizure provision of the Vermont Constitution is to protect personal privacy and dignity against unwarranted intrusion by the State; it requires that the State temper its efforts to apprehend criminals with a concern for the impact of its methods on fundamental liberties. Principles established in cases delineate the extent to which official intrusion into the privacy of any citizen will be constitutionally permissible. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467, 2008 Vt. LEXIS 38 (2008).

Task of Supreme Court is to honor not merely words but underlying purposes of constitutional guarantees, and to discover and protect core value that gave life to this article. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Preference for judicially issued search warrants reflects basic constitutional doctrine that individual freedoms will best be preserved through separation of powers and division of functions among different branches and levels of government. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

The primary evil sought to be avoided by this article was the issuance of general warrants. State v. Record, 150 Vt. 84, 548 A.2d 422, 1988 Vt. LEXIS 100 (1988).

Removal of pubic hair.

Removal of pubic hair, involving area traditionally concealed from public view, implicates this article, which protects people of State from unreasonable, warrantless governmental intrusion into affairs they choose to keep private; thus, in absence of valid exception, seizure of pubic hairs requires warrant issued under probable cause. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

Affidavits provided probable cause to support nontestimonial identification order in murder case, where crime, probably including rape, was committed, probable cause existed to believe defendant committed it, and unidentified hairs were found on victim’s clothes; where probable cause existed, sample of defendant’s pubic hair could be ordered removed. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

Roadblocks.

As a general rule, a motor vehicle roadblock sobriety checkpoint will pass constitutional muster if: (1) the initial stop and contact between the officers in the field and the motorist involves an explanation of the nature of the roadblock and minimal detention of a nonimpaired driver; (2) the discretion of the officers in the field, as to the method to be utilized in the selecting vehicles to be stopped, is carefully circumscribed by clear objective guidelines established by a high level administrative official; (3) the guidelines are followed in the operation of the roadblock; (4) approaching drivers are given adequate warning that there is a roadblock ahead; (5) the likelihood of apprehension, fear, or surprise is dispelled by a visible display of legitimate police authority at the roadblock; and (6) vehicles are stopped on a systematic, nonrandom basis that shows drivers they are not being singled out for arbitrary reasons. State v. Record, 150 Vt. 84, 548 A.2d 422, 1988 Vt. LEXIS 100 (1988).

Scope of warrant.

Distinctive characteristics of the dollar bill pouch dropped by defendant, combined with the officer’s testimony that, based on his training and experience, such a container was commonly used to carry drugs, provided the officer with probable cause to believe a crime was afoot and to seize the pouch. Furthermore, the seizure of the pouch met the exigent circumstances exception to the warrant requirement because if the officer had attempted to secure a warrant, there was a substantial likelihood that the evidence would have disappeared. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Dollar bill pouch dropped by defendant was folded in such a distinctive way that it essentially proclaimed its contents unambiguously to an officer, justifying not only its seizure, but the officer’s subsequent inspection of its contents. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Fundamental principles of Vermont’s search and seizure jurisprudence seek to balance the legitimate goals of law enforcement with the right of citizens to be protected from government intrusion. Where incriminating evidence is literally dropped in front of a police officer who is lawfully carrying out his duties and where the incriminating nature of the evidence is immediately apparent, there is no intrusion into a constitutionally protected area that would preclude seizure of that evidence under the Vermont Constitution or the Fourth Amendment. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Probable cause exists where the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a person of reasonable caution to believe that a crime is being committed. Because the pat-down of defendant did not extend beyond a reasonable search incident to arrest, the additional evidence found on defendant’s person—cocaine and marijuana—was properly seized and introduced into evidence. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Searches outside the normal judicial process are presumptively unconstitutional, and permissible only pursuant to a few narrowly drawn and well-delineated exceptions. Such rare exceptions are allowed only in those extraordinary circumstances which make the warrant and probable-cause requirement impracticable. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, 2007 Vt. LEXIS 45 (2007).

No amount of probable cause can justify a warrantless search or seizure absent exigent circumstances. This principle applies with equal or greater force where the probable cause is merely presumed from the fact of an arrest. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38, 2007 Vt. LEXIS 45 (2007).

Where a uniformed officer pulled his marked police cruiser into a parking lot and parked nose-to-nose with a couple’s car, leaving the engine running and the lights on, essentially blocking the exit to the lot, the encounter rose to the level of an investigatory stop, and there was a seizure that was not justified by suspicion of criminal wrongdoing or community caretaking. State v. Jestice, 2004 VT 65, 177 Vt. 513, 861 A.2d 1060, 2004 Vt. LEXIS 256 (2004) (mem.).

Seizure occurred when officer pulled his cruiser into breakdown lane behind defendant’s vehicle, activated cruiser’s blue lights and spotlight, and requested defendant’s license and registration, since a reasonable person in defendant’s position would objectively believe he was not free to leave following this show of authority. State v. Theetge, 171 Vt. 167, 759 A.2d 496, 2000 Vt. LEXIS 175 (2000).

State v. Theetge, 171 Vt. 167, 759 A.2d 496, 2000 Vt. LEXIS 175 (2000).

Absent a valid warrant, police intrusion of home is justified only when government demonstrates presence of exigent circumstances that overcome presumption of unreasonableness that attaches to all warrantless home entries. State v. Petruccelli, 170 Vt. 51, 743 A.2d 1062, 1999 Vt. LEXIS 309 (1999).

A search requires a warrant and probable cause except in exceptional circumstances that make the warrant and probable- cause requirement impracticable; circumstances under which warrantless searches or seizures are permitted must be jealously and carefully drawn. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

Police officer’s warrantless seizure of rifle from car of defendant arrested for driving under the influence did not violate this article, where rifle was exposed to plain view of officers standing outside car, and where unattended rifle posed unacceptable danger to public at large and presented exceptional circumstances allowing officers to make a reasonable seizure without prior approval of judiciary. State v. Richardson, 158 Vt. 635, 603 A.2d 378, 1992 Vt. LEXIS 2 (1992) (mem.).

Although warrantless searches are sometimes permitted under Article 11 of Vermont Constitution, these exceptions must be jealously guarded and carefully drawn. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Warrantless entry onto land was upheld under this article where land was left unimproved, unbound, and was not posted with any “no trespassing” signs or other indicia of intent to exclude the public. State v. Chester, 156 Vt. 638, 587 A.2d 1008, 1991 Vt. LEXIS 6 (1991) (mem.).

What society is prepared to recognize as a “reasonable expectation of privacy” should not, under State and U.S. Constitutions, be the measure of individual rights; role of Vermont Supreme Court is to protect constitutionally guaranteed privacy, not to acquiesce in its erosion if and as people’s expectations ebb. State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

Under the Vermont Constitution, whether the steps taken by a lawful possessor to indicate that privacy is expected in open fields are objectively reasonable will depend on the specific facts of each case. State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

The Vermont Constitution protects the people from governmental intrusion into their private affairs; to the extent their affairs are willingly made public, the search and seizure provision has no application. State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

The State has the burden to prove that a warrantless search of open fields is not prohibited by the Vermont Constitution. State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

A lawful possessor may claim privacy in “open fields” under the Vermont Constitution where indicia would lead a reasonable person to conclude that the area is private; where the indicia, such as fences, barriers, or “no trespassing” signs reasonably indicate that strangers are not welcome on the land, the owner or occupant may reasonably expect privacy. State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991).

Police who seized defendant’s vehicle without a warrant to preserve potential evidence of murder they had probable cause to believe defendant committed acted within requirements of this article where at time the vehicle was seized whereabouts of defendant were unknown to police and thus the risk existed of removal of incriminating evidence from vehicle at any time; the immediate seizure was no more invasive of defendant’s rights than if the police has guarded the car and prevented its removal. State v. Platt, 154 Vt. 179, 574 A.2d 789, 1990 Vt. LEXIS 44 (1990).

A random warrantless search of a prison cell does not violate this article if: (1) clear, objective guidelines are established by a high-level administrative official; (2) those guidelines are followed by implementing officials; and (3) there is no systematic singling out of inmates in the absence of probable cause or articulable suspicion. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

Although this article generally requires that a warrant be obtained before an official search and seizure, it does not contemplate an absolute prohibition on warrantless searches and seizures. State v. Platt, 154 Vt. 179, 574 A.2d 789, 1990 Vt. LEXIS 44 (1990).

This article permits the warrantless search of an unoccupied vehicle for a reasonable amount of time before a warrant can be obtained where there is probable cause that the car contains evidence of a crime. State v. Platt, 154 Vt. 179, 574 A.2d 789, 1990 Vt. LEXIS 44 (1990).

When interpreting this article, Supreme Court will abandon the warrant and probable cause requirements only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990).

This article does not mandate an absolute prohibition against searches and seizures undertaken without a proper warrant. State v. Record, 150 Vt. 84, 548 A.2d 422, 1988 Vt. LEXIS 100 (1988).

Shed located approximately 15 feet from residence and used for storing family property was part of the curtilage of the house and, therefore, within scope of warrant authorizing search of the residence. State v. Potter, 148 Vt. 53, 529 A.2d 163, 1987 Vt. LEXIS 451 (1987).

A judicial warrant authorizing search of a particular residence extends by implication to areas within the curtilage of that residence. State v. Potter, 148 Vt. 53, 529 A.2d 163, 1987 Vt. LEXIS 451 (1987).

An order to get out of one’s automobile is a seizure within the meaning of this article. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

This article does not contemplate an absolute prohibition on warrantless searches or seizures. State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986).

Warrantless seizure of bloodstained shoes by police during interrogation of defendant later charged with second degree murder did not violate this article, even though the consent to the seizure by defendant was involuntary, since the evidence was manifestly vulnerable to easy destruction, was openly displayed to the public, and the police employed the least restrictive method to obtain the manifestly incriminating, yet vulnerable, evidence. State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982).

Under this article, the seizure of a motor vehicle on a public highway may be accomplished without a warrant only where the seizing officer has reasonable cause for believing that the automobile that he halts is illegally transporting contraband. State v. Aldrich, 122 Vt. 416, 175 A.2d 803, 1961 Vt. LEXIS 93 (1961).

Standing.

Defendant had participatory standing to challenge a search for the bullet that was seized from his girlfriend’s driveway because the trooper found the bullet only two days after the alleged crime while he was still actively investigating it, and testified that when he went to conduct a welfare check he thought that it would be a good opportunity to look for the bullet. Defendant’s alleged involvement in the underlying criminal conduct of threatening the witnesses with a handgun was what gave rise to the search for the bullet that was seized from the driveway, which was where the conduct was alleged to have taken place. State v. Calabrese, 2021 VT 76, 2021 VT 76A, 268 A.3d 565, 2021 Vt. LEXIS 107 (Vt. 2021).

Defendants are accorded automatic standing to challenge unlawful searches where charged with an offense in which possession of seized evidence at time of contested search is an essential element of the crime. State v. Wright, 157 Vt. 653, 596 A.2d 925, 1991 Vt. LEXIS 170 (1991) (mem.).

Where current Fourth Amendment standing analysis was inconsistent with both the plain meaning and historic purpose of this article, Vermont Supreme Court would adopt a standing analysis independent of the approach taken by U.S. Supreme Court. State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987).

A defendant need only assert a possessory, proprietary, or participatory interest in the item seized or the area searched to establish standing to challenge a search or seizure under this article. State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987).

Defendant who resided in trailer at summer camp with the permission of the owner of the trailer had a proprietary interest in the trailer that sustained his standing under the curtilage doctrine to challenge a warrantless search of the camp yard. State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987).

Testing of sex offenders.

Statutes such as that allowing sexual offenders to be tested for infectious diseases are directed at public health matters, not law enforcement, and therefore satisfy the first part of the special-needs standard for administrative searches; indeed, the statute explicitly states that samples taken of the sexual offenders “shall be used solely for the purposes of this section,” and thus test results from the samples may not be used for criminal prosecution or other law enforcement purposes. Moreover, the courts have also recognized that imposing probable-cause and warrant requirements would be entirely impracticable in this context because many sexually transmitted diseases, and most particularly the AIDS virus, have no outward manifestations that would permit a probable-cause determination for obtaining a warrant; hence, requiring probable cause and a warrant for such searches would effectively preclude the testing of sex offenders and thus negate the statute. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

Degree to which convicted sex offenders may be subject to the more significant invasion of privacy associated with mandatory HIV testing is a function of how widely the results are disseminated. The risk of stigmatic harm therefore speaks not to whether the search should transpire in the first instance, but rather to the extent to which the private medical facts learned from the procedure should be disclosed; in short, the only privacy interest of any significance in this context is the risk of public dissemination of positive test results. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

Although the consensus among medical experts is that testing sex offenders for sexually transmitted diseases—particularly following conviction after months or even years have passed—has little or no direct medical benefit to victims, testing offenders can provide to victims some psychological benefit that outweighs the offenders’ significantly diminished interest in preventing the testing of bodily fluids forced upon their unwilling victims. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

As long as the trial court imposes restrictions that comport with the statute’s obvious intent to prevent public dissemination of the perpetrator’s test results, there is no constitutional infirmity to the allowing sexual offenders to be tested for infectious diseases under Vt. Const. Ch. I, Art. 11. The statute provides that the results of the offender’s test shall be disclosed only to the offender and the victim; plainly, the Legislature was concerned with the privacy rights of offenders and chose to strictly limit revelation of their test results. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

Court affirmed an order requiring defendant, a convicted sex offender, to submit to testing for sexually transmitted diseases. To safeguard defendant’s privacy interests in not having any potential positive test results disseminated publicly, the court remanded the matter for the trial court to order the victim not to disclose defendant’s test results to anyone except for the victim’s medical provider or counselor, who, in turn, would have an obligation to keep confidential information revealed by their patients. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

Convicted sex offenders have greatly diminished privacy interests, particularly with respect to precluding the testing of bodily fluids forced upon their victims in criminal sexual acts. Moreover, the taking of a blood sample or a cheek swab is a relatively minimal intrusion on privacy. State v. Handy, 2012 VT 21, 191 Vt. 311, 44 A.3d 776, 2012 Vt. LEXIS 22 (2012).

Traffic stop.

Trooper’s order that plaintiff exit his car did not violate Article 11 of the Vermont Constitution, and thus did not support plaintiff’s claim for damages. The faint smell of burnt marijuana, in conjunction with the trooper’s observations of items that might be used to mask the effects of smoking marijuana, provided the trooper with an articulable and reasonable basis to order plaintiff to exit his vehicle to determine whether plaintiff was driving impaired. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

When defendant screeched his tires and revved his engine as he proceeded from a stop and turned the corner, and the road was dry and clear of snow and ice at the time, an officer could conclude that defendant’s squealing of tires was intentional. It was thus reasonable for the officer to suspect that defendant did not have reasonable control of his vehicle, and the stop of defendant’s vehicle therefore did not violate the Fourth Amendment and the Vermont Constitution. State v. Rutter, 2011 VT 13, 189 Vt. 574, 15 A.3d 132, 2011 Vt. LEXIS 15 (2011).

Protections of the Vermont Constitution do not extend to prohibiting law enforcement officers from stopping motor vehicles where there is an objectively reasonable suspicion that a motor vehicle violation has occurred, even if in a particular situation these infractions may appear “trivial” or the officer’s motivation is suspect. There was an objectively reasonable basis for stopping defendant for squealing his tires in violation of the statute applying to starting parked vehicles; therefore, defendant’s argument of pretext lacked merit. State v. Rutter, 2011 VT 13, 189 Vt. 574, 15 A.3d 132, 2011 Vt. LEXIS 15 (2011).

Plain meaning of the statute pertaining to signals showed that a driver had to indicate an intention to turn within 100 feet of turning regardless of traffic conditions. Thus, because defendant’s conduct of not using her signal until just before she turned violated the statute, a trooper had reasonable suspicion under the Fourth Amendment and the Vermont Constitution to make a traffic stop. State v. Fletcher, 2010 VT 27, 187 Vt. 632, 996 A.2d 213, 2010 Vt. LEXIS 27 (2010) (mem.).

In a case where defendant was stopped because he failed to use a turn signal when exiting a rotary, the court could not agree that any exit from any rotary was necessarily a change of direction; it was possible that in some rotaries, the entry and exit locations would be located in such proximity to each other that a vehicle could travel through the rotary without making any discernible or significant change in direction. Given this kind of possibility, and because the turn-signal statute was silent on the subject of rotaries, and the only statutory provision addressing rotaries was silent on the subject of turn signals, it was necessary for the State to demonstrate that defendant’s exit off this particular rotary constituted a change of direction in order to justify the traffic stop; thus, remand for an evidentiary hearing on defendant’s motion to suppress was required. State v. Harris, 2009 VT 73, 186 Vt. 225, 980 A.2d 785, 2009 Vt. LEXIS 79 (2009).

Unlawful search and seizure.

Facts were insufficient to provide probable cause that defendant’s vehicle contained drugs and to seize it. A tip was so vague and general that it was of limited value even if it met the credibility standards of the rule governing search and seizure and properly identified the driver, and defendant’s smoking and the presence of air fresheners in the car, his vague travel plans, his nervousness, the smell of marijuana, and his voluntary surrender of marijuana were insufficient to establish probable cause that he had more marijuana or other drugs. State v. Clinton-Aimable, 2020 VT 30, 212 Vt. 107, 232 A.3d 1092, 2020 Vt. LEXIS 32 (2020).

Trooper’s seizure of plaintiff’s vehicle violated plaintiff’s rights under Article 11 of the Vermont Constitution. The seizure, aimed at immobilizing plaintiff’s vehicle while the officer sought a search warrant, was essentially based solely on the trooper’s initial detection of the faint odor of burnt marijuana, which did not, in and of itself, create a fair probability that marijuana would be found in the vehicle; the other factors posited by the State — the presence of an air freshener and a bottle of eye drops, in addition to plaintiff’s statement that he had smoked marijuana in the past few days — did not add any probative evidence to establish probable cause to support the seizure. Zullo v. State, 2019 VT 1, 209 Vt. 298, 205 A.3d 466, 2019 Vt. LEXIS 1 (2019).

As defendant’s truck idling in the middle of the night in a parking lot of an auto repair shop that had previously been burglarized was not sufficient, without more, to give police reasonable and articulable suspicion of criminal activity, the vehicle stop was constitutionally violative, requiring suppression. State v. Paro, 2012 VT 53, 192 Vt. 619, 54 A.3d 516, 2012 Vt. LEXIS 51 (2012) (mem.).

Having found that suppression was necessary, it was an error for the trial court to sidestep its suppression order by allowing the State to introduce evidence of “its” property being found on the floor in front of defendant as if it had not been illegally first discovered in his backpack. While not exposing the jury to an illegal search, the ruse nevertheless exposed the jury to the illegally obtained evidence. State v. Birchard, 2010 VT 57, 188 Vt. 172, 5 A.3d 879, 2010 Vt. LEXIS 55 (2010).

Regardless of whether power records were properly subpoenaed, a deputy’s affidavit failed to provide sufficient information to establish probable cause when it did not show that a confidential informant (CI) was an inherently credible source or that the specific information provided by the CI in this instance was credible. A search warrant was therefore invalid. State v. McManis, 2010 VT 63, 188 Vt. 187, 5 A.3d 890, 2010 Vt. LEXIS 54 (2010).

Officers who stopped defendant were operating solely on a hunch; there was no reasonable and objective basis to suspect that he was then in possession of illegal drugs or engaged in any other criminal activity sufficient to justify an investigative detention. The detention was plainly invalid, therefore, and it was equally plain that the illegal detention irremediably tainted the consensual search of defendant’s person which immediately followed. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

Potential search, particularly one that is explicitly prohibited by statute, cannot be the subject of a case or controversy ripe for decision, and so a fortiori cannot violate the search and seizure provision of the Vermont Constitution. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144, 2008 Vt. LEXIS 56 (2008).

Electronic monitoring in violation of this article does not compel dismissal, and, in a prosecution of defendant for selling cocaine, the trial court’s denial of his motion to dismiss was therefore appropriate. State v. Muhammad, 2007 VT 36, 182 Vt. 556, 927 A.2d 769, 2007 Vt. LEXIS 68 (2007) (mem.).

In a prosecution for selling cocaine, where the trial court suppressed an illegally obtained recording as well as evidence derived from use of the electronic monitoring device, the trial court did not commit reversible error when it allowed a confidential source to listen to the suppressed recording to refresh her memory prior to testifying because the source testified to her present recollection and her testimony was not based on “refreshings” with police officers. State v. Muhammad, 2007 VT 36, 182 Vt. 556, 927 A.2d 769, 2007 Vt. LEXIS 68 (2007) (mem.).

Merely suspicious surrounding circumstances of defendant’s departure from a drug house and ingestion of something before stopping, followed by furtive and anxious behavior, without more, did not provide the probable cause necessary for arrest; consequently, there was no justification for a search incident to arrest, and the officer’s initial pat-down, as well as his subsequent search of defendant for drugs, violated the U.S. and State Constitutions. State v. Chicoine, 2007 VT 43, 181 Vt. 632, 928 A.2d 484, 2007 Vt. LEXIS 74 (2007) (mem.).

State at trial for marijuana possession failed to prove that getting warrant to search paper bag found in hatchback of vehicle was unreasonable because of undue risk to evidence-gathering process or public safety; less intrusive option was available in that once officer found paper bag, he could easily have seized bag and applied to a magistrate for a warrant before searching it, and defendant’s conviction was therefore reversed. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Warrantless electronic participant monitoring conducted in home offends core values of Vermont Constitution; where State uses agent to enter home for purposes of eliciting and electronically transmitting evidence from occupant of home, State has burden to obtain warrant upon probable cause prior to conducting that search. State v. Blow, 157 Vt. 513, 602 A.2d 552, 1991 Vt. LEXIS 222 (1991).

Search and seizure in violation of protection afforded individual by this article cannot be legalized by what is found, though it be contraband. State v. Pilon, 105 Vt. 55, 163 A. 571, 1933 Vt. LEXIS 176 (1933).

Cited.

Cited in State v. J. H., 1 Tyl. 444 (Vt. July 1, 1802); State Treasurer v. Rice, 11 Vt. 339, 1839 Vt. LEXIS 83 (1839); Gill v. Parker, 31 Vt. 610, 1859 Vt. LEXIS 32 (1859); In re Consolidated Rendering Co., 80 Vt. 55, 66 A. 790, 1907 Vt. LEXIS 77 (1907); Ackerman v. French, 90 Vt. 324, 98 A. 921, 1916 Vt. LEXIS 280 (1916); State v. Stacy, 104 Vt. 379, 160 A. 257, 1932 Vt. LEXIS 158 (1932); State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934); State v. Intoxicating Liquor, 106 Vt. 340, 175 A. 8, 1934 Vt. LEXIS 179 (1934); State v. Levy, 113 Vt. 374, 34 A.2d 370, 1943 Vt. LEXIS 186 (1943); In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959); State v. Chapman, 126 Vt. 167, 224 A.2d 925, 1966 Vt. LEXIS 188 (1966); In re Morris, 126 Vt. 297, 229 A.2d 244, 1967 Vt. LEXIS 187 (1967); State v. Adams, 131 Vt. 413, 306 A.2d 92, 1973 Vt. LEXIS 325 (1973); State v. Rocheleau, 131 Vt. 563, 313 A.2d 33, 1973 Vt. LEXIS 356 (1973); State v. Meunier, 137 Vt. 586, 409 A.2d 583, 1979 Vt. LEXIS 1095 (1979); State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985); State v. Maguire, 146 Vt. 49, 498 A.2d 1028, 1985 Vt. LEXIS 349 (1985); State v. Jewett, 146 Vt. 221, 500 A.2d 233, 1985 Vt. LEXIS 374 (1985); State v. Ballou, 148 Vt. 427, 535 A.2d 1280, 1987 Vt. LEXIS 536 (1987); State v. Hart, 149 Vt. 104, 539 A.2d 551, 1987 Vt. LEXIS 590 (1987); State v. LeBlanc, 149 Vt. 141, 540 A.2d 1037, 1987 Vt. LEXIS 616 (1987); State v. Kettlewell, 149 Vt. 331, 544 A.2d 591, 1987 Vt. LEXIS 621 (1987); State v. Byrne, 149 Vt. 257, 542 A.2d 667, 1988 Vt. LEXIS 8 (1988); State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988); State v. Schmitt, 150 Vt. 503, 554 A.2d 666, 1988 Vt. LEXIS 209 (1988); State v. Chenette, 151 Vt. 237, 560 A.2d 365, 1989 Vt. LEXIS 35 (1989); State v. Paquette, 151 Vt. 631, 563 A.2d 632, 1989 Vt. LEXIS 111 (1989); State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990).

Law Reviews —

For note, “The Lack of Privacy in Vermont,” see 24 Vt. L. Rev. 199 (1999).

For note, “Running Smooth: A Perspective on Vermont’s Article Eleven in Relation to the Fourth Amendment,” see 22 Vt. L. Rev. 609 (1998).

For note, “Vermont’s Misplaced Application of the Closely Regulated Industry Exception to the Warrant Requirement Under Article Eleven,” see 21 Vt. L. Rev. 1201 (1997).

For note regarding state constitutional jurisprudence under article 11, see 10 Vt. L. Rev. 447 (1985).

For note relating to adoption of an automatic standing rule for search and seizure cases, see 10 Vt. L. Rev. 459 (1985).

For note, “Home Confinement as a Condition of Probation: A Proposal for Vermont,” see 12 Vt. L. Rev. 123 (1987).

For article, “State Constitutions and the ‘Open Fields’ Doctrine: A Historical-Definitional Analysis of the Scope of Protection Against Warrantless Searches of ‘Possessions,’ ” see 13 Vt. L. Rev. 179 (1988).

Application.

On the whole, the factors in the statute dealing with penalties in an environmental enforcement action reflect a primary legislative concern with protecting the public health and safety and preventing unjust enrichment at the expense of the State and the public. These considerations strongly suggest, in turn, a legislative intent to assign the careful balancing of equities that must necessarily underlie the decision to impose such civil penalties, and the amount of any penalty to be assessed, with the agency traditionally entrusted with such decisions: a judge rather than a jury. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

Where a State environmental-enforcement statute has delegated the assessment of civil penalties in accordance with a highly discretionary calculation that takes into account multiple factors, this is the kind of calculation traditionally performed by judges rather than a jury, and does not require a jury trial. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

Civil-penalties remedy under the statute pertaining to civil enforcement in environmental cases is essentially equitable. Accordingly, when the State sought civil penalties against an oil company, the company was not entitled to a jury trial under the Vermont Constitution. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

When the overarching remedy sought by the State was broad declaratory and injunctive relief to confirm an oil company’s liability for contamination and to compel it to assume responsibility for its abatement, the right to jury trial under the Vermont Constitution did not attach. The prayer for reimbursement of response costs incurred to date was merely incidental to and intertwined with that effort; it complemented the equitable remedy and served to afford complete relief. State v. Irving Oil Corp., 2008 VT 42, 183 Vt. 386, 955 A.2d 1098, 2008 Vt. LEXIS 45 (2008).

Plaintiff had a right to trial by jury in his action claiming legal malpractice and breach of contract. Bloomer v. Gibson, 2006 VT 104, 180 Vt. 397, 912 A.2d 424, 2006 Vt. LEXIS 263 (2006).

In handicap and sex-discrimination action brought under fair employment practices act, plaintiff was not entitled to trial by jury where complaint requested “back pay, restitution of wages, and other benefits including salary increases, costs, reasonable attorney fees and such other relief as the court deems just and proper”; complaint listed only equitable forms of relief and “other relief that the court deems just and proper” could not be construed to include legal damages. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122, 1992 Vt. LEXIS 213 (1992).

The Vermont Constitution guarantees a right to jury trial to the extent that it existed at common law at the time of the adoption of the Constitution in 1793; the right to trial by jury is not restricted to those common-law causes of action recognized by the Vermont courts in 1793, but rather, the Supreme Court looks at the nature of the action and whether it is the type of controversy that would have been tried by a jury under common law at that time. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122, 1992 Vt. LEXIS 213 (1992).

Actions that may delay or condition the jury trial right do not by themselves infringe on that right, and a temporary delay in access to a civil jury trial is not equivalent to denial of the right. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

There is no right to trial by jury under this article at hearing under 23 V.S.A. § 1205 on refusal to submit to alcohol testing, as proceeding was unknown at common law. Shaw v. District Court, 152 Vt. 1, 563 A.2d 636, 1989 Vt. LEXIS 121 (1989).

Where plea agreement under which petitioner was sentenced included a condition of probation requiring petitioner to make restitution to arson victim for intentional infliction of emotional distress, imposition of restitution condition did not violate petitioner’s right to trial by jury in civil cases guaranteed by this article; to the extent that the agreement addressed civil issues, it operated as a stipulation resolving any questions of civil liability and damages, and, therefore, petitioner’s right to trial by jury was not triggered. In re Fadden, 148 Vt. 116, 530 A.2d 560, 1987 Vt. LEXIS 460 (1987).

This article does not extend the right of trial by jury, but merely secures it to the extent that it existed at common law at the time of the adoption of the Constitution and, therefore, does not apply to an appeal to the Superior Court from a determination of the Commissioner of Taxes, because such an action was unknown at common law. State Dept. of Taxes v. Tri-State Industrial Laundries, 138 Vt. 292, 415 A.2d 216, 1980 Vt. LEXIS 1213 (1980).

Because the Superior Court is limited in an appeal from a determination of the Commissioner of Taxes to review on the record established before the agency, there is no issue of fact joined in a court of law, and therefore this article is by its own terms inapplicable to such an appeal. State Dept. of Taxes v. Tri-State Industrial Laundries, 138 Vt. 292, 415 A.2d 216, 1980 Vt. LEXIS 1213 (1980).

A right not known at time of adoption of Constitution is not included within the guaranty of this article. Dempsey v. Hollis, 116 Vt. 315, 116 Vt. 316, 75 A.2d 662, 1950 Vt. LEXIS 155 (1950).

Guaranty of right to trial by jury contained in this article has reference to right previously existing according to the course of the common law. Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893); Crampton v. Hollister, 70 Vt. 633, 41 A. 588, 1898 Vt. LEXIS 94 (1898); Dempsey v. Hollis, 116 Vt. 315, 116 Vt. 316, 75 A.2d 662, 1950 Vt. LEXIS 155 (1950).

This article does not apply to questions raised in proceedings in admiralty, bills in equity, and in probate. In re Welch's Will, 69 Vt. 127, 37 A. 250, 1896 Vt. LEXIS 20 (1896).

This article applies to those cases proper for the cognizance of a jury according to the course of the common law and not to courts of equity, admiralty, or probate, which are not common law courts, their jurisdiction and practice being derived from the civil or canon law where no jury trials intervene. In re Weatherhead, 53 Vt. 653, 1881 Vt. LEXIS 62 (1881).

Where the first Constitution of this State provided that “in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred,” the change from this form of expression to the one used in this article was intended to define and restrict the loose and very general language of the old Constitution, and prevent its being misconstrued so as to make jury trials of universal application. Plimpton v. Town of Somerset, 33 Vt. 283, 1860 Vt. LEXIS 106 (1860); Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893).

This article applies to all controversies fit to be tried by a jury, according to the rules of the common law, notwithstanding the particular right for the violation of which the action is brought did not exist by common law, but was created by a statute passed subsequent to the adoption of the Constitution. Plimpton v. Town of Somerset, 33 Vt. 283, 1860 Vt. LEXIS 106 (1860).

Determination of legal issues.

This article does not require submission to jury of disputed questions of fact regarding search or seizure; function of jury is to act as finder of facts, and threshold determinations of legal issues are properly committed to province of court. State v. Ryea, 153 Vt. 451, 571 A.2d 674, 1990 Vt. LEXIS 9 (1990).

Equitable matters.

Defendants in contract actions have no constitutional right to have amount of attorneys’ fees determined by a jury, since determination of the amount of attorneys’ fees involves equitable accounting, and there is no right to a jury trial in equitable matters. Murphy v. Stowe Club Highlands, 171 Vt. 144, 761 A.2d 688, 2000 Vt. LEXIS 172 (2000).

Impartial jury.

State constitutional guarantee to a fair cross-section in the jury selection process does not provide any greater protection than that afforded by the U.S. Constitution, and requires defendant to show prejudice in order to successfully challenge a jury array. State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991).

For purposes of constitutional challenge to jury selection process, State constitutional provisions that guarantee criminal defendants a right to an impartial jury and that provide that the right to jury trial should be held sacred afforded no greater protection than Sixth Amendment of the U.S. Constitution.State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

Legal actions.

Where factual issues are in dispute, parties to an action under fair employment practices act are entitled to trial by jury when the plaintiff requests legal damages. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122, 1992 Vt. LEXIS 213 (1992).

No court can lawfully deprive one of the right to jury trial of an action at law. Shapiro v. Gore, 106 Vt. 337, 174 A. 860, 1934 Vt. LEXIS 178 (1934).

Legislature cannot extend jurisdiction of chancery as to cover and draw to it an action at law and give the court of chancery the right and power to determine it without the aid of a jury. Shapiro v. Gore, 106 Vt. 337, 174 A. 860, 1934 Vt. LEXIS 178 (1934).

Where action at law was instituted on promissory note which was no part of debt secured by real estate mortgage, court of chancery in foreclosure proceedings was without authority to consolidate such action at law with the foreclosure proceedings as this would deprive plaintiff his right to jury trial in the legal action guaranteed by this article. Shapiro v. Gore, 106 Vt. 337, 174 A. 860, 1934 Vt. LEXIS 178 (1934).

Legislation.

The term “sacred” as used in this article means no more than the word “inviolate,” and does not mean that the mode of listing and selecting jurors shall forever remain unchanged, but only that the right shall be free from destruction or material impairment; hence, the Legislature has full authority to make reasonable laws regulating the mode in which the right shall be enjoyed, provided the right is not thereby materially impaired. State v. Mercier, 98 Vt. 368, 127 A. 715, 1925 Vt. LEXIS 140 (1925).

Any law that destroys or materially impairs the right of trial by jury according to the course of the common law, in cases proper for the cognizance of a jury, is contrary to this article. Plimpton v. Town of Somerset, 33 Vt. 283, 1860 Vt. LEXIS 106 (1860).

Moratorium on civil jury trials.

Temporary moratorium of approximately five months on all civil jury trials created by a Supreme Court administrative directive in response to reduction in appropriation to support the courts did not offend this article; petitioners failed to show specific prejudice or that their trials were being delayed unreasonably, and administrative directive gave administrative judge authority to permit exceptions to the moratorium where justice required. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Petition for extraordinary relief challenging the constitutionality of an administrative directive of the Supreme Court creating a five-month moratorium on civil jury trials was properly before the Supreme Court only with respect to those of the petitioners who not only sought relief in Superior Court but who, following dismissal of the Superior Court action, sought an exception to the directive from the administrative judge. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Number of jurors.

The jury referred to in this article is the common law jury of twelve. State v. Peterson, 41 Vt. 504, 1869 Vt. LEXIS 1 (1869); In re Hackett, 53 Vt. 354, 1881 Vt. LEXIS 7 (1881); State v. Hirsch, 91 Vt. 330, 100 A. 877, 1917 Vt. LEXIS 252 (1917) (But see Rule 48, Vermont Rules of Civil Procedure and Rule 23(b), Vermont Rules of Criminal Procedure.) .

Presence at jury selection.

The right to trial by jury in civil cases guaranteed by this article carries with it the privilege to be present at the selection of the jury. Harrington v. Decker, 134 Vt. 259, 356 A.2d 511, 1976 Vt. LEXIS 647 (1976).

Plaintiff’s constitutional right to be present at selection of jury to try civil cause was not denied where she failed to appear at the selection in spite of proper notification, did not show inability to be present, and did not show prejudice. Harrington v. Decker, 134 Vt. 259, 356 A.2d 511, 1976 Vt. LEXIS 647 (1976).

Sentencing.

Defendant failed in his claim that the trial court violated the Vermont and U. S. Constitutions by enhancing his sentence based on the court’s findings of certain aggravating factors because he offered no basis to conclude that there would have been a different result had the jury been required to find the aggravating factors. State v. Stevens, 2003 VT 15, 175 Vt. 503, 825 A.2d 8, 2003 Vt. LEXIS 14 (2003) (mem.).

Cited.

Cited in Huntington v. Bishop, 5 Vt. 186, 1832 Vt. LEXIS 90 (1832); Jones v. Spear, 21 Vt. 426, 1849 Vt. LEXIS 49 (1849); Childs v. Village of Newport, 70 Vt. 62, 39 A. 627, 1897 Vt. LEXIS 3 (1897); E.L. Stoddard & Son v. Village of North Troy, 102 Vt. 462, 150 A. 148, 1930 Vt. LEXIS 148 (1930); State v. Stacy, 104 Vt. 379, 160 A. 257, 1932 Vt. LEXIS 158 (1932); Bernhardt v. Polygraphic Co. of America, Inc., 350 U.S. 198, 76 S. Ct. 273, 100 L. Ed. 199, 1956 U.S. LEXIS 1487 (1956); United States ex rel. Brown v. Smith, 200 F. Supp. 885, 1961 U.S. Dist. LEXIS 2932 (D. Vt. 1961); In re Bashaw, 129 Vt. 393, 278 A.2d 752, 1971 Vt. LEXIS 278 (1971); State v. Becker, 130 Vt. 153, 287 A.2d 580, 1972 Vt. LEXIS 244 (1972); State v. Santi, 132 Vt. 615, 326 A.2d 149, 1974 Vt. LEXIS 404 (1974).

Law Reviews —

For note relating to powers and role of side judges in the legislative and judicial branches of government, see 10 Vt. L. Rev. 321 (1985).

Defamation.

Where remarks attributed to defendant in libel action were clearly hyperbole, publication of the remarks was protected by this article. Blouin v. Anton, 139 Vt. 618, 431 A.2d 489, 1981 Vt. LEXIS 513 (1981).

Freedom of expression.

Defendants could not show that they relied on relevant evidence of negative secondary effects before they enacted an ordinance that banned nude dancing and could not establish that the ordinance furthered a substantial government interest. The ordinance was unconstitutional because it violated the adult entertainment company’s right to freedom of expression under the First Amendment and Vt. Const. Ch. I, Art. 13. White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 2007 U.S. App. LEXIS 7150 (2d Cir. 2007).

Freedom of speech.

Environmental Division’s order directed only that plaintiff’s use of discovery procedure conform with the discovery rules, as was required of any litigant; it did not prevent plaintiff from discussing the case, from sending letters to defendants about his concerns, from publishing his grievances in the newspaper, or from using any other form of protected speech. Thus, the order did not constrain plaintiff’s protected speech and was proper whether or not litigation immunity applied. Pease v. Windsor Development Review Board, 2011 VT 103, 190 Vt. 639, 35 A.3d 1019, 2011 Vt. LEXIS 115 (2011) (mem.).

Even if a town manager violated plaintiff’s constitutional right to free speech when he interrupted plaintiff’s speech to a selectboard, plaintiff’s access to successive meetings and his free ability to express his thoughts in the present case cured any alleged free speech violations. Pease v. Windsor Development Review Board, 2011 VT 103, 190 Vt. 639, 35 A.3d 1019, 2011 Vt. LEXIS 115 (2011) (mem.).

Former town zoning administrator’s claims for declaratory and injunctive relief and for damages against the town on First Amendment, retaliation, and open-meetings claims were not dismissed, because town officials allegedly met secretly and conspired to deny her reappointment in retaliation for her unpopular stance on a zoning issue, that a group home would not be required to obtain a zoning permit. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 2003 U.S. Dist. LEXIS 3455 (D. Vt. 2003).

Comments by plaintiff, a part-time town employee, about the town’s computer system addressed a matter of public concern, had no adverse effect on the performance of public duties, and were therefore protected by the First Amendment and an improper basis for dismissal from employment. Knight v. Town of North Hero, 971 F. Supp. 155, 1997 U.S. Dist. LEXIS 11292 (D. Vt. 1997).

Chapter I, Article 13 of the Vermont Constitution, which protects freedom of speech and of the press, is self-executing and it may serve as basis of private cause of action against State. Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 1995 Vt. LEXIS 21 (1995).

There was no plain error in probation condition prohibiting defendant from possessing “any photographs of children under the age of 18,” where expert testified that defendant had extreme difficulty controlling his sexual behavior relative to children, and condition was reasonably related both to defendant’s rehabilitation and protection of public. State v. Lockwood, 160 Vt. 547, 632 A.2d 655, 1993 Vt. LEXIS 90 (1993).

Cited.

Cited in Napro Development Corp. v. Town of Berlin, 135 Vt. 353, 376 A.2d 342, 1977 Vt. LEXIS 628 (1977); In re Morrissey, 149 Vt. 1, 538 A.2d 678, 1987 Vt. LEXIS 579 (1987); Herald Ass'n v. Judicial Conduct Board, 149 Vt. 233, 544 A.2d 596, 1988 Vt. LEXIS 30 (1988); In re Club 107, 152 Vt. 320, 566 A.2d 966, 1989 Vt. LEXIS 175 (1989); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354, 1997 Vt. LEXIS 105 (1997); State v. LaBounty, 167 Vt. 25, 702 A.2d 82, 1997 Vt. LEXIS 183 (1997).

Law Reviews —

For article, “Issue in Vermont Law: Trustees and Servants’: Governmental Accountability in Early Vermont,‘ see 31 Vt. L. Rev. 857 (2007).

Large-capacity magazines.

Large-capacity magazine ban satisfies the reasonable-regulation test used in connection with Article 16 of the Vermont Constitution because the statute has a valid purpose of reducing the lethality of mass shootings, the Legislature was within its authority in concluding that the regulation promotes this purpose, and the statute leaves ample means for Vermonters to exercise their right to bear arms in self-defense. State v. Misch, 2021 VT 10, 256 A.3d 519, 2021 Vt. LEXIS 17 (Vt. 2021).

Right to bear arms.

Article 16 of the Vermont Constitution protects a right to bear arms in individual self-defense, subject to reasonable regulation. To the extent that Article 16 established a right to bear arms for the purpose of serving in a state militia, that aspect of the Article 16 right has no contemporary application as a Vermont state militia, viewed in the historical context, no longer exists. State v. Misch, 2021 VT 10, 256 A.3d 519, 2021 Vt. LEXIS 17 (Vt. 2021).

The language of this article does not suggest that the right to bear arms is unlimited and undefinable. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

10 V.S.A. § 4705(b) , prohibiting the carrying of loaded rifles and shotguns in or on mechanically propelled vehicles on public highways, is not such an infringement of the right to bear arms guaranteed by this article as to be invalid. State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969).

Tests.

Article 16 of the Vermont Constitution protects a limited right to individual self-defense, and the proper standard for Article 16 challenges is a reasonable-regulation test. Under this test, the Court will uphold a statute implicating the right to bear arms provided it is a reasonable exercise of the State’s power to protect the public safety and welfare. State v. Misch, 2021 VT 10, 256 A.3d 519, 2021 Vt. LEXIS 17 (Vt. 2021).

State reasonable-regulation test is the most appropriate standard for challenges under Article 16 of the Vermont Constitution because it is consistent with the Court’s approach in Duranleau, the text and motivating ideals of Article 16, the nature of the right to bear arms, and the Court’s previous rejection of rigid level-of-scrutiny tests. Under the reasonable-regulation test, the government may regulate firearms under its police power as long as its exercise of that power is reasonable; regulation is not reasonable if it effectively abrogates Article 16. State v. Misch, 2021 VT 10, 256 A.3d 519, 2021 Vt. LEXIS 17 (Vt. 2021).

Law Reviews —

For article relating to the right to bear arms in the first state bills of rights, see 10 Vt. L. Rev. 255 (1985).

Construction.

To the extent that an enforceable right exists under Article 20 of the Vermont Constitution, it is an individual right and not a collective one. Skiff v. S. Burlington Sch. Dist., 2018 VT 117, 208 Vt. 564, 201 A.3d 969, 2018 Vt. LEXIS 173 (2018).

Lobbying.

A state’s legitimate interest in regulating lobbying extends only to regulation of direct communications with government officials. Kimbell v. Hooper, 164 Vt. 80, 665 A.2d 44, 1995 Vt. LEXIS 75 (1995).

Right to instruct.

Article 20 of the Vermont Constitution does not provide a collective right to vote on advisory articles that “instruct” a municipality or school board. Skiff v. S. Burlington Sch. Dist., 2018 VT 117, 208 Vt. 564, 201 A.3d 969, 2018 Vt. LEXIS 173 (2018).

Right to instruct in Article 20 of the Vermont Constitution did not require a district-wide vote on the issue of the name of the school district’s sports teams, as the provision conferred an individual right, not a collective one, and the residents who sought to put the matter to a vote had not alleged that the school district denied them their individual right to instruct their school board members. Skiff v. S. Burlington Sch. Dist., 2018 VT 117, 208 Vt. 564, 201 A.3d 969, 2018 Vt. LEXIS 173 (2018).

Right to petition.

Petitioners failed in their argument that a city’s action in refusing to include in a town-meeting warning an advisory article presented by petitioners was a violation of their right to assemble under this article. Clift v. City of South Burlington, 2007 VT 3, 181 Vt. 571, 917 A.2d 483, 2007 Vt. LEXIS 6 (2007) (mem.).

While the “redress of grievances” provision of this article creates an absolute privilege for libelous statements addressed to the Legislature, immunity under the Petition Clause protects only statements addressed directly to the Legislature and does not apply to the right of free speech generally. State v. Read, 165 Vt. 141, 680 A.2d 944, 1996 Vt. LEXIS 44 (1996).

That the subject of a petition may deviate from the views of others or engender controversy does not justify infringement of the right to petition safeguarded in this article. In re Davenport, 129 Vt. 546, 283 A.2d 452, 1971 Vt. LEXIS 303 (1971).

No action can be maintained for a libel upon a petition for redress of grievances, whether the subject matter of the petition be true or false, simply because it is referred to either branch of the General Assembly, or disclosed to any of its members. Harris v. Huntington, 2 Tyl. 129 (Vt. May 1, 1802), disapproved, McDonald v. Smith, 472 U.S. 479, 105 S. Ct. 2787, 86 L. Ed. 2d 384, 1985 U.S. LEXIS 112 (1985).

Speech.

Comments by plaintiff, a part-time town employee, about the town’s computer system, made at the annual town meeting, addressed a matter of public concern, had no adverse effect on the performance of public duties, and were therefore protected by the First Amendment and an improper basis for dismissal from employment. Knight v. Town of North Hero, 971 F. Supp. 155, 1997 U.S. Dist. LEXIS 11292 (D. Vt. 1997).

Cited.

Cited in Lace v. University of Vermont, 131 Vt. 170, 303 A.2d 475, 1973 Vt. LEXIS 288 (1973); Vermont Association of Realtors, Inc. v. State, 156 Vt. 525, 593 A.2d 462, 1991 Vt. LEXIS 103 (1991).

Compatible offices.

Court order appointing State Treasurer as escrow agent for taxes collected, pending resolution of constitutional challenge to the tax, did not violate doctrine of separation of powers. American Trucking Ass'ns v. Conway, 152 Vt. 383, 566 A.2d 1335, 1989 Vt. LEXIS 176 (1989).

Construction.

Because the landowner had not appealed from the second notice of violation (NOV2), he was prevented by the exclusivity-of-remedy zoning provision from contesting any of the violations in NOV2. Furthermore, Dillon’s Rule did not apply because the statute was not a grant of power to a municipal actor but a procedural mandate, and there was no separation of powers violation because the court was simply enforcing the plain meaning of the statute. Town of Pawlet v. Banyai, 2022 VT 4, 2022 Vt. LEXIS 3 (Vt. 2022).

There must be a certain amount of overlapping or blending of the powers exercised by the different departments; thus, the constitutional command must be construed consistent with efficient and effective governmental structures that are able to respond to the complex challenges and problems faced by today’s State government. Hunter v. State, 2004 VT 108, 177 Vt. 339, 865 A.2d 381, 2004 Vt. LEXIS 313 (2004).

In reviewing separation-of-power claims, Supreme Court applies a relatively forgiving standard, tolerant of overlapping institutional arrangements short of one branch virtually usurping from another its constitutionally defined function. State v. Nelson, 170 Vt. 125, 742 A.2d 1248, 1999 Vt. LEXIS 332 (1999).

This section does not require absolute separation of powers among various departments or branches of government; when one branch exercises powers inherent to another branch, these powers must be such as are incidental to discharge of functions of department exercising them. Chioffi v. Winooski Zoning Board, 151 Vt. 9, 556 A.2d 103, 1989 Vt. LEXIS 1 (1989).

This provision does not mean an absolute separation of functions as there must be a certain amount of overlapping or blending of the powers exercised by the different departments. Trybulski v. Bellows Falls Hydro-Electric Corp., 112 Vt. 1, 20 A.2d 117, 1941 Vt. LEXIS 125 (1941).

Although this section provides for division of governmental powers among Legislative, Executive, and Judicial Departments, absolute and entire separation of functions would be impracticable, if not impossible. Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938); State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

This section does not require an absolute separation of governmental functions, for that would paralyze government. Sabre v. Rutland Railroad, 86 Vt. 347, 85 A. 693, 1913 Vt. LEXIS 205 (1913).

Criminal procedure.

Issue of whether trial court impermissibly delegated judicial authority by permitting probation officer to modify the plain meaning of a condition of probation, in violation of this article, was not preserved for review, as it was not raised before the trial court. State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1990 Vt. LEXIS 60 (1990).

Trial judge’s redrafting of one count of information was not plain error in violation of this section where amendment did not alter State’s intent to charge defendant as accessory to arson but was made to conform to technical requirement of arson statute. State v. Parker, 151 Vt. 378, 560 A.2d 383, 1989 Vt. LEXIS 72 (1989).

Delegation of powers.

Standards imposed by statute delegating authority to the Secretary of Administration and the Joint Fiscal Committee to prepare and implement a deficit-prevention plan to address a revenue shortfall while the Legislature was not in session were sufficient for the exercise of the powers of the Secretary and the Committee. Hunter v. State, 2004 VT 108, 177 Vt. 339, 865 A.2d 381, 2004 Vt. LEXIS 313 (2004).

Plaintiffs failed in their argument that the Legislature could not delegate its power over appropriation to the Joint Fiscal Committee, the designated decisionmaker, because the scheme enabled the Legislature to delegate needed responsibilities to meet fiscal emergencies when it was not in session without ceding total control to the Executive Branch. Hunter v. State, 2004 VT 108, 177 Vt. 339, 865 A.2d 381, 2004 Vt. LEXIS 313 (2004).

Although the Legislature cannot delegate its legislative functions, it may confer upon administrative agencies the power to apply the general provisions of the law to particular circumstances. Vincent v. Vermont State Retirement Board, 148 Vt. 531, 536 A.2d 925, 1987 Vt. LEXIS 545 (1987).

The provisions of 17 V.S.A. § 2603 , governing contest of elections, and section 17 V.S.A. § 2617 , purporting to confer general jurisdiction on the Superior Court to hear and determine matters relating to elections, insofar as they relate to elections to the House of Representatives, are an improper delegation of legislative powers to a separate branch of government, the Judicial Branch, contrary to the separation of powers doctrine set forth in this section. Kennedy v. Chittenden, 142 Vt. 397, 457 A.2d 626, 1983 Vt. LEXIS 404 (1983).

An election contest initiated in Superior Court under 17 V.S.A. § 2603 , governing contest of elections, had no support in law, and the Superior Court was without jurisdiction to hear and determine the cause as stated in the complaint, inasmuch as that section and section 17 V.S.A. § 2617 , purporting to confer general jurisdiction in election matters on the Superior Court, insofar as they related to elections to the House of Representatives, were violative of the constitutional doctrine of separation of powers since they improperly delegated legislative powers to the Judicial Branch in providing for a judicial determination as to the qualifications of electors and since the judicial adjudication contemplated under those sections was subject to revision or reversal by the General Assembly. Kennedy v. Chittenden, 142 Vt. 397, 457 A.2d 626, 1983 Vt. LEXIS 404 (1983).

While this section does not mean an absolute separation of functions, and one department may properly be authorized to exercise certain powers that may in some manner pertain to another, these powers must be such as are incidental to the discharge of the functions of the department exercising them, and beyond this the powers of one department may not constitutionally be conferred upon another. In re House Bill 88, 115 Vt. 524, 64 A.2d 169, 1949 Vt. LEXIS 92 (1949).

It is fundamental principle of American constitutional system, clearly expressed in this section, that Legislative, Executive, and Judicial Departments of government are separate from each other, and therefore such functions of Legislature as are purely and strictly legislative cannot be delegated, but must be exercised by it alone. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

Though Legislature cannot delegate its legislative functions, yet, having by general law and charters made valid provisions applicable to railroad corporations, it may confer on Public Service Commission power upon investigation to apply the general provisions of law to particular circumstances. Sabre v. Rutland Railroad, 86 Vt. 347, 85 A. 693, 1913 Vt. LEXIS 205 (1913).

Enforcement of judicial decree.

Continued enforcement by court of consent decree setting forth procedures for involuntary medication of committed patients at Vermont State Hospital did not violate this article. J.L. v. Miller, 158 Vt. 601, 614 A.2d 808, 1992 Vt. LEXIS 103 (1992).

Interference with powers of other departments.

The Legislative Branch may not overturn final decisions of the Judiciary with statutory enactments, whether they are specific to an individual case or of general effect. Burton v. Town of Salisbury, 173 Vt. 177, 790 A.2d 394, 2001 Vt. LEXIS 413 (2001).

Amendment of statute pertaining to appeals from the property tax grand list violated the separation of powers required by this section because the addition of the language “for the year for which appeal is being made” to the description of the rollback penalty applicable when there has been a complete reappraisal had the effect of undoing a final determination of the Supreme Court and divested taxpayers of a vested right. Burton v. Town of Salisbury, 173 Vt. 177, 790 A.2d 394, 2001 Vt. LEXIS 413 (2001).

The power to decide when to include former Justices in the composition of the Supreme Court is a judicial power that does not belong to the Legislative Branch of government and cannot be exercised by it. Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989).

It is not a legitimate function of the Supreme Court to expand a statute by implication unless it is necessary in order to make it effective, since to do so would usurp the exclusive prerogative of the Legislature by judicial legislation and violate the border lines drawn by this section. State v. Jacobs, 144 Vt. 70, 472 A.2d 1247, 1984 Vt. LEXIS 416 (1984).

Act that provided that no court could set aside any judgment, decree, or order entered before December 12, 1983, by the Superior Court on the grounds that the participation or nonparticipation of assistant judges was improper constituted a retroactive limitation of the court’s jurisdiction over cases that had been commenced prior to the enactment of the act and was unconstitutional because it violated the separation of powers principle embodied in this section. Solomon v. Atlantis Development, Inc., 145 Vt. 70, 483 A.2d 253, 1984 Vt. LEXIS 546 (1984).

Motor vehicle license suspension.

By providing for mandatory one-year license suspension for DUI with fatality resulting, and vesting Commissioner of Motor Vehicles with exclusive authority to calculate suspensions and revocations, Legislature did not expressly or impliedly preempt trial court’s probationary power to limit a defendant’s operating privileges for longer periods; had Legislature actually intended to eliminate trial court’s discretion to prohibit a defendant from driving as a condition of probation for grave vehicular offenses, it would have plainly said so. State v. Nelson, 170 Vt. 125, 742 A.2d 1248, 1999 Vt. LEXIS 332 (1999).

No violation of separation of powers existed in State Supreme Court-created administrative motor vehicle license suspension procedure, where civil suspension rule was authorized by both State Constitution and statute, and Constitution itself established judicial power for rule promulgation. State v. O'Brien, 158 Vt. 275, 609 A.2d 981, 1992 Vt. LEXIS 52 (1992).

Public employees.

District Court lacked jurisdiction to review grounds and procedure for dismissal of police officer and issue findings of fact and conclusions of law; statute mandating such hearing within ten days of request of dismissed officer violated this provision. In re Williams, 154 Vt. 318, 577 A.2d 686, 1990 Vt. LEXIS 81 (1990).

Sentencing.

Court does not find the 70 percent rule, in cases where it applies, to constitute a usurpation of judicial power. State v. Goewey, 2015 VT 142, 201 Vt. 37, 135 A.3d 1220, 2015 Vt. LEXIS 121 (2015).

13 V.S.A. § 7041 , which gives the State’s Attorney power to decide whether to offer a recommended deferred sentence in exchange for a guilty plea and probation conditions, does not violate separation-of-powers principle established in the Vermont Constitution. State v. Pierce, 163 Vt. 192, 657 A.2d 192, 1995 Vt. LEXIS 8 (1996).

Statutory mandatory minimum sentence does not violate separation of powers doctrine; Judicial Branch does not have exclusive constitutional authority for sentencing criminals. State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989).

Zoning appeals.

24 V.S.A. § 4472 , providing for trial de novo in Superior Court on appeal from decision of local zoning board, does not violate separation of powers provision of this section by allowing court to perform legislative or executive function; rather, local zoning board performs quasi-judicial function. Chioffi v. Winooski Zoning Board, 151 Vt. 9, 556 A.2d 103, 1989 Vt. LEXIS 1 (1989).

Cited.

Cited in Town of Searsburg v. Town of Woodford, 76 Vt. 370, 57 A. 961 (1904); Hartness v. Black, 95 Vt. 190, 114 A. 44 (1921); Clark v. City of Burlington, 101 Vt. 391, 143 A. 677 (1928); Chase v. Billings, 106 Vt. 149, 170 A. 903 (1934); Rounds v. McGeown, 110 Vt. 185, 3 A.2d 547 (1939); McFeeters v. Parker, 113 Vt. 139, 30 A.2d 300 (1943); Ackerman v. Kogut, 117 Vt. 40, 84 A.2d 131 (1951); American Oil Co. v. State Highway Board, 122 Vt. 496, 177 A.2d 358 (1962); Granai v. Witters, Longmoore, Akley & Brown, 123 Vt. 468, 194 A.2d 391 (1963); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68 (1968); In re Smith, 131 Vt. 24, 298 A.2d 823 (1972); In re Bingham, 149 Vt. 211, 541 A.2d 1197 (1988); Consumer Credit Insurance Ass’n v. State, 149 Vt. 305, 544 A.2d 1159 (1988); Westover v. Village of Barton Electric Dept., 149 Vt. 356, 543 A.2d 698 (1988); In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84 (1988); Equal Employment Opportunity Commission v. Vermont Office of Court Administrator, 717 F. Supp. 261 (D. Vt. 1989); Monti v. State, 151 Vt. 609, 563 A.2d 629 (1989); Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368 (1990); State v. Wheel, 155 Vt. 587, 587 A.2d 933 (1990); Op. Atty. Gen. #94-2F.

Law Reviews —

Regulation of the practice of law, practice and procedure, and court administration in Vermont, see 8 Vt. L. Rev. 211 (1983).

LEGISLATIVE DEPARTMENT

Delegation of power.

Since legislation must often be adapted to complex conditions involving a host of details, with which the lawmaking body cannot deal directly, the Legislature may, without abdication of its essential functions, lay down policies and establish standards leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

Functions of the Legislature that are purely and strictly legislative cannot be delegated but must be exercised by it alone. Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938); State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

The Legislature cannot delegate its authority to make the law, which necessarily includes discretion as to what it shall be, but may confer authority or discretion as to its execution. Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938).

Delegation to administrative agencies of duties connected with the application of law must not encroach upon strictly legislative functions. Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938).

Local units of government.

Power of the Legislature to create subordinate government entities to deal with local affairs includes arrangements deriving from interstate compact agreements. Dresden School District v. Norwich Town School District, 124 Vt. 227, 203 A.2d 598, 1964 Vt. LEXIS 92 (1964).

It is within the authority of the Legislature to implement the association of units of local government for the purpose of jointly operating school facilities located in Vermont and New Hampshire. Dresden School District v. Norwich Town School District, 124 Vt. 227, 203 A.2d 598, 1964 Vt. LEXIS 92 (1964).

The Legislature may authorize a municipality to invest tax money outside the State in an agency not under State control. Dresden School District v. Norwich Town School District, 124 Vt. 227, 203 A.2d 598, 1964 Vt. LEXIS 92 (1964).

The power to “constitute towns, borroughs, cities, and counties,” vested in the Legislature by this section, is essentially a trust, requiring the exercise of judgment and discretion in its execution, and so nondelegable. In re Municipal Charters, 86 Vt. 562, 86 A. 307, 1913 Vt. LEXIS 234 (1913).

The term “borroughs,” as used in this section, includes villages. Atherton v. Village of Essex Junction, 83 Vt. 218, 74 A. 1118, 1910 Vt. LEXIS 182 (1910).

Power conferred.

By this section, no other than a law making power is conferred. Ward v. Barnard, 1 Aik. 121 (Vt. Dec. 1, 1825).

Redress of grievances.

The authority given in this section to redress grievances, if not limited to proper and appropriate acts of legislation, would be giving the General Assembly authority as boundless, as the complaints of the citizens against each other are countless. Ward v. Barnard, 1 Aik. 121 (Vt. Dec. 1, 1825).

Revenue bills.

Revenue bills, within the meaning of this section, refers to bills to levy taxes in the strict sense of the word, whose primary purpose is to raise revenue to be applied in meeting the general expenses and obligations of the government, and not bills that create revenue incident to other purposes. Andrews v. Lathrop, 132 Vt. 256, 315 A.2d 860, 1974 Vt. LEXIS 330 (1974).

Where the primary purpose of 32 V.S.A. § 10001 et seq., the land gains tax, was to provide property tax relief and to raise revenue specifically to fund the tax relief program, it was not a revenue bill within the meaning of this section. Andrews v. Lathrop, 132 Vt. 256, 315 A.2d 860, 1974 Vt. LEXIS 330 (1974).

Cited.

Cited in Bates v. Kimball, 2 D. Chip. 77 (Vt. Feb. 1, 1824); Langdon v. Strong, 2 Vt. 234, 1829 Vt. LEXIS 53 (1829); Town of Searsburg v. Town of Woodford, 76 Vt. 370, 57 A. 961, 1904 Vt. LEXIS 150 (1904); Hartness v. Black, 95 Vt. 190, 114 A. 44, 1921 Vt. LEXIS 201 (1921); Ackerman v. Kogut, 117 Vt. 40, 84 A.2d 131, 1951 Vt. LEXIS 99 (1951); Granai v. Witters, Longmoore, Akley & Brown, 123 Vt. 468, 194 A.2d 391, 1963 Vt. LEXIS 136 (1963); Town of Putney v. Town of Brookline, 126 Vt. 194, 225 A.2d 388, 1967 Vt. LEXIS 166 (1967); Looker v. City of Rutland, 144 Vt. 344, 476 A.2d 141, 1984 Vt. LEXIS 462 (1984).

Application.

Public’s right to attend meetings of public agencies is a truism of a republican form of government; for enforcement of such right plaintiffs must avail themselves of the legislative enactments giving effect to the constitutional principles that officers of government are servants of the people and that the doors of the General Assembly shall be open to the public. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Acts requiring presentation to Governor.

The Governor is a necessary party to all acts of legislation. Kellogg v. Page, 44 Vt. 356, 1871 Vt. LEXIS 108 (1871).

Approval after adjournment.

Under this section, the Governor is authorized to approve and sign bills in his hands for revision after the final adjournment of the Legislature, except that he is limited as to time to the period of five days (Sundays excepted) after the bill has been presented to him. Hartness v. Black, 95 Vt. 190, 114 A. 44, 1921 Vt. LEXIS 201 (1921).

Nature of power of Governor.

The power of approval or disapproval by the Governor of bills passed by the General Assembly conferred by this section is only a restraint on the supreme legislative authority vested in the General Assembly by section 6 of this chapter, and its nature cannot be extended by construction, especially in view of section 5 of this chapter, providing that the Legislative, Executive, and Judiciary Departments shall be separate and distinct, “so that neither exercise the powers properly belonging to the others.” Hartness v. Black, 95 Vt. 190, 114 A. 44, 1921 Vt. LEXIS 201 (1921).

Nonaction.

Unless a bill presented to the Governor within three days before final adjournment of both houses is approved by him within five days (Sundays excepted) after presentation, it does not become a law. Hartness v. Black, 95 Vt. 190, 114 A. 44, 1921 Vt. LEXIS 201 (1921).

Signing.

This section does not require the Governor to sign a bill at its end in order that it become law; it is sufficient if he approves it and signs it in any place intentionally and understandingly. National Land & Loan Co. v. Mead, 60 Vt. 257, 14 A. 689, 1888 Vt. LEXIS 137 (1888).

Where Governor signed a bill at the end of its second section by mistake and then erased his name with the intention of signing at the end of the bill, but failed to do so until after the time for signing bills had elapsed, the bill became a law when originally signed. National Land & Loan Co. v. Mead, 60 Vt. 257, 14 A. 689, 1888 Vt. LEXIS 137 (1888).

Authority to reapportion.

State Judiciary has authority to order reapportionment of State Legislature. Hutchinson v. Cooley, 125 Vt. 303, 214 A.2d 828, 1965 Vt. LEXIS 242 (1965).

Legislature elected after this section [former version] and section 18 of this chapter [former version], relating to membership in the Senate, were declared invalid by a U. S. District Court served only at the will of the federal Judiciary, and when it acted on reapportionment, the sole source of its authority came from the Judicial Branch of the federal government, and was unrelated to its own constitutional powers and limitation. Smith v. Buraczynski, 125 Vt. 310, 214 A.2d 826, 1965 Vt. LEXIS 243 (1965).

Constitutionality of former version.

Where this section provided that, irrespective of any variances in the population of the towns, each inhabited town in the State might elect one Representative to the House of Representatives, it was in contravention of the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution and void. Buckley v. Hoff, 234 F. Supp. 191, 1964 U.S. Dist. LEXIS 7265 (D. Vt. 1964), modified, 379 U.S. 359, 85 S. Ct. 503, 13 L. Ed. 2d 352, 1965 U.S. LEXIS 2204 (1965).

The House of Representatives was grossly malapportioned, and the citizens of the State’s larger communities were invidiously discriminated against because of the inequality of representation that resulted from this section, which gave each “inhabited” or organized town or city in the State one Representative. Buckley v. Hoff, 234 F. Supp. 191, 1964 U.S. Dist. LEXIS 7265 (D. Vt. 1964), modified, 379 U.S. 359, 85 S. Ct. 503, 13 L. Ed. 2d 352, 1965 U.S. LEXIS 2204 (1965).

Standards for apportionment.

A district is not invalid merely because it straddles a county line. In re Reapportionment of Towns of Woodbury and Worcester, 2004 VT 92, 177 Vt. 556, 861 A.2d 1117, 2004 Vt. LEXIS 277 (2004) (mem.).

In action by two towns challenging reapportionment, evidence of common social, economic, and political ties between the towns and the other towns in their new district, together with the other criteria—numerical equality, geographic contiguity and compactness, and political boundaries—provide a rational and legitimate basis for the Legislature’s decision. In re Reapportionment of Towns of Woodbury and Worcester, 2004 VT 92, 177 Vt. 556, 861 A.2d 1117, 2004 Vt. LEXIS 277 (2004) (mem.).

Creating legislative districts to avoid contests between incumbents is a legitimate consideration that may justify minor deviations from equal representation as long as there is adherence to constitutional and statutory criteria regarding redistricting. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

Evidence that boot-shaped legislative district breached county line did not establish violation of principles of compactness and contiguity where all towns in district shared at least one common border and network of State highways connected towns. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

In challenging the formation of a district, the fundamental question is whether constitutional or statutory criteria have been violated, not whether the legislators intended to obtain some political advantage. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

Residents of a town are not disenfranchised simply because they make up a minority of their district; members of a group are disenfranchised only when they are denied an opportunity to effectively influence the election results by securing the attention of the winning candidate. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

The Constitution mandates that House and Senate districts shall afford equality of representation, whereas the Constitution requires only that the Legislature seek to maintain geographical compactness and contiguity and to adhere to boundaries of counties. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

The people of the State should determine the framework and composition of the General Assembly, the number of its members, and the length of their terms of service, the qualifications for membership, the number, size, and boundaries of electoral units, the number of legislators to be chosen from each unit—always having in mind that the seats in each house of a bicameral state legislature in order to meet the standard of the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution must be apportioned so as to provide substantially equal legislative representation for all citizens of all places within the state, and the weight of a citizen’s vote cannot be made to depend on where he lives. Buckley v. Hoff, 234 F. Supp. 191, 1964 U.S. Dist. LEXIS 7265 (D. Vt. 1964), modified, 379 U.S. 359, 85 S. Ct. 503, 13 L. Ed. 2d 352, 1965 U.S. LEXIS 2204 (1965).

Cited.

Cited in In re Senate Bill 177, 130 Vt. 358, 294 A.2d 653, 1972 Vt. LEXIS 283 (1972).

Construction with other law.

Since whatever result reached in a judicial adjudication contemplated under 17 V.S.A. § 2603 , governing contest of elections, is subject to total revision or reversal by the exercise by the General Assembly of its acknowledged power over its own members as provided in this section, such power of revision, whether exercised or not, represents an intrusion prohibited by the doctrine of separation of powers and runs contrary to the precept that the exercise of judicial authority must lead to a final enforceable result and not be merely informative or advisory. Kennedy v. Chittenden, 142 Vt. 397, 457 A.2d 626, 1983 Vt. LEXIS 404 (1983).

Member’s voting decision.

A member’s decision to vote on a matter before the Vermont House of Representatives represents a core legislative function that must remain inviolate to ensure the continued integrity and independence of that institution. Brady v. Dean, 173 Vt. 542, 790 A.2d 428, 2001 Vt. LEXIS 427 (2001) (mem.).

Qualifications of members.

Because the Vermont House of Representative’s exclusive constitutional prerogative to be the “judge of the qualifications of its members” encompasses the authority to determine whether a member’s personal or pecuniary interest requires disqualification from voting on a question before it, a legislative procedure was readily available to challenge the civil union vote on the grounds that a number of House members had a disqualifying personal interest in the outcome. Brady v. Dean, 173 Vt. 542, 790 A.2d 428, 2001 Vt. LEXIS 427 (2001) (mem.).

Cited.

Cited in Pearl v. Curran, 135 Vt. 171, 376 A.2d 19, 1977 Vt. LEXIS 578 (1977); In re Williams, 154 Vt. 318, 577 A.2d 686, 1990 Vt. LEXIS 81 (1990).

Authority to reapportion.

State Judiciary has authority to order reapportionment of State Legislature. Hutchinson v. Cooley, 125 Vt. 303, 214 A.2d 828, 1965 Vt. LEXIS 242 (1965).

Legislature elected after this section [former version] and section 13 of this chapter [former version], relating to membership in the House of Representatives, was declared invalid by a U. S. District Court served only at the will of the federal Judiciary, and when it acted on reapportionment, the sole source of its authority came from the Judicial Branch of the federal government, and was unrelated to its own constitutional powers and limitation. Smith v. Buraczynski, 125 Vt. 310, 214 A.2d 826, 1965 Vt. LEXIS 243 (1965).

Constitutionality of former version.

Where this section provided that the 30 Senators were to be apportioned among the several counties of the State so that each county, irrespective of variances in the population of the counties, would have at least one Senator, it was in contravention of the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution and void. Buckley v. Hoff, 234 F. Supp. 191, 1964 U.S. Dist. LEXIS 7265 (D. Vt. 1964), modified, 379 U.S. 359, 85 S. Ct. 503, 13 L. Ed. 2d 352, 1965 U.S. LEXIS 2204 (1965).

Standards for apportionment.

In redistricting, county lines must, if necessary, give way to the higher priority of equal representation by population. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

The Constitution mandates that House and Senate districts shall afford equality of representation, whereas the Constitution requires only that the Legislature seek to maintain geographical compactness and contiguity and to adhere to boundaries of counties. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

The people of the State should determine the framework and composition of the General Assembly, the number of its members, and the length of their terms of service, the qualifications for membership, the number, size, and boundaries of electoral units, the number of legislators to be chosen from each unit—always having in mind that the seats in each house of a bicameral state legislature in order to meet the standard of the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution must be apportioned so as to provide substantially equal legislative representation for all citizens of all places within the state, and the weight of a citizen’s vote cannot be made to depend on where he lives. Buckley v. Hoff, 234 F. Supp. 191, 1964 U.S. Dist. LEXIS 7265 (D. Vt. 1964), modified, 379 U.S. 359, 85 S. Ct. 503, 13 L. Ed. 2d 352, 1965 U.S. LEXIS 2204 (1965).

Cited.

Cited in 1930-32 Vt. Op. Att'y Gen. 289; Mikell v. Rousseau, 123 Vt. 139, 183 A.2d 817, 1962 Vt. LEXIS 211 (1962); 1962-64 Vt. Op. Att'y Gen. 64; 1964-66 Vt. Op. Att'y Gen. 183; In re Senate Bill 177, 130 Vt. 358, 294 A.2d 653, 1972 Vt. LEXIS 283 (1972); In re Senate Bill 177, 130 Vt. 365, 294 A.2d 657, 1972 Vt. LEXIS 284 (1972); In re Senate Bills 177 & 83, 132 Vt. 282, 318 A.2d 157, 1974 Vt. LEXIS 335 (1974).

—Exclusiveness of power.

Power of pardon conferred on Governor is exclusive and may not be restricted by Legislature nor, by the latter body, granted to any other person or group. 1958-60 Vt. Op. Att'y Gen. 242.

Governor is only officer who has power to grant pardons. 1944-46 Vt. Op. Att'y Gen. 133.

Conditional.

Conditional discharge which statute assumed to authorize Governor to grant was equivalent to conditional pardon, which Governor might grant, irrespective of the statute, by virtue of this section; neither is a remission of guilt, as is a full pardon. In re Conditional Discharge of Convicts, 73 Vt. 414, 51 A. 10, 1901 Vt. LEXIS 202 (1901).

Judicial review.

The exercise of the pardoning power conferred by this section is within the sole discretion of the Governor and is not judicially reviewable except as to questions of validity. Doe v. Salmon, 135 Vt. 443, 378 A.2d 512, 1977 Vt. LEXIS 649 (1977).

Nature of power.

Power to pardon is a function of the State delegated to the Executive and conferred upon the office of Governor; it is not a personal act of the individual holding that office, but is an official declaration by the Chief Executive that a named person is relieved from the consequences of a specific crime or crimes. Doe v. Salmon, 135 Vt. 443, 378 A.2d 512, 1977 Vt. LEXIS 649 (1977).

Reprieves.

Order of Governor granting reprieve, made pending habeas corpus proceedings in federal courts, was not void when its purpose was to permit prisoner to appeal and not to render ineffectual or in anywise interfere with the jurisdiction and orders of the federal courts. Rogers v. Peck, 199 U.S. 425, 26 S. Ct. 87, 50 L. Ed. 256, 1905 U.S. LEXIS 1019 (1905).

Scope of power.

Power to grant pardons being conferred upon Governor by this section in unrestricted terms, except in cases of treason and impeachment, he has, except in such cases, authority to grant every kind of pardon known to the common law. In re Conditional Discharge of Convicts, 73 Vt. 414, 51 A. 10, 1901 Vt. LEXIS 202 (1901).

Spending authority.

The Governor has the constitutional prerogative to spend less than the full amount of an appropriation. Hunter v. State, 2004 VT 108, 177 Vt. 339, 865 A.2d 381, 2004 Vt. LEXIS 313 (2004).

Vacancies in offices.

—Exclusiveness of power.

Power and discretion to pardon, fix the terms of the pardon, and determine compliance therewith resides in the Governor alone and cannot be delegated. In re St. Amour, 127 Vt. 576, 255 A.2d 667, 1969 Vt. LEXIS 281 (1969).

Department of Public Welfare has no authority to release convict from terms of conditional pardon, as power and discretion relating to pardons vested by this section in Governor cannot be delegated. In re De Palo, 101 Vt. 510, 144 A. 678, 1929 Vt. LEXIS 200 (1929).

Pardoning power conferred upon Governor cannot be taken away or restricted by Legislature, nor can like power be given by Legislature to any other officer or authority. In re Conditional Discharge of Convicts, 73 Vt. 414, 51 A. 10, 1901 Vt. LEXIS 202 (1901).

Cited.

Cited in In re Hall, 100 Vt. 197, 136 A. 24, 1934-36 Op. Atty. Gen. 292 (1927); State v. Graves, 119 Vt. 205, 122 A.2d 840 (1956); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989); Op. Atty. Gen. #94-2F.

Law Reviews —

For note, “A Constitutional Analysis of Gubernatorial Succession Provisions in Vermont,” see 17 Vt. L. Rev. 235 (1992).

Appropriations.

To constitute a valid appropriation, it is not necessary that the money be in the Treasury at the time the appropriation is made, nor that the exact sum be stated by the Legislature. State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

It is within the province of the Legislature to make an appropriation, the amount of which is to be ascertained in the manner specified in the act. State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

This section was not intended to restrict power of Legislature over public revenue, and under it no particular form of expression is necessary for valid appropriation of moneys, it being only essential that Legislature by valid enactment assign to particular purpose a sum of money from the public revenues. City of Montpelier v. Gates, 106 Vt. 116, 170 A. 473, 1933 Vt. LEXIS 174 (1933); State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

Power to appropriate money is legislative in character and under this section is exclusively with General Assembly. Grout v. Gates, 97 Vt. 434, 124 A. 76, 1924 Vt. LEXIS 181 (1924).

Money held subject to lien.

This section does not prevent paying out moneys held by the State Treasury subject to an attorney’s equitable lien, without legislative enactment. Button v. Anderson, 112 Vt. 531, 28 A.2d 404, 1942 Vt. LEXIS 158 (1942).

Purpose.

Purpose of this section is to secure regularity, punctuality, and fidelity in disbursement of public money. State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

Cited.

Cited in Town of Highgate v. State, 59 Vt. 39, 7 A. 898, 1886 Vt. LEXIS 17 (1886); 1966-68 Vt. Op. Att'y Gen. 94.

JUDICIARY DEPARTMENT

Administrative orders.

Under provision that courts shall be open for the trial of all causes proper for their cognizance, rights of party aggrieved by an order of an administrative body are not confined to what he may secure by an appeal, but by a proper proceeding the question of whether an administrative body has exceeded its powers may be brought before and determined by established courts. Sabre v. Rutland Railroad, 86 Vt. 347, 85 A. 693, 1913 Vt. LEXIS 205 (1913).

Appellate review.

On appeal from decision in attorney malpractice plaintiff’s State constitutional claims that application of three-year statute of limitations would violate right to a remedy at law and to an open court would not be considered where plaintiff failed to delineate how her rights under these provisions had been violated. Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595, 1990 Vt. LEXIS 187 (1990).

Application.

This section does not apply to Environmental Board, which is part of Executive, not Judicial, Branch of government. In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988).

Attorney’s fees.

21 V.S.A. § 678(b) , authorizing an award of attorney’s fees to a workers’ compensation claimant who prevails on appeal, does not deny an employer access to justice or force it to purchase justice in violation of this section. Fleury v. Kessel/Duff Construction Co., 149 Vt. 360, 543 A.2d 703, 1988 Vt. LEXIS 27 (1988).

Conduct of trial generally.

Under this section every person is entitled not only to a fair trial of his case, but to one as free as may be from suspicion of partiality. Ricci v. Bove's Administrator, 116 Vt. 406, 78 A.2d 13, 1951 Vt. LEXIS 110 (1951).

It is the duty of the court to conduct a trial with utmost impartiality and fairness. Morse v. Ward, 102 Vt. 433, 150 A. 132, 1930 Vt. LEXIS 142 (1930); State v. Hedding, 122 Vt. 379, 172 A.2d 599, 1961 Vt. LEXIS 87 (1961).

Disqualification of judge.

Under this section, bias or prejudice on part of judge, existing to such an extent that an impartial hearing cannot be had, will disqualify him. Leonard v. Willcox, 101 Vt. 195, 142 A. 762, 1928 Vt. LEXIS 141 (1928).

Bias or prejudice of judge sufficient to disqualify him under this section must be against party and not against the particular delinquency charged. Leonard v. Willcox, 101 Vt. 195, 142 A. 762, 1928 Vt. LEXIS 141 (1928).

Mere showing of previous adverse rulings, no matter how erroneous or numerous, or mere showing of a judge’s expression of opinion, uttered in what he conceived to be the discharge of his judicial duty, based upon evidence produced before him, is insufficient to disqualify judge under this section on ground of bias or prejudice. Leonard v. Willcox, 101 Vt. 195, 142 A. 762, 1928 Vt. LEXIS 141 (1928).

The prejudice which disqualifies a judge from trying a person accused of crime is personal prejudice against the respondent, not prejudice against the particular offense with which he is charged. State v. Jurras, 97 Vt. 276, 122 A. 589, 1923 Vt. LEXIS 239 (1923).

The guarantee of this section that justice shall be impartially administered does not render the Legislature without authority to declare that a judge, conducting an inquest upon a criminal matter under investigation by the State’s Attorney, should not thereby be disqualified from presiding at the trial of the cause which was the subject of inquiry at such inquest. State v. Jurras, 97 Vt. 276, 122 A. 589, 1923 Vt. LEXIS 239 (1923).

Family Court.

This section does not confer the Family Court with continuing jurisdiction over its own orders because the jurisdiction of the Family Court to review its own orders is generally limited by res judicata principles. Arbuckle v. Ciccotelli, 2004 VT 68, 177 Vt. 104, 857 A.2d 324, 2004 Vt. LEXIS 242 (2004).

Jury instructions.

Charge to jury should be full, fair, and correct on all issues, theories, and claims within pleadings, so far as evidence requires. Morse v. Ward, 102 Vt. 433, 150 A. 132, 1930 Vt. LEXIS 142 (1930).

Unnecessary delay.

Defendant’s speedy trial rights under the Sixth Amendment and the Vermont Constitution had not been violated by the 23-month delay. Only five months of the delay were clearly attributable to the State, and while defendant timely asserted his speedy trial right, he was out on bail the entire time and had identified few specific claims of prejudice. State v. Reynolds, 2014 VT 16, 196 Vt. 113, 95 A.3d 973, 2014 Vt. LEXIS 15 (2014).

The right to a speedy disposition in this section does not include sentence reconsideration decisions. State v. Dean, 148 Vt. 510, 536 A.2d 909, 1987 Vt. LEXIS 560 (1987).

In order to warrant reversal of a conviction under this section on the ground of appellate delay, defendant must show that substantial prejudice has resulted from the delay. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

12 V.S.A. § 1902 , which prohibited the hearing or trial of a civil cause in any court of the State, in which a member or official of the General Assembly was a party or an attorney of record during the session of the General Assembly unless the privilege was waived by such party or attorney, thwarted mandate of this section that justice be administered without unnecessary delay. Granai v. Witters, Longmoore, Akley & Brown, 123 Vt. 468, 194 A.2d 391, 1963 Vt. LEXIS 136 (1963).

Cited.

Cited in Watson v. Payne, 94 Vt. 299, 111 A. 462, 1920 Vt. LEXIS 207 (1920); Russell v. Lund, 114 Vt. 16, 39 A.2d 337, 1944 Vt. LEXIS 79 (1944); State v. Martel, 122 Vt. 491, 177 A.2d 236, 1962 Vt. LEXIS 126 (1962); Eno v. City of Burlington, 125 Vt. 8, 209 A.2d 499, 1965 Vt. LEXIS 190 (1965); Aronstam v. Cashman, 132 Vt. 538, 325 A.2d 361, 1974 Vt. LEXIS 387 (1974); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989); In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990); State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991); State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993); Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Law Reviews —

For note, “A Crisis in Confidence: Municipal Officials Under Fire,” see 16 Vt. L. Rev. 579 (1992).

Construction.

Decisions rendered by a three-Justice panel of the Supreme Court were not constitutionally deficient, because, in absence of a governing provision in the Constitution or statutes, the common-law rule that a majority of a judicial body is a quorum would apply, and because the two Justices who did not vote on the merits were not excluded from participation, since both had to vote affirmatively to have the cases referred to the panel, and could have ensured their right to vote on the outcome by refusing to vote for the reference. State v. Mills, 167 Vt. 365, 706 A.2d 953, 1998 Vt. LEXIS 1 (1998).

Cited.

Cited in In re Vermont Supreme Court Administrative Directive No. 17, 154 Vt. 392, 576 A.2d 127 (1990).

Authority over attorneys.

In assisting the Supreme Court with judicial conduct proceedings, the Professional Conduct Board collects facts and advises the Court of its findings; although the Board’s recommendations are shown “deference,” they are not binding on the Court, and the Court has the final decision concerning discipline. In re Gadbois, 173 Vt. 59, 786 A.2d 393, 2001 Vt. LEXIS 277 (2001).

Professional Conduct Board acts on behalf of Supreme Court and pursuant to rules adopted by Court, and Court retains inherent power to dispose of individual cases of lawyer discipline. In re Berk, 157 Vt. 524, 602 A.2d 946, 1991 Vt. LEXIS 227 (1991).

It is not the Supreme Court’s function to “review” the findings and recommendations of the Professional Conduct Board, but to make the only final and ultimate decision upon petitions for readmission to the practice of law, based upon the Court’s responsibility under this section for regulation and discipline of the legal profession. In re Harrington, 134 Vt. 549, 367 A.2d 161, 1976 Vt. LEXIS 726 (1976).

Authority over judges.

There is little question that the Vermont Constitution, statutes, and Code of Judicial Conduct vest plenary authority in the Supreme Court of Vermont to exercise disciplinary control over all functions of assistant judges, administrative, adjudicative, and otherwise. In re Boardman, 2009 VT 42, 186 Vt. 176, 979 A.2d 1010, 2009 Vt. LEXIS 46 (2009).

Nothing in the Constitution or its implementing legislation suggests that the scope of “judicial functions” or “judicial duties” subject to discipline is narrowly limited to adjudicative matters. On the contrary, the Vermont Supreme Court has consistently maintained—without dispute from the Legislative Branch—that the scope of the Court’s disciplinary authority is comprehensive; it includes conduct unrelated to adjudicative proceedings, and even goes beyond the professional affairs of judges and into their nonjudicial lives. In re Boardman, 2009 VT 42, 186 Vt. 176, 979 A.2d 1010, 2009 Vt. LEXIS 46 (2009).

Fact that a judge has left the bench does not preclude the Supreme Court from exercising jurisdiction to discipline judges for conduct committed during their judicial tenure. In re Steady, 161 Vt. 636, 641 A.2d 117, 1994 Vt. LEXIS 29 (1994) (mem.).

Change of venue.

Supreme Court had power to transfer venue of criminal trial after assistant judge, who was disqualified by presiding judge for alleged improper action with respect to an interlocutory appeal, filed a petition in Supreme Court challenging disqualification. State v. Hunt, 150 Vt. 483, 555 A.2d 369, 1988 Vt. LEXIS 213 (1988), cert. denied, 489 U.S. 1026, 109 S. Ct. 1155, 103 L. Ed. 2d 214, 1989 U.S. LEXIS 790 (1989).

Disqualification of judge.

Principle of necessity required that Supreme Court Justices sit on a case challenging the constitutionality of a moratorium on civil jury trials, which had been ordered by the Court; since the challenged actions were taken by the Justices in their official capacity, appointment of substitute justices would not eliminate the asserted disqualification to act. In re Vermont Supreme Court Administrative Directive No. 17, 154 Vt. 217, 576 A.2d 127, 1990 Vt. LEXIS 71 (1990).

Judicial assignments.

The power to decide when to include former Justices in the composition of the Supreme Court is a judicial power that does not belong to the Legislative Branch of government and cannot be exercised by it. Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989).

The assignment and reassignment of judges among territorial units of the District Court is part of the administrative control given to the Supreme Court by this section. Ketcham v. Lehner, 149 Vt. 314, 542 A.2d 290, 1988 Vt. LEXIS 9 (1988).

The power of the Governor to appoint district judges is to appoint to the District Court as a single court, irrespective of assignment; the power of assignment, regular or special, is in the Judicial Branch. Ketcham v. Lehner, 149 Vt. 314, 542 A.2d 290, 1988 Vt. LEXIS 9 (1988).

Resentencing.

When defendant was convicted on two counts of boating while intoxicated, and the second count was reversed on appeal because both convictions arose out of the same incident, the court had the power to order resentencing on the remaining count when the trial court had sentenced defendant on the first count based on harm to only one of the two victims. Defendant by appealing his convictions placed the entire judgment in issue, and the holding on appeal in no way decreased his culpability or called into question the sentencing judge’s assessment of the scope of the necessary punishment. State v. Martin, 2009 VT 15, 185 Vt. 286, 973 A.2d 56, 2009 Vt. LEXIS 10 (2009).

When a defendant challenges his convictions in a case where his sentences are interdependent, that challenge necessitates review and redetermination of the full sentencing package. Remands are therefore necessary in aid of the court’s appellate jurisdiction, and to ensure the regular execution of the law; the District Court, although its power to resentence is limited, may be imbued with that power by a proper order of the Supreme Court of Vermont. State v. Martin, 2009 VT 15, 185 Vt. 286, 973 A.2d 56, 2009 Vt. LEXIS 10 (2009).

Special panels.

Decisions rendered by a three-Justice panel of the Supreme Court were not constitutionally deficient, because, in absence of a governing provision in the Constitution or statutes, the common-law rule that a majority of a judicial body is a quorum would apply, and because the two Justices who did not vote on the merits were not excluded from participation, since both had to vote affirmatively to have the cases referred to the panel, and could have ensured their right to vote on the outcome by refusing to vote for the reference. State v. Mills, 167 Vt. 365, 706 A.2d 953, 1998 Vt. LEXIS 1 (1998).

Cited.

Cited in In re Douglas, 135 Vt. 585, 382 A.2d 215, 1977 Vt. LEXIS 684 (1977); Town of Cavendish v. Vermont Public Power Supply Authority, 141 Vt. 144, 446 A.2d 792, 1982 Vt. LEXIS 500 (1982); In re S.H., 141 Vt. 278, 448 A.2d 148, 1982 Vt. LEXIS 511 (1982); Duffy v. Brannen, 148 Vt. 75, 529 A.2d 643, 1987 Vt. LEXIS 457 (1987); In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988); In re Axelrod, 150 Vt. 136, 549 A.2d 653, 1988 Vt. LEXIS 104 (1988); In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988); Equal Employment Opportunity Commission v. Vermont Office of Court Administrator, 717 F. Supp. 261, 1989 U.S. Dist. LEXIS 8386 (D. Vt. 1989); In re Hill, 152 Vt. 548, 568 A.2d 361, 1989 Vt. LEXIS 220 (1989); Aranoff v. Bryan, 153 Vt. 59, 569 A.2d 466, 1989 Vt. LEXIS 234 (1989); In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990); In re O'Dea, 159 Vt. 590, 622 A.2d 507, 1993 Vt. LEXIS 20 (1993).

Law Reviews —

Regulation of the practice of law, practice and procedure, and court administration in Vermont, see 8 Vt. L. Rev. 211 (1983).

Construction.

Decisions rendered by a three-Justice panel of the Supreme Court were not constitutionally deficient, because, in absence of a governing provision in the Constitution or statutes, the common-law rule that a majority of a judicial body is a quorum would apply, and because the two Justices who did not vote on the merits were not excluded from participation, since both had to vote affirmatively to have the cases referred to the panel, and could have ensured their right to vote on the outcome by refusing to vote for the reference. State v. Mills, 167 Vt. 365, 706 A.2d 953, 1998 Vt. LEXIS 1 (1998).

Judicial assignments.

The power of the Governor to appoint district judges is to appoint to the District Court as a single court, irrespective of assignment; the power of assignment, regular or special, is in the Judicial Branch. Ketcham v. Lehner, 149 Vt. 314, 542 A.2d 290, 1988 Vt. LEXIS 9 (1988).

Cited.

Cited in State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989); Village of Morrisville Water & Light Department v. United States Fidelity & Guaranty Co., 775 F. Supp. 718, 1991 U.S. Dist. LEXIS 14784 (D. Vt. 1991).

Judicial assignments.

The power of the Governor to appoint district judges is to appoint to the District Court as a single court, irrespective of assignment; the power of assignment, regular or special, is in the Judicial Branch. Ketcham v. Lehner, 149 Vt. 314, 542 A.2d 290, 1988 Vt. LEXIS 9 (1988).

Cited.

Cited in Peck v. Douglas, 148 Vt. 128, 530 A.2d 551, 1987 Vt. LEXIS 463 (1987).

Authority of justice after resignation or retirement.

Authority of a Supreme Court Justice who has sat at the hearing of a case to complete work on that matter is fixed by the status of the Justice on the hearing date; subsequent resignation or retirement does not change this authority. Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989).

Practice of the Supreme Court, that a Justice who resigns or retires from the Court after hearing a matter may participate fully in consideration of the case thereafter, is grounded in the Court’s inherent judicial and administrative powers as found in this section, conflicts neither with the Governor’s power to appoint nor with the Senate’s power to confirm, and relates strictly and narrowly to the Court’s inherent power to complete in succeeding terms what was begun in earlier ones. Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989).

Governor’s authority.

Plain meaning of the governing language of the Vermont Constitution grants the Governor authority to appoint a Justice only when a “vacancy” in the office exists. The plain meaning of the word “vacancy” is manifest: The leading legal dictionary unambiguously defines the word “vacancy” as follows: 1. The quality, state, or condition of being unoccupied, esp. in reference to an office; 2. The time during which an office is not occupied; 3. An unoccupied office; a vacancy, properly speaking, does not occur until the officer is officially removed; 4. A job opening; a position that has not been filled. Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, 163 A.3d 1173, 2017 Vt. LEXIS 2 (2017).

Vermont Constitution did not authorize the Governor to appoint an Associate Justice of the Court in anticipation of a vacancy that was not expected to occur until the expiration of the Justice’s term of office, which would occur months after the Governor left office. Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, 163 A.3d 1173, 2017 Vt. LEXIS 2 (2017).

Judicial assignments.

The power of the Governor to appoint district judges is to appoint to the District Court as a single court, irrespective of assignment; the power of assignment, regular or special, is in the Judicial Branch. Ketcham v. Lehner, 149 Vt. 314, 542 A.2d 290, 1988 Vt. LEXIS 9 (1988).

Cited.

Cited in Peck v. Douglas, 148 Vt. 128, 530 A.2d 551, 1987 Vt. LEXIS 463 (1987).

Authority over judges.

There is little question that the Vermont Constitution, statutes, and Code of Judicial Conduct vest plenary authority in the Supreme Court of Vermont to exercise disciplinary control over all functions of assistant judges, administrative, adjudicative, and otherwise. In re Boardman, 2009 VT 42, 186 Vt. 176, 979 A.2d 1010, 2009 Vt. LEXIS 46 (2009).

Nothing in the Constitution or its implementing legislation suggests that the scope of “judicial functions” or “judicial duties” subject to discipline is narrowly limited to adjudicative matters. On the contrary, the Vermont Supreme Court has consistently maintained—without dispute from the Legislative Branch—that the scope of the court’s disciplinary authority is comprehensive; it includes conduct unrelated to adjudicative proceedings, and even goes beyond the professional affairs of judges and into their nonjudicial lives. In re Boardman, 2009 VT 42, 186 Vt. 176, 979 A.2d 1010, 2009 Vt. LEXIS 46 (2009).

Section in the Vermont Constitution that permits the General Assembly to establish procedures for the implementation of the provisions regarding the Judiciary does not authorize the Governor to create, as opposed to fill, a vacancy. Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, 163 A.3d 1173, 2017 Vt. LEXIS 2 (2017).

Vermont Constitution did not authorize the Governor to appoint an Associate Justice of the Court in anticipation of a vacancy that was not expected to occur until the expiration of the Justice’s term of office, which would occur months after the Governor left office. Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, 163 A.3d 1173, 2017 Vt. LEXIS 2 (2017).

Cited.

Cited in Peck v. Douglas, 148 Vt. 128, 530 A.2d 551, 1987 Vt. LEXIS 463 (1987); Herald Ass'n v. Judicial Conduct Board, 149 Vt. 233, 544 A.2d 596, 1988 Vt. LEXIS 30 (1988); In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988); In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84, 1988 Vt. LEXIS 226 (1988); In re Hill, 152 Vt. 548, 568 A.2d 361, 1989 Vt. LEXIS 220 (1989); In re O'Dea, 159 Vt. 590, 622 A.2d 507, 1993 Vt. LEXIS 20 (1993).

Law Reviews —

For note, “Judicial Tenure in Vermont: Does Good Behavior Merit Retention?,” see 24 Vt. L. Rev. 1321 (2000).

Construction.

This section indicates a constitutional preference for mandating procedure through rule-making rather than through court decision. State v. Conn, 152 Vt. 99, 565 A.2d 246, 1989 Vt. LEXIS 134 (1989).

Motor vehicle license suspension.

No violation of separation of powers existed in State Supreme Court-created administrative motor vehicle license suspension procedure, where civil suspension rule was authorized by both State Constitution and statute, and Constitution itself established judicial power for rule promulgation. State v. O'Brien, 158 Vt. 275, 609 A.2d 981, 1992 Vt. LEXIS 52 (1992).

Suspension of judges.

Supreme Court had power under this section to impose sanction of suspension from service on a retired judge. In re Hill, 152 Vt. 576, 569 A.2d 446, 1989 Vt. LEXIS 245 (1989).

Suspension authority of Supreme Court in no way interferes with the power of the Legislative Branch to undertake impeachment proceedings in an appropriate case. In re Hill, 152 Vt. 576, 569 A.2d 446, 1989 Vt. LEXIS 245 (1989).

Cited.

Cited in State v. Corliss, 145 Vt. 169, 484 A.2d 924, 1984 Vt. LEXIS 563 (1984); Equal Employment Opportunity Commission v. Vermont Office of Court Administrator, 717 F. Supp. 261, 1989 U.S. Dist. LEXIS 8386 (D. Vt. 1989); In re Hill, 152 Vt. 548, 568 A.2d 361, 1989 Vt. LEXIS 220 (1989); In re Vermont Supreme Court Administrative Directive No. 17, 154 Vt. 217, 576 A.2d 127, 1990 Vt. LEXIS 71 (1990); In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990); In re O'Dea, 159 Vt. 590, 622 A.2d 507, 1993 Vt. LEXIS 20 (1993).

Law Reviews —

Regulation of the practice of law, practice and procedure, and court administration in Vermont, see 8 Vt. L. Rev. 211 (1983).

Application.

Plaintiff had a right to trial by jury in his action claiming legal malpractice and breach of contract. Bloomer v. Gibson, 2006 VT 104, 180 Vt. 397, 912 A.2d 424, 2006 Vt. LEXIS 263 (2006).

There is no right to trial by jury under this section at hearing under 23 V.S.A. § 1205 on refusal to submit to alcohol testing as proceeding was unknown at common law. Shaw v. District Court, 152 Vt. 1, 563 A.2d 636, 1989 Vt. LEXIS 121 (1989).

Parties are not entitled to jury trial as matter of right in probate appeals. In re Welch's Will, 69 Vt. 127, 37 A. 250, 1896 Vt. LEXIS 20 (1896).

Right to trial by jury guaranteed by Constitution applies only to cases in which that right was enjoyed at common law. Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893); Crampton v. Hollister, 70 Vt. 633, 41 A. 588, 1898 Vt. LEXIS 94 (1898).

This section applies to those cases proper for the cognizance of a jury according to the course of the common law and not to courts of equity, admiralty, or probate, which are not common law courts, their jurisdiction and practice being derived from the civil or canon law where no jury trials intervene. In re Weatherhead, 53 Vt. 653, 1881 Vt. LEXIS 62 (1881).

This section applies to all controversies fit to be tried by a jury, according to the rules of the common law, notwithstanding the particular right for the violation of which the action is brought did not exist by common law, but was created by a statute passed subsequent to the adoption of the Constitution. Plimpton v. Town of Somerset, 33 Vt. 283, 1860 Vt. LEXIS 106 (1860).

Cognizable issues.

Facts underlying defendant’s equitable-estoppel defense were not within the trial court’s purview to address in the first instance. Plaintiffs’ right to a jury trial included a right to trial by jury on the factual issues underlying the defense of equitable estoppel. LeBlanc v. Snelgrove, 2015 VT 112, 200 Vt. 570, 133 A.3d 361, 2015 Vt. LEXIS 91 (2015).

Defendants in contract actions have no constitutional right to have amount of attorneys’ fees determined by a jury, since determination of the amount of attorneys’ fees involves equitable accounting, and there is no right to a jury trial in equitable matters. Murphy v. Stowe Club Highlands, 171 Vt. 144, 761 A.2d 688, 2000 Vt. LEXIS 172 (2000).

Legislation.

Any law that destroys or materially impairs the right of trial by jury according to the course of the common law, in cases proper for the cognizance of the jury, is contrary to this section. Plimpton v. Town of Somerset, 33 Vt. 283, 1860 Vt. LEXIS 106 (1860).

Moratorium.

Actions that may delay or condition the jury trial right do not by themselves infringe on that right, and a temporary delay in access to a civil jury trial is not equivalent to denial of the right. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Temporary moratorium of approximately five months on all civil jury trials created by a Supreme Court administrative directive in response to reduction in appropriation to support the courts did not offend this article; petitioners failed to show specific prejudice or that their trials were being delayed unreasonably, and administrative directive gave administrative judge authority to permit exceptions to the moratorium where justice required. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Petition for extraordinary relief challenging the constitutionality of an administrative directive of the Supreme Court creating a five-month moratorium on civil jury trials was properly before the Supreme Court only with respect to those of the petitioners who not only sought relief in Superior Court but who, following dismissal of the Superior Court action, sought an exception to the directive from the administrative judge. In re Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court, 154 Vt. 392, 579 A.2d 1036, 1990 Vt. LEXIS 106 (1990).

Notice.

Reasonable notice must be given of the intention of a party to avail himself of his right, in a civil case, to put his case before a jury. Muzzy v. Curtis, 127 Vt. 516, 253 A.2d 149, 1969 Vt. LEXIS 267 (1969).

Number of jurors.

Jury referred to in this section is common law jury of twelve. State v. Peterson, 41 Vt. 504, 1869 Vt. LEXIS 1 (1869); In re Hackett, 53 Vt. 354, 1881 Vt. LEXIS 7 (1881); State v. Hirsch, 91 Vt. 330, 100 A. 877, 1917 Vt. LEXIS 252 (1917). (But see Rule 48, Vermont Rules of Civil Procedure and Rule 23(b), Vermont Rules of Criminal Procedure.) .

Representative jury.

State Constitution guarantees defendant impartial and competent jurors, but does not guarantee defendant a representative jury; defendant must demonstrate prejudice in order to mount a successful constitutional challenge. State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991).

Unbiased jury.

Forty-one-year-old defendant charged with second-degree murder could not contest jury venire or array which underrepresented young adults up to the age of 24 he made no attempt to show or argue that he was prejudiced by the impartial but nonrepresentative jury. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

Vermont constitutional provision that requires that great care be taken to prevent corruption or partiality in the choice and return, or appointment, of juries requires an impartial and competent jury, but not a representative one. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

The constitutional right to trial by jury guarantees that each juror will be unbiased and without prejudice toward any party. Isabelle v. Proctor Hospital, 129 Vt. 500, 282 A.2d 837, 1971 Vt. LEXIS 298 (1971).

Cited.

Cited in Childs v. Village of Newport, 70 Vt. 62, 39 A. 627, 1897 Vt. LEXIS 3 (1897); State v. Kamuda, 98 Vt. 466, 129 A. 306, 1925 Vt. LEXIS 151 (1925); E.L. Stoddard & Son v. Village of North Troy, 102 Vt. 462, 150 A. 148, 1930 Vt. LEXIS 148 (1930); Quazzo v. Quazzo, 136 Vt. 107, 386 A.2d 638, 1978 Vt. LEXIS 697 (1978); Hale v. Melendy, 139 Vt. 28, 421 A.2d 1296, 1980 Vt. LEXIS 1389 (1980).

Construction with other law.

In Medicaid fraud case there was no relevant difference between constitutional standards for judging validity of criminal penalties under this section of Vermont Constitution and Eighth Amendment of United States Constitution.State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

Cumulative punishment.

Penalty for multi-count prosecution is not unfair by mere fact that cumulative punishments may be imposed for distinct offenses. State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

Fines.

The word “fines,” as used in this section, connotes all punishments, whether by fine, imprisonment, forfeiture, or disqualification. State v. Burlington Drug Co., 84 Vt. 243, 78 A. 882, 1911 Vt. LEXIS 264 (1911).

Indictments.

Words “against the peace and dignity of the State,” at end of information, are merely a matter of form, not a substantive element of the crime charged that must be proven by the State. State v. Bell, 136 Vt. 144, 385 A.2d 1094, 1978 Vt. LEXIS 705 (1978).

Requirement that indictments shall conclude with the words “against the peace and dignity of the State” is a matter of form, not of substance. State v. Amidon, 58 Vt. 524, 2 A. 154, 1885 Vt. LEXIS 10 (1885).

Punishment proportionate to offense.

A penalty is not constitutionally excessive unless it is grossly disproportionate or out of all just proportion to the offense; accordingly, defendant could not seriously challenge the Legislature’s judgment in authorizing a one to 15 year sentence for the crime of careless and negligent driving with serious injury resulting. State v. Dove, 163 Vt. 429, 658 A.2d 936, 1995 Vt. LEXIS 15 (1995).

Potential punishment of ten years in jail for each count of multi-count prosecution for knowingly filing false claims with State Medicaid program was not grossly disproportionate to offense; comparable federal crime was felony, misdemeanor penalties were found by Congress to be inadequate deterrents, maximum penalties for Medicaid fraud in other states were similar, and some penalties for comparable Vermont crimes were felonies. State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

Cited.

Cited in State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979); Coty v. Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196, 1988 Vt. LEXIS 48 (1988); State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989); Harrington v. Department of Employment & Training, 152 Vt. 446, 566 A.2d 988, 1989 Vt. LEXIS 193 (1989); State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989); State v. Bacon, 167 Vt. 88, 702 A.2d 116, 1997 Vt. LEXIS 243 (1997); State v. Keiser, 174 Vt. 87, 807 A.2d 378, 2002 Vt. LEXIS 144 (2002).

Capital offenses.

This section refers to a standard for refusing bail in capital cases and does not place a burden to establish entitlement on one seeking bail. State v. Churchill, 133 Vt. 338, 341 A.2d 22, 1975 Vt. LEXIS 400 (1975).

Construction.

In determining the meaning of the term “review de novo” in bail amendment to the Constitution and related statute, the court would look primarily to the intent of the voters in approving the amendment but also would consider the intent of the Legislature in adopting the statute. State v. Madison, 163 Vt. 360, 658 A.2d 536, 1995 Vt. LEXIS 18 (1995).

—Generally.

In finding that a sexual assault defendant could be held without bail, the trial court properly found that the evidence of guilt was great, as the testimony of the alleged victim, even if ambivalent, could provide a legally sufficient basis for a guilty verdict if found credible. State v. Bertrand, 2008 VT 127, 185 Vt. 574, 967 A.2d 1137, 2008 Vt. LEXIS 139 (2008) (mem.).

When the record of the proceedings below did not indicate how the trial court, which denied bail, exercised its discretion in rejecting defendant’s proposed conditions of release, remand was required for the trial court to make findings on this issue. State v. Bertrand, 2008 VT 127, 185 Vt. 574, 967 A.2d 1137, 2008 Vt. LEXIS 139 (2008) (mem.).

In cases where constitutional right to bail does not apply, presumption is switched so that the norm is incarceration and not release, trial court’s discretion is extremely broad, and trial court must exercise its discretion after giving defendant an opportunity to be heard. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

Preventive detention of potentially dangerous persons is not constitutionally acceptable. State v. Sauve, 159 Vt. 566, 621 A.2d 1296, 1993 Vt. LEXIS 13 (1993).

Repeatedly violating conditions of release, without more, does not rise to the level of a compelling interest sufficient to justify revocation of bail. State v. Sauve, 159 Vt. 566, 621 A.2d 1296, 1993 Vt. LEXIS 13 (1993).

The Vermont Constitution explicitly guarantees bail as a matter of right to defendants not charged with offenses punishable by death or life imprisonment. State v. Sauve, 159 Vt. 566, 621 A.2d 1296, 1993 Vt. LEXIS 13 (1993).

Vermont constitutional values require that liberty is and must remain the norm and detention prior to trial or without trial is the carefully limited exception; although some exceptions may exist to the right to bail, these are limited to special circumstances where the State’s interest is legitimate and compelling. State v. Sauve, 159 Vt. 566, 621 A.2d 1296, 1993 Vt. LEXIS 13 (1993).

Withholding bail for repeatedly violating conditions of release is unconstitutional unless there is a nexus between the repeated violations and a disruption of the prosecution. State v. Sauve, 159 Vt. 566, 621 A.2d 1296, 1993 Vt. LEXIS 13 (1993).

In a bail hearing in which the trial court is required to determine whether a defendant is bailable in light of evidence of guilt, the trial court is not required to consider a challenge to admission of evidence if substantial admissible evidence of guilt exists without considering the evidence challenged, but if the State cannot make such a showing, the court must determine if the State can make a prima facie case that the challenged evidence would be admissible at trial. State v. Passino, 154 Vt. 377, 577 A.2d 281, 1990 Vt. LEXIS 75 (1990).

Trial court has discretion to release a criminal defendant on bail even if defendant is not bailable as of right; however, it is under no obligation to do so. State v. Passino, 154 Vt. 377, 577 A.2d 281, 1990 Vt. LEXIS 75 (1990).

In bail appeal in which defendant, who was charged with an offense punishable by life imprisonment, challenged the trial court’s reliance on evidence subject to a motion to suppress, remand was required for trial court’s consideration of whether State could make a prima facie showing the challenged evidence would be admissible at trial. State v. Passino, 154 Vt. 377, 577 A.2d 281, 1990 Vt. LEXIS 75 (1990).

Trial court’s failure to exercise its discretion to consider bail for defendant charged with first degree murder not bailable as of right required remand for such consideration. State v. Passino, 154 Vt. 377, 577 A.2d 281, 1990 Vt. LEXIS 75 (1990).

Provision in this section for bail is a necessary corollary to the constitutional concept that persons may be imprisoned only after proper conviction of crime. State v. Mecier, 136 Vt. 336, 388 A.2d 435, 1978 Vt. LEXIS 625 (1978).

Anticipatory confinement or preventive detention is obstructed by this section. State v. Mecier, 136 Vt. 336, 388 A.2d 435, 1978 Vt. LEXIS 625 (1978).

Evidence.

“Modifying evidence” for purposes of determining whether to deny bail is testimonial evidence introduced by the defense in contravention to the State’s evidence, the credibility or weight of which is ultimately for the factfinder’s determination. State v. Stolte, 2012 VT 12, 191 Vt. 600, 44 A.3d 166, 2012 Vt. LEXIS 11 (2012) (mem.).

In determining whether to deny defendant bail, it was error to necessarily equate defendant’s new DNA evidence, purportedly undisputed as to its foundation, with disputed, testimonial “modifying evidence.” On remand, if the proffered evidence, if relevant, was disputed either as to its origin or result as a matter of fact, then the evidence was modifying evidence; if no such conflict existed, the court had to determine whether, if admissible, the evidence would have made a difference to its initial determination on whether the State’s prima facie evidence of guilt was “great” for purposes of holding defendant without bail. State v. Stolte, 2012 VT 12, 191 Vt. 600, 44 A.3d 166, 2012 Vt. LEXIS 11 (2012) (mem.).

While testimonial evidence raises inherent credibility questions not properly resolved by judges at bail denial hearings, non-testimonial evidence does not. Non-testimonial evidence is any evidence that does not derive and depend on the observation, recollection, reliability, or veracity of witnesses, whether in the form of live testimony or a sworn statement, and which therefore does not implicate a credibility determination. State v. Stolte, 2012 VT 12, 191 Vt. 600, 44 A.3d 166, 2012 Vt. LEXIS 11 (2012) (mem.).

Examples of non-testimonial evidence at bail denial hearings can include DNA analysis, photographs, or other physical evidence, the provenance of which is not contested. Where the validity of such non-testimonial evidence is undisputed, there is no question of credibility; for example, in the case of an indisputably valid DNA result, the jury would not be required to decide whether it believed the test result, but only what it proved. State v. Stolte, 2012 VT 12, 191 Vt. 600, 44 A.3d 166, 2012 Vt. LEXIS 11 (2012) (mem.).

Extradition.

Provision of this section pertaining to right to bail does not apply where a prisoner is held for extradition, because the prisoner is not being held for trial in Vermont for alleged violation of criminal law; in extradition matters, there is no offense, but only proceedings to produce a demanded person for another state. In re Iverson, 135 Vt. 255, 376 A.2d 23, 1977 Vt. LEXIS 601 (1977).

Implementation.

1994 bail amendment to State Constitution did not require an enabling statute to give it force. State v. Madison, 163 Vt. 360, 658 A.2d 536, 1995 Vt. LEXIS 18 (1995).

Imprisonment for debt.

21 V.S.A. § 354 , providing that an employer who fails to pay his employees weekly by cash or check, shall be fined or imprisoned or both, mere indebtedness, not culpable intent, triggering the penalty, allows imprisonment for debt, an unenforceable penalty under this section. State v. Carpenter, 138 Vt. 140, 412 A.2d 285, 1980 Vt. LEXIS 1041 (1980).

Inability to try within 60 days.

When defendant had originally been ordered to be held without bail, but his trial could not be held within 60 days due to an order suspending trials in the State to contain the spread of coronavirus, the trial court did not err in releasing him on conditions but without imposing bail, as it found that defendant did pose a risk of flight, but his failures to appear were from 2012 and 2015, he could reside at a motel under staff supervision and with a 24-hour curfew, and his age and need for cancer treatment at a local hospital mitigated his risk of flight. State v. Lohr, 2020 VT 41, 212 Vt. 289, 236 A.3d 1277, 2020 Vt. LEXIS 46 (2020).

Offense punishable by life imprisonment.

Trial court utilized the proper standard of review for denial of bail to defendant charged with an offense punishable by life imprisonment, i.e., “whether the evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt” and properly excluded affidavits submitted by defendant, holding that they represented conflicting or modifying evidence. State v. Turnbaugh, 174 Vt. 532, 811 A.2d 662, 2002 Vt. LEXIS 252 (2002) (mem.).

Charging defendant as habitual criminal was not “double enhancement” of his prior convictions for DUI, and since defendant properly faced charge punishable by life imprisonment, he could lawfully be held without bail. State v. Gardner, 167 Vt. 600, 709 A.2d 499, 1998 Vt. LEXIS 15 (1998) (mem.).

Defendant charged with an offense punishable by life imprisonment could be held without bail where sufficient admissible evidence would show that evidence of guilt was great. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

Denial of bail to defendant charged with aggravated sexual assault on a nine-year-old girl was neither punitive nor excessive. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

Denial of bail to defendant charged with aggravated sexual assault on a nine-year-old girl did not deny defendant of procedural due process. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

Record supported trial court’s decision that defendant charged with aggravated sexual assault on a nine-year-old girl be held without bail. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

Defendant charged with an offense punishable by life imprisonment could be held without bail if State established by affidavits, depositions, sworn oral testimony, or other admissible evidence that it had substantial, admissible evidence as to the elements of the offense sufficient to prevent the grant of a motion for judgment of acquittal of trial. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

Defendant charged with an offense punishable by life imprisonment is entitled to a hearing on conditions of release. State v. Duff, 151 Vt. 433, 563 A.2d 258, 1989 Vt. LEXIS 98 (1989).

To deny bail to defendant charged with an offense punishable by life imprisonment, trial court must make a specific finding that State has shown that facts exist that are legally sufficient to sustain a verdict of guilty. State v. Duff, 151 Vt. 433, 563 A.2d 258, 1989 Vt. LEXIS 98 (1989).

Trial court has discretion to allow bail where defendant is charged with an offense punishable by life imprisonment, even though evidence of guilt is great. State v. Duff, 151 Vt. 433, 563 A.2d 258, 1989 Vt. LEXIS 98 (1989).

Standard of review for denial of bail to defendant charged with an offense punishable by life imprisonment is whether substantial, admissible evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt. State v. Duff, 151 Vt. 433, 563 A.2d 258, 1989 Vt. LEXIS 98 (1989).

Protection of public.

A condition of bail designed solely for the protection of the public may be imposed. State v. Brown, 136 Vt. 561, 396 A.2d 134, 1978 Vt. LEXIS 666 (1978).

To use bail solely as a device for protecting the public would violate this section. State v. Cyr, 134 Vt. 460, 365 A.2d 969, 1976 Vt. LEXIS 703 (1976).

Bail may not be entirely denied a defendant on grounds that his release would constitute a danger to the public. State v. Pray, 133 Vt. 537, 346 A.2d 227, 1975 Vt. LEXIS 448 (1975); State v. Mecier, 136 Vt. 336, 388 A.2d 435, 1978 Vt. LEXIS 625 (1978).

Purpose.

To meet substantive due process requirements, bail cannot be denied in order to inflict pretrial punishment, pretrial detention cannot be excessive in relation to regulatory goal, and interests served by the detention must be legitimate and compelling. State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993).

The purpose of bail, as mandated by this section, is to assure the defendant’s presence in court. State v. Pray, 133 Vt. 537, 346 A.2d 227, 1975 Vt. LEXIS 448 (1975).

Sixty-day rule.

Court holds that State v. Lontine was decided incorrectly and overrules that decision. The language, history, and purpose of the relevant constitutional and statutory provisions compel a conclusion that a defendant is entitled to trial or a bail hearing within sixty days after bail is denied, meaning when defendant is first held without bail, regardless of whether the trial court has made all of the requisite findings required by statute. State v. Downing, 2020 VT 101, 247 A.3d 150, 2020 Vt. LEXIS 111 (Vt. 2020).

Vermont law entitles a defendant held without bail on charges for a violent felony to a trial within sixty days. The ability of the court to commence trial within sixty days, however, is not a condition precedent to ordering pretrial detention; instead, the sixty-day rule serves as a limitation on the length of time that the defendant can be detained before trial, a result compelled by the text, structure, and purpose of the constitutional provision and corresponding statutes. State v. Downing, 2020 VT 101, 247 A.3d 150, 2020 Vt. LEXIS 111 (Vt. 2020).

Statutory provisions.

Provision allowing revocation of bail due to the commission of a felony or a crime against a person is subject to the same constitutional analysis as the provision related to the repeated violation of the conditions of release, and the Vermont Constitution provision does not have an exception for multiple charges; if the statutory elements were sufficient, a second qualifying charge for which probable cause is found would virtually always allow for revocation of conditions of release even though the second charge is for a bailable offense because the condition that defendant not be charged with a crime for which probable cause is found is a standard condition virtually always imposed. State v. Gates, 2016 VT 36, 201 Vt. 502, 145 A.3d 233, 2016 Vt. LEXIS 35 (2016).

Superior Court erred by revoking defendant’s bail due to repeated violations of the conditions of release because the findings were insufficient to show a violation of the statute authorizing bail revocation since there was no showing that the victim feared reprisal for her testimony, there was no finding of a nexus between the violations and a disruption of prosecution, the repeated violations alone were not sufficient to meet the standard under the Vermont Constitution, the State did not prove by a preponderance of the evidence that defendant committed the crime of obstruction of justice, and it was not enough to just meet the statutory elements for a felony or a crime against persons. State v. Gates, 2016 VT 36, 201 Vt. 502, 145 A.3d 233, 2016 Vt. LEXIS 35 (2016).

The statutory provisions providing for revocation of bail if defendant intimidates or harasses a victim or witness, or violates a condition of release that constitutes a threat to the integrity of the judicial system, are both based on the compelling State interest in prosecuting those accused of violating its laws. State v. Sauve, 159 Vt. 566, 621 A.2d 1296, 1993 Vt. LEXIS 13 (1993).

Where the District Court, in denying bail to defendant charged with second degree murder, considered only a recent amendment to this section, and failed to consider 13 V.S.A. § 7554 , providing for release, prior to trial, of persons charged with noncapital offenses, defendant was entitled to a new hearing on bail to determine her eligibility for bail under the terms of 13 V.S.A. § 7554 . State v. Lambert, 145 Vt. 315, 487 A.2d 172, 1985 Vt. LEXIS 289 (1985).

Cited.

Cited in In re Comolli, 78 Vt. 337, 63 A. 184, 1906 Vt. LEXIS 153 (1906); State v. Webb, 89 Vt. 326, 95 A. 892, 1915 Vt. LEXIS 223 (1915); In re Dexter, 93 Vt. 304, 107 A. 134, 1919 Vt. LEXIS 165 (1919); In re Woodmansee, 124 Vt. 219, 202 A.2d 267, 1964 Vt. LEXIS 88 (1964); State v. Miner, 127 Vt. 104, 241 A.2d 64, 1968 Vt. LEXIS 184 (1968); In re Woodmansee, 127 Vt. 575, 255 A.2d 667, 1969 Vt. LEXIS 280 (1969); State v. Webb, 132 Vt. 418, 320 A.2d 626, 1974 Vt. LEXIS 361 (1974); State v. Woodmansee, 132 Vt. 558, 326 A.2d 172, 1974 Vt. LEXIS 391 (1974); State v. Knight, 136 Vt. 340, 392 A.2d 935, 1978 Vt. LEXIS 626 (1978); Unnamed Prisoners v. Maranville, 154 Vt. 279, 576 A.2d 132, 1990 Vt. LEXIS 73 (1990); State v. Wood, 157 Vt. 286, 597 A.2d 312, 1991 Vt. LEXIS 180 (1991); Hale v. Peddle, 160 Vt. 621, 627 A.2d 860, 648 A.2d 830, 1993 Vt. LEXIS 158 (1993); State v. Madison, 163 Vt. 390, 659 A.2d 124, 1995 Vt. LEXIS 14 (1995) (mem.).

Law Reviews —

Bail and the use of preventive conditions, see 2 Vt. L. Rev. 217 (1977).

Restricting the right to bail: Vermont’s new constitutional bail amendment, see 8 Vt. L. Rev. 347 (1983).

Legislation.

While the Legislature may regulate the procedure with respect to habeas corpus, and, to some extent, the purposes for which it may be used, it may not abrogate or curtail the efficiency of the writ. Shequin v. Smith, 129 Vt. 578, 285 A.2d 708, 1971 Vt. LEXIS 307 (1971).

Purpose of writ.

The writ of habeas corpus is not to be given effect as an appeal to correct errors and irregularities in the trial procedure. In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

The purpose of the writ of habeas corpus is to provide a summary proceeding to determine the lawfulness of one’s imprisonment or restraint. In re Turner, 92 Vt. 210, 102 A. 943, 1918 Vt. LEXIS 157 (1918); In re Rickert, 124 Vt. 232, 203 A.2d 602, 1964 Vt. LEXIS 93 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 678, 13 L. Ed. 2d 568, 1965 U.S. LEXIS 2140 (1965).

Scope of proceedings.

The writ of habeas corpus challenges the jurisdiction alone, and the inquiry is not confined to the jurisdiction over the subject matter and the person, but extends to the jurisdiction to render the particular judgment. In re Turner, 92 Vt. 210, 102 A. 943, 1918 Vt. LEXIS 157 (1918).

Subsequent proceedings.

A judgment on habeas corpus remanding the prisoner is not, as matter of law, a bar to subsequent proceedings of the same kind founded on the same facts. In re Turner, 92 Vt. 210, 102 A. 943, 1918 Vt. LEXIS 157 (1918).

Cited.

Cited in In re Charizio, 120 Vt. 208, 138 A.2d 430, 1958 Vt. LEXIS 95 (1958); Shuttle v. Patrissi, 158 Vt. 127, 605 A.2d 845, 1992 Vt. LEXIS 22 (1992).

QUALIFICATIONS OF FREEMEN AND FREEWOMEN

Generally.

This section represents a denial of a right to a citizen, and if it cannot be clearly demonstrated that he falls within its proscription, or equally plainly shown that he is in violation of its purpose, he is entitled to be held free of its prohibition. Baker v. Hazen, 133 Vt. 433, 341 A.2d 707, 1975 Vt. LEXIS 426 (1975).

De facto officers.

A judicial officer holding an office of profit or trust under the authority of Congress is to be considered as an officer de facto in a suit between third persons to which he is not a party, and his eligibility to exercise judicial office cannot be tried in such a suit. McGregor v. Balch, 14 Vt. 428, 1842 Vt. LEXIS 75 (1842).

Eligibility for office.

The words “eligible to any appointment” in this section are to be construed as having reference to the qualification to hold office, and not to the choosing or election to office, and the disqualification must exist at the time the term of office begins. State ex rel. Perkins v. Edwards, 99 Vt. 1, 130 A. 276, 1925 Vt. LEXIS 160 (1925); State v. Levy, 113 Vt. 374, 34 A.2d 370, 1943 Vt. LEXIS 186 (1943).

A person holding an office under the authority of Congress may be eligible for, or may be elected to, an executive or judicial office, but, in such case, if he accepts the office under the authority of the State, he must abandon the one held under the authority of Congress, and if he continues to hold the latter, he cannot, consistently with this section, hold the former. McGregor v. Balch, 14 Vt. 428, 1842 Vt. LEXIS 75 (1842); State ex rel. Perkins v. Edwards, 99 Vt. 1, 130 A. 276, 1925 Vt. LEXIS 160 (1925).

Judiciary office.

Vermont’s judicial resign-to-run provision and its constitutional provision pertaining to incompatible offices are not in conflict, and the Judicial Conduct Code can provide a more exacting restriction for judges than is provided in the Constitution. In re Hodgdon, 2011 VT 19, 189 Vt. 265, 19 A.3d 598, 2011 Vt. LEXIS 14 (2011).

One who holds an office of profit or trust under authority of Congress is, under this section, ineligible to appointment as city grand juror, this being a judiciary office. State v. Levy, 113 Vt. 374, 34 A.2d 370, 1943 Vt. LEXIS 186 (1943).

Office under authority of Congress.

This section did not make the office of postmaster incompatible with that of selectboard member where, due to creation of United States Postal Service as a semi-autonomous operation independent of Congress operating under the Executive Branch and not directly funded by the United States Treasury, there had been a strong dilution of the status of the position as an office under the authority of Congress and where there was uncertainty as to the mischief sought to be prevented by this section. Baker v. Hazen, 133 Vt. 433, 341 A.2d 707, 1975 Vt. LEXIS 426 (1975).

Cited.

Cited in 1942-44 Vt. Op. Att'y Gen. 150; 1946-48 Vt. Op. Att'y Gen. 103; 1948-50 Vt. Op. Att'y Gen. 112; 1970-72 Vt. Op. Att'y Gen. 223; American Trucking Ass'ns v. Conway, 152 Vt. 383, 566 A.2d 1335, 1989 Vt. LEXIS 176 (1989); Dingemans v. Board of Bar Examiners, 152 Vt. 494, 568 A.2d 354, 1989 Vt. LEXIS 206 (1989).

Application.

A constable is in authority under the town in which he is elected, and so need not subscribe the oath of office required by this section of “officers in authority under this state.” Bixby v. Roscoe, 85 Vt. 105, 81 A. 255, 1911 Vt. LEXIS 217 (1911).

The requirement to take and subscribe the oath of office does not apply to such officers as derive their authority to act from towns and other municipal bodies, but only to such officers, judicial, executive, and military, as are strictly State officers; to wit, such as derive their authority to act from the votes of the freemen of the State at large, and such as are either elected or declared to be elected by the Legislature or appointed by the Governor. Rowell v. Horton, 58 Vt. 1, 3 A. 906, 1886 Vt. LEXIS 78 (1886).

De facto officers.

An infirmity in qualifications of an officer commissioned to perform a public trust does not affect court’s jurisdiction, so that had special prosecutor failed to take oath prescribed in this section his standing as a de facto officer would furnish ample authority to sustain petitioner’s conviction. In re Dusablon, 126 Vt. 362, 230 A.2d 797, 1967 Vt. LEXIS 198 (1967).

Sureties upon official bond of person who served as an officer would not be discharged from liability on the bond in consequence of that person’s neglect to take the required oaths, since the acts of that person, as an officer de facto, were valid so far as they concerned the rights of third persons, to the same extent that they would have been if he had been an officer de jure. Town of Lyndon v. Miller, 36 Vt. 329, 1863 Vt. LEXIS 82 (1863); State v. Bates, 36 Vt. 387, 1863 Vt. LEXIS 92 (1863).

Presumption.

Judgment against petitioner would not be vacated on ground that there was no showing that special prosecutor received and subscribed to oath prescribed in this section, since there is a presumption that executive authority was properly conferred and legally exercised, and petitioner failed to establish that there was any deficiency in this respect. In re Dusablon, 126 Vt. 362, 230 A.2d 797, 1967 Vt. LEXIS 198 (1967).

Suit by or against officer.

Whenever an officer sues or is sued, and justifies his acts as done in his official capacity, he must show compliance with all requirements of the law necessary to constitute him a legally qualified officer, or an officer de jure, including the requirement of taking the official oath. Houston v. Russell, 52 Vt. 110, 1879 Vt. LEXIS 154 (1879).

Justice of the peace, in an action against himself for an arrest under warrant issued by him, could not justify if he had not, before such arrest, taken oath of office prescribed by this section. Courser v. Powers, 34 Vt. 517, 1861 Vt. LEXIS 90 (1861).

Construction with other law.

The terms “action or suit” as used in 3 V.S.A. § 1101(a) , obligating the State to defend an action or suit against a State employee, do not encompass an impeachment proceeding under this section. Mayo v. State, 138 Vt. 419, 415 A.2d 1061, 1980 Vt. LEXIS 1245 (1980).

Nature of proceedings.

An impeachment proceeding under this section is not a suit or an action, which terms connote the demand of a right in a court of justice or in some tribunal as a condition precedent to giving a court jurisdiction of the subject matter, but at most quasi-judicial in nature. Mayo v. State, 138 Vt. 419, 415 A.2d 1061, 1980 Vt. LEXIS 1245 (1980).

Prior law.

Justice of the peace, in event of maladministration, was not subject to trial upon indictment in judicial courts, where Constitution provided that all impeachments were to be before Governor and Council and intended only that civil prosecutions would not be barred by impeachment. State v. Campbell, 2 Tyl. 177 (Vt. Aug. 1, 1802).

Law Reviews —

For note, “Judicial Tenure in Vermont: Does Good Behavior Merit Retention?,” see 24 Vt. L. Rev. 1321 (2000).

MILITIA

Application.

This provision has exclusive reference to such conveyances of land only as operate inter vivos and not to mere devises of land. Smith v. Perry, 26 Vt. 279, 1854 Vt. LEXIS 15 (1854).

Construction.

This section did not prevent devise which created an estate tail from taking effect according to the will of the testator. Giddings v. Smith, 15 Vt. 344, 1843 Vt. LEXIS 51 (1843).

Generally.

First clause of this provision was needed to secure to an alien some of rights enumerated, but was not well adapted to the status of one who had taken an oath of allegiance to State in which he had become resident. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913).

Use of word “denizen” to designate one entitled to all rights of a natural born subject shows a lack of technical exactness which might justify, if occasion required, some latitude in construction of other words pertaining to same subject. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913).

—Generally.

Poll tax provisions have nothing to do with the proper regulation of hunting and fishing and therefore may not be used to restrict constitutional rights of residents in this regard. 1960-62 Vt. Op. Att'y Gen. 68.

Hunting and fowling.

The fundamental right to hunt guaranteed by this section controls in the absence of positive prohibitory regulation. 1966-68 Vt. Op. Att'y Gen. 67.

Rights of landowners.

A landowner who encloses his land by posting signs in accordance with 10 V.S.A. § 5201 has an exclusive right to the wild game found and taken thereon, subject to the regulatory authority of the State. 1970-72 Vt. Op. Att'y Gen. 191.

Any person who trespasses on the enclosed land of another, without his consent, even to reach public waters for the purpose of fishing, would be liable for such damage as might be proved. 1930-32 Vt. Op. Att'y Gen. 300.

Boatable waters.

Water level on a single day will not normally support a finding of boatability or nonboatability for a body of water subject to seasonable fluctuations. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

An injunction affecting a large area cannot rest on a finding merely that a single point in that area is nonboatable. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

No right can be acquired by or granted to private persons to control by artificial means for private purposes the height of the water of a lake which is boatable or the outflow therefrom. In re Lake Seymour, 117 Vt. 367, 91 A.2d 813, 1952 Vt. LEXIS 147 (1952).

The bed or soil of boatable water is held by people of the State in their sovereign capacity in trust for public uses for which it is adapted and State is required to preserve water for common use of all. In re Lake Seymour, 117 Vt. 367, 91 A.2d 813, 1952 Vt. LEXIS 147 (1952).

Order of State Board of Health, prohibiting boating on pond, “boatable” within meaning of this section, and constituting source of city’s water supply, is presumptively valid, and must be enforced unless it is made manifest that it has no just relation to protection of public health, or that it is plain invasion of constitutional rights. State v. Quattropani, 99 Vt. 360, 133 A. 352, 1926 Vt. LEXIS 147 (1926).

Lake Morey, covering an area of 640 acres, being extensively used for boating with rowboats, canoes, motor boats, and a steamer, and having boathouses, retaining walls and structures on its shores for use in getting into and out of boats, is boatable, as matter of law, and is public waters within this section. Hazen v. Perkins, 92 Vt. 414, 105 A. 249, 1918 Vt. LEXIS 194 (1918).

Term boatable waters as used in this section means waters navigable in fact, that is, capable from their situation and in their ordinary condition of being used by public as a means of passage or transportation. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895).

Whether a particular body of water is navigable in fact is ordinarily a question for the jury, and he who asserts that fact as the foundation for a right in the water must prove it. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895).

Legislature cannot make public waters that Constitution declares private. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895).

Common law.

By recognizing rights to hunt and fish, given certain circumstances, in what had previously been the landowner’s private domain, this section extended rights to citizens which the common law had not recognized. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

Construction.

By attaching “boatable waters” and “lands not enclosed” limitations on the respective rights of fishing and hunting, this section has designated those points beyond which private property becomes inviolate for fishing and hunting purposes—nonboatability for the former and enclosure for the latter. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

—Generally.

Legislative regulation of activities entirely concerned with the fish and game law is an exercise of the police power reserved to the Legislature under Article 5 of Chapter I. State v. Racine, 133 Vt. 111, 329 A.2d 651, 1974 Vt. LEXIS 296 (1974).

Rights secured by this section were not intended to be absolute and unconditional, but were to be governed and controlled by such proper regulations as might be made by General Assembly. State v. Norton, 45 Vt. 258, 1873 Vt. LEXIS 5 (1873).

Delegation of regulatory authority.

Provided that the Legislature has properly delegated its authority to a union municipal district, the district’s regulation of hunting and trapping will not violate any constitutional right. Hunters, Anglers & Trappers Association of Vermont, Inc. v. Winooski Valley Park District, 2006 VT 82, 181 Vt. 12, 913 A.2d 391, 2006 Vt. LEXIS 317 (2006).

Regulations referred to in this section need not be promulgated by Legislature itself, but such regulations, proper in sense that they comply with constitutional requirements, may be made by Legislature through a delegation of power to make such regulations to a body or person given jurisdiction by Legislature over matters pertaining to fish and game. Elliott v. State Fish & Game Commission, 117 Vt. 61, 84 A.2d 588, 1951 Vt. LEXIS 102 (1951).

Fishing.

Portion of injunction that enjoined defendants from entering by boat upon waters overlying plaintiff’s land had to be stricken, since it implicated this section’s guarantee to those who fish. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

Power of proper regulation of common fishery in public waters is reserved to General Assembly by this section; and, in exercise of police power, it may adopt such constitutional measures as it deems necessary for preservation of such public property and common rights therein. Hazen v. Perkins, 92 Vt. 414, 105 A. 249, 1918 Vt. LEXIS 194 (1918).

Hunting and fowling.

The presence of water, whether boatable or nonboatable, is irrelevant for purposes of the right to hunt on nonenclosed, privately owned land guaranteed by this section. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

Nothing in this section suggests that its framers intended that boatability would be the standard for hunting either from boats or while standing in water. Cabot v. Thomas, 147 Vt. 207, 514 A.2d 1034, 1986 Vt. LEXIS 399 (1986).

Statutory prohibition to hunt wild deer on private enclosed lands in closed season is a proper regulation of constitutional “liberty” to hunt and fowl thereon. Zanotti v. Bolles, 80 Vt. 345, 67 A. 818, 1907 Vt. LEXIS 109 (1907).

Each resident of this State has a qualified property in wild game therein, namely, constitutional right to hunt and take same, subject to such regulations as State, in the exercise of its police power may impose for common benefit of all its people; but a nonresident of this State has no property whatever in such wild game. State v. Niles, 78 Vt. 266, 62 A. 795, 1906 Vt. LEXIS 146 (1906).

Resident is not denied his constitutional right to hunt deer under legislative regulations as to time for doing so and number of deer that may be killed by one person. State v. Niles, 78 Vt. 266, 62 A. 795, 1906 Vt. LEXIS 146 (1906).

Judicial review.

Where the Legislature is constitutionally directed to exercise its police power in areas involving the State’s wildlife, it is not for the Judiciary to pass upon the validity of the concerns expressed or the wisdom of the means chosen to deal with them. State v. Racine, 133 Vt. 111, 329 A.2d 651, 1974 Vt. LEXIS 296 (1974).

Supreme Court will not hold statutes passed for the protection of fish and game unconstitutional until it is clearly shown that they are so prohibitory as to virtually deprive the inhabitants of this State the right secured to them by this section. State v. Norton, 45 Vt. 258, 1873 Vt. LEXIS 5 (1873).

Purpose.

Legislature may regulate right to take game, in order to accomplish its decrease as well as its preservation and increase. Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913).

Rights of landowners.

Protections of the Vermont Constitution for hunting, trapping, and fishing, and the associated implementing statutes, do not diminish a landowner’s expectation of privacy against warrantless intrusion and do not require a reframing or exception to the framework established in Kirchoff, in which the Court held that Article 11 protected against warrantless searches of “open fields” when the landowner objectively demonstrated his or her intent for privacy. State v. Dupuis, 2018 VT 86, 208 Vt. 196, 197 A.3d 343, 2018 Vt. LEXIS 125 (2018).

By common law, fish, being ferae naturae, are the general property of people of the State in their united sovereignty, and owner of soil through which flows a nonboatable stream of water containing fish has only exclusive right of fishing therein within boundaries of his own territory; fish in the stream are not his and his right of property attaches only to the fish that he reduces to his actual possession, and he has no right to kill, or materially injure, or obstruct the free passage of, those he does not take. State v. Haskell, 84 Vt. 429, 79 A. 852, 1911 Vt. LEXIS 286 (1911).

During closed season an inhabitant of this State has no property in a wild deer on his enclosed land, which is there being attacked and worried by another’s duly licensed, registered and collared dog, as entitles him to kill the dog, though that be necessary to save the deer’s life. Zanotti v. Bolles, 80 Vt. 345, 67 A. 818, 1907 Vt. LEXIS 109 (1907).

While one has an exclusive right to fish in waters, not boatable, flowing through his land, and this right is private property and he may maintain trespass against any one who enters upon his land to fish without his license, riparian owners above and below are entitled to have stream remain a passageway for fish, and State may regulate time and manner in which his right of fishing shall be exercised so as to subserve common good. State v. Theriault, 70 Vt. 617, 41 A. 1030, 1898 Vt. LEXIS 92 (1898).

It cannot be said as matter of law that public has the right of fishing in pond, not reserved in grant of town, as against owners of soil underneath and around it. New England Trout & Salmon Club v. Mather, 68 Vt. 338, 35 A. 323, 1895 Vt. LEXIS 38 (1895).

Cited.

Cited in State v. Central Vermont Ry., 153 Vt. 337, 571 A.2d 1128, 1989 Vt. LEXIS 253 (1989); State v. Kirchoff, 156 Vt. 1, 587 A.2d 988, 1991 Vt. LEXIS 8 (1991); Southview Assocs. v. Bongartz, 980 F.2d 84, 1992 U.S. App. LEXIS 28524 (2d Cir. 1992); State v. Hall, 96 Vt. 379, 119 A. 884, 1923 Vt. LEXIS 181 (1923); Vermont Woolen Corp. v. Wackerman, 122 Vt. 219, 167 A.2d 533, 1961 Vt. LEXIS 60 (1961); State v. Cain, 126 Vt. 463, 236 A.2d 501, 1967 Vt. LEXIS 222 (1967); Montgomery v. Branon, 129 Vt. 379, 278 A.2d 744, 1971 Vt. LEXIS 276 (1971).

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

For note relating to legislative review of Vermont’s antlerless deer hunting regulation, see 11 Vt. L. Rev. 105 (1986).

Construction.

Drafters of Vermont Constitution did not authorize public financing of religious education in Chapter II, § 68; specification in that section that such education be “encouraged and protected” did not extend to public financing, in light of prohibition contained in Compelled Support Clause of Chapter I, Article 3. Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98, cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518, 1999 U.S. LEXIS 8352 (1999).

Education.

The current system for funding public education in Vermont is in violation of the State Constitution. A legitimate governmental purpose cannot be fathomed to justify the gross inequities in educational opportunities produced by this system, with its substantial dependence on local property taxes and resultant wide disparities in revenues available to local school districts. The distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child’s residence. Brigham v. State, 166 Vt. 246, 692 A.2d 384, 1997 Vt. LEXIS 13 (1997) (decided under facts existing before 1997 amendments to Title 16). .

While the State Constitution does not require exact equality of funding among school districts or prohibit minor disparities attributable to unavoidable local differences, it does prohibit substantial interdistrict funding disparities. Moreover, discrimination in the distribution of a constitutionally mandated right such as education may not be excused merely because a “minimal” or “adequate” level of opportunity is provided to all. The Legislature should act under the Vermont Constitution to make educational opportunity available on substantially equal terms, the specific means of discharging this broadly defined duty being properly left to its discretion. Brigham v. State, 166 Vt. 246, 692 A.2d 384, 1997 Vt. LEXIS 13 (1997) (decided under facts existing before 1997 amendments to Title 16). .

This section imposes on the General Assembly a duty in regard to education that is universally accepted as a proper public purpose. Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 1968 Vt. LEXIS 220 (1968), app. dismissed, 396 U.S. 801, 90 S. Ct. 9, 24 L. Ed. 2d 58, 1969 U.S. LEXIS 1163 (1969).

Purpose of act creating Educational Buildings Financing Agency to promote the welfare of the people of the State was a public purpose within this section. Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 1968 Vt. LEXIS 220 (1968), app. dismissed, 396 U.S. 801, 90 S. Ct. 9, 24 L. Ed. 2d 58, 1969 U.S. LEXIS 1163 (1969).

It is within the authority of the Legislature under this section to implement the association of units of local government for the purpose of jointly operating school facilities. Dresden School District v. Norwich Town School District, 124 Vt. 227, 203 A.2d 598, 1964 Vt. LEXIS 92 (1964).

Immunities.

Fact that defendant in an action for negligence is privately conducted religious and charitable institution does not entitle it to any exemption or immunity from liability for injury caused by negligence. Foster v. Roman Catholic Diocese, 116 Vt. 124, 70 A.2d 230, 1950 Vt. LEXIS 121 (1950).

Particular cases.

State Board of Education’s implementation of Act 46, regarding the involuntary merger of school districts, did not violate the Education Clause. Act 46 explicitly states the Legislature’s intent to consolidate school districts, not to close schools — and, in fact, it did not close any schools; plaintiffs’ concern over potential future school closings was purely speculative and could not at this juncture be a basis for challenging Act 46 or the Board’s implementation of the act. Athens Sch. Dist. v. Vt. State Bd. of Educ., 2020 VT 52, 212 Vt. 455, 237 A.3d 671, 2020 Vt. LEXIS 61 (2020).

Tax exemptions.

Rule that a statute providing for an exemption from taxation is to be construed strictly is not affected by provision of this section relating to religious and charitable societies. Grand Lodge of Vermont, F. & A.M. v. City of Burlington, 104 Vt. 515, 162 A. 368, 1932 Vt. LEXIS 174 (1932).

In view of the public policy of this State revealed by a long course of legislation and provision of this section that charitable societies or associations shall be encouraged and protected in the enjoyment of their privileges and immunities, statute exempting from the inheritance tax every “charitable, educational, or religious society or institution” created and existing under the laws of this State will be liberally construed in favor of such charities. In re Estate of Curtis, 88 Vt. 445, 92 A. 965, 1915 Vt. LEXIS 254 (1915).

Cited.

Cited in Congregational Soc'y v. Ashley, 10 Vt. 241, 1838 Vt. LEXIS 47 (1838); Smith v. Nelson, 18 Vt. 511, 1846 Vt. LEXIS 87 (1846); Ferriter v. Tyler, 48 Vt. 444, 1876 Vt. LEXIS 34 (1876); State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939); First National Bank of Boston v. Harvey, 111 Vt. 281, 16 A.2d 184, 1940 Vt. LEXIS 158 (1940); In re House Bill 88, 115 Vt. 524, 64 A.2d 169, 1949 Vt. LEXIS 92 (1949); Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514, 1961 Vt. LEXIS 54 (1961); Ouimette v. Babbie, 405 F. Supp. 525, 1975 U.S. Dist. LEXIS 15019 (D. Vt. 1975); Governor Clinton Council, Inc. v. Koslowski, 137 Vt. 240, 403 A.2d 689, 1979 Vt. LEXIS 974 (1979); Brigham v. State, 2005 VT 105, 179 Vt. 525, 889 A.2d 715, 2005 Vt. LEXIS 253 (2005) (mem.).

Law Reviews —

For article, “ ‘No Simple Disposition’: The Brigham Case and the Future of Local Control Over School Spending in Vermont,” see 22 Vt. L. Rev. 21 (1997).

For note, “Vermont’s Public School Finance System: A Constitutional Analysis,” see 12 Vt. L. Rev. 239 (1987).

For article, “Adequacy in Education: An Analysis of the Constitutional Standard in Vermont,” see 18 Vt. L. Rev. 7 (1993).

Purpose.

The purpose of this constitutional provision was to insulate pending workers’ compensation laws from constitutional attack, not to prevent workers from obtaining benefits based on psychological injuries. Crosby v. City of Burlington, 2003 VT 107, 176 Vt. 239, 844 A.2d 722, 2003 Vt. LEXIS 354 (2003).

Burden on challengers.

To make a prima facie case, petitioners challenging the reapportionment of voting districts must show that the State has failed to meet constitutional or statutory standards or policies with regard to a specific part of the plan; only then does the burden shift to the State, to show that satisfying those requirements was impossible because of the impermissible effect it would have had on other districts. In re Reapportionment of Towns of Woodbury and Worcester, 2004 VT 92, 177 Vt. 556, 861 A.2d 1117, 2004 Vt. LEXIS 277 (2004) (mem.).

Deviation from standards.

A 4.2% deviation from the ideal legislative district, which also did not attain the minimum percentage of deviation practicable, is within the limits permitted under the U.S. and State Constitutions and Vermont statutory law. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

Judicial review.

In reviewing specific violations claimed by petitioners challenging the reapportionment of voting districts, the redistricting plan must be considered as a whole, taking into account the statewide implications. In re Reapportionment of Towns of Woodbury and Worcester, 2004 VT 92, 177 Vt. 556, 861 A.2d 1117, 2004 Vt. LEXIS 277 (2004) (mem.).

If a redistricting plan is consistent with the fundamental constitutional requirement that districts be drawn to afford equality of representation, the Supreme Court will return it to the Legislature only when there is no rational or legitimate basis for any deviations from other constitutional or statutory criteria. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

TEMPORARY PROVISIONS