PREAMBLE

Article I.

§ 1. [Congress of the United States]

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

ANNOTATIONS

Delegation of authority.

Because of similarity of restrictions upon delegation of legislative authority implied in this section and section 8 of this article and those implied in the Vermont Constitution, United States Supreme Court cases bearing upon the question are to be considered when the propriety of such delegation is in issue. State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

Cited.

Cited in Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938).

§ 2. [House of Representatives]

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No person shall be a Representative who shall not have attained the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

History

Provisions affected by amendments. The first sentence of clause three of this section was affected as to the mode of apportionment of Representatives by § 2 of Amendment XIV, and as to taxes on income by Amendment XVI.

CROSS REFERENCES

Power to order impeachment of State Officers, see Vt. Const. Ch. II, § 57.

Vacancy in Office of United States Representative, see 17 V.S.A. § 2621 .

ANNOTATIONS

Absentee ballot.

So much of soldiers’ voting act as authorized votes to be given without the State for members of Congress and electors was not contrary to this section. Opinion of the Judges, 37 Vt. 665, 1864 Vt. LEXIS 114 (1864).

§ 3. [Senate]

[The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.]

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such vacancies].

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their own Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

History

Provisions superseded by amendment. The provisions of this section enclosed in brackets were superseded by amendment XVII.

CROSS REFERENCES

Effect of judgment in cases of impeachment of State Officers, see Vt. Const. Ch. II, § 58.

Trial of impeachments of State Officers, see Vt. Const. Ch. II, § 58.

§ 4. [Congressional elections and sessions]

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

[The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.]

History

Clause superseded by amendment. Clause two of this section, enclosed in brackets, was superseded by § 2 of Amendment XX.

ANNOTATIONS

Absentee ballot.

So much of soldiers’ voting act as authorized votes to be given without the State for members of Congress and electors was not contrary to this section. Opinion of the Judges, 37 Vt. 665, 1864 Vt. LEXIS 114 (1864).

§ 5. [Legislative procedure and rules]

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

§ 6. [Compensation; legislative privilege; incompatible offices]

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

CROSS REFERENCES

Immunity for words spoken in legislative debate guaranteed by State Constitution, see Vt. Const. Ch. I, Art. 14

ANNOTATIONS

Cited.

Cited in State v. Read, 165 Vt. 141, 680 A.2d 944, 1996 Vt. LEXIS 44 (1996); Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354, 1997 Vt. LEXIS 105 (1997).

§ 7. [Revenue bills; approval and veto; orders, resolutions and votes]

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to the House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the case of a Bill.

§ 8. [Powers of Congress]

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To Coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

ANNOTATIONS

Bankruptcy.

Where State Legislature, while national bankrupt act was in force, passed an act providing for the equal distribution of the estates of insolvent debtors, the State act, although in a degree dormant during the existence of the national act, took such vitality as was not inconsistent with that act, and was not void. Baldwin v. Buswell, 52 Vt. 57, 1879 Vt. LEXIS 148 (1879).

Counterfeit money.

The offenses of counterfeiting bills of the Bank of the United States, of passing, and of knowingly having in possession such counterfeits, with intent to pass them, were cognizable by the courts of this State under State statute against counterfeiting, notwithstanding the Congress of the United States under this section had legislated on the subject and given to the courts of the United States jurisdiction of the same offenses. State v. Randall, 2 Aik. 89 (Vt. 1827).

Delegation of authority.

Because of similarity of restrictions upon delegation of legislative authority implied in section 1 of this article and this section and those implied in the Vermont Constitution, United States Supreme Court cases bearing upon the question are to be considered when the propriety of such delegation is in issue. State Highway Board v. Gates, 110 Vt. 67, 1 A.2d 825, 1938 Vt. LEXIS 120 (1938).

Electric rate classification.

Electric rate classification rule adopted by Public Service Board did not violate Commerce Clause, where it made no distinction between in-state and out-of-state residents, and there was no evidence that it impacted out-of-state residents disproportionately. In re Central Vermont Public Service Corp., 167 Vt. 626, 711 A.2d 1158, 1998 Vt. LEXIS 63 (1998) (mem.).

Indians.

Where there was no evidence that federal government recognized any part of Vermont as Indian country and federal government had not recognized Abenaki Tribe as one with which it had trust relationship, this section did not apply to allegedly Indian defendants, and deference to sovereign which had no interests in case was inappropriate; defendants had burden of proving that they were Indians and area was Indian country. State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989).

—Exercise of power.

Any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of interstate commerce, must give way before the supremacy of the national authority. In re Squires, 114 Vt. 285, 44 A.2d 133, 1945 Vt. LEXIS 81 (1945).

Clause of this section covering interstate commerce is not self-executing, and there are incidental matters over which states have measure of authority until and unless Congress takes action thereon, so that when subject is local and limited in character and operation, state may legislate until Congress assumes control over it; but this power must be so exercised as not unreasonably to affect interstate commerce. State v. Caplan, 100 Vt. 140, 135 A. 705, 1927 Vt. LEXIS 129 (1927); In re Village of Westminster, 108 Vt. 352, 187 A. 519, 1936 Vt. LEXIS 196 (1936).

Interest rates.

Commerce Clause did not preclude application of Vermont statute prohibiting unlicensed lenders from charging, receiving, or contracting for interest in excess of 12% per annum to out-of-state commercial floor plan lender. In re Mayo, 112 B.R. 607, 1990 Bankr. LEXIS 574 (Bankr. D. Vt. 1990).

Judgment.

Where facts underlying subsequent federal court proceeding were materially different from those upon which State court’s finding of no violation of Dormant Commerce Clause was based, federal court proceeding in which owner of lined landfill claimed municipal district violated Dormant Commerce Clause by directing that solid waste be sent to one particular unlined landfill was not precluded by doctrine of collateral estoppel. Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 31 F.3d 89, 1994 U.S. App. LEXIS 20683 (2d Cir. 1994).

Labeling statute.

The court vacated a preliminary injunction against enforcement of the mercury labeling statute, 10 V.S.A. § 6621d , on the ground that the plaintiff association failed to show a likelihood of success on the merits of its claim that the statute violated the Dormant Commerce Clause since (1) the statute could be said to “require” labels on lamps sold outside Vermont only to the extent that manufacturers were unwilling to modify their production and distribution systems to differentiate between Vermont-bound and non-Vermont-bound lamps, (2) the labeling requirement did not effectively force manufacturers not to sell lamps in Vermont, and (3) there was no evidence of inconsistent labeling requirements imposed by other states. National Electrical Manufacturers Ass'n v. Sorrell, 272 F.3d 104, 2001 U.S. App. LEXIS 24026 (2d Cir. 2001), cert. denied, 536 U.S. 905, 122 S. Ct. 2358, 153 L. Ed. 2d 180, 2002 U.S. LEXIS 4244 (2002).

Licenses.

An ordinance that required an itinerant photographer engaged in interstate commerce to pay license fees and file a performance bond although no fees or performance bond were required from resident photographers was unfair and discriminatory and in violation of the Commerce Clause of this section. Olan Mills, Inc. v. City of Barre, 123 Vt. 478, 194 A.2d 385, 1963 Vt. LEXIS 142 (1963).

Statute requiring license of person peddling tea, the growth of a foreign country, was in conflict with this section. State v. Pratt, 59 Vt. 590, 9 A. 556, 1887 Vt. LEXIS 124 (1887).

Police power of state.

The Commerce Clause of this section is not a limitation upon the proper and reasonable exercise of the police power abiding in the State. In re Village of Westminster, 108 Vt. 352, 187 A. 519, 1936 Vt. LEXIS 196 (1936).

In the interests of public safety and welfare, a state may regulate motor vehicles using its highways, even though engaged in interstate transportation. State v. Caplan, 100 Vt. 140, 135 A. 705, 1927 Vt. LEXIS 129 (1927); In re Village of Westminster, 108 Vt. 352, 187 A. 519, 1936 Vt. LEXIS 196 (1936).

Sales.

13 V.S.A. § 3301(a)(3) , which permitted sale and delivery of locally made products on Sunday as an exception to the general prohibition of the Sunday business and entertainment law, was in conflict with the Commerce Clause of this section and of no force and effect. State v. Rockdale Assocs., 125 Vt. 495, 218 A.2d 718, 1966 Vt. LEXIS 218 (1966).

Where the soliciting and making of photographs occurred in a municipality but the filling of the order required their transportation from one state to another, the solicitation transaction was one of interstate commerce. Olan Mills, Inc. v. City of Barre, 123 Vt. 478, 194 A.2d 385, 1963 Vt. LEXIS 142 (1963).

Sale in this State to resident buyer of article manufactured in another state, followed by shipment to this State, was interstate commerce not subject to State control, and so not subject to statute prohibiting foreign corporation from maintaining an action in this State on contract made herein without obtaining certificate to do business. Livingston Manufacturing Co. v. Rizzi Bros., 86 Vt. 419, 85 A. 912, 1913 Vt. LEXIS 211 (1913).

So much of statute, prohibiting sale of diseased animals and meat, as penalized keeping with intent to ship out of State, was a direct interference with interstate commerce in violation of this section, and void. State v. Peet, 80 Vt. 449, 68 A. 661, 1908 Vt. LEXIS 90 (1908).

Statute authorizing seizure of intoxicating liquor, which had been ordered by residents of Vermont from dealers doing business in New York, did not interfere with interstate commerce, and was not in conflict with this section, where the liquor was intended for unlawful use. State v. O'Neil, 58 Vt. 140, 2 A. 586, 1885 Vt. LEXIS 20 (1885).

Under this section, before any federal legislation upon the subject, a Vermont resident could lawfully import from another state and sell in Vermont intoxicating liquor in original package. Yearteau v. Bacon's Estate, 65 Vt. 516, 27 A. 198, 1892 Vt. LEXIS 33 (1892).

Taxation.

32 V.S.A. § 8911(8) , which imposes a use tax on family transfers of vehicles coming from outside the State, but does not impose a similar tax on the same family transfer inside the State, violates both the Equal Protection Clause and the Commerce Clause of the United States Constitution. Pawa v. McDonald, 921 F. Supp. 227, 1996 U.S. Dist. LEXIS 5256 (D. Vt. 1996).

Test for determining if a tax violates the Commerce Clause is whether activity taxed has a substantial nexus with the State, whether tax is fairly apportioned, whether tax discriminates against interstate commerce, and whether tax is fairly related to benefits provided by state. Barringer v. Griffes, 1 F.3d 1331, 1993 U.S. App. LEXIS 20369 (2d Cir. 1993), cert. denied, 510 U.S. 1072, 114 S. Ct. 879, 127 L. Ed. 2d 75, 1994 U.S. LEXIS 997 (1994).

Vermont motor vehicle purchase and use tax violated Commerce Clause to extent that use tax was collected from out-of-state residents without crediting sales taxes they may have paid to other states; in absence of such a credit, tax discriminated against interstate commerce by providing advantage to local automobile dealers whose products would effectively cost less, inducing individuals moving to Vermont to purchase their automobiles in Vermont. Barringer v. Griffes, 1 F.3d 1331, 1993 U.S. App. LEXIS 20369 (2d Cir. 1993), cert. denied, 510 U.S. 1072, 114 S. Ct. 879, 127 L. Ed. 2d 75, 1994 U.S. LEXIS 997 (1994).

Vermont motor vehicle use tax was not fairly apportioned and therefore violated Commerce Clause; if all states employed Vermont’s tax plan and did not provide credit for taxes paid to other states, a vehicle registered in several states during its useful life would be taxed considerably more than a vehicle that spent its entire life in one state, thus burdening vehicles transported in interstate commerce. Barringer v. Griffes, 1 F.3d 1331, 1993 U.S. App. LEXIS 20369 (2d Cir. 1993), cert. denied, 510 U.S. 1072, 114 S. Ct. 879, 127 L. Ed. 2d 75, 1994 U.S. LEXIS 997 (1994).

A state tax does not offend the Commerce Clause if it is applied to an activity that has a substantial nexus with taxing state, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to benefits provided by state. Barringer v. Griffes, 801 F. Supp. 1282, 1992 U.S. Dist. LEXIS 14953 (D. Vt. 1992), rev'd, 1 F.3d 1331, 1993 U.S. App. LEXIS 20369 (2d Cir. 1993).

Merely because an activity affects or is affected by interstate commerce does not by itself foreclose a state’s power to tax that activity. Barringer v. Griffes, 801 F. Supp. 1282, 1992 U.S. Dist. LEXIS 14953 (D. Vt. 1992), rev'd, 1 F.3d 1331, 1993 U.S. App. LEXIS 20369 (2d Cir. 1993).

When personal property has been brought into a state and come to a permanent rest, or merely halted for a moment before resuming its interstate journey, taxes upon the privilege of use, storage, or consumption within the state do not impose an unconstitutional burden on interstate commerce. 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).

A state tax will be sustained under the Commerce Clause of this section when (1) the business activity is sufficiently corrected to the state to justify a tax, (2) the tax is fairly related to benefits provided the taxpayer, (3) the tax does not discriminate against interstate commerce, and (4) the tax is fairly apportioned. Frank W. Whitcomb Construction Corp. v. Commissioner of Taxes, 144 Vt. 466, 479 A.2d 164, 1984 Vt. LEXIS 506 (1984).

To be upheld under the Commerce Clause of this section, a tax on interstate commerce must be applied to an activity with a substantial nexus with the taxing state, must be fairly apportioned, must not discriminate against interstate commerce, and must be fairly related to the services provided by the state. American Trucking Ass'ns v. Conway, 142 Vt. 17, 451 A.2d 42, 1982 Vt. LEXIS 575 (1982).

All tax burdens do not impermissibly impede interstate commerce; the Commerce Clause balances tips against the tax only when it unfairly burdens commerce by exacting more than a just share from the interstate activity. American Trucking Ass'ns v. Conway, 142 Vt. 17, 451 A.2d 42, 1982 Vt. LEXIS 575 (1982).

Validity of franchise tax on foreign corporation under Commerce Clause of this section depends upon circumstances of each case. Ruppert v. Commissioner of Taxes, 117 Vt. 83, 85 A.2d 584, 1952 Vt. LEXIS 103 (1952).

The interstate Commerce Clause of this section does not give immunity to movable property from local taxation which is not discriminative unless it is in actual continuous transit in interstate commerce. Central Vermont Railway v. Campbell, 108 Vt. 510, 192 A. 197, 1937 Vt. LEXIS 154 (1937).

A state may tax property used to carry on interstate commerce, but the tax must place no direct burden upon such commerce. Central Vermont Railway v. Campbell, 108 Vt. 510, 192 A. 197, 1937 Vt. LEXIS 154 (1937).

Motor vehicles act making charge on motor vehicles owned by nonresidents maintaining regular schedule of more than 30 trips in any calendar year over highways of State was not unconstitutional as an unwarrantable interference with interstate commerce. State v. Caplan, 100 Vt. 140, 135 A. 705, 1927 Vt. LEXIS 129 (1927).

While property actually in transit from one state to another is exempt from local taxation as an unlawful interference with interstate commerce, there may be an interior movement of property which does not constitute interstate commerce, although it comes from or is destined to another state. Champlain Realty Co. v. Town of Brattleboro, 95 Vt. 216, 113 A. 806, 1921 Vt. LEXIS 205 (1921), rev'd, 260 U.S. 366, 43 S. Ct. 146, 67 L. Ed. 309, 1922 U.S. LEXIS 2378 (1922).

The State has power to tax its own products while within its jurisdiction, although intended for exportation, if taxed as part of the general mass of property in the State, unless and until such products have become the subject of interstate commerce. Champlain Realty Co. v. Town of Brattleboro, 95 Vt. 216, 113 A. 806, 1921 Vt. LEXIS 205 (1921), rev'd, 260 U.S. 366, 43 S. Ct. 146, 67 L. Ed. 309, 1922 U.S. LEXIS 2378 (1922).

State tax levied upon gross receipts of railroad companies was unconstitutional as a regulation of commerce insofar as it taxed gross receipts derived from interstate business. Rutland R.R. v. Central Vermont R.R., 63 Vt. 1, 21 A. 262, 731, 1890 Vt. LEXIS 48 (1890).

Taxes.

Federal bankruptcy code preempted State tort claims alleging violations of automatic stay in bankruptcy, and therefore District Court properly held that it lacked subject matter jurisdiction to review claims. Eastern Equipment & Services Corp. v. Factory Point National Bank, 236 F.3d 117, 2001 U.S. App. LEXIS 79 (2d Cir. 2001).

The purpose of the federal and State tax laws is to provide revenue for the support of the government. Littlefield v. Department of Employment & Training, 143 Vt. 495, 468 A.2d 566, 1983 Vt. LEXIS 565 (1983).

Cited.

Cited in Sargent v. Rutland Railroad, 86 Vt. 328, 85 A. 654, 1913 Vt. LEXIS 203 (1913); Kinnear & Gager Manufacturing Co. v. Miner, 89 Vt. 572, 96 A. 333, 1916 Vt. LEXIS 318 (1916); In re Guerra, 94 Vt. 1, 110 A. 224, 1920 Vt. LEXIS 162 (1920); Village of Waterbury v. Melendy, 109 Vt. 441, 199 A. 236, 1938 Vt. LEXIS 154 (1938); Portland Pipe Line Corp. v. Morrison, 118 Vt. 417, 110 A.2d 700, 1955 Vt. LEXIS 103 (1955); Mobil Oil Corp. v. Commissioner of Taxes, 136 Vt. 545, 394 A.2d 1147, 1978 Vt. LEXIS 664 (1978); Rowe-Genereux, Inc. v. Department of Taxes, 138 Vt. 130, 411 A.2d 1345, 1980 Vt. LEXIS 1038 (1980); Bigelow v. Department of Taxes, 163 Vt. 33, 652 A.2d 985, 1994 Vt. LEXIS 169 (1994); Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354, 1997 Vt. LEXIS 105 (1997).

Law Reviews —

For note, “Daminozide and the New England Apple Crop: A National Definition of ‘Safe’?,” see 12 Vt. L. Rev. 181 (1987).

For article, “Beyond Standing: Proposals for Congressional Response to Supreme Court ‘Standing’ Decisions,” see 13 Vt. L. Rev. 675 (1989).

For note, “Solid Waste Source Reduction and the Product Ban: A Commerce Clause Violation?,” see 13 Vt. L. Rev. 691 (1989).

For note, “The Indian Gaming Regulatory Act: A Forum for Conflict Among the Plenary Power of Congress, Tribal Sovereignty, and the Eleventh Amendment,” see 18 Vt. L. Rev. 127 (1993).

For article, “The Thurgood Marshall Papers and the Quest of a Principled Theory of Tribal Sovereignty: Fueling the Fires of Tribal/State Conflict,” see 21 Vt. L. Rev. 47 (1996).

For article, “The Influence of International Environmental Law on United States Pollution Control Law,” see 21 Vt. L. Rev. 759 (1997).

§ 9. [Powers Denied Congress]

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

History

Clause affected by amendment. Clause four of this section was affected by Amendment XVI.

ANNOTATIONS

Ex post facto laws.

With regard to defendant’s Ex Post Facto Clause claim, designating defendant “high risk” was for the sole purpose of increasing public access to his status as a sex offender and related information; after the trial court’s decision holding that the statute prohibiting early release until 70 percent of a “high risk” offender’s maximum sentence was completed violated the Ex Post Facto Clause, that statute had no legal effect on the length of defendant’s incarceration; and defendant could point to no statute or administrative directive that retroactively removed or limited the Vermont Department of Corrections’ discretion over his treatment programming and that consequently resulted in a longer period of incarceration. Chandler v. Pallito, 2016 VT 104, 203 Vt. 482, 158 A.3d 296, 2016 Vt. LEXIS 110 (2016).

A sentencing court may, consistent with the Ex Post Facto Clause, apply the Mandatory Victims Restitution Act (MVRA) to defendants whose conspiracies began before, but ended after, the MVRA’s effective date. United States v. Boyd, 239 F.3d 471, 2001 U.S. App. LEXIS 560 (2d Cir. 2001).

Mandatory minimum sentencing statute that increased penalties for original offense, imposed on defendant for violating conditions of supervised release, was unconstitutional ex post facto as applied to defendant where defendant’s original offense occurred prior to the effective date of the statute. United States v. Meeks, 25 F.3d 1117, 1994 U.S. App. LEXIS 13248 (2d Cir. 1994).

Cited.

Cited in United States v. Blackmer, 909 F.2d 66 (2d Cir. 1990), vacated and remanded, 499 U.S. 944, 111 S. Ct. 1409, 113 L. Ed. 2d 462 (1991).Meunerie Sawyerville, Inc. v. Birt, 161 Vt. 280, 637 A.2d 1082, 1994 Vt. LEXIS 2 (1994).

Law Reviews —

For article, “Inadequate and Ineffective Congress Suspends the Writ of Habeas Corpus for Noncitizens Challenging Removal Orders by Failing to Provide a Way to Introduce New Evidence,” see 31 Vt. L. Rev. 735 (2007).

§ 10. [Powers denied the several states]

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

ANNOTATIONS

Bankruptcy.

Congress has express power to enact bankruptcy laws directly impairing obligation of contracts, and it may pass laws in the execution of other powers expressly given, which incidentally have that effect; but other than this, it has no constitutional power to impair or destroy vested rights. United States use of J.G. Strait & Son v. United States Fidelity & Guaranty Co., 80 Vt. 84, 66 A. 809, 1907 Vt. LEXIS 78 (1907).

Bonds.

A special act freeing body of a debtor from imprisonment, and providing that all bonds taken by the sheriff, on admission of debtor to liberties of the prison, were discharged, would be invalid as an impairment of obligation of contract if construed to extend to a case where debtor had committed an escape from liberties of the prison, before passing of the act. Starr v. Robinson, 1 D. Chip. 257 (Vt. July 1, 1814).

Construction.

Contract Clause does not impose an absolute prohibition, but rather accommodates inherent police power of State to safeguard vital interests of its people. Cranley v. National Life Insurance Co., 144 F. Supp. 2d 291, 2001 U.S. Dist. LEXIS 6915 (D. Vt. 2001), aff'd, 318 F.3d 105, 2003 U.S. App. LEXIS 922 (2d Cir. 2003).

Impairment of a contract only violates the Contract Clause of this section if it is not reasonable and necessary to achieve an important public purpose. Burlington Fire Fighters' Ass'n v. City of Burlington, 149 Vt. 293, 543 A.2d 686, 1988 Vt. LEXIS 42 (1988).

Employment contracts.

An employee’s vested pension rights may be modified by legislation prior to retirement if such modifications are reasonable, since it allows the pension system to adapt to changing conditions. Burlington Fire Fighters' Ass'n v. City of Burlington, 149 Vt. 293, 543 A.2d 686, 1988 Vt. LEXIS 42 (1988).

Amendment to city’s pension plan that required retroactive contributions into the pension fund in exchange for increased benefits did not impair employee’s contract in violation of this section. Burlington Fire Fighters' Ass'n v. City of Burlington, 149 Vt. 293, 543 A.2d 686, 1988 Vt. LEXIS 42 (1988).

State law providing for liability of railroad corporations to day laborers employed by contractors did not impair obligation of contracts. Branin v. Connecticut & Passumpsic Rivers Railroad, 31 Vt. 214, 1858 Vt. LEXIS 129 (1858).

Ex post facto laws.

Plaintiffs had not shown an Ex Post Facto Clause violation in that statutory and administrative changes subsequent to their incarceration did not remove or limit the discretion vested in the Parole Board and the Department of Corrections. The statute enumerating “listed crimes” for purposes of the victims’ rights statute did not increase or even apply to the length of plaintiffs’ incarceration, and thus did not facially violate the Ex Post Facto Clause; furthermore, there was no evidence that in 1992, inmates like plaintiffs who were convicted of serious violent offenses and were determined to pose a high risk of reoffending would have been released at their minimum even if they completed programming. Wool v. Pallito, 2018 VT 63, 207 Vt. 586, 193 A.3d 510, 2018 Vt. LEXIS 75 (2018).

The 1999 addition of the list of offenses that qualify as “listed crimes” for purposes of the victims’ rights statute did not change the statutory punishment for any of the listed crimes; nor did the amendment alter the standards for determining either the initial date for parole eligibility or an inmate’s suitability for parole. The statute does not increase or even apply to the length of incarceration, and therefore does not facially violate the Ex Post Facto Clause. Wool v. Pallito, 2018 VT 63, 207 Vt. 586, 193 A.3d 510, 2018 Vt. LEXIS 75 (2018).

Although the facts alleged in the affidavit supported a charge of aggravated sexual assault, defendant’s inability to ascertain the penalty prejudiced defendant and violated his right under the rule regarding the nature and contents of an indictment or information to be notified of the charges. Moreover, because defendant’s underlying convictions violated the Ex Post Facto Clause, relying on the sufficiency of the information to find defendant guilty of the statutes in effect at the time of his alleged acts stretched the limits of the rule. State v. Rondeau, 2016 VT 117, 203 Vt. 518, 159 A.3d 1073, 2016 Vt. LEXIS 122 (2016).

Retrospectively applied sentencing range—a ten year mandatory minimum with a maximum of life in prison—created a sufficient risk that defendant would receive a higher sentence and, as a result, constituted an ex post facto violation under Calder’s third category. State v. Rondeau, 2016 VT 117, 203 Vt. 518, 159 A.3d 1073, 2016 Vt. LEXIS 122 (2016).

Defendant’s conviction violated the Ex Post Facto Clause in two respects: first, the law specifically prohibiting aggravated sexual assault of a child did not exist at the time the alleged acts occurred; second, an analogous law in effect when the alleged acts occurred—aggravated sexual assault as part of a common scheme—imposed a lesser mandatory minimum than the statute defendant was convicted of violating. State v. Rondeau, 2016 VT 117, 203 Vt. 518, 159 A.3d 1073, 2016 Vt. LEXIS 122 (2016).

Petitioner’s inability to complete a rehabilitative program by the expiration of his minimum sentence, which was restored following petitioner’s successful challenge to the application of the delayed-release statute, was not in and of itself an Ex Post Facto Clause violation. It was at most a collateral consequence of a constellation of factors. In re Blow, 2013 VT 75, 194 Vt. 416, 82 A.3d 554, 2013 Vt. LEXIS 73 (2013).

If in fact the 2001 amendment to the furlough statute created a sufficient risk of eliminating an inmate’s eligibility for parole, then the inmate’s claim of an Ex Post Facto Clause violation might prevail. Whether the amendment here produced a significant risk of increasing the inmate’s sentence could not be determined without the factual development precluded by trial court’s granting of a motion to dismiss. Girouard v. Hofmann, 2009 VT 66, 186 Vt. 153, 981 A.2d 419, 2009 Vt. LEXIS 51 (2009).

Statute conferring upon justices of the peace jurisdiction of an offense committed prior to passage of the statute was not unconstitutional as an ex post facto law, since it related solely to the remedy by which an offense, as it existed under the law then in force, could be punished in accordance with that law, and did not change the punishment, the rules of evidence, nor what constituted the offense. State v. Welch, 65 Vt. 50, 25 A. 900, 1891 Vt. LEXIS 48 (1891).

—Corporations.

The Contract Clause of the United States Constitution does not prohibit states from enforcing statutes that regulate an industry, in part, by prospectively prohibiting unconscionable or financially irresponsible contracts. In re Palmer, 171 Vt. 464, 769 A.2d 623, 2000 Vt. LEXIS 385 (2000).

Statute providing for reorganization of domestic mutual insurance companies into mutual insurance holding companies did not effect an impairment, substantial or otherwise, to contractual relationships between a mutual insurance company and its policyholders. Cranley v. National Life Insurance Co., 144 F. Supp. 2d 291, 2001 U.S. Dist. LEXIS 6915 (D. Vt. 2001), aff'd, 318 F.3d 105, 2003 U.S. App. LEXIS 922 (2d Cir. 2003).

Stipulation in charter of corporation, not subject to alteration or repeal, respecting rate of taxation, providing for commutation or for entire exemption of corporation property, accepted and acted upon by corporation, was inviolable contract under this section, and could not be revoked by subsequent statute or by amendment to State Constitution without assent of corporation. Brattleboro Retreat v. Town of Brattleboro, 106 Vt. 228, 173 A. 209, 1934 Vt. LEXIS 165 (1934).

Grant of land by Legislature to a corporation aggregate with perpetual succession needs no words of perpetuity, vests a title indefeasible by the State, and is a contract the obligation of which the State cannot impair. Trustees of Caledonia County Grammar School v. Howard, 84 Vt. 1, 77 A. 877, 1910 Vt. LEXIS 155 (1910).

A corporate charter is a contract between the state and the corporation, and protected by this section, like any other contract, from legislation impairing its obligation. Lawrence v. Rutland Railroad, 80 Vt. 370, 67 A. 1091, 1907 Vt. LEXIS 115 (1907).

The Legislature may control the action, prescribe the functions and duties of corporations, and impose restraints upon them, subject to the limitation of not impairing the obligation of contracts. Thorpe v. Rutland & Burlington Railroad, 27 Vt. 140, 1854 Vt. LEXIS 111 (1854).

The Legislature can pass no act, impairing rights or privileges of a corporation, opposed to the original grant, without its consent. Pingry v. Washburn, 1 Aik. 264 (Vt. Feb. 1, 1826).

Import duties.

Statute requiring license of person peddling tea, the growth of a foreign country, was in conflict with this section. State v. Pratt, 59 Vt. 590, 9 A. 556, 1887 Vt. LEXIS 124 (1887).

Interstate compacts.

If a compact between states does not fall within the Compact Clause of this section, it is not invalid for lack of congressional consent. In re D.B., 139 Vt. 634, 431 A.2d 498, 1981 Vt. LEXIS 517, cert. denied, 454 U.S. 874, 102 S. Ct. 349, 70 L. Ed. 2d 181, 1981 U.S. LEXIS 3789 (1981).

Act authorizing participation by town in an interstate school district created in accordance with the Compact Clause of this section was not an unconstitutional delegation of sovereignty. Dresden School District v. Norwich Town School District, 124 Vt. 227, 203 A.2d 598, 1964 Vt. LEXIS 92 (1964).

Mortgages.

Statute providing annual appointment of trustees impaired obligation of mortgage deed that set up trust. Fletcher v. Rutland & Burlington Railroad, 39 Vt. 633, 1858 Vt. LEXIS 156 (1858).

Statute that validated prior invalid and informal executions levied upon land encumbered by mortgage did not impair or vary obligation of contracts. Pratt v. Jones, 25 Vt. 303, 1853 Vt. LEXIS 42 (1853).

Municipalities.

The power of the State over municipal property held and used for governmental purposes is unrestrained by the contract clause of this section. Jones v. Vermont Asbestos Corp., 108 Vt. 79, 182 A. 291, 1936 Vt. LEXIS 154 (1936).

Towns are creations of Legislature and constituted for governmental purposes, and so the rights and franchises of a town never can become vested rights as against State, which may enlarge, restrict, and even destroy its corporate existence, as the public good requires; and such action neither defeats vested rights nor impairs contract obligations within meaning of this section. Town of Montpelier v. Town of East Montpelier, 29 Vt. 12, 1856 Vt. LEXIS 137 (1856); Sargent v. Clark, 83 Vt. 523, 77 A. 337, 1910 Vt. LEXIS 226 (1910).

Remedies.

Statute, providing that a surety could make any defense which the principal could, was not unconstitutional, since it pertained only to the remedy and did not impair obligation of the contract. Flagg v. Locke, 74 Vt. 320, 52 A. 424, 1902 Vt. LEXIS 137 (1902).

While the legislature of a state may make laws affecting the remedy for the enforcement of a contract, altering its character, or substituting one remedy for another, it cannot, by reason of the prohibition against impairing the obligation of contracts, deprive a party of all remedy. Town of Strafford v. Town of Sharon, 61 Vt. 126, 17 A. 793, 1888 Vt. LEXIS 122 (1888).

As attachment was not a part of the contract, but a remedy for the breach of it, the Legislature might provide that where a debtor had not sufficient property to pay all his debts it should be equitably distributed among all his creditors. Baldwin v. Buswell, 52 Vt. 57, 1879 Vt. LEXIS 148 (1879).

Laws that change and modify remedies, forms of proceedings, or the tribunal itself are recognized as valid, provided they do not directly or indirectly destroy or abolish all remedy whatever by which performance of any class of valid legal contracts may be enforced. Richardson v. Cook, 37 Vt. 599, 1865 Vt. LEXIS 36 (1865).

Retroactive legislation.

The fact that legislation is retroactive is not by itself sufficient to establish a violation of the Contract Clause of this section. Burlington Fire Fighters' Ass'n v. City of Burlington, 149 Vt. 293, 543 A.2d 686, 1988 Vt. LEXIS 42 (1988).

Schools.

Statute appropriating land to use of school and subsequent acceptance and possession of lands by school constituted an executed grant or gift, which subsequent legislatures could not revoke. Franklin County Grammar School v. Bailey, 62 Vt. 467, 20 A. 820, 1889 Vt. LEXIS 126 (1889).

A grant for purpose of education cannot be vacated or controlled by the Legislature, any more than if made for a private purpose. Trustees of Caledonia County Grammar School v. Burt, 11 Vt. 632, 1839 Vt. LEXIS 141 (1839).

Taxes.

State law requiring tax to be paid by lessor railroad, and deducted from rent covenanted for in lease, did not impair obligation of contracts, since the parties made their lease with notice of, and in subordination to, the right of the State to exact from the fruits of their contract by way of taxation such sum as it might properly collect for public purposes. Rutland R.R. v. Central Vermont R.R., 63 Vt. 1, 21 A. 262, 731, 1890 Vt. LEXIS 48 (1890).

Cited.

Cited in City of Montpelier v. Town of Sharon, 113 Vt. 315, 34 A.2d 116, 1943 Vt. LEXIS 175 (1943); Massachusetts Municipal Wholesale Electric Co. v. State, 161 Vt. 346, 639 A.2d 995, 1994 Vt. LEXIS 5 (1994).

Notes to Opinions

Ex post facto laws.

Legislation having a retrospective effect is not subject to the prohibition imposed by this article upon the passage by any state of an ex post facto law. 1964-66 Vt. Op. Att'y Gen. 146.

Article II.

§ 1. [President of the United States]

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.]

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath of Affirmation:—

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

History

Clauses affected by amendments. Clause three of this section, enclosed in brackets, was superseded by Amendment XII.

Clauses affected by amendments. Clause six of this section was affected by Amendment XXV.

CROSS REFERENCES

Presidential elections, see 17 V.S.A. § 2701 et seq.

ANNOTATIONS

Election.

Under this section, appointment of electors has been variously provided for by state legislatures, and the only power given Congress is that of fixing time of election. Opinion of the Judges, 37 Vt. 665, 1864 Vt. LEXIS 114 (1864).

§ 2. [Powers of President]

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

§ 3. [Duties of President]

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Law Reviews —

For paper, “Congress, the Courts, and Regulatory Oversight after Meyer v. Bush : Should the Executive Office of the President be Shielded from Congressional Sunshine?,” 18 Vt. L. Rev. 823 (1994).

§ 4. [Impeachment]

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III.

§ 1. [Vesting of judicial power; compensation of judges]

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Law Reviews —

For article, “Restoring Citizen Suits After Lujan v. Defenders of Wildlife: The Use of Cooperative Federalism to Induce Non-Article III Standing in State Courts,” see 21 Vt. L. Rev. 977 (1997).

§ 2. [Jurisdiction of courts]

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of Admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by jury; and Such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

CROSS REFERENCES

Right to jury trial in suits at common law, see Amendment VII.

Right to trial by impartial jury in criminal cases, see Amendment VI.

Suits against the states, see Amendment XI.

ANNOTATIONS

Bankruptcy courts.

Bankruptcy courts are creations of the Legislative Branch, constituted under Article I, not this article. All Season's Kitchen, Inc. v. FDIC, 145 B.R. 391, 1992 Bankr. LEXIS 1531 (Bankr. D. Vt. 1992).

The bankruptcy court operates as a unit of the federal district court, which is an Article III court, and exercises limited jurisdiction delegated to it by the district court. All Season's Kitchen, Inc. v. FDIC, 145 B.R. 391, 1992 Bankr. LEXIS 1531 (Bankr. D. Vt. 1992).

“Cases” and “controversies.”.

The case-or-controversy requirement of Article III incorporates the doctrines of standing, mootness, ripeness, and political question, all of which help define and limit the role of the courts to ensure proper balance among the three branches of government. Brigham v. State, 2005 VT 105, 179 Vt. 525, 889 A.2d 715, 2005 Vt. LEXIS 253 (2005) (mem.).

Plaintiffs bringing pre-enforcement facial challenge against statute need not demonstrate to a certainty that they will be prosecuted under statute to show injury, but only that they have an actual and well-founded fear that law will be enforced against them. Landell v. Sorrell, 118 F. Supp. 2d 459, 2000 U.S. Dist. LEXIS 11606 (D. Vt. 2000), aff'd in part, vacated in part, 300 F.3d 129, 2002 U.S. App. LEXIS 15770 (2d Cir. 2002), aff'd in part, vacated in part, 382 F.3d 91, 2002 U.S. App. LEXIS 28171 (2d Cir. 2002) (issue not raised on appeal).

Concurrent jurisdiction.

Jurisdiction of United States courts under acts of Congress, and of courts of this State, under Vermont law, over counterfeiting, are concurrent within this State. State v. Randall, 2 Aik. 89 (Vt. 1827).

Exclusive jurisdiction.

United States courts alone have jurisdiction to decide validity of seizures of vessels on Lake Champlain, made by officers of United States, under laws of Congress, where proceedings are in rem, or where the action divests the officer of possession of the property seized. Stoughton v. Mott, 13 Vt. 175, 1841 Vt. LEXIS 34 (1841).

Judicial restraint.

One of the passive virtues of the standing doctrine and case-or-controversy requirements is to promote judicial restraint by limiting the occasions for judicial intervention into the political process. Thus, for a court to maintain its proper role among the three branches of government, it must exercise judicial restraint by not asserting jurisdiction over claims that are moot or not yet ripe, or that pose a political question. Brigham v. State, 2005 VT 105, 179 Vt. 525, 889 A.2d 715, 2005 Vt. LEXIS 253 (2005) (mem.).

Prudential judicial restraint in and of itself does not excuse the court from its duty to uphold the constitution. Brigham v. State, 2005 VT 105, 179 Vt. 525, 889 A.2d 715, 2005 Vt. LEXIS 253 (2005) (mem.).

State court jurisdiction.

The unexercised jurisdiction of United States district court over question involving bankruptcy does not oust Vermont Supreme Court of jurisdiction, when question arises collaterally by way of defense to an action in which State court has jurisdiction of parties and subject matter. Wilkinson v. Wait, 44 Vt. 508, 1872 Vt. LEXIS 56 (1872).

Jurisdiction of State court is not defeated because subject matter of action concerns use of an exclusive patent, so long as question of validity of the patent is not necessarily involved, but arises only incidentally, and by way of defense. Sherman v. Champlain Transp. Co., 31 Vt. 162, 1858 Vt. LEXIS 124 (1858).

Subject matter jurisdiction.

Pendent jurisdiction exists only where state and federal claims form part of the same “case or controversy” under this article, tested by whether claims share a common nucleus of operative fact such that plaintiff would ordinarily be expected to try them all in one judicial proceeding. Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 2000 U.S. App. LEXIS 8710 (2d Cir. 2000).

Cited.

Cited in State v. Dragon, 131 Vt. 500, 310 A.2d 24, 1973 Vt. LEXIS 339 (1973); Parker v. Town of Milton, 169 Vt. 74, 726 A.2d 477, 1998 Vt. LEXIS 405 (1998); Agency of Natural Resources v. United States Fire Insurance Co., 173 Vt. 302, 796 A.2d 476, 2001 Vt. LEXIS 384 (2001).

Law Reviews —

For article, “Restoring Citizen Suits After Lujan v. Defenders of Wildlife: The Use of Cooperative Federalism to Induce Non-Article III Standing in State Courts,” see 21 Vt. L. Rev. 977 (1997).

For article, “Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism,” see 31 Vt. L. Rev. 447 (2007).

§ 3. [Treason]

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

ANNOTATIONS

Generally.

Within limits defined by Congress, federal courts have an unflagging obligation to exercise their jurisdiction to adjudicate controversies. Costle v. Fremont Indemnity Co., 839 F. Supp. 265, 1993 U.S. Dist. LEXIS 17768 (D. Vt. 1993).

Standing.

Plaintiff, a supplier of gravel to builders of State and local roads, which brought a 42 U.S.C. § 1983 civil rights action against the State when it adopted a policy of not allowing gravel to be used in areas where stone was available, lacked standing to assert an equal protection claim because its interest in competing on an equal basis with suppliers of stone was neither a legally protected interest guaranteed by the Equal Protection Clause nor was it within the “zone of interests” protected by § 1983. Plaintiff was not a bidder or a prospective bidder, but, at best, had a hope that if the bid specifications were changed, it might enter into a subcontract with a company that might obtain a primary contract from defendant in the future. Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 693 A.2d 1045, 1997 Vt. LEXIS 33 (1997).

Cited.

Cited in Derby v. Town of Hartford, 599 F. Supp. 130, 1984 U.S. Dist. LEXIS 21870 (D. Vt. 1984); Solomon v. Atlantis Development, Inc., 145 Vt. 70, 483 A.2d 253, 1984 Vt. LEXIS 546 (1984); Merrow v. Goldberg, 674 F. Supp. 1130, 1986 U.S. Dist. LEXIS 19222 (D. Vt. 1986); LaFrance v. Rampone, 678 F. Supp. 72, 1988 U.S. Dist. LEXIS 1103 (D. Vt. 1988); 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 note relating to developments in the doctrines of pendent and ancillary jurisdiction, see 11 Vt. L. Rev. 505 (1986).

For article, “Beyond Standing: Proposals for Congressional Response to Supreme Court ‘Standing’ Decisions,” see 13 Vt. L. Rev. 675 (1989).

Article IV.

§ 1. [Full faith and credit]

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

ANNOTATIONS

Divorce.

The Full Faith and Credit Clause of the United States Constitution does not apply to judgments obtained in a foreign country, and so a United States court may, but is not required to, recognize a divorce decree from a foreign country under the doctrine of comity. Adams v. Adams, 2005 VT 4, 177 Vt. 448, 869 A.2d 124, 2005 Vt. LEXIS 6 (2005).

Full faith and credit of a foreign divorce judgment is conclusive in Vermont only if there was jurisdiction to render the judgment. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

Under the doctrine of divisible divorce, issues other than the dissolution of the marriage are severed from the divorce action when the court does not have personal jurisdiction over one spouse; in that case, the judgment does not resolve issues other than the marital status of the parties. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

Where Texas court lacked jurisdiction to determine wife’s rights, its judgment was not given binding effect, beyond the dissolution of the parties’ marriage. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

Under this section and its implementing statute, a final decree of divorce rendered in one state must be given the same validity and effect in Vermont as given in the state in which it was entered, providing the jurisdictional requirements are satisfied. Taddeo v. Taddeo, 141 Vt. 120, 446 A.2d 360, 1982 Vt. LEXIS 501 (1982).

This section precludes a party who has appeared in a foreign divorce proceeding, without questioning jurisdiction, or one who has been served with process within the foreign state, from attacking the judgment in the courts of a sister state. Cook v. Cook, 117 Vt. 173, 86 A.2d 923, 1952 Vt. LEXIS 121 (1952); In re Estate of Shufelt, 125 Vt. 131, 211 A.2d 173, 1965 Vt. LEXIS 211 (1965).

This section does not bar relitigation of the issue of domicile as the jurisdictional basis of an ex parte divorce. Walker v. Walker, 124 Vt. 172, 200 A.2d 267, 1964 Vt. LEXIS 78 (1964).

This section does not require a state to give more credit to a divorce decree than it had where rendered. Miller v. Miller, 123 Vt. 221, 186 A.2d 93, 1962 Vt. LEXIS 228 (1962).

This section requires extraterritorial recognition of validity of divorce decree obtained in accordance with requirements of procedural due process in state by the spouse who under law of such state had acquired bona fide domicile there, although the spouse who remained in state of original matrimonial domicile did not appear in divorce suit and was not served with process in state in which divorce was granted. Loeb v. Loeb, 118 Vt. 472, 114 A.2d 518, 1955 Vt. LEXIS 115 (1955).

When the petitionee in a divorce case appears, and has the opportunity to contest the jurisdiction but does not do so, or when the petitionee has been personally served with process in the state and the proceedings may not be attacked on jurisdictional grounds by the parties who were actually before the court or by their privies or by strangers in the courts of the state in which the divorce was rendered, this section precludes their attacking it in the courts of a sister state. Cook v. Cook, 117 Vt. 173, 86 A.2d 923, 1952 Vt. LEXIS 121 (1952).

This section does not require courts of one state to give effect to decree of divorce rendered by court of another state, even though decree is valid there, but was rendered without appearance of libelee or personal service on him within that jurisdiction. Blondin v. Brooks, 83 Vt. 472, 76 A. 184, 1910 Vt. LEXIS 217 (1910).

Final judgment.

This section applies only where there has been a final judgment on merits of case. In re Forslund, 123 Vt. 341, 189 A.2d 537, 1963 Vt. LEXIS 117 (1963).

Finality of judgment is the test as to whether this section is to be respected. Miller v. Miller, 123 Vt. 221, 186 A.2d 93, 1962 Vt. LEXIS 228 (1962).

Form of action on judgment.

A judgment of another state constitutes of itself a debt of record, so that an action of debt lies upon it. Boston India Rubber Factory v. Hoit, 14 Vt. 92, 1842 Vt. LEXIS 16 (1842); David McGilvray & Co. v. Avery, 30 Vt. 538, 1858 Vt. LEXIS 67 (1858); Eastern Townships Bank v. H. S. Beebe & Co., 53 Vt. 177, 1880 Vt. LEXIS 105 (1880).

Judgment in New Hampshire for penalty of bond with execution for first installment did not create an absolute indebtedness against defendant, which could be enforced in Vermont by action of debt upon judgment, in common form, for subsequent installments. Dimick v. Brooks, 21 Vt. 569, 1849 Vt. LEXIS 77 (1849).

Jurisdiction of court.

Issue of subject matter jurisdiction was sufficiently litigated that the court had to afford Oklahoma’s determination in a child support proceeding full faith and credit. The mother was a party in the Oklahoma action, and she raised the issue of subject matter jurisdiction in that proceeding. OCS/Pappas v. O'Brien, 2013 VT 11, 193 Vt. 340, 67 A.3d 916, 2013 Vt. LEXIS 14 (2013).

Mother had thoroughly litigated the issue of personal jurisdiction in a child support proceeding in Oklahoma and could not, whatever the merits, relitigate it here. Even on jurisdictional questions, another state’s judgments might have preclusive effect under the Full Faith and Credit Clause. OCS/Pappas v. O'Brien, 2013 VT 11, 193 Vt. 340, 67 A.3d 916, 2013 Vt. LEXIS 14 (2013).

Neither comity nor constitutional principles of full faith and credit required family court to decline modification of New York child support order since, when both parties to decree, as well as child, all moved to Vermont, Vermont’s courts became responsible for welfare of child, and New York no longer had legitimate interest in relationship. Cavallari v. Martin, 169 Vt. 210, 732 A.2d 739, 1999 Vt. LEXIS 86 (1999).

This section applies to the records and judicial proceedings of courts only so far as they have jurisdiction. In re Hanrahan's Will, 109 Vt. 108, 194 A. 471, 1937 Vt. LEXIS 123 (1937).

Rule that, notwithstanding this section, jurisdiction of the court by which a judgment is rendered in any state may be questioned in a collateral proceeding in another state, applies even when the inquiry necessitates disputing jurisdictional facts positively asserted in the judgment record. Solomon v. Atlantis Development, Inc., 145 Vt. 70, 483 A.2d 253, 1984 Vt. LEXIS 546 (1984).

This section makes record of judgment rendered in court of one state conclusive evidence in courts of another state of matter adjudged, but does not preclude inquiry into jurisdiction of court rendering judgment over subject matter or parties affected by it, or into facts necessary to give such jurisdiction. Bristol v. Noyes, 106 Vt. 418, 174 A. 924, 1934 Vt. LEXIS 184 (1934).

This section does not prevent an inquiry into the jurisdiction of a court of another state, a judgment of which is offered in evidence. Wood v. Augustins, 70 Vt. 637, 41 A. 583, 1898 Vt. LEXIS 95 (1898); Domenchini's Administrator v. Hoosac Tunnel & Wilmington Railroad, 90 Vt. 451, 98 A. 982, 1916 Vt. LEXIS 302 (1916).

When offered in evidence, the record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction, either as to the subject matter or the person, and, if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. Wood v. Augustins, 70 Vt. 637, 41 A. 583, 1898 Vt. LEXIS 95 (1898).

While full credit is to be given to the judgments of a sister state, whether the court rendering such judgment had jurisdiction is always open to inquiry. Betts v. Johnson, 68 Vt. 549, 35 A. 489, 1896 Vt. LEXIS 115 (1896).

Where judgment is rendered in another state against a nonresident thereof, without process or notice being served upon him in the state where the judgment is rendered, and he does not submit to jurisdiction by appearing in the suit, it is of no validity when sought to be enforced by action in another state under this section. Price v. Hickok, 39 Vt. 292, 1866 Vt. LEXIS 78 (1866).

A judgment rendered in another state, against a citizen of this State who was not within the jurisdiction of the court rendering the judgment, and who had no notice of the suit and did not appear, could not be enforced in this State by an action of debt upon the judgment. Newcomb v. Peck, 17 Vt. 302, 1845 Vt. LEXIS 32 (1845).

A judgment rendered in one state, by a court having jurisdiction, is conclusive evidence in another. Hoxie v. Wright, 2 Vt. 263, 1828 Vt. LEXIS 43 (1828).

Probate.

When duly admitted to probate in another state, full force and effect will be given by Vermont courts to the judgment of probate as to assets in that state. Walton v. Estate of Hall, 66 Vt. 455, 29 A. 803, 1894 Vt. LEXIS 119 (1894).

Record of judgment.

The duly attested record of the judgment of a state is, by this section, entitled to such faith and credit in every court of the United States as it has by law and usage in the state from which it is taken. Cukor v. Cukor, 114 Vt. 456, 49 A.2d 206, 1946 Vt. LEXIS 95 (1946).

Res judicata.

A decree dismissing a suit commenced in another state is conclusive and to be given full faith and credit in a suit brought in this State on the same claim and same ground. Low v. Mussey, 41 Vt. 393, 1868 Vt. LEXIS 133 (1868).

A judgment of a justice of the peace is a judicial proceeding within the meaning of this section and is conclusive upon parties and privies thereto, as to all facts adjudicated. Carpenter v. Pier, 30 Vt. 81, 1858 Vt. LEXIS 4 (1858).

A judgment rendered in one state by a court having jurisdiction of the suit will operate as a merger of the cause of action and be a bar to the further prosecution of a suit in another state between the same parties and upon the same claim. David McGilvray & Co. v. Avery, 30 Vt. 538, 1858 Vt. LEXIS 67 (1858).

Cited.

Cited in Lariviere v. Lariviere, 102 Vt. 278, 147 A. 700, 1929 Vt. LEXIS 180 (1929); DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 173 A. 556, 1934 Vt. LEXIS 169 (1934); Carothers v. Vogeler, 148 Vt. 316, 532 A.2d 580, 1987 Vt. LEXIS 507 (1987); Driver v. Driver, 148 Vt. 560, 536 A.2d 557, 1987 Vt. LEXIS 553 (1987); Lowery v. Lowery, 156 Vt. 268, 591 A.2d 81, 1991 Vt. LEXIS 48 (1991); Shute v. Shute, 158 Vt. 242, 607 A.2d 890, 1992 Vt. LEXIS 43 (1992); Hixson v. Plump, 167 Vt. 202, 704 A.2d 1159, 1997 Vt. LEXIS 261 (1997).

§ 2. [Privileges and immunities; extradition]

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

History

Clause affected by amendment. Clause three of this section was affected by Amendment XIII.

CROSS REFERENCES

Privileges and immunities requirement applicable to the states, see § 1 of Amendment XIV.

ANNOTATIONS

Generally.

First Amendment embraces an absolute freedom to believe; protection of freedom to act, however, remains subject to regulation for protection of society, and conduct that violates important social duties or is subversive of good order may be regulated without impinging on First Amendment rights. Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

Extradition.

In extraditions, although a warrant from demanding state’s governor is prima facie evidence that constitutional and statutory requirements are met, and computations of the petitioner’s sentence are demanding state’s responsibility, asylum state must examine warrant’s supporting documents to see whether they support or rebut prima facie case. In re Ladd, 157 Vt. 270, 596 A.2d 1313, 1991 Vt. LEXIS 184 (1991).

Clause 2 of this section required honoring of extradition warrant, despite petitioner’s claim that he was illegally detained, since any irregularities in prerequisition detention were no bar to extradition once a rendition warrant was issued and received. In re Lovejoy, 150 Vt. 588, 556 A.2d 79, 1988 Vt. LEXIS 230 (1988).

Where copy of Rhode Island judgment and disposition which was complete on its face constituted adequate proof that petitioner was in Rhode Island at the time of the commission of the alleged crime, and that document, read together with requisition warrant itself and affidavit of petitioner’s probation officer answered claim that petitioner was not a fugitive from Rhode Island, petitioner was properly sought for extradition. In re Hval, 149 Vt. 58, 539 A.2d 537, 1987 Vt. LEXIS 591 (1987).

Clause of this section relative to the surrender of fugitives from justice by the state applies to one who has been indicted for obtaining money or property under false pretenses in a state which has made that offense a crime by statute. In re Greenough, 31 Vt. 279, 1858 Vt. LEXIS 133 (1858).

No duty is imposed on the state or its officers to deliver up, on demand of the executive authority, persons guilty of crimes in a foreign government. Ex parte Holmes, 12 Vt. 631, 1840 Vt. LEXIS 95 (1840).

Privileges and immunities.

Before the Supreme Court may apply the Privileges and Immunities Clause of this section to a statute, it must first decide whether the statute burdens one of those privileges and immunities protected by the clause. 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).

Only with respect to those privileges and immunities bearing upon the vitality of the nation as a single entity must the State treat all citizens, resident and nonresident, equally. 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).

Where plaintiff purchased an automobile while residing in Wisconsin and paid a sales tax to that state, requirement that he pay a use tax as a condition of registering the vehicle in Vermont did not violate the Privileges and Immunities Clause of this section by infringing plaintiff ’s right to travel, since plaintiff suffered no restrictions on his right to travel in Vermont and incurred no penalty as a result of the exercise of that right, plaintiff was free to bring the automobile to Vermont, and plaintiff ’s right to register the vehicle, which triggered the use tax obligation, did not implicate the fundamental right to travel. 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).

To show a violation of the Privileges and Immunities Clause of this section, nonresident taxpayer has burden to demonstrate discrimination to the extent that it is arbitrary and unreasonable, and to show such discrimination, taxpayer must first demonstrate that he is disadvantaged compared to another in an equivalent position. Wheeler v. State, 127 Vt. 361, 249 A.2d 887, 1969 Vt. LEXIS 238, app. dismissed, 396 U.S. 4, 90 S. Ct. 24, 24 L. Ed. 2d 4, 1969 U.S. LEXIS 785 (1969).

Taxation of nonresident’s adjusted gross income earned in Vermont is not discriminatory so as to violate Privileges and Immunities Clause of this section, even though nonresident taxpayer with income from sources outside Vermont would pay at higher rate than resident taxpayer with equivalent income from Vermont but without income from other sources. Wheeler v. State, 127 Vt. 361, 249 A.2d 887, 1969 Vt. LEXIS 238, app. dismissed, 396 U.S. 4, 90 S. Ct. 24, 24 L. Ed. 2d 4, 1969 U.S. LEXIS 785 (1969).

Corporations are not citizens within the meaning of the Privileges and Immunities Clause of this section. Hawley v. Hurd, 72 Vt. 122, 47 A. 401, 1900 Vt. LEXIS 97 (1900); Cook v. Howland, 74 Vt. 393, 52 A. 973, 1902 Vt. LEXIS 147 (1902).

Refusal of license to nonresident to transact insurance business in this State as agent of a foreign insurance corporation does not deprive him of rights guaranteed by the Privileges and Immunities Clause of this section, since a corporation is not a citizen within the meaning of the clause, and the State therefore has the right to impose conditions on foreign corporations doing business in the State, including a condition whereby a corporation is licensed to conduct business by resident agents only. Cook v. Howland, 74 Vt. 393, 52 A. 973, 1902 Vt. LEXIS 147 (1902).

Statute denying to nonresidents rights allowed to residents, under same circumstances, in respect to deductions from taxable personal property by reason of debts owed by taxpayer, conflicts with this section. Sprague v. Fletcher, 69 Vt. 69, 37 A. 239, 1896 Vt. LEXIS 10 (1896); Hughes v. Kelley, 69 Vt. 443, 38 A. 91, 1897 Vt. LEXIS 80 (1897).

Cited.

Cited in State v. Cadigan, 73 Vt. 245, 50 A. 1079, 1901 Vt. LEXIS 165 (1901); Arthur A. Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701, 1925 Vt. LEXIS 164 (1925); Colgate v. Harvey, 107 Vt. 28, 175 A. 352, 1934 Vt. LEXIS 138 (1934); In re Roessel, 136 Vt. 324, 388 A.2d 835, 1978 Vt. LEXIS 744 (1978); In re Everett, 139 Vt. 317, 427 A.2d 349, 1981 Vt. LEXIS 446 (1981); Lovejoy v. State, 148 Vt. 239, 531 A.2d 921, 1987 Vt. LEXIS 484 (1987); In re Hval, 148 Vt. 544, 537 A.2d 135, 1987 Vt. LEXIS 552 (1987); Barringer v. Griffes, 801 F. Supp. 1282, 1992 U.S. Dist. LEXIS 14953 (D. Vt. 1992).

§ 3. [Admission of new states; regulation of territories]

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

§ 4. [Guarantees to states]

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ANNOTATIONS

Invalidation of election.

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).

Cited.

Cited in Pabst v. Commissioner of Taxes, 136 Vt. 126, 388 A.2d 1181, 1978 Vt. LEXIS 702 (1978).

Article V. Amendments

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent shall be deprived of its equal Suffrage in the Senate.

CROSS REFERENCES

Conventions to amend U.S. Constitution, see 17 V.S.A. § 1811 et seq.

ANNOTATIONS

Cited.

Cited in Chase v. Billings, 106 Vt. 149, 170 A. 903, 1934 Vt. LEXIS 152 (1934).

Article VI. Assumption of debts; supreme law; oath of federal officers

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Officer or public Trust under the United States.

ANNOTATIONS

Preemption of state law by federal law.

Food and Drug Administration (FDA) regulatory statement regarding preemption deserved no deference, as Congress intended the Food, Drug and Cosmetics Act to preempt only those state laws that would make it impossible for manufacturers to comply with both federal and state requirements, which was not the case here. Moreover, even if the statement did alter a regulation allowing drug manufacturers to add or strengthen a warning to increase the safe use of the drug product without prior FDA approval, the change did not take effect until June 2006; without such a change, it was possible for manufacturers to comply with both FDA regulations and duties imposed by state common law, and there was no direct and positive conflict between state and federal law. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

United States Supreme Court’s decision in Geier does state that implied preemption applies even when a statute addresses preemption expressly, but it does not allow courts or agencies to preempt state laws that have been expressly preserved by Congress. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

United States Supreme Court’s decision in Geier simply stands for the proposition that Congress’s intent not to preempt a provision of state law cannot be inferred from either (1) an express preemption clause that does not include the state law in question in its scope, or (2) a clause that prevents regulated entities from using compliance with federal law as a defense in state common-law suits. According to Geier, the former clause does not support a negative inference that Congress must have intended to preserve laws it did not expressly preempt; the latter indicates only that Congress intended to preserve some common-law claims, not that it intended to allow even claims that conflict with federal requirements. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

When the court was not attempting to infer the effect of statutory language that only indirectly addresses the specific state law at issue, but interpreting an unambiguous express preemption clause that specifically preserved the type of state law at issue, ordinary preemption principles had to give way to Congress’s intent to preserve state laws that did not create a direct and positive conflict with federal law. There was no such conflict; accordingly, a Food and Drug Administration regulatory statement regarding preemption was neither an authoritative interpretation of an ambiguous statutory provision entitled to deference, nor a persuasive policy statement entitled to respect. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

Food and Drug Administration approval of a drug’s label does not preempt state failure-to-warn claims. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

State failure-to-warn claims are generally not preempted by federal drug labeling requirements. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

With regard to defendant’s claim that a failure-to-warn claim was preempted because it was impossible to comply with both State and federal law, the court rejected defendant’s argument that it would have been prosecuted for “misbranding” if it had strengthened the label on its drug without prior approval. The validity and authority of State law does not depend on speculative hypotheticals regarding assumptions of what the Food and Drug Administration would have done in response to a stronger warning. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

Congress intended that the Food, Drug and Cosmetics Act (FDCA) would leave state law in place except where it created a direct and positive conflict between state and federal law. It simply restated the principle that state law is superseded in cases of an actual conflict with federal law such that compliance with both federal and state regulations is a physical impossibility; in other words, under any circumstances where it is possible to comply with both state law and the FDCA, the state law in question is consistent with the purposes and objectives of Congress. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

When defendant asserted that plaintiff’s tort action actually conflicted with federal law, it was required to show either that it was impossible for a private party to comply with both State and federal requirements or that Vermont’s common law stood as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Levine v. Wyeth, 2006 VT 107, 183 Vt. 76, 944 A.2d 179, 2006 Vt. LEXIS 306 (2006), aff'd, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51, 2009 U.S. LEXIS 1774 (2009).

Although federal government preempted certain aspects of aircraft and airport operation, it did not pervasively occupy field of land-use regulations relating to aviation, and therefore application of Act 250 to appellant’s airport was not preempted by federal law. In re Commercial Airfield, 170 Vt. 595, 752 A.2d 13, 2000 Vt. LEXIS 42 (2000) (mem.).

Federal bankruptcy code preempted State tort claims alleging violations of automatic stay in bankruptcy, and therefore district court properly held that it lacked subject matter jurisdiction to review claims. Eastern Equipment & Services Corp. v. Factory Point National Bank, 236 F.3d 117, 2001 U.S. App. LEXIS 79 (2d Cir. 2001).

Supremacy Clause.

Under this article, Parental Kidnapping Prevention Act (PKPA) takes precedence over State law when laws conflict. Shute v. Shute, 158 Vt. 242, 607 A.2d 890, 1992 Vt. LEXIS 43 (1992).

State law may run afoul of the Supremacy Clause in two ways: the law may regulate the federal government directly or discriminate against it, or the law may conflict with an affirmative command of Congress. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

Agency of Natural Resources order penalizing construction company for violating construction permit law did not attempt to regulate federal government directly or discriminate against the federal government or those with whom it deals, and there was no conflict with federal law, as the disaster relief act language expressly encourages the states to develop land use and construction regulations. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

State laws that interfere with or are contrary to the laws of Congress are invalidated by the Supremacy Clause of this article. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151, 1985 Vt. LEXIS 333 (1985).

When Congress chooses to legislate, pursuant to its constitutional powers, courts must find that local laws have been preempted by federal regulation if they stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151, 1985 Vt. LEXIS 333 (1985).

State bar rule, insofar as it denied admission to the Vermont bar strictly on grounds of the alien status of an individual, constituted a burden on the federal immigration program and thus violated Supremacy Clause of this article. Dingemans v. Board of Bar Examiners, 152 Vt. 494, 568 A.2d 354, 1989 Vt. LEXIS 206 (1989).

Congress has the power to preempt states completely with respect to the regulation of transactions between utilities and small power producers. In re Vicon Recovery Systems, 153 Vt. 539, 572 A.2d 1355, 1990 Vt. LEXIS 28 (1990).

Cited.

Cited in Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913); Carpenter v. Central Vermont Railway, 93 Vt. 357, 107 A. 569, 1919 Vt. LEXIS 171 (1919); Hutchinson v. Cooley, 125 Vt. 303, 214 A.2d 828, 1965 Vt. LEXIS 242 (1965); In re Senate Bills 177 & 83, 132 Vt. 282, 318 A.2d 157, 1974 Vt. LEXIS 335 (1974); In re Parizo, 137 Vt. 365, 404 A.2d 114, 1979 Vt. LEXIS 978 (1979); American Trucking Ass'ns v. Conway, 142 Vt. 17, 451 A.2d 42, 1982 Vt. LEXIS 575 (1982); In re Grand Jury Subpoena, 118 F.R.D. 558, 1987 U.S. Dist. LEXIS 13001 (D. Vt. 1987); In re Sawyer Estate, 149 Vt. 541, 546 A.2d 784, 1987 Vt. LEXIS 626 (1987); Equal Employment Opportunity Commission v. Vermont Office of Court Administrator, 717 F. Supp. 261, 1989 U.S. Dist. LEXIS 8386 (D. Vt. 1989); Little v. Allstate Insurance Co., 167 Vt. 171, 705 A.2d 538, 1997 Vt. LEXIS 257 (1997).

Law Reviews —

For note, “Daminozide and the New England Apple Crop: A National Definition of ‘Safe’?,” see 12 Vt. L. Rev. 181 (1987).

For article, “Restoring Citizen Suits After Lujan v. Defenders of Wildlife : The Use of Cooperative Federalism to Induce Non-Article III Standing in State Courts,” see 21 Vt. L. Rev. 977 (1997).

Article VII. [Ratification]

The Ratification of the Convention of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. whereof of We have hereunto subscribed our Names. Done In Witness G. Washington, Presidt., and deputy from Virginia. Attest: William Jackson, Secretary New Hampshire. John Langdon, Nicholas Gilman, Massachusetts. Nathaniel Gorham, Rufus King, Connecticut. Wm. Sam’l Johnson, Roger Sherman, New York. Alexander Hamilton. New Jersey. Will. Livingston, David Brearley, Wm. Paterson, Jona. Dayton, Pennsylvania. B. Franklin, Geo. Clymer, Thomas Mifflin, Jared Ingersoll, Thos. FitzSimons, James Wilson, Robt. Morris, Gouv. Morris, Delaware. Geo. Read, Richard Bassett, Gunning Bedford, Jun., Jaco. Broom, John Dickinson, Maryland. James McHenry, Dan’l Carroll, Dan of S. Thos. Jenifer, Virginia. John Blair, James Madison, Jr., North Carolina. Wm. Blount, Hu. Williamson, Rich’d Dobbs Spaight, South Carolina. J. Rutledge, Charles Pinckney, Charles Cotesworth Pinckney, Pierce Butler, Georgia. William Few, Abr. Baldwin.

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AMENDMENTS

Proposed by Congress, and Ratified by the Legislatures of the Several States Pursuant to the Fifth Article of the Original Constitution.

Amendment I. Freedom of religion, speech, press, assemblage and petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

History

Proposal and ratification. The first ten amendments to the Constitution of the United States were proposed by the First Congress on September 25, 1789, and were declared ratified on December 15, 1791. The states that ratified these amendments and the dates of ratification are: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Pennsylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Massachusetts, March 2, 1939; Georgia, March 18, 1939; and Connecticut, April 19, 1939.

CROSS REFERENCES

Freedom of religion guaranteed by State Constitution, see Vt. Const. Ch. I, Art. 3.

Freedom of speech and of the press guaranteed by State Constitution, see Vt. Const. Ch. I, Art. 13.

Right to assemble and petition guaranteed by State Constitution, see Vt. Const. Ch. I, Art. 20.

Notes to Opinions

Schools.

Providing education in neutral or nonreligious subjects to children who receive instruction in a private parochial school is not prohibited by this amendment. 1969 Op. Atty. Gen. 258, 267.

ANNOTATIONS

Generally.

First Amendment embraces an absolute freedom to believe; protection of freedom to act, however, remains subject to regulation for protection of society, and conduct that violates important social duties or is subversive of good order may be regulated without impinging on First Amendment rights. Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

In extending criminal liability to someone who knowingly solicits, lures, or entices, or attempts to solicit, lure, or entice, a child under 16 years of age—or another person believed to be a child under that age—to commit such an act or engage in such conduct, the Legislature criminalized speech integral to criminal conduct. Stated otherwise, the Legislature criminalized offers to engage in these illegal transactions; therefore this speech is categorically excluded from First Amendment protection and the luring-a-child statute accordingly is not subject to strict scrutiny. State v. Masic, 2021 VT 56, — Vt. —, 261 A.3d 646, 2021 Vt. LEXIS 76 (Vt. 2021).

Access to criminal trials.

The decision of the United States Supreme Court in Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980), that the public and press possess a constitutional right of access to criminal trials under this amendment, does not extend to afford the general public and the news media the right to attend juvenile delinquency proceedings and to publicly report what they see and hear in the juvenile court during those proceedings. In re J.S., 140 Vt. 458, 438 A.2d 1125, 1981 Vt. LEXIS 632 (1981).

A juvenile proceeding is not a criminal prosecution for the purposes of this amendment. In re J.S., 140 Vt. 458, 438 A.2d 1125, 1981 Vt. LEXIS 632 (1981).

The punitive purpose of criminal proceedings raises issues under this amendment supporting the right to public access that are not present in juvenile proceedings, since in criminal proceedings public access serves as a check against factors that are not involved in juvenile proceedings: unjust conviction, excessive punishment, and, when confidential, the undeserved taint of criminality. In re J.S., 140 Vt. 458, 438 A.2d 1125, 1981 Vt. LEXIS 632 (1981).

Even if there were a right under this amendment of access to criminal prosecutions that presumptively reached juvenile proceedings, public access would not automatically follow, but rather interests protected by this amendment would first have to be weighed against the countervailing interests in confidentiality. In re J.S., 140 Vt. 458, 438 A.2d 1125, 1981 Vt. LEXIS 632 (1981).

The press does have a right under this amendment to attend criminal trials, but that right is not absolute. Herald Association, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323, 1980 Vt. LEXIS 1362 (1980).

The press and public have an implicit right of access to criminal trials. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

Once defendant submitted psychosexual evaluation to the court in support of plea agreement, qualified First Amendment right of access attached. State v. Densmore, 160 Vt. 131, 624 A.2d 1138, 1993 Vt. LEXIS 36 (1993).

Speculation that defendant would be reluctant to participate in psychosexual evaluation to support his case for suspended sentence was insufficient to outweigh qualified constitutional right of access to documents filed in sentencing proceeding. State v. Densmore, 160 Vt. 131, 624 A.2d 1138, 1993 Vt. LEXIS 36 (1993).

The privacy interests of innocent third parties may present a compelling interest sufficient to outweigh a qualified First Amendment right of access to sentencing documents under certain circumstances. State v. Densmore, 160 Vt. 131, 624 A.2d 1138, 1993 Vt. LEXIS 36 (1993).

The public right of access to sentencing documents may be denied if (1) closure serves a compelling interest; (2) there is substantial probability that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest. State v. Densmore, 160 Vt. 131, 624 A.2d 1138, 1993 Vt. LEXIS 36 (1993).

Access to pretrial criminal proceedings and documents.

The qualified First Amendment right of access that attaches to documents submitted by parties in sentencing hearings does not extend to presentence investigation reports (PSI) prepared at the request of, and for the benefit of, the sentencing court, which are protected by 28 V.S.A. § 204(d) and have historically not been open to the press and public. This conclusion is not affected by the fact that some information contained in a PSI may become public during the sentencing process, as the documents themselves have been, and continue to be, treated as confidential. Much information contained in PSIs, including that provided by defendants themselves, remains private. State v. LaBounty, 167 Vt. 25, 702 A.2d 82, 1997 Vt. LEXIS 183 (1997).

Pretrial criminal proceedings and documents are presumably open to the public, closure being the exception rather than the rule. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

To rebut the presumption that pretrial criminal proceedings and documents are open to the public, party seeking closure must demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

The right of access to pretrial proceedings and documents is not an absolute right, especially when defendant’s Sixth Amendment right to trial by an impartial jury might be jeopardized by public disclosures prior to trial. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

Direct intervention in a trial court proceeding is an appropriate legal vehicle for ensuring that the news media’s voice is heard in a timely manner; therefore, news media has limited standing to intervene upon a criminal defendant’s motion to seal affidavits of probable cause or to close a pretrial suppression hearing. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

Members of the public and representatives of the news media have a right of access to pretrial suppression hearings under this amendment. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

After it has been reviewed by a court, an affidavit of probable cause becomes a public document. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

A court can temporarily seal an affidavit of probable cause upon a preliminary examination of the likelihood of adverse publicity and its potential effect on the accused’s right to a fair trial; however, such an order must be carefully drawn to afford the maximum recognition of the rights of both the defendant and the public. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

The press and public have a qualified right of access to affidavits of probable cause, which must be balanced with defendant’s Sixth Amendment right to a fair trial. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

At least with respect to affidavits of probable cause, this amendment creates a qualified right of access to most pretrial documents as well as to pretrial court proceedings. State v. Schaefer, 157 Vt. 339, 599 A.2d 337, 1991 Vt. LEXIS 193 (1991), cert. denied, 502 U.S. 1077, 112 S. Ct. 981, 117 L. Ed. 2d 144, 1992 U.S. LEXIS 721 (1992).

A two-step analysis is applied in determining the public right of access to preliminary criminal proceedings: first, trial court must determine whether First Amendment right of access extends to the judicial proceeding or document at issue; and second, if the court finds that such a right of access attaches, it must determine whether nondisclosure is essential to preserve higher values and is narrowly tailored to serve that interest. State v. Densmore, 160 Vt. 131, 624 A.2d 1138, 1993 Vt. LEXIS 36 (1993).

Assertion of rights.

Assertion of rights under this amendment by a newspaper is not the assertion of a vicarious right of its readers; it is the assertion of a fundamental personal right. City of Burlington v. New York Times Co., 148 Vt. 275, 532 A.2d 562, 1987 Vt. LEXIS 506 (1987).

Defamation.

Permitting recovery of presumed and punitive damages in defamation cases absent a showing of “actual malice” does not violate this amendment when the defamatory statements do not involve matters of public concern. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593, 1985 U.S. LEXIS 103 (1985).

Where remarks attributed to defendant in libel action were clearly hyperbole, publication of the remarks was protected by this amendment. Blouin v. Anton, 139 Vt. 618, 431 A.2d 489, 1981 Vt. LEXIS 513 (1981).

In a defamation action where there was no claim that plaintiff was a public official or public figure, plaintiff did not have to prove constitutional or actual malice to establish defendant’s liability. Ryan v. Herald Association, 152 Vt. 275, 566 A.2d 1316, 1989 Vt. LEXIS 192 (1989).

In defamation action brought by private individual, if plaintiff proved that defendant’s fault rose to the level of constitutional malice, then actual damages were presumed and punitive damages could be recovered upon a showing of common-law malice. Ryan v. Herald Association, 152 Vt. 275, 566 A.2d 1316, 1989 Vt. LEXIS 192 (1989).

Disorderly conduct.

Where the alleged threatening activity under the disorderly conduct statute includes speech, a subjective standard that judges whether defendant engaged in threatening behavior based on the reaction of particular persons can interfere with First Amendment protections. Thus, the standard must be objective and turn on how a reasonable person would view defendant’s behavior. State v. Albarelli, 2011 VT 24, 189 Vt. 293, 19 A.3d 130, 2011 Vt. LEXIS 22 (2011).

Elections.

Vermont filing deadline for candidates applies equally to all candidates and does not place independents at a particular disadvantage for accessing the ballot; rather, the registration deadline is a reasonable, nondiscriminatory regulation that imposes at most a minor burden on plaintiffs’ rights. Furthermore, the State-claimed desire to prevent sore-loser candidacy is legitimate and sufficiently justifies any mild burden imposed. Trudell v. State, 2013 VT 18, 193 Vt. 515, 71 A.3d 1235, 2013 Vt. LEXIS 23 (2013).

Under McConnell and Citizens United, Vermont’s disclosure requirements for political action committees as applied to defendant survived a basic First Amendment challenge and were not overbroad or vague under the First or Fourteenth Amendment. State v. Green Mt. Future, 2013 VT 87, 194 Vt. 625, 86 A.3d 981, 2013 Vt. LEXIS 85 (2013).

Vermont’s judicial resign-to-run provision does not unconstitutionally burden any First Amendment rights. In re Hodgdon, 2011 VT 19, 189 Vt. 265, 19 A.3d 598, 2011 Vt. LEXIS 14 (2011).

Establishment.

Statute that exempted church property from adverse possession claims or prescriptive easements did not violate Establishment Clause of First Amendment, since property dedicated to “pious” use was included among a broad class of property in the statute, there was no direct governmental support for religious activities, effect of statute was not to either advance or inhibit religion, and statute did not foster excessive government entanglement with religion. Chittenden v. Waterbury Center Community Church, 168 Vt. 478, 726 A.2d 20, 1998 Vt. LEXIS 400 (1998).

Tuition reimbursement scheme does not foster excessive government entanglement with religion, where aid flowing to religious school is result of parental choice in selecting the school, and where the school is already approved to select students for reimbursement, thereby involving no greater government regulation or involvement. Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994).

Primary effect of tuition reimbursement scheme to private school does not advance religion where: scheme covers all students whether or not they attend public or private school; there is no indication that aid to sectarian education is either purpose or main effect of scheme; and any aid flowing to religious schools resulting from reimbursement scheme derives from parent’s choice rather than government involvement. Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994).

In order for statute not to be violative of Establishment Clause, a challenged statute must have secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster an excessive government entanglement with religion. Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994).

Display of an unattended, solitary, semi-permanent, religious symbol in park that has a close association with the seat of city government violates the Establishment Clause absent showing that menorah could be viewed with secular display as a whole. Chabad-Lubavitch of Vermont v. City of Burlington, 936 F.2d 109, 1991 U.S. App. LEXIS 13291 (2d Cir. 1991), cert. denied, 505 U.S. 1218, 112 S. Ct. 3026, 120 L. Ed. 2d 897, 1992 U.S. LEXIS 4593 (1992).

The Establishment Clause does not require that there be no contact whatsoever between state and religion. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

A perceived government endorsement of religion, even if erroneous, could result in a violation of the Establishment Clause; this erroneous perception of endorsement, however, must be objectively reasonable in light of all the circumstances. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

City’s act of allowing menorah in city hall park did not have a primary effect of advancing religion. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

No excessive entanglement with religion was fostered by city’s act of issuing a permit for display of a menorah in city hall park. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

Political divisiveness in city regarding placement of a menorah in city hall park did not constitute excessive government entanglement with religion or establish a violation of the Establishment Clause. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

Display of unattended, solitary menorah in city park adjacent to city hall conveyed message of government endorsement of religion in violation of Establishment Clause. Kaplan v. City of Burlington, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989), cert. denied, 496 U.S. 926, 110 S. Ct. 2619, 110 L. Ed. 2d 640, 1990 U.S. LEXIS 3082 (1990).

City’s permission to display an unattended, solitary religious symbol in city hall park implied city sponsorship, given the park’s close association with the seat of government. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

Public forum doctrine did not give right to display religious symbol in city hall park where city had not created a forum in park open to the unattended, solitary display of religious symbols, and in any case the existence of a public forum is merely one factor in determining whether the context of a display suggests government endorsement. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

Prohibition on the display of unattended, solitary religious symbol is not an unconstitutional content-based exclusion since observance of the mandate of the Establishment Clause is a compelling governmental interest and the prohibition is narrowly drawn. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

Public subsidy of the dissemination of religious doctrine is contrary to this amendment. Mikell v. Town of Williston, 129 Vt. 586, 285 A.2d 713, 1971 Vt. LEXIS 309 (1971).

There must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion before government involvement with religion will withstand strictures of the establishment of Religion Clause of this amendment. 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).

Neutrality is the principal guide and final command in locating the barrier between government and the establishment of religion. 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).

Mere fact that public funds are expended to an institution operated by a religious enterprise does not establish fact that proceeds are used to support religion professed by recipient. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961). (But see Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and Chittenden Town Sch. Dist. v. Vermont Dep’t of Educ., 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999)); 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).

Establishment of Religion Clause of this amendment must be cautiously applied to end that an agency of State is not inadvertently forbidden from extending a public benefit to all its citizens without regard to religious beliefs. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961), overruled on other grounds, Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352 (1994). See also Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999), cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518 (1999).

Free exercise.

When plaintiff alleged that defendant diocese negligently hired, trained, supervised, and retained a priest who sexually abused him, the religious autonomy doctrine did not shield defendant from accountability for its negligent actions. This case was not an intrachurch dispute, was not brought under church law, and did not seek to enforce the duties of defendant according to religious beliefs; furthermore, defendant did not invoke any religious doctrine in defense of its actions, nor did it claim that the reason it failed to act in a nonnegligent manner was because of a religious belief or practice. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Prohibiting school district from making tuition payments to religious schools did not amount to a violation of Free Exercise Clause of First Amendment, since court did not rule that children who attend religious schools may not receive public educational funding, while children who attend public schools may; rather, court determined only that public funds may not pay for religious worship within meaning of Compelled Support Clause of Vermont Constitution, wherever such worship occurs. 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).

City’s refusal to permit display of menorah in city hall park unquestionably burdened rights of religious organization to free speech and free exercise of religion. Chabad-Lubavitch of Vermont v. City of Burlington, 754 F. Supp. 372, 1990 U.S. Dist. LEXIS 17988 (D. Vt. 1990), aff'd, 936 F.2d 109, 1991 U.S. App. LEXIS 13291 (2d Cir. 1991).

Defendant’s probation agreement requiring him to actively participate in and complete a particular sex offender’s program was valid despite the alleged impact of the program on defendant’s rights to religious freedom where the prescribed program was the only available option, participation in group therapy was the best method of reducing recidivism in sexual offenders, and the reduction of recidivism directly served the dual objectives of rehabilitation and public safety. State v. Emery, 156 Vt. 364, 593 A.2d 77, 1991 Vt. LEXIS 90 (1991).

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).

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).

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 amendment. 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 a religious basis and does not rise to the demands of the Religion Clause of this amendment. 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).

Interest of the State in regulating the use and distribution of marijuana is of sufficient magnitude to override interest in using marijuana in the practice of religion. State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1982 Vt. LEXIS 605 (1982).

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 Free Exercise Clause of this amendment since the State could not require a person seeking appointment as a trustee to renounce his religion or change it in order to qualify, and even though the codicil’s purpose was to maintain a separation of church and State, that purpose provided no justification for an infringement of an appointee’s rights under this amendment. Beauregard v. City of St. Albans, 141 Vt. 624, 450 A.2d 1148, 1982 Vt. LEXIS 571 (1982).

Freedom of association.

Vermont campaign finance reform act’s twenty-five percent limit on out-of-state funds violated candidates’ and contributors’ First Amendment rights of free speech and association, and was therefore unconstitutional. Landell v. Sorrell, 118 F. Supp. 2d 459, 2000 U.S. Dist. LEXIS 11606 (D. Vt. 2000), aff'd in part, vacated in part, 300 F.3d 129, 2002 U.S. App. LEXIS 15770 (2d Cir. 2002), aff'd in part, vacated in part, 382 F.3d 91, 2002 U.S. App. LEXIS 28171 (2d Cir. 2002) (issue not raised on appeal).

Freedom of speech.

“Revenge porn” does not fall within an established categorical exception to full First Amendment protection, and the Vermont Supreme Court declines to predict that the United States Supreme Court would recognize a new category. However, the Vermont statute banning disclosure of nonconsensual pornography or “revenge porn” survives strict scrutiny as the United States Supreme Court has applied that standard. State v. Vanburen, 2018 VT 95, 210 Vt. 293, 214 A.3d 791, 2019 Vt. LEXIS 80 (2018).

Given the ill fit between nonconsensual pornography and obscenity, and the United States Supreme Court’s reluctance to expand the contours of the category of obscenity, the speech restricted by Vermont’s “revenge porn” statute cannot be fairly categorized as constitutionally unprotected obscenity. State v. Vanburen, 2018 VT 95, 210 Vt. 293, 214 A.3d 791, 2019 Vt. LEXIS 80 (2018).

Statute banning disclosure of nonconsensual pornography or “revenge porn” is narrowly tailored to advance the State’s interests, does not penalize more speech than necessary to accomplish its aim, and does not risk chilling protected speech on matters of public concern. Accordingly, the statute is constitutional on its face. State v. Vanburen, 2018 VT 95, 210 Vt. 293, 214 A.3d 791, 2019 Vt. LEXIS 80 (2018).

The 2015 version of the criminal stalking statute did not violate the First Amendment as applied to defendant. A trier of fact could find that, in the context of defendant’s overall course of conduct as well as the specific context of the book he disseminated near the complainant’s workplace, the statement in the book “Shoot the terrorist? Or shoot the ‘artist?’ Neither are present” would cause a reasonable person to fear unlawful violence. State v. Noll, 2018 VT 106, 208 Vt. 474, 199 A.3d 1054, 2018 Vt. LEXIS 162 (2018).

The 2015 version of the criminal stalking statute was facially constitutional. “True threats” are not constitutionally protected, and the expression potentially targeted by the statute’s definition of “harassing” consisted primarily, if not completely, of true threats; moreover, the statute’s application to only those threats that reasonably cause substantial emotional distress did not offend the First Amendment. State v. Noll, 2018 VT 106, 208 Vt. 474, 199 A.3d 1054, 2018 Vt. LEXIS 162 (2018).

Statute banning disclosure of nonconsensual pornography or “revenge porn” is narrowly tailored to advance the State’s interests, does not penalize more speech than necessary to accomplish its aim, and does not risk chilling protected speech on matters of public concern. Accordingly, the statute is constitutional on its face. State v. Vanburen, 2018 VT 95, 210 Vt. 293, 214 A.3d 791, 2018 Vt. LEXIS 134 (2018).

Given the ill fit between nonconsensual pornography and obscenity, and the United States Supreme Court’s reluctance to expand the contours of the category of obscenity, the speech restricted by Vermont’s “revenge porn” statute cannot be fairly categorized as constitutionally unprotected obscenity. State v. Vanburen, 2018 VT 95, 210 Vt. 293, 214 A.3d 791, 2018 Vt. LEXIS 134 (2018).

Statutory text of the portion of the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting treats brief outbursts of speech—the content of which may merely be objectionable to the sensibilities of some (or all) of those assembled—the same as prolonged, voluminous speech that, for example, drowns out the primary speaker, preventing audience members from hearing the speaker. If the court were to apply this statute according to its terms, it would criminalize heckling, interrupting, harsh questioning, booing, and all manner of speech that has been tolerated pursuant to the rights accorded to the peoples of free societies; thus, the statute, as worded, impermissibly sanctions a substantial amount of protected speech even when considered in relation to its legitimate scope. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Central constitutional tension presented by the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting arises from a clash of two fundamental First Amendment rights—freedom of speech and freedom of assembly. In construing the statute, the court must ensure that neither fundamental right is unnecessarily sacrificed for the sake of the other. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

To show that a defendant violated the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting, the State must prove that a defendant’s conduct— and not the content of the activity’s expression—substantially impaired the effective conduct of a meeting. Narrowing the reach of the statute in such a fashion strikes the proper balance between the two fundamental rights implicated by the statute, freedom of speech and freedom of assembly. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Defendants’ actions did not substantially impair the effective conduct of a commencement ceremony when a speech was interrupted for less than thirty seconds by defendants’ remarks; one defendant was in the process of leaving the ceremony voluntarily when he was apprehended; and both defendants left the site of the ceremony upon being asked and without further incident. Such de minimis disturbances, even if rude and out of place in the context of a commencement ceremony, could not serve as the basis for criminal liability without running afoul of the First Amendment. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

A television station is entitled to no privilege under this amendment, qualified or otherwise, to refuse to disclose evidence of a crime, or evidence that is relevant and material to a criminal investigation, when properly subpoenaed. Because the trial court found that the evidence sought by the State’s Attorney pursuant to the inquest subpoena was relevant and material to a criminal investigation, the State’s Attorney is not required to make any showing that the material is not obtainable through other sources. In re Inquest Subpoena, 2005 VT 103, 179 Vt. 12, 890 A.2d 1240, 2005 Vt. LEXIS 244 (2005).

Former administrator’s damages claims and request for reinstatement and back pay were dismissed against town and its officials, as they had legislative immunity; claims for declaratory and injunctive relief and for damages against the town on First Amendment, retaliation, and open-meetings claims were not dismissed, as the allegation was that town officials met secretly and conspired to deny reappointment in retaliation for the administrator’s unpopular stance on a zoning issue, speech on a matter of public concern. Berlickij v. Town of Castleton, 248 F. Supp. 2d 335, 2003 U.S. Dist. LEXIS 3455 (D. Vt. 2003).

Heightened scrutiny is employed when reviewing a tax statute that discriminates on the basis of a taxpayer’s speech; however, where a tax statute is broad-based, content-neutral, and generally applicable, the statute is reviewed under a deferential rational basis standard. In re Picket Fence Review, 173 Vt. 369, 795 A.2d 1242, 2002 Vt. LEXIS 51 (2002).

Where the Commissioner based his determination of whether taxpayer was exempt as a newspaper from use tax on the format and frequency of the publication, not on its content, it was not necessary to address taxpayer’s assertion that provision of statute that “[a] publication shall not be considered a newspaper unless, on an average for the taxable year, at least ten percent of its printed material consists of news of general or community interest, community notices, editorial comment, or articles by different authors” contains constitutionally impermissible content-based criteria. In re Picket Fence Review, 173 Vt. 369, 795 A.2d 1242, 2002 Vt. LEXIS 51 (2002).

The court vacated a preliminary injunction against enforcement of the mercury labeling statute, 10 V.S.A. § 6621d , on the ground that the plaintiff association failed to show a likelihood of success on the merits of its claim that the statute violated the First Amendment since the State’s interest in protecting human health and the environment from mercury poisoning was a legitimate and significant public goal and it was probable that some mercury lamp purchasers, newly informed by the Vermont label, would properly dispose of them and thereby reduce mercury pollution. Perry v. McDonald, 280 F.3d 159, 2001 U.S. App. LEXIS 22463 (2d Cir. 2001).

Lobbying directly involves core political speech that lies at the very heart of what the First Amendment was designed to safeguard. Vermont Society of Ass'n Executives v. Milne, 172 Vt. 375, 779 A.2d 20, 2001 Vt. LEXIS 179 (2001).

Communications of paid lobbyists deserve no less constitutional protection than that afforded to the direct entreaties of individual citizens. Vermont Society of Ass'n Executives v. Milne, 172 Vt. 375, 779 A.2d 20, 2001 Vt. LEXIS 179 (2001).

Where First Amendment interests are at stake, heightened scrutiny is required; hence, if a tax singles out and burdens freedoms protected by the First Amendment, the tax is unconstitutional unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation. Vermont Society of Ass'n Executives v. Milne, 172 Vt. 375, 779 A.2d 20, 2001 Vt. LEXIS 179 (2001).

Generally applicable laws burdening First Amendment interests may or may not be subject to heightened scrutiny, but laws that single out those interests are always subject to at least some degree of heightened First Amendment scrutiny. Vermont Society of Ass'n Executives v. Milne, 172 Vt. 375, 779 A.2d 20, 2001 Vt. LEXIS 179 (2001).

Lobby tax is a tax imposed directly on expenditures connected with communications and activities aimed at influencing legislation, and, thus, it is not part of a generally applicable sales tax that applies to a broad range of services, but rather singles out lobbying, a protected First Amendment interest, for special treatment; as such, heightened scrutiny is warranted, and, because the State proffers no government interest apart from the raising of revenue, the tax cannot withstand such scrutiny. Vermont Society of Ass'n Executives v. Milne, 172 Vt. 375, 779 A.2d 20, 2001 Vt. LEXIS 179 (2001).

Where recipients of Legal Services Corporation funds were prohibited from providing legal representation if representation involved an effort to amend or otherwise challenge existing welfare law, the condition constituted an impermissible restriction on speech and legal advice in violation of the First Amendment. Legal Services Corp. v. Velazquez, 531 U.S. 533, 121 S. Ct. 1043, 149 L. Ed. 2d 63, 2001 U.S. LEXIS 1954 (2001).

State campaign finance reform law, as written, impinged on constitutionally protected issue advocacy; district court on remand was therefore directed to address whether words “or implicitly” could be severed by judgment striking them down but leaving remainder of law intact. Vermont Right To Life Committee, Inc. v. Sorrell, 216 F.3d 264, 2000 U.S. App. LEXIS 14049 (2d Cir.), superseded, 221 F.3d 376, 2000 U.S. App. LEXIS 29682 (2d Cir. 2000).

State employee’s exercise of free speech was not a motivating factor in agency employer’s insistence that he sign environmental permit certification; First Amendment protection was inapplicable absent evidence that employer interfered with employee’s speech, or took adverse action as a result of speech, and employee’s refusal to sign certification did not outweigh employer’s interest in promoting efficiency of public services it performed through its employees. In re Robins, 169 Vt. 377, 737 A.2d 370, 1999 Vt. LEXIS 209 (1999).

Provisions of city ordinance that completely banned publicly visible tobacco advertising within one thousand feet of school property, banned sponsorship advertising and distribution of free samples, and restricted point-of-sale advertising, were not narrowly tailored to reduce underage smoking and were therefore invalidated as an unconstitutional restriction of commercial speech. Rockwood v. City of Burlington, 21 F. Supp. 2d 411, 1998 U.S. Dist. LEXIS 15021 (D. Vt. 1998).

A discharged public school teacher’s speech touched upon matters of public concern and was entitled to First Amendment protection, where his statement was made at a community forum to inform and involve parents about school policies, and the statement criticized the basketball cut policy, a matter of interest to parents and students alike. Rich v. Montpelier Supervisory Dist., 167 Vt. 415, 709 A.2d 501, 1998 Vt. LEXIS 10, limited, Cook v. Nelson, 167 Vt. 505, 712 A.2d 382, 1998 Vt. LEXIS 23 (1998).

Assuming that a reasonable police officer could have interpreted the disorderly conduct statute to cover plaintiff’s vulgar statement at a roadblock, such an officer nonetheless could not have believed that such an interpretation was constitutionally valid. A reasonable officer would have understood that arresting plaintiff merely for uttering an expletive violated plaintiff’s clearly established right to free speech, and in turn, his right not to be arrested without probable cause. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048, 1997 Vt. LEXIS 179 (1997).

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).

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).

Religious speech, like political or artistic expression, is protected by the free speech component of this amendment. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

City had a secular purpose in issuing a permit for display of a menorah in city hall park: allowing expression in a public forum. Kaplan v. City of Burlington, 700 F. Supp. 1315, 1988 U.S. Dist. LEXIS 13871 (D. Vt. 1988), rev'd, 891 F.2d 1024, 1989 U.S. App. LEXIS 19078 (2d Cir. 1989).

In the context of a freedom of speech challenge, probation conditions may impact upon a probationer’s First Amendment rights so long as the conditions have a reasonable nexus with rehabilitation of the defendant and protection of the public. State v. Emery, 156 Vt. 364, 593 A.2d 77, 1991 Vt. LEXIS 90 (1991).

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).

—Application of right.

In a murder case, the trial court violated the right of access by a press organization under the First Amendment to the United States Constitution by redacting portions of a motion to vacate a detention order by a minor identified as a material witness and by closing a portion of the court proceedings concerning the motion because the court made no findings to justify the redactions, gave no indication why provisions governing matters in juvenile court were applicable, and provided no specific findings to support its closure order. State v. Favreau, 173 Vt. 636, 800 A.2d 472, 2002 Vt. LEXIS 68 (2002) (mem.).

This amendment protects both publication and distribution of newspapers. City of Burlington v. New York Times Co., 148 Vt. 275, 532 A.2d 562, 1987 Vt. LEXIS 506 (1987).

Newsracks on public sidewalks are protected by this amendment. City of Burlington v. New York Times Co., 148 Vt. 275, 532 A.2d 562, 1987 Vt. LEXIS 506 (1987).

Freedom of press secured to people of United States by this amendment applies not only to printed matter circulated without charge to recipients but it also applies when charge is made for it. State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941).

Licensing.

To compel one who wishes to distribute pamphlets of religious teachings to obtain license to do so would operate as a restraint upon circulation of pamphlets and would violate freedom of press guaranteed by this amendment. State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941).

A person may, pursuant to this amendment, disseminate religious pamphlets, not obscene or otherwise objectionable, without necessity of complying with city ordinance requiring peddlers to be licensed. State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941).

Media protected.

False credit report sent by credit reporting agency to its customers was speech solely in the individual interest of the speaker and its specific business audience; it did not involve a matter of public concern warranting special protection under this amendment. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593, 1985 U.S. LEXIS 103 (1985).

Since there is a clear distinction between publications that disseminate news for public consumption and those that provide specialized information to a selective, finite audience, credit reporting agencies, which are in the business of selling financial information to a limited number of subscribers who have paid substantial fees for their services, are not the type of media worthy of protection under this amendment. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 143 Vt. 66, 461 A.2d 414, 1983 Vt. LEXIS 466 (1983), aff'd, 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593, 1985 U.S. LEXIS 103 (1985).

Privileges.

While the press has the right to withhold whatever information from publication that it chooses, the exercise of that right does not grant the press a First Amendment “exemption” from the ordinary duty of all citizens to furnish relevant information to a grand jury. In re Inquest Subpoena, 2005 VT 103, 179 Vt. 12, 890 A.2d 1240, 2005 Vt. LEXIS 244 (2005).

A television station is entitled to no privilege under this amendment, qualified or otherwise, to refuse to disclose evidence of a crime, or evidence that is relevant and material to a criminal investigation, when properly subpoenaed. Because the trial court found that the evidence sought by the State’s Attorney pursuant to the inquest subpoena was relevant and material to a criminal investigation, the State’s Attorney is not required to make any showing that the material is not obtainable through other sources. In re Inquest Subpoena, 2005 VT 103, 179 Vt. 12, 890 A.2d 1240, 2005 Vt. LEXIS 244 (2005).

Under this amendment, there is no privilege excusing newsmen from the obligation to appear and testify before State or federal grand juries and to answer questions relevant to an investigation into commission of a crime. State v. St. Peter, 132 Vt. 266, 315 A.2d 254, 1974 Vt. LEXIS 331 (1974), limited, In re Inquest Subpoena (WCAX), 2005 VT 103, 179 Vt. 12, 890 A.2d 1240, 2005 Vt. LEXIS 244 (2005).

There is no explicit constitutional definition requiring recognition of a newsman’s privilege to withhold testimony at a criminal trial. State v. St. Peter, 132 Vt. 266, 315 A.2d 254, 1974 Vt. LEXIS 331 (1974), limited, In re Inquest Subpoena (WCAX), 2005 VT 103, 179 Vt. 12, 890 A.2d 1240, 2005 Vt. LEXIS 244 (2005).

Where a newsgatherer entitled to protection under this amendment objects to inquiries put to him in a deposition proceeding in a criminal case, on grounds of a privilege under this amendment, he is entitled to refuse to answer unless the interrogator can demonstrate to the judicial officer appealed to that there is no other adequately available source for the information and that it is relevant and material on issue of guilt or innocence. State v. St. Peter, 132 Vt. 266, 315 A.2d 254, 1974 Vt. LEXIS 331 (1974), limited, In re Inquest Subpoena (WCAX), 2005 VT 103, 179 Vt. 12, 890 A.2d 1240, 2005 Vt. LEXIS 244 (2005).

Public forums.

The plaintiff did not have a First Amendment right to use vanity plates bearing the letters “SHTHPNS” since (1) vanity plates do not constitute a public forum, and (2) the defendant’s policy of prohibiting vanity plates with offensive scatological terms was reasonable and viewpoint-neutral. Perry v. McDonald, 280 F.3d 159, 2001 U.S. App. LEXIS 22463 (2d Cir. 2001).

There is a federal First Amendment right not to be excluded from a forum generally held open to the public under State law. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Plaintiff had no First Amendment right to be present at town meetings that were designated executive meetings, since such meetings are not generally held open to the public. Rowe v. Brown, 157 Vt. 373, 599 A.2d 333, 1991 Vt. LEXIS 197 (1991).

Regulation.

This amendment does not exempt newspapers from all forms of regulation; time, place, and manner restrictions are permissible as long as they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941).

City ordinance requiring a permit to obstruct a sidewalk, pursuant to which city sought to collect a fee to place newspaper vending machines on sidewalks, was unconstitutionally void for vagueness and overbroad under this amendment, since it was not narrowly drawn to regulate newsracks and contained no standards limiting discretion of city officials responsible for issuing permits. State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941).

Right to petition.

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 protected by this amendment. In re Davenport, 129 Vt. 546, 283 A.2d 452, 1971 Vt. LEXIS 303 (1971).

Social dating is not protected by the right to freedom of association. Lafayette v. Frank, 688 F. Supp. 138, 1988 U.S. Dist. LEXIS 5196 (D. Vt. 1988).

Trial court correctly denied petitioner’s motion to continue order sealing affidavits of probable cause, where petitioner presented evidence of no more than the mere possibility of prejudice if the contents of the affidavits became public. Lafayette v. Frank, 688 F. Supp. 138, 1988 U.S. Dist. LEXIS 5196 (D. Vt. 1988).

Schools.

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).

Permitting church related institution of learning to participate in assistance provided by 16 V.S.A. §§ 3851-3862 , the Educational Buildings Financing Act, did not unconstitutionally serve the cause of religion in light of facts that administration of act involved no power to appropriate public funds, that college was financed from tuition and gifts and received no financial assistance from the church, and that church had no proprietary interest in reversion, or otherwise, in college property. 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).

Establishment of Religion Clause of this amendment prohibited payment of tuition by local school district to religious denominational high schools under former 16 V.S.A. § 793 . Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961). But see Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999), cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518 (1999).

The State may require school attendance for children within a specified age and punish parents for child’s truancy, even where truancy is asserted to arise from parents’ free exercise of their religion. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514, 1961 Vt. LEXIS 54, cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384, 1961 U.S. LEXIS 1176 (1961).

For purposes of challenge under Free Exercise Clause to statutory private school reporting requirements, the State has a compelling interest in regulating attendance and minimum course of study of students in private as well as public schools in order that all students obtain basic skills necessary to function as adults and citizens. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514, 1961 Vt. LEXIS 54, cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384, 1961 U.S. LEXIS 1176 (1961).

For purposes of Free Exercise Clause challenge to statutory private school reporting requirements, the State’s requirement that private religious school maintain records concerning each pupil’s attendance and academic progress and annually report names and address of enrolled pupils to the State was the least restrictive means of realizing the State’s compelling interest in ensuring a minimal level of education for each child, and defendants presented no valid claim for exemption from all State regulation of education. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961). See also Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999), cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518 (1999).

State could validly prosecute parents for truancy of child enrolled in religious school that did not meet statutory private school reporting requirements; in their First Amendment challenge to the reporting statute, parents had emphasized the unity of interest of the church and the parents, and nothing in the record suggested church could not change its policies to comply with the statute or that parents could not control church policy, and parents made no attempt to reconcile the conflict between State requirements and church policy. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961). See also Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999), cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518 (1999).

Statutory scheme of regulation of private schools that left implementation of reporting requirements mainly to the good faith of the schools and that was enacted as a compromise acceptable to religious educators willing to report basic information but not willing to accept on-site State oversight was not so limited that it was wholly ineffectual so as not to be enforced against a claim of religious liberty. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961). See also Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and, Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999), cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518 (1999).

In case where defendants demonstrated that statutory reporting requirement for private schools burdened their rights under the Free Exercise Clause, the State could justify burdening the rights by demonstrating a compelling State interest; however, it was incumbent on the Supreme Court to searchingly examine the State’s interest and the detrimental effect that might result from exempting defendants from statutory requirements. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514 (1961), cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384 (1961). See also Campbell v. Manchester Bd. of Sch. Dirs., 161 Vt. 441, 641 A.2d 352, 1994 Vt. LEXIS 21 (1994), and, Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539, 1999 Vt. LEXIS 98 (1999), cert. denied, 528 U.S. 1066, 120 S. Ct. 626, 145 L. Ed. 2d 518 (1999).

Standards for review.

Probation conditions that unquestionably restrict otherwise inviolable constitutional rights may properly be subject to special scrutiny to determine whether the limitations do in fact serve the dual objectives of rehabilitation and public safety. State v. Emery, 156 Vt. 364, 593 A.2d 77, 1991 Vt. LEXIS 90 (1991).

Where no plain error was found in trial court’s revocation of probation on basis that defendant failed to successfully complete sexual therapy program, claim that requiring defendant to admit having had sexual intercourse with his stepdaughter infringed upon his First Amendment rights first raised on appeal was not preserved for review. State v. Mace, 154 Vt. 430, 578 A.2d 104, 1990 Vt. LEXIS 107 (1990).

A party asserting a violation of the First Amendment has the initial burden of proving that the State requirement or restriction imposes a burden on religious belief or practice. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

In considering question of abridgement of freedom of speech, religion, and press under this amendment, an ordinance must be tested by its operation and effect rather than its form. State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941).

—Application to states.

There was no excessive entanglement with regard to plaintiff’s claims that defendant diocese negligently hired, trained, supervised, and retained a priest who sexually abused him. The negligence claim was not measured against canon law, but rather against secular legal standards; common law, not ecclesiastical principles, established the scope of defendant’s duty; and the duty owed by defendant to protect minors from sexual abuse was not different from the duty owed by other institutions to which the common law applied. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Vermont Supreme Court does not read the religious autonomy doctrine to require a blanket protection of a church from any and all accountability in secular courts. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Plaintiff’s claims that defendant diocese negligently hired, trained, supervised, and retained a priest who sexually abused him did not violate the Free Exercise Clause; defendant did not argue that the common law of negligence was something other than a neutral law of general applicability or that it was directed specifically toward a religious belief or practice of defendant, nor had defendant identified a specific doctrine or practice that would be burdened if plaintiff’s suit went forward. The court did not believe defendant’s generalized assertion that requiring it to hire and supervise priests in a nonnegligent manner would constitute undue interference in church governance. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

The basic concept of religious liberty and the separation of church and state was made applicable to the states with the ratification of the Fourteenth Amendment. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514, 1961 Vt. LEXIS 54, cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384, 1961 U.S. LEXIS 1176 (1961).

Sunday closing law.

The religious origin of the Sunday closing law, former 13 V.S.A. § 3301 , could not be questioned, but did not condemn it as one respecting the establishment of religion in violation of this amendment, as subsequent development had sufficiently altered its purpose from one in aid of religion to one setting aside a nonreligious day of general rest and recreation. State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739, 1970 Vt. LEXIS 269 (1970). But see State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791, 1982 Vt. LEXIS 516 (1982).

The sabbatarian exemption in the Sunday closing law, former 13 V.S.A. § 3301 , under which a person who observed Saturday as the sabbath could close his business on that day, rather than on Sunday, did not condemn the section as religious and thus in violation of the Establishment of Religion Clause of this amendment. State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739, 1970 Vt. LEXIS 269 (1970). But see State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791, 1982 Vt. LEXIS 516 (1982).

Taxation as burden.

Quakers’ allegation that voluntary compliance with income tax laws burdened their practice of religion, by requiring them to support war-related activities, failed as a matter of law, since voluntary compliance with federal income tax laws was the least restrictive means of furthering a compelling governmental interest. Browne v. United States, 22 F. Supp. 2d 309, 1998 U.S. Dist. LEXIS 8224 (D. Vt. 1998), aff'd, 176 F.3d 25, 1999 U.S. App. LEXIS 5297 (2d Cir. 1999).

Cited.

Cited in State v. Gilfel of Rutland, Inc., 128 Vt. 595, 270 A.2d 153, 1970 Vt. LEXIS 281 (1970); Bowles v. Robbins, 359 F. Supp. 249, 1973 U.S. Dist. LEXIS 14057 (D. Vt. 1973); Lace v. University of Vermont, 131 Vt. 170, 303 A.2d 475, 1973 Vt. LEXIS 288 (1973); State v. Elwell, 131 Vt. 245, 303 A.2d 134, 1973 Vt. LEXIS 299 (1973); State v. Arbeitman, 131 Vt. 596, 313 A.2d 17, 1973 Vt. LEXIS 360 (1973); Michlin v. Roberts, 132 Vt. 154, 318 A.2d 163, 1974 Vt. LEXIS 316 (1974); State v. LaBarge, 134 Vt. 276, 357 A.2d 121, 1976 Vt. LEXIS 651 (1976); Napro Development Corp. v. Town of Berlin, 135 Vt. 353, 376 A.2d 342, 1977 Vt. LEXIS 628 (1977); Colombo v. Times-Argus Association, Inc., 135 Vt. 454, 380 A.2d 80, 1977 Vt. LEXIS 654 (1977); State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979); Hadwen, Inc. v. Department of Taxes, 139 Vt. 37, 422 A.2d 255, 1980 Vt. LEXIS 1391 (1980); Burns v. Times-Argus Association, Inc., 139 Vt. 381, 430 A.2d 773, 1981 Vt. LEXIS 490 (1981); State v. Roy, 140 Vt. 219, 436 A.2d 1090, 1981 Vt. LEXIS 586 (1981); Lent v. Huntoon, 143 Vt. 539, 470 A.2d 1162, 1983 Vt. LEXIS 583 (1983); State v. Purvis, 146 Vt. 441, 505 A.2d 1205, 1985 Vt. LEXIS 395 (1985); Bell v. U-32 Board of Education, 630 F. Supp. 939, 1986 U.S. Dist. LEXIS 28120 (D. Vt. 1986); State v. Robillard, 146 Vt. 623, 508 A.2d 709, 1986 Vt. LEXIS 334 (1986); State v. Begins, 147 Vt. 45, 509 A.2d 1007, 1986 Vt. LEXIS 359 (1986); Furno v. Pignona, 147 Vt. 538, 522 A.2d 746, 1986 Vt. LEXIS 464 (1986); Robison v. Via, 821 F.2d 913, 1987 U.S. App. LEXIS 7886 (2d Cir. 1987); Merrow v. Goldberg, 672 F. Supp. 766, 1987 U.S. Dist. LEXIS 10174 (D. Vt. 1987); Cockrell v. Middlebury College, 148 Vt. 557, 536 A.2d 547, 1987 Vt. LEXIS 548 (1987); In re Morrissey, 149 Vt. 1, 538 A.2d 678, 1987 Vt. LEXIS 579 (1987); In re Grand Jury Subpoena, 118 F.R.D. 558, 1987 U.S. Dist. LEXIS 13001 (D. Vt. 1987); Herald Ass'n v. Judicial Conduct Board, 149 Vt. 233, 544 A.2d 596, 1988 Vt. LEXIS 30 (1988); Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 543 A.2d 1320, 1988 Vt. LEXIS 43 (1988); In re Axelrod, 150 Vt. 136, 549 A.2d 653, 1988 Vt. LEXIS 104 (1988); State v. Cantrell, 151 Vt. 130, 558 A.2d 639, 1989 Vt. LEXIS 13 (1989); In re K.F., 151 Vt. 211, 559 A.2d 663, 1989 Vt. LEXIS 26 (1989); State v. Parenteau, 153 Vt. 123, 569 A.2d 477, 1989 Vt. LEXIS 242 (1989); Crump v. P & C Food Markets, Inc., 154 Vt. 284, 576 A.2d 441, 1990 Vt. LEXIS 65 (1990); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Palmer v. Bennington School District, Inc., 159 Vt. 31, 615 A.2d 498, 1992 Vt. LEXIS 105 (1992); State v. Gundlah ex rel. Smallheer, 160 Vt. 193, 624 A.2d 368, 1993 Vt. LEXIS 30 (1993); State v. Wilcox, 160 Vt. 271, 628 A.2d 924, 1993 Vt. LEXIS 57 (1993); State v. Dann, 167 Vt. 119, 702 A.2d 105, 1997 Vt. LEXIS 237 (1997); State v. Ely, 167 Vt. 323, 708 A.2d 1332, 1997 Vt. LEXIS 286 (1997); Cook v. Nelson, 167 Vt. 505, 712 A.2d 382, 1998 Vt. LEXIS 23 (1998); Huminski v. Rutland City Police Dep't, 221 F.3d 357, 2000 U.S. App. LEXIS 18021 (2d Cir. 2000).

Law Reviews —

For article, “The Psychological Conditions for a Socially Significant Free Press: Reconsidering the Hutchins Commission Report Fifty Years Later,” see 22 Vt. L. Rev. 493 (1998).

For note, “Can the NBA Punish Dennis Rodman? An Analysis of First Amendment Rights in Professional Basketball,” see 23 Vt. L. Rev. 157 (1998).

For note, “Students’ Free Speech Rights in Public Schools: Content-Based Versus Public Forum Restrictions, ” see 13 Vt. L. Rev. 493 (1989).

For article, “The Voice of the Little People—A Lost Value in Commercial Speech Analysis,” see 16 Vt. L. Rev. 901 (1992).

For paper, “An Analysis of the Constitutionality of the Vermont Hate Motivated Crimes Statute in Light of the United States Supreme Court’s Decisions in R.A.V. v. City of St. Paul and Wisconsin v. Mitchell, ” see 18 Vt. L. Rev. 771 (1994).

State regulation of private church-related schools, see 8 Vt. L. Rev. 75 (1983).

For Article, “FRESPCH: Vanity Plates and the First Amendment,” see 25 Vt. L. Rev. 879 (2001).

For note, “Paradise Lost: Good News Club, Charitable Choice, and the State of Religious Freedom,” see 27 Vt. L. Rev. 177 (2002).

For article, “Eras In Public Employment-Free Speech Jurisprudence,” see 32 Vt. L. Rev. 317 (2007).

Amendment II. Right to bear arms

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

History

Proposal and ratification. See note set out under Amendment I.

CROSS REFERENCES

Right to bear arms guaranteed by State Constitution, see Vt. Const. Ch. I, Art. 16.

Amendment III. Quartering soldiers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

History

Proposal and ratification. See note set out under Amendment I.

Amendment IV. Searches and seizures

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

History

Proposal and ratification. See note set out under Amendment I.

CROSS REFERENCES

Search and seizure regulated by State Constitution, see Vt. Const. Ch. I, Art. 11.

ANNOTATIONS

Abandoned property.

There is nothing unlawful in a warrantless search and seizure of abandoned property. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

One who abandons or discards property cannot complain of the later seizure of such property by the police or of its use against him in criminal proceedings. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

In search and seizure cases, abandonment relates, not necessarily to the property, per se, in the sense of the law of personal property, but to abandonment of the expectation of privacy that a suspect may have in the property. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

In the case of defendant convicted of knowing and unlawful possession of regulated drugs and carrying a deadly weapon while committing a felony, where the drugs and handgun that gave rise to the charges were found in a bag, trial court did not err in denying defendant’s motion to suppress the contents of the bag on the ground that it had been seized and examined without a warrant, since evidence showing that defendant had dropped or discarded the bag in a public place where anyone might find and appropriate it and walked away from it was sufficient to establish that defendant had abandoned any reasonable expectation of privacy he might otherwise have been able to claim in the bag. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

Acts constituting seizure.

Officer’s conduct constituted a seizure where, upon approaching two stopped vehicles, he signaled defendant to stop his vehicle after defendant had already begun to drive away and, even though he had not activated the cruiser’s blue lights, he told defendant verbally and by gesturing that he was not free to leave; furthermore, the officer’s headlights were pointed directly at defendant and the driver of the second car. State v. Pierce, 173 Vt. 151, 787 A.2d 1284, 2001 Vt. LEXIS 378 (2001).

—Probable cause.

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).

Nontestimonial identification order requiring collection of saliva from defendant’s mouth did not violate Fourth Amendment, despite fact that order could be issued on showing of only reasonable suspicion, rather than probable cause, since order was an advanced judicial determination akin to a warrant, and basic elements of saliva sampling for DNA were similar to fingerprinting and did not involve serious intrusion upon personal security. In re Nontestimonial Identification Order Directed to R.H., 171 Vt. 227, 762 A.2d 1239, 2000 Vt. LEXIS 246 (2000).

Probable cause to issue search warrant was supported by substantial evidence based on totality of circumstances, where packages that 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.).

Witness’s observations in search warrant application, taken in conjunction with other sightings of automobile and of man matching defendant’s description, were sufficient to establish probable cause. State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 2000 Vt. LEXIS 14 (2000).

Probable cause test from State v. Brown, 151 Vt. 533, 562 A.2d 1057, that more likely than not item sought will be located in place sought, is overruled; rather; totality of circumstances must be examined to determine whether there was substantial evidence supporting warrant. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

In determining probable cause, strength of nexus may be considered between defendant and crime, and where connection is strong, link between place to be searched and evidence sought, need not be as strong, if place is one over which defendant exercises control; nonetheless, there must be particular facts or logical inferences supporting conclusion that place to be searched may contain evidence. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

Probable cause can be inferred from nature of crime, type of materials sought, extent of an opportunity for concealment, and reasonable inferences to criminal behavior. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

Probable cause existed to issue search warrant to search foundation of home of first-degree murder defendant, where defendant was strongly connected with crime and weapon, home is first place to look for crime evidence, and defendant constructed foundation two days after murder. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

Valid seizure of storage locker rental agreement and over 100 pounds of marijuana found in defendant’s house and car provided probable cause for drug enforcement agents to obtain a warrant to search the locker, even though the period covered by the rental agreement had ended 7 months prior to the search of the locker, since one of the agents contacted the storage company and determined that defendant was still renting and had recently used the locker, and the agents knew from experience that dealers use such lockers to store drugs pending distribution. United States v. Riley, 906 F.2d 841, 1990 U.S. App. LEXIS 10175 (2d Cir. 1990).

In determining whether search warrant was supported by probable cause, Supreme Court must decide only if issuing magistrate made a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, there was a fair probability that contraband or evidence of a crime would be found in a particular place. State v. Potter, 148 Vt. 53, 529 A.2d 163, 1987 Vt. LEXIS 451 (1987).

Issuing magistrate’s conclusion that probable cause for issuance of search warrant exists must be treated with great deference on review. State v. Potter, 148 Vt. 53, 529 A.2d 163, 1987 Vt. LEXIS 451 (1987).

Where existence of probable cause for issuance of search warrant is challenged, Supreme Court must determine whether there is substantial evidence in record supporting magistrate’s decision. State v. Potter, 148 Vt. 53, 529 A.2d 163, 1987 Vt. LEXIS 451 (1987).

Probable cause to support issuance of search warrant exists where facts and circumstances within officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Law enforcement officer is entitled to assess facts, in determining whether probable cause for search exists, in light of his or her experience detecting the unlawful conduct. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Probable cause to support a search warrant must exist at the time the government seeks to make the search; if information is too old, it is considered stale and probable cause no longer exists. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

To establish probable cause to search a residence, facts must show that a crime was committed and that there is probable cause to believe that evidence of the crime is located at the residence. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Once a magistrate has made a determination on the issue of probable cause, reviewing court should pay great deference to that determination. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Magistrate could reasonably have concluded that crime of knowing receipt of sexually explicit depiction of minors has been committed and that items sought would be found in defendant’s residence, to justify issuance of search warrant, where customs agents knew that packages coming to post office box were from known importers or distributors of child pornography, that children in photographs were in poses proscribed by statute, that defendant appeared to be the only one to pick up mail from box, and that those who collect child pornography keep the pornography accessible. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Magistrate could reasonably have concluded that probable cause supporting search of defendant’s residence for child pornography was not stale where affidavit stated that receiving child pornography was continuing offense, that four packages had been mailed over several months to post office box, that defendant used box to receive mail under fictitious name, and that collector of such materials would not destroy collection. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Where affidavit supporting State’s request for a search warrant for pharmacy records stated that defendant was a Medicaid provider under investigation for generic substitution, defendant refused to permit investigators access to his pharmacy records despite the fact that he was required by law to permit inspection and review of his documents when requested, when defendant closed his pharmacy he informed the State pharmacy board that all records had been removed to his barn, and the affidavit also stated that when defendant learned of the investigation he told a former employee that he could not remember how often he had filed the brand-name reimbursement claims for dispensations of generic drugs and that examination of the pharmacy’s inventory purchases would reveal that his claims could not be supported, the evidence provided a substantial basis for trial court’s finding of probable cause to believe that requested pharmacy documents existed and could be found in defendant’s barn. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

Since it is not the function of appellate review to make a de novo determination of probable cause to issue a search warrant, a magistrate’s determination of probable cause is entitled to great deference. State v. Maguire, 146 Vt. 49, 498 A.2d 1028, 1985 Vt. LEXIS 349 (1985).

This amendment requires warrants to be issued only upon probable cause. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

In determining whether probable cause to issue a search warrant exists, the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

A reviewing court must pay great deference to an issuing official’s determination of probable cause for a search warrant. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

Probable cause to search exists when the facts and circumstances set forth in the affidavit supporting the warrant are such that a judicial officer may reasonably conclude that the evidence sought is connected to the crime and located at the place indicated. State v. Moran, 141 Vt. 10, 444 A.2d 879, 1982 Vt. LEXIS 481 (1982).

Probable cause to issue warrant to search premises exists when facts and circumstances are such that a person of reasonable caution would conclude that a crime has been or is being committed and that evidence of crime will be found in the place to be searched. State v. Driscoll, 137 Vt. 89, 400 A.2d 971, 1979 Vt. LEXIS 958 (1979).

For probable cause to exist to issue a warrant to search premises, it must appear that specified items are presently on the premises; and the probability of their being there is lessened by the passage of time. State v. Driscoll, 137 Vt. 89, 400 A.2d 971, 1979 Vt. LEXIS 958 (1979).

Probable cause to support issuance of a search warrant exists where the facts and circumstances, both within the knowledge of the searching officers and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. State v. Rocheleau, 131 Vt. 563, 313 A.2d 33, 1973 Vt. LEXIS 356 (1973).

While evidence of past reliability attests to the honesty of an informant, when a search warrant is sought based on information from an informant, determination of probable cause rests upon whether the informant’s present information is truthful or reliable. State v. Rocheleau, 131 Vt. 563, 313 A.2d 33, 1973 Vt. LEXIS 356 (1973).

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).

Excessive force was not used in the seizure of the plaintiff when a police officer knocked his feet out from under him, grabbed him around the chest, and forced him to the ground since the officer had reason to be concerned that the suddenly uncooperative plaintiff might present a danger to the officers, himself, or others, especially as the complaint that prompted officers’ arrival at the plaintiff’s house involved a weapon, albeit a BB gun. Flanigan v. Town of Colchester, 171 F. Supp. 2d 361, 2001 U.S. Dist. LEXIS 18500 (D. Vt. 2001).

While the act of flight may be indicative of guilty knowledge, it does not provide a proper basis for an arrest unless coupled with specific knowledge relating the suspect to the evidence of the crime, because the mere act of fleeing is an ambiguous act. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

Where defendant convicted of operating a motor vehicle without the consent of the owner took flight after the vehicle had been stopped, but the officer who stopped the vehicle had no articulable and reasonable suspicion that the vehicle, or its occupants, were in any way connected or associated with any wrongdoing, the act of defendant in running away could not alone provide the officer with probable cause to arrest him. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

This amendment does not require that the occurrence of a criminal act be proven beyond a reasonable doubt before a warrantless arrest can be valid; proof that the occurrence of a criminal act is probable is sufficient. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

The standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in a warrantless arrest situation than in a case where a warrant is sought from a judicial officer. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

Probable cause to arrest exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

For probable cause to exist in a warrantless arrest situation, it is necessary that some facts substantiating the commission of an alleged crime be communicated to the arresting officer or to an officer with whom he is in communication. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

Subsequent revelations will not retroactively confer probable cause to make an arrest. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

The ultimate discovery of evidence sought to be excluded cannot be considered in evaluating whether probable cause existed at the time of the detention, because an arrest or search cannot be justified by what the search discloses. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

Where the communication between police officers occurred after the initial detention of a suspect, it could not be considered in evaluating whether probable cause existed at the moment of the detention. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

Whether an arrest is permissible under this amendment turns on whether, at the time of arrest, the police officers have probable cause. State v. Meunier, 137 Vt. 586, 409 A.2d 583, 1979 Vt. LEXIS 1095 (1979).

Probable cause to arrest exists where the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a man of reasonable caution in the belief that the suspect has committed or is in the process of committing a felony. State v. Meunier, 137 Vt. 586, 409 A.2d 583, 1979 Vt. LEXIS 1095 (1979).

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 amendment invalidating the prosecution and conviction. In re Mahoney, 128 Vt. 462, 266 A.2d 444, 1970 Vt. LEXIS 255 (1970).

Under this amendment 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).

Automobiles.

Automobile exception to search warrant requirement is not limited to automobile itself, but includes contents of all containers found anywhere in vehicle that might contain object of search; probable cause is required, but a warrant is not. State v. Savva, 159 Vt. 75, 616 A.2d 774, 1992 Vt. LEXIS 116 (1992).

Warrantless search of a movable vehicle is permissible when police have probable cause to believe vehicle contains contraband; if probable cause extends to entire vehicle, police may conduct warrantless search of every part of vehicle and its contents that may conceal object of search. United States v. Harwood, 998 F.2d 91, 1993 U.S. App. LEXIS 16098 (2d Cir. 1993), cert. denied, 510 U.S. 971, 114 S. Ct. 456, 126 L. Ed. 2d 388, 1993 U.S. LEXIS 7082 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 893, 127 L. Ed. 2d 86, 1994 U.S. LEXIS 1078 (1994).

When probable cause justifies warrantless search of a lawfully stopped vehicle, justification does not vanish once car has been immobilized, and there is no requirement that warrantless search of a vehicle occur contemporaneously with its lawful seizure. United States v. Harwood, 998 F.2d 91, 1993 U.S. App. LEXIS 16098 (2d Cir. 1993), cert. denied, 510 U.S. 971, 114 S. Ct. 456, 126 L. Ed. 2d 388, 1993 U.S. LEXIS 7082 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 893, 127 L. Ed. 2d 86, 1994 U.S. LEXIS 1078 (1994).

Scope of warrantless search of automobile is defined by object of search and places in which there is probable cause to believe it may be found. United States v. Harwood, 998 F.2d 91, 1993 U.S. App. LEXIS 16098 (2d Cir. 1993), cert. denied, 510 U.S. 971, 114 S. Ct. 456, 126 L. Ed. 2d 388, 1993 U.S. LEXIS 7082 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 893, 127 L. Ed. 2d 86, 1994 U.S. LEXIS 1078 (1994).

Warrantless search of van’s door panels for LSD was permissible and not overbroad, since LSD in blotter form may be stashed anywhere in a vehicle. United States v. Harwood, 998 F.2d 91, 1993 U.S. App. LEXIS 16098 (2d Cir. 1993), cert. denied, 510 U.S. 971, 114 S. Ct. 456, 126 L. Ed. 2d 388, 1993 U.S. LEXIS 7082 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 893, 127 L. Ed. 2d 86, 1994 U.S. LEXIS 1078 (1994).

Defendant who reported vandalism of his truck to police and requested they investigate had no objectively reasonable and justifiable expectation of privacy in his damaged vehicle, and officer who reached through broken side window and moved coat on passenger seat, uncovering ammunition and handgun holsters, did not conduct an unlawful search. United States v. Miner, 956 F.2d 397, 1992 U.S. App. LEXIS 2098 (2d Cir. 1992).

Under this amendment, a warrantless search of a vehicle is valid if based on probable cause. State v. Goyette, 156 Vt. 591, 594 A.2d 432, 1991 Vt. LEXIS 99 (1991).

Defendant’s argument at trial, on charge of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, that he had a “constitutional and statutory right” to refuse to perform field dexterity test did not have the specificity necessary to preserve an argument under this amendment for appeal. State v. Curavoo, 156 Vt. 72, 587 A.2d 963, 1991 Vt. LEXIS 15 (1991).

Police who without warrant seized defendant’s vehicle to preserve potential evidence of murder they had probable cause to believe defendant committed acted within federal constitutional prohibition of unreasonable search and seizure; this amendment did not require a finding of exigent circumstances. State v. Platt, 154 Vt. 179, 574 A.2d 789, 1990 Vt. LEXIS 44 (1990).

Where police officer stopped defendant’s vehicle after observing several instances of erratic and dangerous driving, warrantless detention of defendant did not violate this amendment; the fact that the officer pulled out after defendant’s car after receiving a complaint of an erratic driver was irrelevant, since the mere act of following defendant in a police cruiser without lights or siren activated in no way infringed defendant’s constitutional rights. State v. Schmitt, 150 Vt. 503, 554 A.2d 666, 1988 Vt. LEXIS 209 (1988).

Police officer’s retention of car keys that defendant had dropped was not a seizure of defendant within the meaning of this amendment where defendant did not request that the keys be returned to him and defendant was free to walk away from the officer. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

Defendant was seized within the meaning of this amendment when police officer requested that defendant perform field dexterity tests in order to determine if he should be processed for driving while under the influence of intoxicating liquor. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

The minimal level of intrusion occasioned by requirement that defendant perform dexterity tests was clearly outweighed by the strong law enforcement interest in attempting to keep a suspected drunk driver off the roads. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

Exigent circumstances justify a warrantless search of an automobile stopped on a highway where there is probable cause because the car is moveable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. State v. Girouard, 135 Vt. 123, 373 A.2d 836, 1977 Vt. LEXIS 571 (1977).

Under this amendment, 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).

Blood alcohol tests.

Admission of evidence of a refusal to submit to a blood test in the context of a driving-under-the-influence criminal proceeding does not violate the Fourth Amendment. State v. Rajda, 2018 VT 72, 208 Vt. 324, 196 A.3d 1108, 2018 Vt. LEXIS 98 (2018).

Because the Fourth Amendment did not bar admission in a criminal driving-under-the-influence proceeding of evidence of a refusal to submit to a warrantless blood draw, the trial court did not err in admitting the evidence of defendant’s refusal to submit to a warrantless blood test and in instructing the jury that it could (but was not required to) draw an inference from that evidence. State v. Francis, 2018 VT 115, 208 Vt. 560, 201 A.3d 386, 2018 Vt. LEXIS 168 (2018).

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.).

As there were no other facts or circumstances in evidence that would add to an officer’s belief that a plastic bag felt during a pat-down search of defendant juvenile contained illegal drugs, the incriminating character of the contraband located in defendant’s pocket was not immediately apparent to the officer, and thus the officer did not have probable cause under the plain-feel doctrine to remove the contents of defendant’s pocket without a warrant. Therefore, defendant’s Fourth Amendment rights were violated, and the Ecstasy pill seized from defendant’s pocket should have been suppressed. In re C.C., 2009 VT 108, 186 Vt. 474, 987 A.2d 1000, 2009 Vt. LEXIS 122 (2009).

Border crossing.

When persons enter the United States at a border crossing, a routine search of those persons and their belongings without reasonable suspicion is per se reasonable; moreover, customs agents have wide discretion in deciding which persons will be referred to a secondary inspection area. State v. Lawrence, 2003 VT 68, 175 Vt. 600, 834 A.2d 10, 2003 Vt. LEXIS 149 (2003) (mem.).

Borders of United States.

At the border of the United States, federal agents may, without warrant or even suspicion, detain and search individuals as such actions are historically reasonable within the ambit of this amendment. United States v. Deval, 612 F. Supp. 329, 1985 U.S. Dist. LEXIS 18337 (D. Vt. 1985).

Agents of the Border Patrol engaged in roving patrols for the purpose of detecting the presence of illegal aliens in the United States may not conduct searches without probable cause; however, they may stop and detain persons for questioning about their citizenship if they have a reasonable suspicion that the persons may be illegal aliens and, to protect their own safety, may make reasonable searches for weapons if the circumstances warrant the belief by a reasonably prudent person that his safety or the safety of others is in danger. United States v. Deval, 612 F. Supp. 329, 1985 U.S. Dist. LEXIS 18337 (D. Vt. 1985).

So long as the evidence seized in a permissible, routine customs border inspection meets federal standards for such searches, it is no violation of the defendant’s rights under this amendment if the evidence is later used in a State prosecution. State v. Dreibelbis, 147 Vt. 98, 511 A.2d 307, 1986 Vt. LEXIS 364 (1986).

Community caretaking exception.

Officer’s actions in stopping defendant were justified under the community caretaking doctrine and did not violate the Fourth Amendment when the officer parked his police cruiser to warn approaching motorists of a hazard in the road, reasonably concluded when defendant did not pull forward that defendant was confused about the situation, and approached defendant’s truck to warn him of the danger and to offer an alternative route. State v. Hinton, 2014 VT 131, 198 Vt. 167, 112 A.3d 770, 2014 Vt. LEXIS 136 (2014).

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 of living quarters did not violate mildly retarded adult defendant’s Fourth Amendment rights, where officers had reasonable suspicion to conduct search, and evidence of high risk that defendant would repeat child sexual abuse offense supported probation condition allowing search by probation officer. State v. Lockwood, 160 Vt. 547, 632 A.2d 655, 1993 Vt. LEXIS 90 (1993).

Conditional re-entry agreement.

Warrantless and suspicionless search of defendant, a convicted sex offender furloughed to his home under a conditional-reentry agreement, did not violate the Fourth Amendment, as his expectation of privacy, given his conditional-reentry status subject to the agreed-upon condition that he submit to a search at any time, was no greater than that of the parolee defendant in Samson, and the State’s supervision goals were no weaker than those of California. State v. Bogert, 2013 VT 13, 2013 VT 13A, 197 Vt. 610, 109 A.3d 883, 2014 Vt. LEXIS 117 (2014).

Construction.

Use of kidnapping defendant’s photograph in array with photographs of other suspects, where photograph had been improperly retained by authorities from an earlier investigation of unrelated charges, was not a “seizure” deserving of the special protections provided by this amendment. United States v. Jakobetz, 955 F.2d 786, 1992 U.S. App. LEXIS 322 (2d Cir.), cert. denied, 506 U.S. 834, 113 S. Ct. 104, 121 L. Ed. 2d 63, 1992 U.S. LEXIS 5809 (1992).

Although the core value of the privacy right protected by both the Vermont and federal Constitutions 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).

A reasonable expectation of privacy, and not common law property distinctions, controls the scope of this amendment. State v. Pike, 143 Vt. 283, 465 A.2d 1348, 1983 Vt. LEXIS 515 (1983).

A seizure within the meaning of this amendment involves a forcible dispossession of property. State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982).

This amendment prohibits only an unreasonable search and seizure and does not condemn all searches and seizures made without a warrant. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966).

Contents.

In order to prevent a wide-ranging exploratory search, search warrant must enable executing officer to ascertain and identify with reasonable certainty those items the magistrate has authorized him to seize. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

The general warrant, authorizing police agents to undertake an indiscriminate rummaging through citizens’ personal effects, is prohibited by this amendment. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

Search warrant executed as part of armed robbery investigation was unconstitutionally overbroad, where warrant contained broad authorization to search for “any other evidence relating to the commission of a crime,” and nothing on face of warrant told searching officers for what crime the search was being undertaken. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

Particularity requirement of a search warrant must be applied with a practical margin of flexibility, depending on the type of property to be seized, and a description of the property will be acceptable if it is as specific as the circumstances and nature of the activity under investigation permit. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

Where the search is for business records generally, a general description in the warrant is often all that is possible. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

A search warrant adequately describes the premises to be searched if the officer can, with reasonable effort, ascertain and identify the place intended. State v. Stewart, 129 Vt. 175, 274 A.2d 500, 1971 Vt. LEXIS 241 (1971).

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 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, — Vt. —, 268 A.3d 565, 2021 Vt. LEXIS 107 (Vt. 2021).

Vantage point five to ten feet from defendant’s lawn in woods behind defendant’s house was not within protected curtilage area of defendant’s home, and where no signs or other methods were used to indicate that defendant sought to exclude public, defendant had no reasonable expectation of privacy regarding spot from which officer viewed marijuana plant. State v. Hall, 168 Vt. 327, 719 A.2d 435, 1998 Vt. LEXIS 255 (1998).

Curtilage is an area outside physical confines of a house into which privacies of life may extend, and which receives the same constitutional protection from unreasonable searches and seizures as the home itself. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Finding that garden was within curtilage of home was reasonable and clearly supported by credible evidence even though garden was separated from home by distance of 150 feet, pond, and small private bridge since both house and garden were surrounded by thickly wooded band of property that served as natural enclosure substantially shielding garden from view of normal passersby, home was not an urban residence for which privacy expectations were reduced exponentially as distance from home increases, and presence of topographical features did not provide any significant sense of separation between house and garden. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Trooper’s observation of garden area was not a search requiring a warrant regardless of whether garden laid within curtilage. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

When State officials come onto private property to conduct an investigation, observations made from a vantage point on an access area that visitors could be expected to use are not protected by this amendment. State v. Byrne, 149 Vt. 224, 542 A.2d 276, 1988 Vt. LEXIS 18 (1988).

Warrantless search and seizure of evidence discovered by fish and game wardens on a walkway and set of steps that led from the street to a door of defendant’s residence did not violate this amendment, since the walkway and steps were used to provide access to defendant’s home from the street. State v. Byrne, 149 Vt. 224, 542 A.2d 276, 1988 Vt. LEXIS 18 (1988).

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).

Shed located approximately fifteen 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 driveway, as that portion of the curtilage which is the normal route of access for anyone visiting the premises, is only a semiprivate area; thus, when State officials come onto private property to conduct an investigation and restrict their movements to driveways that visitors could be expected to use, observations made from such vantage points are not covered by this amendment. State v. Pike, 143 Vt. 283, 465 A.2d 1348, 1983 Vt. LEXIS 515 (1983).

The curtilage is considered sufficiently within the premises to be subject to protection under this amendment. State v. Stewart, 129 Vt. 175, 274 A.2d 500, 1971 Vt. LEXIS 241 (1971).

Dwellings.

Exigent circumstances existed to justify warrantless entry into residence for limited purpose of securing it until a warrant could be obtained where confidential informant had been in residence minutes before execution of the entry into the apartment and had purchased cocaine from suspects, there was a possibility of escape if agents delayed their entry, and agents had a legitimate concern that evidence of drugs may have disappeared during four hours it would take to obtain a warrant. United States v. Alexander, 923 F. Supp. 617, 1996 U.S. Dist. LEXIS 1642 (D. Vt. 1996).

Warrantless home entries carry with them a presumption of unreasonableness, and the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. United States v. Zuber, 899 F. Supp. 188, 1995 U.S. Dist. LEXIS 17907 (D. Vt. 1995).

The gravity of the defendant’s offense, distribution of cocaine, and the government’s knowledge of defendant’s presence at the house were outweighed by the serious constitutional violation committed by the agents when they conducted a warrantless assault on the home of defendant, an unarmed suspect who posed no apparent threat of escape. United States v. Zuber, 899 F. Supp. 188, 1995 U.S. Dist. LEXIS 17907 (D. Vt. 1995).

Fourth Amendment generally prohibits warrantless entry into a person’s home, which is a clearly defined zone of privacy protected by the express terms of the amendment; prohibition does not apply, however, where an officer has received consent from either the owner or a third party who has common authority over the premises. State v. Roberts, 160 Vt. 385, 631 A.2d 835, 1993 Vt. LEXIS 66 (1993).

Dwellings may be searched without a warrant where there is consent to the search, the officers are responding to an emergency, the officers are in hot pursuit of a fleeing felon, evidence is being destroyed, or evidence is about to be removed from the jurisdiction. State v. Connolly, 133 Vt. 565, 350 A.2d 364, 1975 Vt. LEXIS 458 (1975).

Emergency assistance.

Where police went to defendant’s home upon receiving a complaint of a loud party and observed through a window that defendant was alone and appeared to be extremely intoxicated, the officers could reasonably believe that defendant was in need of immediate, emergency medical attention; however, reversal of the decision of the district court denying defendant’s motion to suppress evidence and remand for factual development and findings was required because there was no explicit finding that the officers’ decision to enter the dwelling was motivated primarily by the desire to assist defendant and inadequate evidence and findings existed as to whether the officers had a reasonable basis to associate the emergency with the place to be searched. State v. Mountford, 171 Vt. 487, 769 A.2d 639, 2000 Vt. LEXIS 389 (2000).

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.

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).

By excluding evidence wrongfully obtained in unlawful searches and seizures, the effect is a “tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally,” in addition to promoting compliance by individual officers who are “penalize[d]” under the rule for Fourth Amendment violations. State v. Chapman, 173 Vt. 400, 800 A.2d 446, 2002 Vt. LEXIS 57 (2002).

Generally, suppression of evidence is mandated if seized in violation of this amendment. State v. Laflin, 160 Vt. 198, 627 A.2d 344, 1993 Vt. LEXIS 42 (1993).

Evidence seized in violation of rule of criminal procedure designed to both codify and enhance protections conferred by this amendment should be suppressed under the exclusionary rule doctrine. State v. Laflin, 160 Vt. 198, 627 A.2d 344, 1993 Vt. LEXIS 42 (1993).

If a search occurs incident to an arrest that is in violation of this amendment, the evidence must be suppressed as fruit of the poisonous tree. State v. Laflin, 160 Vt. 198, 627 A.2d 344, 1993 Vt. LEXIS 42 (1993).

Good faith exception to exclusionary rule was not applicable to make shotgun found in defendant’s apartment available as evidence, where search warrant was unconstitutionally overbroad and was the type of facially invalid warrant that could not have been relied upon in good faith, because one who simply looked at the warrant would suspect it was invalid. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

Fact that fugitive warrant was improperly kept in government “active” files in violation of three-way plea agreement between New Hampshire, Vermont, and defendant did not require suppression of evidence seized during search incident to arrest based on the warrant. United States v. Towne, 870 F.2d 880, 1989 U.S. App. LEXIS 3675 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S. Ct. 2456, 104 L. Ed. 2d 1010, 1989 U.S. LEXIS 2715 (1989).

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).

Where evidence would inevitably have been discovered without reference to police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible. United States v. Snaith, 666 F. Supp. 645, 1987 U.S. Dist. LEXIS 7739 (D. Vt. 1987).

Although entry and seizure of defendant’s house was illegal, evidence obtained in the house was admissible where drug task force had independent information from undercover operation of probable evidence in the house and the evidence was not searched for nor seized until after a search warrant was issued. United States v. Snaith, 666 F. Supp. 645, 1987 U.S. Dist. LEXIS 7739 (D. Vt. 1987).

This amendment does not proscribe introduction of evidence obtained by officers reasonably relying on warrant issued by detached and neutral magistrate even if warrant is later found to be unsupported by probable cause. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

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).

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).

The concern of the exclusionary rule centers on the proposition that enforcement officers may not embark on groundless invasions of the person or premises and justify them by the fruits obtained; the requirement is that such incursions must be supported before the fact. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

When an in-court identification of an accused is a result of unlawful police conduct committed before the testifier develops the capacity to make the identification, then the in-court identification may be properly suppressible. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

Where defendant was convicted of operating a motor vehicle without the consent of the owner, but the trial court found that at the time the vehicle was stopped the officer who arrested defendant did not have an articulable suspicion of wrongdoing regarding the vehicle or its occupants, the arresting officer’s observation of defendant as the driver of the vehicle, made while leading defendant to the police cruiser after arresting him, came about by exploitation of the unlawful stop and, therefore, the officer’s in-court identification of defendant was properly suppressible as the result of unlawful police conduct. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

The connection between an illegal arrest and the discovery of challenged evidence may become sufficiently attenuated to make the evidence admissible when it results from an investigation that can be considered as independent of the illegality. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

The exclusionary rule is not a personal right, but rather a judicially created remedy designed to safeguard rights protected by this amendment through its deterrent effect. In re Saunders, 138 Vt. 259, 415 A.2d 199, 1980 Vt. LEXIS 1205 (1980).

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).

Use of evidence secured by police through an unreasonable search and seizure is barred in State prosecutions by this and Fourteenth Amendment. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966).

Since the requirements of due process under the Fourteenth Amendment carry over to the State courts the prohibitions of this amendment, it is unconstitutional to receive evidence in State courts that was obtained in violation of rights guaranteed under this amendment. State v. Ball, 123 Vt. 26, 179 A.2d 466, 1962 Vt. LEXIS 188 (1962).

Execution.

Police officers’ entry into defendant’s apartment during execution of search warrant was not unjustified or unreasonable, where officers knocked and announced their presence, defendant did not verbally respond or open door within a reasonable period of time, and officers heard rustling noises signaling potential destruction of evidence. State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 2000 Vt. LEXIS 14 (2000).

It was objectively reasonable for probation officer to believe that probation order was in effect when search of probationer’s residence took place, since Vermont law did not clarify whether probation commences when a probation order issues or when a probationer signs it. Stevens v. Stearns, 2000 U.S. App. LEXIS 12035 (2d Cir. May 30, 2000).

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.).

A warrant authorizing seizure of records of criminal activity permits officers to examine many papers in a suspect’s possession to determine if they are within the described category. United States v. Riley, 906 F.2d 841, 1990 U.S. App. LEXIS 10175 (2d Cir. 1990).

Once a category of seizable papers has been adequately described in a search warrant, with the description delineated in part by an illustrative list of seizable items, this amendment is not violated because officers executing the warrant must exercise some minimal judgment as to whether a particular document falls within the described category. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

In searches for papers, some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among the papers authorized to be seized. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

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).

Police need not know that objects seized under valid warrant for search of premises are incriminating to make the seizure proper; they need only have reasonable cause to believe that they are incriminating. State v. Driscoll, 137 Vt. 89, 400 A.2d 971, 1979 Vt. LEXIS 958 (1979).

Exigent circumstances.

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).

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).

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).

Exit request.

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).

Fields.

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).

An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. State v. Neale, 145 Vt. 423, 491 A.2d 1025, 1985 Vt. LEXIS 313 (1985).

No expectation of privacy legitimately attaches to open fields. State v. Neale, 145 Vt. 423, 491 A.2d 1025, 1985 Vt. LEXIS 313 (1985).

Where garden in which defendant cultivated marijuana was not within the area immediately surrounding defendant’s home, but rather was located in a pasture across the road from his home, and more than 400 feet from the road, the garden was located in an open field and defendant had no legitimate expectation of privacy in his garden; thus, sheriff was not required to procure a warrant before entering the garden and seizing the marijuana. State v. Neale, 145 Vt. 423, 491 A.2d 1025, 1985 Vt. LEXIS 313 (1985).

Fifth Amendment cases.

In a case where a detective should have known that his request to defendant, who had invoked his right to silence, was reasonably likely to elicit an incriminating response, the court declined the State’s invitation to apply the United States Supreme Court’s decision in a Fourth Amendment case involving good-faith reliance on a police database. How this radically different factual scenario—and the disparate legal framework under which the Court analyzed it—might inform the present court’s analysis in a Fifth Amendment case was murky at best. State v. Christmas, 2009 VT 75, 186 Vt. 244, 980 A.2d 790, 2009 Vt. LEXIS 81 (2009).

Incident to arrest.

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).

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 Federal and State Constitutions. State v. Chicoine, 2007 VT 43, 181 Vt. 632, 928 A.2d 484, 2007 Vt. LEXIS 74 (2007) (mem.).

Smell of burning marijuana and sight of smoke in car that defendant had been in constituted probable cause to arrest defendant, and warrantless search was constitutional, even though defendant was issued a citation and was not formally taken into custody. State v. Greenslit, 151 Vt. 225, 559 A.2d 672, 1989 Vt. LEXIS 40 (1989).

A border patrol agent may arrest an individual if he has probable cause to believe that a crime has been or is being committed and, after such a legal arrest, may conduct a warrantless search of the person and immediate area around the person. United States v. Deval, 612 F. Supp. 329, 1985 U.S. Dist. LEXIS 18337 (D. Vt. 1985).

Where police officers had probable cause for warrantless arrest of operator of vehicle, probable cause existed to search vehicle for evidence of the crime believed to have occurred. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

To justify the seizure of evidence based on a warrantless search incident to an arrest, the arrest must be lawful. State v. Meunier, 137 Vt. 586, 409 A.2d 583, 1979 Vt. LEXIS 1095 (1979).

Investigative detention.

When the State conceded that a police officer lacked a reasonable, articulable suspicion of drug activity, the fact that defendant was only briefly delayed following a valid traffic stop was immaterial. The officer’s authority under the Fourth Amendment to detain defendant ended when he informed defendant that he would be mailing a ticket for driving with a suspended license and so addressed the traffic violation that warranted the stop. State v. Alcide, 2016 VT 4, 201 Vt. 103, 136 A.3d 207, 2016 Vt. LEXIS 3 (2016).

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).

Up until the time an off-duty police officer who caught petitioner peeping through his daughter’s bedroom window announced he was a police officer and asked petitioner for identification, the officer was acting as a private citizen rather than a government actor subject to the restrictions of the Fourth Amendment. At that point, when petitioner sought to explain his behavior of peering into windows by giving the officer a story that did not comport with the actions the officer had observed, the officer was justified in further detaining petitioner to await the arrival of the police based on a reasonable suspicion that he had been engaged in criminal activity. In re Hoch, 2013 VT 83, 194 Vt. 575, 82 A.3d 1167, 2013 Vt. LEXIS 82 (2013).

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 that immediately followed. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

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 officers may make an investigatory stop of a vehicle based upon reasonable suspicion that suspect is engaged in criminal activity; reasonable suspicion need not be based upon officer’s personal observations, and an informant’s tip, if it carries enough indicia of reliability, may justify a forcible stop. State v. Lamb, 168 Vt. 194, 720 A.2d 1101, 1998 Vt. LEXIS 229 (1998).

Circumstances justified investigatory stop of defendant’s vehicle, and trial court did not err in denying motion to suppress evidence obtained as a result of stop, where unnamed informant’s tip that defendant was driving while intoxicated was corroborating information that could only have come from a knowledgeable insider, investigating officer had personal knowledge of defendant’s prior DUI arrest, and potential danger posed by an intoxicated driver presented an imminent risk of injury to the suspect and the public. State v. Lamb, 168 Vt. 194, 720 A.2d 1101, 1998 Vt. LEXIS 229 (1998).

Investigative detentions are limited stops for investigative purposes that can only be justified by a reasonable articulable suspicion supported by articulable facts that criminal activity may be afoot. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

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.).

Investigative stop of defendant’s vehicle was proper where officers received anonymous tip that occupants of vehicle were drunk and officers recognized driver as someone they believed to be under a license suspension; under the totality of the circumstances, officers had reasonable suspicion defendant was breaking the law. State v. Smith, 154 Vt. 645, 577 A.2d 279, 1990 Vt. LEXIS 86 (1990) (mem.).

A police officer may conduct an otherwise valid investigative stop in semiprivate areas within the curtilage that comprise the normal access route for anyone visiting the premises. State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990).

Deputy who observed defendant violate two motor vehicle statutes and then drive into driveway of private residence acted within his authority to conduct investigative stop by approaching the house, knocking on the door, and asking to speak to the driver of the vehicle. State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990).

Investigatory stops are permitted where specific and articulable facts, together with the rational inferences 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).

In order to make a valid investigative stop, the police officer must be able to point to specific and articulable facts that, together with the rational inferences taken therefrom, reasonably warrant the intrusion. State v. Ryea, 153 Vt. 451, 571 A.2d 674, 1990 Vt. LEXIS 9 (1990).

State trooper who knew defendant by sight and believed that he had seen defendant’s name on State Police list of drivers with suspended licenses had reasonable suspicion that defendant was driving with a suspended license, which justified investigative stop. State v. Ryea, 153 Vt. 451, 571 A.2d 674, 1990 Vt. LEXIS 9 (1990).

State trooper who had reasonable suspicion that defendant was driving with a suspended license could continue investigative stop for a few minutes after defendant produced a valid license in order to run a license check. State v. Ryea, 153 Vt. 451, 571 A.2d 674, 1990 Vt. LEXIS 9 (1990).

Police officers may conduct warrantless stops when specific and articulable facts, taken together with rational inferences from those facts, reasonably warrant the intrusion. State v. Schmitt, 150 Vt. 503, 554 A.2d 666, 1988 Vt. LEXIS 209 (1988).

Where police officer heard defendant’s vehicle drive over a curb and onto and along a sidewalk, detected an odor of alcohol on defendant’s breath, observed defendant dispose of a beer bottle in the back of his truck, and saw empty beer cans in the back of the truck, it was reasonable for the officer to stop defendant to determine if probable cause existed to arrest him for driving while under the influence of intoxicating liquor. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

When officers detain an individual for purpose of requiring him or her to identify himself or herself or answer questions, they perform a seizure of the person subject to this amendment’s requirement that the seizure be reasonable. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

In some circumstances officers may detain a suspect briefly for questioning although they lack probable cause; however, the officers must have a reasonable suspicion, based on specific and articulable facts, that the individual is involved in criminal activity. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

One important factor in finding reasonable suspicion of involvement in criminal activity in order to detain a suspect briefly for questioning is the personal experience and expertise the law enforcement officer brings to the investigation. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

If detention on reasonable suspicion is valid, officer may ask detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling officer’s suspicions; however; detainee is not obliged to respond. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Investigative detention may become unreasonable and ripen into illegal arrest if probable cause is absent and stop is not temporary and limited in duration to time period necessary to effectuate purpose of the stop. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Initial detention of defendant was justified where customs agent had intercepted magazine, had been told by pediatrician that photographs were prohibited by statute, had placed magazine in box and observed defendant take mail from box, and had approached defendant when defendant stopped to buy gas. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Detention was brief and did not ripen into illegal arrest where police officer told defendant that customs agent wished to speak with defendant, customs agent asked defendant for identification and materials in his car, showed the search warrant for defendant’s residence, and told defendant that defendant could choose whether or not to accompany the agent to search. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Defendant was not in custody or subjected to custodial interrogation when customs agent asked him for his identification or materials, where defendant had stopped and stepped out of his car, unaware of planned stop by agent, the detention was in public, defendant stood outside his car, and no officer showed guns or told defendant he was under arrest. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

The stopping of an automobile by a police officer, even for a brief time, constitutes a seizure under this amendment. State v. Boardman, 148 Vt. 229, 531 A.2d 599, 1987 Vt. LEXIS 478 (1987).

To justify a legal investigatory stop of an automobile, a police officer need have no more than an articulable and reasonable suspicion that a motor vehicle violation is taking place. State v. Boardman, 148 Vt. 229, 531 A.2d 599, 1987 Vt. LEXIS 478 (1987).

Where police officer observed defendant’s vehicle crossing the centerline of highway on numerous occasions during pursuit and defendant failed to stop for more than a mile even though the officer had turned on his blue light and siren, officer had an articulable and reasonable suspicion that defendant was operating his motor vehicle while intoxicated, and, therefore, investigatory stop was valid and request for dexterity tests was justified. State v. Boardman, 148 Vt. 229, 531 A.2d 599, 1987 Vt. LEXIS 478 (1987).

The stopping of an automobile for questioning by police officers constitutes a seizure, thereby generating the protections of this amendment. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Police may stop a car and briefly question its occupants if they have an articulable and reasonable suspicion that the occupants have violated the law. State v. Graves, 145 Vt. 271, 487 A.2d 157, 1984 Vt. LEXIS 589 (1984).

When a police officer stops a car to briefly question its occupants, the stop must meet the test of reasonableness in order to satisfy guarantees of this amendment against unreasonable search and seizure, and the officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant the intrusion. State v. Graves, 145 Vt. 271, 487 A.2d 157, 1984 Vt. LEXIS 589 (1984).

Where game wardens on a stakeout of reported gunshots heard an extremely loud discharge from a high-powered rifle, fired at very close range, and within seconds after the shot they observed an automobile coming toward them, the officers had a reasonably articulable suspicion justifying an investigatory stop of the automobile. State v. Taylor, 145 Vt. 437, 491 A.2d 1034, 1985 Vt. LEXIS 314 (1985).

Where during an investigation of a crime reported to be in progress a police officer discovered and followed a trail of footprints in the snow that led away from the scene of the reported offense, defendant’s car emerged from the area towards which the footprints led, it was late at night and there was no other person or vehicle in the vicinity, the officer had reasonable and articulable grounds to suspect that the occupants of the car had been involved in the reported offense and to stop the car and question its occupants; accordingly, there was no error on the part of the trial court in denying defendant’s motion to suppress evidence obtained as a result of the stop. State v. Graves, 145 Vt. 271, 487 A.2d 157, 1984 Vt. LEXIS 589 (1984).

The stopping of a motor vehicle that is being operated on a public highway, without at least articulable and reasonable suspicion that the motorist is unlicensed or that the automobile is otherwise subject to seizure for violation of law, is an impermissible violation of the motorist’s rights under this amendment. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

Where vehicle driven by defendant was stopped by an officer who had no articulable and reasonable suspicion that the vehicle, or its occupants, were in any way connected or associated with any wrongdoing, the stopping and detention of defendant, unlawful at its inception, could not be made lawful by the fact that after defendant had been arrested the arresting officer received information that the license plate on the vehicle was not registered to the vehicle. State v. Emilo, 144 Vt. 477, 479 A.2d 169, 1984 Vt. LEXIS 600 (1984).

The reasonableness requirement of this amendment requires that an investigative detention be temporary and last no longer than is necessary to effectuate the purpose of the stop. State v. Hewey, 144 Vt. 10, 471 A.2d 236, 1983 Vt. LEXIS 595 (1983).

A police officer must have at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered in ordered to stop an automobile and detain the driver to check his driver’s license and the registration of the automobile. State v. Hewey, 144 Vt. 10, 471 A.2d 236, 1983 Vt. LEXIS 595 (1983).

In the case of defendant convicted of operating an automobile while his license was suspended, second offense, since the automobile that defendant was driving was stopped by a police officer because it bore Vermont registration plates but had a New Hampshire inspection sticker affixed to the windshield, after being stopped defendant was asked to produce both his license and registration, and after hearing defendant’s explanation that he had bought the automobile in New Hampshire, transferred his Vermont plates to it and sent in to the Vermont Motor Vehicles Department for a registration certificate that he had not yet received, the officer continued the original detention for a few more minutes to verify that defendant had a valid license to operate the automobile, the intrusion upon defendant’s privacy was minimal and did not constitute a violation of his rights under the amendment. State v. Hewey, 144 Vt. 10, 471 A.2d 236, 1983 Vt. LEXIS 595 (1983).

The stopping of an automobile and the detention of its occupants constitutes a seizure within the meaning of this amendment, even though the purpose of the stop is limited and the resulting detention quite brief. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

While the police are permitted, on reasonable suspicion, to make an investigatory stop for a few minutes during which they may ask a brief question or two, any further detention must be based on consent or probable cause. State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981).

A police officer has the power, consistent with this amendment, to stop and question a suspicious person, even without probable cause for arrest. State v. McDermott, 135 Vt. 47, 373 A.2d 510, 1977 Vt. LEXIS 551 (1977).

The right to search an automobile and the validity of the seizure of items from it are not dependent on the right to arrest, rather they are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law, and such reasonable cause depends upon the facts of the case. State v. Girouard, 135 Vt. 123, 373 A.2d 836, 1977 Vt. LEXIS 571 (1977).

Issuing official.

To issue warrants, a person must be neutral and detached and must be capable of determining whether probable cause exists for the required search. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

There is no requirement that an official who issues a search warrant be legally trained. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

Clerk of court was a judicial officer capable of exercising an independent magisterial review of State’s Attorney’s information and, therefore, had authority under this amendment to issue arrest warrant. Woodmansee v. Smith, 130 Vt. 383, 296 A.2d 182, 1972 Vt. LEXIS 287 (1972).

Plain view.

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).

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 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, which requires that the officer does not violate the Fourth Amendment in arriving at the place from which the evidence can be plainly viewed. State v. Trudeau, 165 Vt. 355, 683 A.2d 725, 1996 Vt. LEXIS 82 (1996).

Because an open container of alcohol was present in the vehicle of defendant, who was charged with driving under the influence (DUI) and possession of marijuana, 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; therefore, the second prong of the plain-view exception to the warrant requirement, requiring probable cause to associate the evidence that is in plain view with criminal activity, was satisfied. State v. Trudeau, 165 Vt. 355, 683 A.2d 725, 1996 Vt. LEXIS 82 (1996).

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).

After discovery by customs officials of marijuana in defendant’s luggage, the retention of defendant’s suitcases for five days for further investigation by customs officials and the Vermont State Police was not a violation of the Fourth Amendment because as contraband, an instrumentality of a crime, and evidence of a crime under the plain-view doctrine, defendant’s luggage could be seized and held pending prosecution. State v. Coburn, 165 Vt. 318, 683 A.2d 1343, 1996 Vt. LEXIS 80 (1996).

There is no constitutionally recognizable privacy interest for land outside curtilage; open-fields doctrine applies to any land that is unoccupied or undeveloped. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Under plain view doctrine, constitutional protections do not attach to activities or possessions that a person knowingly exposes to the public; therefore, while an area may be within curtilage, there still may be no constitutional protection if activity in that area is knowingly exposed to the public. State v. Rogers, 161 Vt. 236, 638 A.2d 569, 1993 Vt. LEXIS 148 (1993).

Constitutionally infirm portion of search warrant may in appropriate cases be severed and redacted warrant may justify police intrusion, thereby satisfying crucial element of plain view doctrine. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

Police officers’ warrantless seizure of rifle from car of defendant arrested for driving under the influence did not violate this amendment, 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 circumstance 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.).

Seizure of weapon fell within plain view doctrine where officers were initially on premises pursuant to valid written consent; when they remained on premises and continued to search after defendant’s oral consent, later determined to be invalid, officers had good faith belief consent was obtained, and such belief was objectively reasonable. United States v. Delibac, 925 F.2d 610, 1991 U.S. App. LEXIS 2680 (2d Cir. 1991).

Two of the essential elements for a plain view seizure are that the discovery must be inadvertent, and that the incriminating nature of the articles seized must be immediately apparent. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

Where officers were searching for certain business records pursuant to a valid search warrant and the search was limited to only those boxes in which the requested documents were stored, seizure of unrequested incriminating records, inadvertently discovered while sorting the records, was permitted under the plain view exception to the warrant requirement. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

For evidence in plain view to be seized without a warrant, there must be a prior lawful intrusion on the property where the evidence is located. State v. Pike, 143 Vt. 283, 465 A.2d 1348, 1983 Vt. LEXIS 515 (1983).

Where discovery of evidence was unexpected and unpremeditated and the evidence was in plain view at a place where officers properly were, seizure of the evidence was not the result of a search prohibited by this amendment. State v. Crepeault, 127 Vt. 465, 252 A.2d 534, 1969 Vt. LEXIS 257 (1969).

Plain-feel doctrine.

Inference that if a bag found on another passenger in the car in which defendant juvenile was riding contained contraband, then a bag found on defendant was likely to contain contraband, was too broad to make the presence of contraband immediately apparent. There was no connection between the other passenger and defendant, other than that they were passengers in the same vehicle; there was no evidence of drug activity involving the vehicle, which was stopped for speeding, and no evidence that defendant attempted to flee, as the other passenger did, or otherwise engaged in any suspicious or incriminating behavior. In re C.C., 2009 VT 108, 186 Vt. 474, 987 A.2d 1000, 2009 Vt. LEXIS 122 (2009).

Premises of tenant.

Although a landlord generally lacks the common authority required to grant permission to search premises of his tenant, once a tenant has abandoned the property, the tenant loses the protections provided by the Fourth Amendment. 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).

Investigating officer’s reasonable but erroneous belief that defendant had abandoned his residence was sufficient to justify officer’s entry into residence; where officer learned that rent was delinquent, that phone and electricity had been shut off, that cats were running loose and that tenant had not replied to messages left on his answering machine at out-of-state residence, these facts led to a reasonable inference that the premises had been abandoned and officer’s actions did not violate defendant’s Fourth Amendment rights. State v. Roberts, 160 Vt. 385, 631 A.2d 835, 1993 Vt. LEXIS 66 (1993).

Private searches.

Online service provider was not acting as a government agent when it searched defendant’s transmissions over its network using its hashing technology, as it monitored them based on its business interest, not because it was encouraged or directed to by government, and the government did not know about or participate in the action. State v. Lizotte, 2018 VT 92, 208 Vt. 240, 197 A.3d 362, 2018 Vt. LEXIS 122 (2018).

National Center for Missing and Exploited Children was acting as an agent of law enforcement when it opened defendant’s e-mail and the related attachment sent to it by the online service provider, as the government knew that the center would be collecting reports of suspected child pornography, provided direction on how the information would be treated, and mandated that the information obtained be shared with the government, and the center was motivated at least in part by a desire to assist law enforcement. State v. Lizotte, 2018 VT 92, 208 Vt. 240, 197 A.3d 362, 2018 Vt. LEXIS 122 (2018).

When an online service provider sent a report about an image to the National Center for Missing and Exploited Children, NCMEC knew for certain that the image was one that had been previously viewed by the online service provider and one that contained apparent child pornography. Thus, when NCMEC and then law enforcement opened the attachment forwarded by the online service provider, they were not expanding its search because they already knew what was contained in the attachment and they could not learn more than was already known by the provider about the attachment. State v. Lizotte, 2018 VT 92, 208 Vt. 240, 197 A.3d 362, 2018 Vt. LEXIS 122 (2018).

When the National Center for Missing and Exploited Children and the government viewed an e-mail forwarded by an online service provider, this expanded the private search conducted by the provider, which had no knowledge of the e-mail contents. There were, however, no grounds to invalidate the resulting warrant because even without the information from the content of the e-mail, the affidavit in support of the warrant established probable cause. State v. Lizotte, 2018 VT 92, 208 Vt. 240, 197 A.3d 362, 2018 Vt. LEXIS 122 (2018).

Reasonableness.

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).

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).

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).

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).

Officer had a reasonable and articulable suspicion that defendant was violating a motor vehicle law, since interstate highway where defendant’s vehicle was parked was a limited access highway and defendant was not in a designated area where parking, standing, or stopping was allowed; trial court’s order suppressing evidence obtained from seizure was therefore reversed. State v. Theetge, 171 Vt. 167, 759 A.2d 496, 2000 Vt. LEXIS 175 (2000).

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).

Police agents had probable cause to believe van contained drugs, where sources informed agents that defendant was supplier, defendant told agent attempting to purchase drugs that drugs were in van that his friend was loading, defendant returned with drugs and sold them to agent, and defendant and co-defendant were discovered loading van shortly after sale. United States v. Harwood, 998 F.2d 91, 1993 U.S. App. LEXIS 16098 (2d Cir. 1993), cert. denied, 510 U.S. 971, 114 S. Ct. 456, 126 L. Ed. 2d 388, 1993 U.S. LEXIS 7082 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 893, 127 L. Ed. 2d 86, 1994 U.S. LEXIS 1078 (1994).

Delay of several hours between seizure and search of vehicle did not render search illegal; police were not required to conduct search of vehicle at same time as seizure, and delay in searching vehicle was reasonable in view of hostile crowd at arrest scene. United States v. Harwood, 998 F.2d 91, 1993 U.S. App. LEXIS 16098 (2d Cir. 1993), cert. denied, 510 U.S. 971, 114 S. Ct. 456, 126 L. Ed. 2d 388, 1993 U.S. LEXIS 7082 (1993), cert. denied, 510 U.S. 1077, 114 S. Ct. 893, 127 L. Ed. 2d 86, 1994 U.S. LEXIS 1078 (1994).

Limited pat-down of suspected illegal aliens was permissible as a frisk for weapons to ensure officers’ safety, although reaching into one defendant’s pocket to remove torn driver’s license was an unreasonable intrusion requiring suppression. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

In order to justify a seizure on grounds less than probable cause, the seizure must be reasonable. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

In order to determine the reasonableness of a seizure, a court must balance the level of intrusion of the seizure against the law enforcement interests served by the seizure. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

In order to satisfy the amendment’s guarantees against unreasonable searches and seizures, a police officer must be able to point to specific articulable facts which, taken together with rational inferences from these facts, reasonably warrant the intrusion. State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1988 Vt. LEXIS 249 (1988).

The test of rights under this amendment is whether the search was reasonable. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

There is no fixed formula for determining what is an unreasonable search; each case must be resolved on its own facts. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

Removal of head and pubic hair.

Requirement that a police officer may not make a warrantless search beyond the body’s surface absent a clear indication that evidence of a crime will be found does not apply to removal of head and pubic hair. 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).

Review.

In determining whether there was sufficient basis for a search warrant to issue, the reviewing court’s duty is to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant. State v. Dorn, 145 Vt. 606, 496 A.2d 451, 1985 Vt. LEXIS 330 (1985).

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).

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.).

Consent is a means of satisfying the reasonableness requirement of the Fourth Amendment. Because the constitutional standard had already been met by reasonable suspicion, there was no additional requirement to obtain voluntary consent for a preliminary breath test. State v. Therrien, 2011 VT 120, 191 Vt. 24, 38 A.3d 1129, 2011 Vt. LEXIS 122 (2011).

Trial court’s decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently on appeal. State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970, 2011 Vt. LEXIS 106 (2011).

Defendants, who were passengers in a vehicle, had not shown that the driver’s consent to search was not voluntary. The driver’s observation of the officers’ display of force might have been unsettling, but it was not specifically directed at him; the officer assured the driver several times in a level and conversational tone that he was not required to consent to a search of his car; the driver signed a consent-to-search form; and the fact that the officer told him that he would try to obtain a search warrant if the driver did not consent did not undermine his consent. State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970, 2011 Vt. LEXIS 106 (2011).

Even if the driver of the vehicle in which defendants were passengers was effectively in custody and under arrest when he actually consented to the search of the vehicle, an officer’s clear viewing of what appeared—based on his training and experience—to be cocaine on the floor of the car, combined with his earlier observation of what he believed to be marijuana flakes, the packaging of a white substance that he recognized as consistent with powdered cocaine, and the roll of cellophane wrap that was commonly used in packaging illegal drugs, was sufficient to establish probable cause to arrest. Thus, his consent was not irremediably tainted by an illegal de facto arrest. State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970, 2011 Vt. LEXIS 106 (2011).

Off-duty officer was acting initially as a concerned homeowner and family member when he observed defendant’s vehicle enter his driveway late at night; therefore, his initial encounter with defendant fell outside the Fourth Amendment. The officer spoke to defendant in a conversational tone and did not command, threaten, or assert any force towards defendant in any way; he blocked defendant’s exit, if at all, to ask questions to determine why defendant’s vehicle was in his driveway. State v. Young, 2010 VT 97, 189 Vt. 37, 12 A.3d 510, 2010 Vt. LEXIS 94 (2010).

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).

Consensual encounters may be initiated by police without any objective level of suspicion and do not, without more, amount to seizures implicating Fourth Amendment protections. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

Point of distinction between a consensual encounter and a seizure, for Fourth Amendment purposes, is point at which a reasonable person under all the circumstances would believe he was not free to walk away. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

Encounters between police and defendants were consensual, where defendants were approached in nonthreatening manner in public area of airport and asked questions about their travel and identification; at point defendants were asked to accompany officer to police room in area of airport not frequented by public, defendants were seized within meaning of Fourth Amendment. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

Supreme Court has not ruled on whether probationer’s waiver of Fourth Amendment protections against warrantless searches in return for opportunity to avoid incarceration is complete and probationer retains no enforceable Fourth Amendment rights. State v. Moses, 159 Vt. 294, 618 A.2d 478, 1992 Vt. LEXIS 178 (1992).

Probation condition allowing warrantless searches was too broad and had to be narrowed to meet constitutional requirements, since condition was not based on findings that set proper balance between defendant’s privacy rights and State’s special needs and was not narrowly tailored to reflect that balance. State v. Moses, 159 Vt. 294, 618 A.2d 478, 1992 Vt. LEXIS 178 (1992).

Defendant’s challenge to probation condition that she consent in writing to enforcement of probation conditions through “search and investigation without warrant when necessary” was appropriate on direct appeal of her sentence, since mere presence of condition invaded defendant’s privacy to such extent that she might change her activities, she might have been unable to challenge condition by alternative means, condition was imposed so that defendant would consent to waiver of Fourth Amendment rights in return for chance to avoid incarceration, and issue was recurring policy question. State v. Moses, 159 Vt. 294, 618 A.2d 478, 1992 Vt. LEXIS 178 (1992).

During legal detention, officer can request to search defendant and his or her belongings and if, under totality of circumstances, court finds that defendant’s consent was voluntary, evidence will be admissible in criminal prosecution against defendant. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Coercive law enforcement conduct can invalidate manifestation of consent of detainee to search of himself or herself and his or her belongings, but mere fact of custody or presence of many officers will not alone invalidate consent. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Defendant’s removal of magazines from his car after a minimum of questioning constituted a consensual search, where customs agent and officers did not reach into car, visually inspect car interior, or ask for defendant’s car keys, and defendant was college educated, not under arrest, not intoxicated, not overpowered by officers, not physically restricted, not frisk searched, had not been told of officers’ search warrant for his home, did not appear hesitant in agreeing to search, and did not ask to speak to lawyer. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Knowledge of the right to refuse is not a prerequisite of a voluntary consent to a warrantless search and seizure, but only a factor to be taken into account. State v. Rocheleau, 131 Vt. 563, 313 A.2d 33, 1973 Vt. LEXIS 356 (1973).

Right to privacy.

In the context of a shared student apartment, it is not unusual for persons thrown together by a tight housing market to knowingly tolerate casual drug use on the part of their roommates, even though they themselves may not use drugs. Thus, probable cause to overcome defendant’s individual privacy interest in his locked bedroom cannot be based solely on the allegation that he had knowledge that marijuana had been used in the living room of the apartment he shared with two other students. State v. Quigley, 2005 VT 128, 179 Vt. 567, 892 A.2d 211, 2005 Vt. LEXIS 312 (2005) (mem.).

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).

Because no protected privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal, once customs agents had lawfully opened defendant’s luggage and discovered marijuana, defendant lost any privacy interest in the contents of his luggage, and the resealing of his luggage for shipment to Vermont did not revive his privacy interest. State v. Coburn, 165 Vt. 318, 683 A.2d 1343, 1996 Vt. LEXIS 80 (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).

Under this amendment, an individual must demonstrate a legitimate expectation of privacy in the place searched or the items seized before the court will consider whether the search was unreasonable. State v. Welch, 160 Vt. 70, 624 A.2d 1105, 1992 Vt. LEXIS 214 (1992).

While individuals have a reduced expectation of privacy when in an automobile on a public highway, an individual operating an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Roadblocks.

Defendant who was stopped and charged with driving while intoxicated did not, by having driven through police roadblock, forfeit his right to challenge the legality of the roadblock; trial court improperly denied defendant’s motion to suppress evidence obtained from the stop, and case would be remanded for adjudication of the legality of the roadblock. State v. Alexander, 157 Vt. 60, 595 A.2d 282, 1991 Vt. LEXIS 125 (1991).

Roadblocks to screen intoxicated drivers constitute a seizure within the meaning of this amendment. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

A warrantless seizure at a roadblock to screen intoxicated drivers is not per se illegal. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Roadblocks to screen intoxicated drivers serve the public interest as a safety measure, operating as one method of detecting intoxicated drivers, and further the public interest in reducing the number of intoxicated drivers by acting as a deterrent to any person who might consider driving after drinking. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Police officers conducting a roadblock to screen intoxicated drivers do not necessarily have to have a warrant, probable cause, or even a reasonable, articulable, individualized suspicion of illegal activity in order to stop a motorist on the public highway. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

The constitutionality of a roadblock to screen intoxicated drivers will depend upon the reasonableness of the seizure, determined by weighing the public interest in the seizure against the degree of intrusion into personal privacy occasioned by the particular roadblock. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

As a general rule, a roadblock to screen intoxicated drivers will pass constitutional muster if: (1) the initial stop and the 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 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. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Criteria set forth by Supreme Court to be used in a balancing test to determine the reasonableness of a particular roadblock to screen intoxicated drivers are not absolute requirements, and trial courts considering those criteria in relation to the totality of the circumstances may find some of the criteria are not applicable or that additional or different criteria are equally important. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

When police establish a roadblock to screen intoxicated drivers, the operating guidelines do not have to be established by administrative, policy-making officers who are totally removed from field operations; neither the possibility of supplemental oral instructions, nor the possibility of changes in operating guidelines in response to field conditions, will necessarily invalidate established guidelines that would otherwise be acceptable. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Advance notice of the exact location is not an absolute necessity for roadblocks to screen intoxicated drivers, since publishing the exact spot of the checkpoint would lessen the deterrent effect. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

Where trial court ruled that a roadblock to screen intoxicated drivers violated defendant’s rights under this amendment, failure to make findings concerning the criteria suggested by the Supreme Court for determining the reasonableness of such roadblocks mandated reversal. State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985).

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).

When marijuana was discovered by customs agents in defendant’s luggage upon his return to the country and then analyzed and tested by the Vermont State Police, the conduct of the Vermont police was a continuation of the legal conduct of customs officials, there was no break in the chain of custody, and the conduct of the police was not a second search under the Fourth Amendment. State v. Coburn, 165 Vt. 318, 683 A.2d 1343, 1996 Vt. LEXIS 80 (1996).

Security check.

Security check of defendant’s house and garage was an unreasonable search within the meaning of this amendment where drug task force agents had observed defendant leave the premises, had not seen any sign of another person around and, therefore, could not have had a reasonable belief that third persons were inside and would destroy evidence. United States v. Snaith, 666 F. Supp. 645, 1987 U.S. Dist. LEXIS 7739 (D. Vt. 1987).

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).

Seizure.

Court declines to hold that the mere possession of a plastic bag in a pocket is sufficiently incriminating to render it immediately apparent that the contents of that bag are contraband. In re C.C., 2009 VT 108, 186 Vt. 474, 987 A.2d 1000, 2009 Vt. LEXIS 122 (2009).

Defendant was effectively seized for purposes of Fourth Amendment analysis, as well as under the Vermont Constitution, when he encountered police outside his sister’s house. While the record revealed neither physical restraint nor blatantly aggressive or intimidating language, the circumstances—including the fact that the suspect was obviously followed for a substantial distance, that the taxi in which he had been riding to the house was searched, and that he was successively questioned about weapons and drugs—were precisely the kind which courts had characterized as a particularized inquiry into criminal activity that the average person would not have felt free to disregard or terminate. State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14, 2009 Vt. LEXIS 59 (2009).

No Fourth Amendment search occurred when town listers encountered marijuana in the course of their examination of defendants’ property for appraisal purposes; therefore, whether or not the listers were on defendants’ property lawfully, evidence of defendants’ possession of marijuana plants and drug paraphernalia seized under a warrant based on information supplied by the listers was admissible in prosecution for felony marijuana cultivation, and misdemeanor possession of marijuana. State v. Schofner, 174 Vt. 430, 800 A.2d 1072, 2002 Vt. LEXIS 75, app. dismissed sub nom. State v. Tripp, 174 Vt. 646, 812 A.2d 859, 2002 Vt. LEXIS 353 (2002) (mem.).

Questioning of defendant by police officer in a location known to be a place where young people use alcohol and drugs and commit vandalism was not a “seizure” as the term is used in the Fourth Amendment to the United States Constitution; seizure did not occur until later when officer sought to search defendant’s bag and pockets, after the officer observed alcohol on the defendant’s breath. State v. Hollister, 165 Vt. 553, 679 A.2d 883, 1996 Vt. LEXIS 55 (1996) (mem.).

Seizure of witness.

Under some circumstances, upon weighing the question whether the public interest is served by the seizure against the degree of intrusion into personal privacy caused by the seizure, the balance tips in favor of allowing law enforcement officers to briefly stop a potential witness to a crime to obtain information even though the witness is not suspected of criminal conduct. State v. Pierce, 173 Vt. 151, 787 A.2d 1284, 2001 Vt. LEXIS 378 (2001).

Officer’s brief seizure of defendant and his vehicle was reasonable in order to enable the officer to identify, and briefly question, defendant as likely witness to a DUI. State v. Pierce, 173 Vt. 151, 787 A.2d 1284, 2001 Vt. LEXIS 378 (2001).

Standing.

Rights under this amendment are personal; they may not be asserted vicariously. State v. Kerr, 143 Vt. 597, 470 A.2d 670, 1983 Vt. LEXIS 574 (1983).

Occupant of premises has standing to challenge lawfulness of search under a warrant. State v. Stewart, 129 Vt. 175, 274 A.2d 500, 1971 Vt. LEXIS 241 (1971).

Supporting affidavit.

Affidavit submitted by veteran police detective provided a substantial basis for judge’s finding of probable cause that evidence of drug activity existed at location in question; moreover, detective had an objectively reasonable belief that warrant was supported by probable cause, and therefore good faith exception applied to bar exclusion of evidence obtained pursuant to warrant. United States v. Everett, 40 F. Supp. 2d 539, 1999 U.S. Dist. LEXIS 2466 (D. Vt. 1999).

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).

Where, before acting, police verified informant’s information by searching his apartment and calling police in nearby city to see if counterfeit bills had in fact been passed in that area, defendant did not demonstrate that officer displayed a reckless disregard for the truth when securing the warrant to search the defendant’s apartment. United States v. Brygodzinski, 902 F. Supp. 73, 1995 U.S. Dist. LEXIS 20294 (D. Vt. 1995).

The fact that informant originally lied when questioned did not invalidate a search warrant that was secured on the basis of informant’s later, corroborated statement. United States v. Brygodzinski, 902 F. Supp. 73, 1995 U.S. Dist. LEXIS 20294 (D. Vt. 1995).

Evidentiary hearing was required to determine veracity of State trooper’s affidavit in support of warrant to search defendant’s residence, where defendant made sufficient preliminary showing that affidavit might contain deliberately misleading statements and material omissions, and affidavit taken without allegedly false statements was insufficient to justify a finding of probable cause. United States v. Westover, 812 F. Supp. 38, 1992 U.S. Dist. LEXIS 20794 (D. Vt. 1992).

A sufficiently specific affidavit will not itself cure an overbroad search warrant, and resort to an affidavit to remedy a warrant’s lack of particularity is only available when it is incorporated by reference in the warrant itself and attached to it. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

Where search warrant executed as part of armed robbery investigation stated it was “issued upon the basis of an application and affidavit of ” investigating officer, this recitation did not direct executing officers to refer to affidavit for guidance concerning scope of search, and hence did not amount to incorporation of affidavit by reference sufficient to supply warrant with necessary particularity. United States v. George, 975 F.2d 72, 1992 U.S. App. LEXIS 22728 (2d Cir. 1992).

To determine whether affidavit establishes that objects probably connected with criminal activity can currently be found at a particularly described place, a court should look not only at the number of days between the facts relied upon in the affidavit and the time the warrant is issued, but also at the character of the crime and the thing to be seized. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

An affidavit that omits altogether a statement regarding the time of the occurrence of the facts relied upon is insufficient for issuance of a search warrant. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

Hearsay evidence may be the basis for the issuance of a search warrant as long as there is a substantial basis for concluding that the hearsay is credible. State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983).

Although preferable, it is not always essential that the affidavit for a search warrant include first-hand evidence that the items sought are on the premises to be searched, since the nexus between the materials to be seized and the premises where the officers propose to search can be inferred from the nature of the crime, the type of materials sought, the extent of an opportunity for concealment, and reasonable inferences as to criminal behavior. State v. Moran, 141 Vt. 10, 444 A.2d 879, 1982 Vt. LEXIS 481 (1982).

Affidavit applications for a search warrant must be viewed in a common sense manner and not be subjected to a hypertechnical scrutiny. State v. Moran, 141 Vt. 10, 444 A.2d 879, 1982 Vt. LEXIS 481 (1982).

Evidence that a defendant has stolen material that one normally would expect him to hide at his residence will support a search of his residence. State v. Moran, 141 Vt. 10, 444 A.2d 879, 1982 Vt. LEXIS 481 (1982).

Where an affidavit includes allegations based on illegally obtained evidence as well as independent and lawfully obtained information, a valid search warrant may issue if the lawfully obtained information, considered by itself, is sufficient to establish probable cause to issue the warrant. State v. Moran, 141 Vt. 10, 444 A.2d 879, 1982 Vt. LEXIS 481 (1982).

Recital in affidavit, of some of the underlying circumstances on which application for warrant to search premises is based, is essential if magistrate is to perform his function and not be a rubber stamp for police; but where circumstances are detailed, reason for crediting the source of the information is given, and magistrate has found probable cause, courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than commonsense, manner. State v. Driscoll, 137 Vt. 89, 400 A.2d 971, 1979 Vt. LEXIS 958 (1979).

Third party consent.

For a consent search to be valid when person consenting is not defendant, consenting party must have been able to permit search in his own right and defendant must have assumed risk that third party might permit search. State v. Chenette, 151 Vt. 237, 560 A.2d 365, 1989 Vt. LEXIS 35 (1989).

Where defendant doctor in Medicaid fraud case had left his records with health center, when center moved its offices it treated defendant’s records as its own, defendant made no effort to retrieve his records and left no instructions that they be segregated and records were not locked or in special location, center’s senior physician and records custodian had apparent authority to consent to search and seizure of defendant’s records, as defendant assumed risk that records would be disclosed and senior physician and records custodian had authority to disclose center’s records. State v. Chenette, 151 Vt. 237, 560 A.2d 365, 1989 Vt. LEXIS 35 (1989).

Traffic stop.

Although an officer’s stop of defendant for having a pine-tree-shaped air freshener suspended from his rearview mirror was based on a misapprehension of the law-i.e., that the obstructing-windshields statute prohibited the hanging of any item on the inside of a windshield without regard to whether the item materially obstructed the driver’s vision-the officer’s misapprehension was an objectively reasonable one under the circumstances. Therefore, the Fourth Amendment did not require exclusion of the evidence gathered from the traffic stop, and the trial court did not err in denying defendant’s motion to suppress. State v. Hurley, 2015 VT 46, 198 Vt. 552, 117 A.3d 433, 2015 Vt. LEXIS 22 (2015).

There was no merit to defendant’s argument that a visual estimate of speed was insufficient grounds to justify a traffic stop under the Fourth Amendment. Here, both officers had undergone specialized training in visual speed estimation for radar certification; furthermore, what was more compelling was the fact that in both instances the observed speed was significantly higher than the posted speed limit, such that the difference would be discernible to a casual observer, particularly a trained law enforcement officer. State v. Dunham, 2013 VT 15, 193 Vt. 378, 67 A.3d 275, 2012 Vt. LEXIS 107 (2013).

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).

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).

Warrants—Conditions.

Court declined to remove ex ante conditions on a search warrant requiring that the search be performed by third parties or trained computer personnel separate from the investigators and operating behind a firewall. Given the multiplicity and magnitude of the unanticipated injuries that might be inflicted by allowing exposure of an entire computer hard drive, it was understandable to seek precautions that might mitigate such injuries, and given that exposure of embarrassing information to a detached third party constituted a lesser injury, a search warrant requiring the use of third-party screeners was not so wholly without basis as to constitute an abuse of the judge’s discretion. In re Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158, 2012 Vt. LEXIS 100 (2012), cert. denied, 569 U.S. 994, 133 S. Ct. 2391, 185 L. Ed. 2d 1104, 2013 U.S. LEXIS 3844 (2013).

Court declined to remove ex ante conditions on a search warrant limiting the search techniques that police could employ and prohibiting the use of sophisticated searching software without prior court authorization. Given that narrowing the search could still accomplish recovery of the incriminating evidence which there was probable cause to believe would be found within the digital equipment seized, the court was within its discretion to reduce preliminarily the scope of the warrant, and the judicial officer did not abuse his power by restricting law enforcement’s search to those items that met certain parameters based on dates, types of files, or the author of a document. In re Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158, 2012 Vt. LEXIS 100 (2012), cert. denied, 569 U.S. 994, 133 S. Ct. 2391, 185 L. Ed. 2d 1104, 2013 U.S. LEXIS 3844 (2013).

Given that the judicial officer’s conditions to a search warrant pertaining to the copying, return, and destruction of property essentially echoed the requirements of the rule pertaining to search and seizure, it was within the officer’s power to impose them. In re Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158, 2012 Vt. LEXIS 100 (2012), cert. denied, 569 U.S. 994, 133 S. Ct. 2391, 185 L. Ed. 2d 1104, 2013 U.S. LEXIS 3844 (2013).

Ex ante instructions to a search warrant are sometimes acceptable mechanisms for ensuring the particularity of a search. In re Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158, 2012 Vt. LEXIS 100 (2012), cert. denied, 569 U.S. 994, 133 S. Ct. 2391, 185 L. Ed. 2d 1104, 2013 U.S. LEXIS 3844 (2013).

Condition upon a search warrant stating that the State could not rely upon the plain view doctrine was unnecessary for privacy protection because other conditions, requiring the segregation of the search from the investigation and limiting the results of the search that can be shared, obviated application of the plain view doctrine. It was inappropriate because it was beyond the authority of a judicial officer issuing a warrant to abrogate a legal doctrine in this way. In re Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158, 2012 Vt. LEXIS 100 (2012), cert. denied, 569 U.S. 994, 133 S. Ct. 2391, 185 L. Ed. 2d 1104, 2013 U.S. LEXIS 3844 (2013).

Cited.

Cited in 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. Coolidge, 106 Vt. 183, 171 A. 244, 1934 Vt. LEXIS 157 (1934); State v. Intoxicating Liquor, 106 Vt. 340, 175 A. 8, 1934 Vt. LEXIS 179 (1934); State v. Pierce, 120 Vt. 373, 141 A.2d 419, 1958 Vt. LEXIS 114 (1958); In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959); In re Morris, 126 Vt. 297, 229 A.2d 244, 1967 Vt. LEXIS 187 (1967); State v. Mayer, 129 Vt. 564, 283 A.2d 863, 1971 Vt. LEXIS 304 (1971); In re Mayer, 131 Vt. 248, 303 A.2d 803, 1973 Vt. LEXIS 300 (1973); Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26, 1975 Vt. LEXIS 428 (1975); State v. Murray, 134 Vt. 115, 353 A.2d 351, 1976 Vt. LEXIS 608 (1976); State v. Ibey, 134 Vt. 140, 352 A.2d 691, 1976 Vt. LEXIS 615 (1976); Diamond v. Vickrey, 134 Vt. 585, 367 A.2d 668, 1976 Vt. LEXIS 734 (1976); State v. Franklin, 136 Vt. 568, 396 A.2d 138, 1978 Vt. LEXIS 668 (1978); State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979); State v. Senner, 137 Vt. 415, 406 A.2d 378, 1979 Vt. LEXIS 986 (1979); State v. Prue, 138 Vt. 331, 415 A.2d 234, 1980 Vt. LEXIS 1218 (1980); State v. Blaise, 138 Vt. 430, 418 A.2d 27, 1980 Vt. LEXIS 1258 (1980); State v. Durling, 140 Vt. 491, 442 A.2d 455, 1981 Vt. LEXIS 640 (1981); State v. Baldwin, 140 Vt. 501, 438 A.2d 1135, 1981 Vt. LEXIS 634 (1981); State v. Rocheleau, 142 Vt. 61, 451 A.2d 1144, 1982 Vt. LEXIS 605 (1982); State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982); Solomon v. Atlantis Development, Inc., 145 Vt. 70, 483 A.2d 253, 1984 Vt. LEXIS 546 (1984); Nash v. Wennar, 645 F. Supp. 238, 1986 U.S. Dist. LEXIS 19107 (D. Vt. 1986); State v. Wood, 148 Vt. 479, 536 A.2d 902, 1987 Vt. LEXIS 559 (1987); In re Grand Jury Subpoena, 118 F.R.D. 558, 1987 U.S. Dist. LEXIS 13001 (D. Vt. 1987); State v. Byrne, 149 Vt. 257, 542 A.2d 667, 1988 Vt. LEXIS 8 (1988); State v. Record, 150 Vt. 84, 548 A.2d 422, 1988 Vt. LEXIS 100 (1988); State v. Chenette, 151 Vt. 237, 560 A.2d 365, 1989 Vt. LEXIS 35 (1989); State v. Brown, 151 Vt. 533, 562 A.2d 1057, 1989 Vt. LEXIS 85 (1989); State v. Paquette, 151 Vt. 631, 563 A.2d 632, 1989 Vt. LEXIS 111 (1989); State v. Berard, 154 Vt. 306, 576 A.2d 118, 1990 Vt. LEXIS 69 (1990); State v. Oakes, 157 Vt. 171, 598 A.2d 119, 1991 Vt. LEXIS 187 (1991); State v. Brooks, 157 Vt. 490, 601 A.2d 963, 1991 Vt. LEXIS 219 (1991); State v. Blow, 157 Vt. 513, 602 A.2d 552, 1991 Vt. LEXIS 222 (1991); Covino v. Patrissi, 967 F.2d 73, 1992 U.S. App. LEXIS 14230 (2d Cir. 1992); State v. Sutphin, 159 Vt. 9, 614 A.2d 792, 1992 Vt. LEXIS 109 (1992); Taft v. United States, 824 F. Supp. 455, 1993 U.S. Dist. LEXIS 8556 (D. Vt. 1993); State v. Costin, 168 Vt. 175, 720 A.2d 866, 1998 Vt. LEXIS 228 (1998).

Law Reviews —

For essay, “Ted Kaczynski’s Diary,” see 22 Vt. L. Rev. 83 (1997).

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

For note, “Home Confinement as a Condition of Probation: A Proposal for Vermont,” see 12 Vt. L. Rev. 123 (1987).

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

Amendment V. Criminal indictment; double jeopardy; self incrimination; due process; compensation for taking private property

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

History

Proposal and ratification. See note set out under Amendment I.

CROSS REFERENCES

Compensation for taking of private property required by State Constitution, see Vt. Const. Ch. I, Art. 2.

Due process requirement applicable to the states, see Amendment XIV.

Form of indictment required by State Constitution, see Vt. Const. Ch. II, § 39.

Rights under State Constitution of persons accused of crime, see Vt. Const. Ch. I, Art. 10.

ANNOTATIONS

Adjudicative proceedings.

Plaintiffs’ constitutional claims, arising out of events at public information meeting related to town’s construction of bridge, were properly dismissed for failure to state claim upon which relief could be granted, where meeting was not an adjudicative proceeding to which due process requirements applied, plaintiffs did not have a cognizable property interest at stake in meeting or affected by outcome of agency’s permit decision, and plaintiffs did not allege that State agency officer conducting meeting ruled their representative out of order on basis of any suspect classification or illicit motive such that equal protection was implicated. Parker v. Town of Milton, 169 Vt. 74, 726 A.2d 477, 1998 Vt. LEXIS 405 (1998).

Administrative proceedings.

There was no due process violation when for each of the eight patients in question, the State’s complaint cited misleading statements or inaccurate records respondent made regarding a second opinion and generally charged him with unprofessional conduct; with respect to four of those patients to whom respondent made statements that actively dissuaded them from obtaining a second opinion, the State also charged him with engaging in conduct that fell below the personal and moral standards set forth in the license revocation statute. The State’s complaint was more than sufficient to place respondent on notice as to what the charges were, and, in fact, respondent vigorously defended himself and cross-examined each of the patients as to his conduct concerning their obtaining a second opinion; for its part, the Medical Practice Board made findings and conclusions on this point that essentially tracked the State’s charges. In re Appeal of Chase, 2009 VT 94, 186 Vt. 355, 987 A.2d 924, 2009 Vt. LEXIS 96 (2009).

There was no merit to respondent’s argument that the Medical Practice Board had violated his right to due process. Respondent received a full and fair opportunity to defend himself against the State’s charges, and he did in fact mount a vigorous defense to the charges in a thorough and lengthy merits hearing. In re Appeal of Chase, 2009 VT 94, 186 Vt. 355, 987 A.2d 924, 2009 Vt. LEXIS 96 (2009).

While a personal pecuniary interest in the outcome of a proceeding may be sufficient to require disqualification of the adjudicator, the Agency of Natural Resources did not have such a financial stake in the outcome of an enforcement proceeding against a landfill as to create an impermissible bias on its part. There was no statute or regulation that would have allowed the outcome of the proceeding to affect the Agency’s budget as opposed to the State’s General Fund. Indeed, there was no connection between the Agency’s potential liability in Superior Court, where it was being sued by the landfill for contribution for the cost of closure operations, and the Agency’s fiscal well-being. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

While an institutional pecuniary interest in the outcome of a proceeding may be sufficient to require disqualification of the adjudicator, the Agency of Natural Resources did not have any prospect of institutional gain or loss resulting from the outcome of an enforcement proceeding against a landfill. Secretary v. Upper Valley Regional Landfill Corp., 167 Vt. 228, 705 A.2d 1001, 1997 Vt. LEXIS 269 (1997).

Appellate delay.

Where a defendant claims that delay in the appellate process constituted a denial of due process, his showing of substantial prejudice must be based on concrete, practical considerations, rather than vague speculation unsupported by facts. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

In order to sustain his burden of showing substantial prejudice, defendant who claims that delay in the appellate process constituted a denial of due process must establish that he has been unable to present an adequate appeal because of the delay, or that he will be unable to defend adequately in the event a retrial is ordered. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

Mere anxiety concerning the outcome of an appeal, without more, is not sufficient to show substantial prejudice resulting from delay in the appellate process. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

Where defendant was unable to show any substantial prejudice resulting from a 17-month delay in producing the transcript of a pretrial motion, ordered to complete the record on appeal, because he made no claim that he was unable to present an adequate appeal and a retrial would not be ordered, the delay did not deny defendant his constitutional right to due process of law. State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984).

Assertion of right.

The State may not impose a penalty or sanctions against an individual for invoking the privilege against self-incrimination. In re M.C.P., 153 Vt. 275, 571 A.2d 627, 1989 Vt. LEXIS 267 (1989).

Where an assistant judge was called as a witness in a Judicial Conduct Board proceeding against a Supreme Court Justice, Board’s approach of ruling question by question on the assistant judge’s invocation of the privilege against self-incrimination was proper. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

Defendant who entered nolo contendere plea and was awaiting sentencing could invoke the privilege against self-incrimination in order to prevent the possible enhancement of his sentence. State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986), cert. dismissed, 484 U.S. 173, 108 S. Ct. 479, 98 L. Ed. 2d 479, 1987 U.S. LEXIS 5211 (1987).

Defendant who entered nolo contendere plea and was awaiting sentencing asserted his privilege against self-incrimination during presentence investigation interview by informing probation officer that he did not wish to speak with her until investigator from public defender’s office was present. State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986), cert. dismissed, 484 U.S. 173, 108 S. Ct. 479, 98 L. Ed. 2d 479, 1987 U.S. LEXIS 5211 (1987).

Defendant who entered nolo contendere plea and was awaiting sentencing did not forfeit right against self-incrimination during presentence investigation interview even though he did not specifically request presence of an attorney, where defendant requested presence of investigator from public defender’s office, since the investigator was an employee of defendant’s legal representative, and allied with defendant. State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986), cert. dismissed, 484 U.S. 173, 108 S. Ct. 479, 98 L. Ed. 2d 479, 1987 U.S. LEXIS 5211 (1987).

Defendant’s statements made to probation officer at presentence investigation interview were involuntary, in violation of his privilege against self-incrimination, where defendant requested to speak with investigator from public defender’s office prior to answering any question, but probation officer indicated she would abandon the interview if defendant chose to await the arrival of the investigator. State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986), cert. dismissed, 484 U.S. 173, 108 S. Ct. 479, 98 L. Ed. 2d 479, 1987 U.S. LEXIS 5211 (1987).

If an individual indicates in any manner, at any time prior to or during police questioning, that he wishes to remain silent, the interrogation must cease. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

The age of defendant, his emotional and mental maturity, prior experience with police, family environment, and education all bear on the degree of sophistication needed to invoke the right against self-incrimination. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

Behavior.

At trial for driving under the influence of intoxicating liquor, officer could testify as to defendant’s behavior and demeanor during routine questioning for booking; because the questioning was not of an incriminatory nature, it was not subject to Fifth Amendment privilege. State v. Siergiey, 155 Vt. 78, 582 A.2d 119, 1990 Vt. LEXIS 169 (1990).

In prosecution of driving under the influence of intoxicating liquor, the trial court properly allowed officer’s testimony concerning defendant’s behavior and demeanor where observations were made prior to start of interrogation and during routine questioning for booking. State v. Siergiey, 155 Vt. 78, 582 A.2d 119, 1990 Vt. LEXIS 169 (1990).

Blood alcohol content tests.

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).

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 the privilege against self-incrimination secured by this amendment. State v. Brean, 136 Vt. 147, 385 A.2d 1085, 1978 Vt. LEXIS 706 (1978).

Business relationships.

Due process rights of dental clinic owner to enter into partnerships without State hindrance were not violated by decision of employment security board characterizing owner as employer of dentist and office managers, despite owner’s good faith attempt to create relationships that could not be characterized as employment. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672, 1989 Vt. LEXIS 277 (1989).

Civil forfeiture proceedings.

Civil forfeiture proceedings must comport with constitutional due process; if government knows or should know that notice it sends will be ineffective, the means employed will not meet due process requirements. Taft v. United States, 824 F. Supp. 455, 1993 U.S. Dist. LEXIS 8556 (D. Vt. 1993).

Collateral estoppel.

In a prosecution for selling fireworks, although defendants contended that, since the court previously held the statute in question unconstitutional, the issue could not be relitigated, the State had not had a “full and fair” opportunity to litigate the statute’s constitutionality in prior proceedings, and application of issue preclusion, or collateral estoppel, to the current proceedings would not have served the interests of justice. The State had made adequate efforts to appeal this issue in the prior case, and was denied that opportunity by both the trial court and the Supreme Court and, anyway, the State’s incentive to litigate such a misdemeanor case was finite, especially when balanced against its scarce resources and overriding interest in prosecuting felonies. Also, the constitutionality of the fireworks statute would have remained an elusive issue if the doctrine of issue preclusion was continually applied to unappealable orders of the trial court. State v. Dann, 167 Vt. 119, 702 A.2d 105, 1997 Vt. LEXIS 237 (1997), cert. denied, 522 U.S. 1112, 118 S. Ct. 1043, 140 L. Ed. 2d 108, 1998 U.S. LEXIS 921 (1998).

Comment by prosecution.

Defendant is not required to provide exculpatory explanation to law enforcement officers, and prosecution may not use at trial the fact that he stood mute or claimed his privilege in face of accusation. 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).

Where defendant did not choose to remain silent, prosecutor’s comments that at the time of his confession defendant did not claim that he had been in a trance state at the time of the shooting, were proper attacks on defendant’s credibility and were not impermissible comments on post-arrest silence. 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).

Once a suspect is taken into custody and comes under the protection of Miranda, not only may the individual choose to remain silent, but such silence cannot later be used by the prosecution against him at trial. State v. Byrne, 149 Vt. 257, 542 A.2d 667, 1988 Vt. LEXIS 8 (1988).

Trial court did not err in allowing arresting officer to testify about defendant’s failure to make exculpatory statements while in custody where the arresting officer commented only on defendant’s pre-Miranda silence. State v. Byrne, 149 Vt. 257, 542 A.2d 667, 1988 Vt. LEXIS 8 (1988).

The appropriate test for analyzing whether a prosecutor’s comments on a defendant’s failure to testify infringed upon defendant’s privilege against self-incrimination considers whether the remark was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985).

When reviewing a claim that there was a comment on the defendant’s failure to testify, the Supreme Court will look to the entire context in which the comment occurred. State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985).

Curative instructions in the final charge to the jury may be sufficient to remedy alleged error resulting from a prosecutor’s comment on a defendant’s failure to testify. State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985).

It is impermissible to penalize an individual for exercising his privilege against self-incrimination; the prosecution may not, therefore, use at trial the fact that defendant stood mute or claimed his privilege in the face of accusation. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

Confessions.

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, — Vt. —, 255 A.3d 747, 2021 Vt. LEXIS 41 (Vt. 2021).

In addition to the Fifth Amendment’s prohibition against self-incrimination, the Due Process Clause of the Fourteenth Amendment prevents admission of involuntary statements into evidence, regardless of the defendant’s custodial situation. Thus, a court may not admit statements that were given involuntarily, regardless of whether Miranda warnings were administered or even necessary. State v. Pontbriand, 2005 VT 20, 178 Vt. 120, 878 A.2d 227, 2005 Vt. LEXIS 26 (2005).

When a defendant challenges a confession or inculpatory statement, the prosecution must establish by a preponderance of the evidence that the confession or statement was made voluntarily, and that defendant knowingly waived the Fifth Amendment privilege. State v. Pontbriand, 2005 VT 20, 178 Vt. 120, 878 A.2d 227, 2005 Vt. LEXIS 26 (2005).

Trial court did not err in denying motion to suppress statements made by defendant to police officers while being taken to police barracks; although defendant was in custody, there was no evidence that he was being interrogated or that police had elicited his comments, and his statements were found to have been spontaneous and voluntary. State v. Karov, 170 Vt. 650, 756 A.2d 1236, 2000 Vt. LEXIS 137 (2000) (mem.).

Where agents did not threaten defendant in any way and made no attempt to pressure him into confessing but instead provided defendant with his Miranda rights, and where defendant agreed to cooperate and then gave a statement detailing his involvement with cocaine distribution, his statement was fully voluntary. United States v. Zuber, 899 F. Supp. 188, 1995 U.S. Dist. LEXIS 17907 (D. Vt. 1995).

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).

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).

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).

Construction with other law.

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).

Criminal refusal prosecution.

The State is entitled to use evidence of defendants’ refusals in a prosecution for criminal refusal without violating the general Fifth Amendment privilege against self-incrimination. State v. Morale, 174 Vt. 213, 811 A.2d 185, 2002 Vt. LEXIS 242 (2002).

Custody.

Trial court correctly determined that defendant was in police custody for the duration of the interview, as the totality of the relevant objective circumstances indicated that a reasonable person would not have felt at liberty to terminate the interview and leave. Although defendant arrived at the police barracks voluntarily, he was taken to a small, windowless room in the secure part of the police barracks; he was not told that he was free to terminate the interview and leave; and he was confronted almost immediately, and continuing throughout the interrogation, with evidence of guilt of a serious crime, sexual abuse of children. State v. Muntean, 2010 VT 88, 189 Vt. 50, 12 A.3d 518, 2010 Vt. LEXIS 101 (2010).

Standard for determining whether an interrogation is custodial is whether a reasonable person in defendant’s position would have understood himself to be subjected to restraints comparable to those associated with a formal arrest. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

A motor vehicle driver is not in “custody” for Miranda purposes when he is answering questions from a police officer pursuant to a roadside stop, in his vehicle and during administration of field sobriety test. State v. Zumbo, 157 Vt. 589, 601 A.2d 986, 1991 Vt. LEXIS 223 (1991).

More than a coercive atmosphere is required to determine whether or not an individual is in custody; defendant must be deprived of his freedom of action in significant way or deprived of freedom of action to degree associated with formal arrest. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Defendant was not in custody during search of his residence where he was allowed to make phone calls, was told he was not under arrest, was advised of his right to remain silent and have attorney present, was told he did not need to assist in search, and was educated engineer in familiar surroundings. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Double jeopardy.

Defendant’s convictions of two counts of aggravated sexual assault violated double jeopardy because, as charged, each required proof of the same fact—that another person joined defendant in sexually assaulting the complainant. As charged here, the first charge was a lesser-included offense of the second charge because the elements of the first charge—that defendant’s coworker joined defendant in sexually assaulting the complainant—were all contained in the second charge. State v. Hovey, 2021 VT 64, — Vt. —, 263 A.3d 760, 2021 Vt. LEXIS 87 (Vt. 2021).

Defendant’s convictions of sexual assault of a person under the age of 18 entrusted to his care by authority of law and of sexual exploitation of a minor violated the Double Jeopardy Clause, because as charged here, they required proof of the same set of facts and were directed at the same harm stemming from coercive sexual relationships. State v. Nelson, 2020 VT 94, 213 Vt. 368, 246 A.3d 937, 2020 Vt. LEXIS 109 (2020).

Defendant’s convictions of repeated aggravated sexual assault and sexual assault of a person under the age of 18 entrusted to his care by authority of law did not violate the Double Jeopardy Clause, as each crime as charged required proof of at least one element that the other did not, and there was no clear legislative intent to preclude prosecution for both offenses as charged here. State v. Nelson, 2020 VT 94, 213 Vt. 368, 246 A.3d 937, 2020 Vt. LEXIS 109 (2020).

Convicting defendant of two domestic assault charges did not violate the Double Jeopardy Clause’s prohibition against multiple punishments for the same offense, because while the alleged acts happened close in time and in the same place, they were interrupted by an interval when the complainant left the kitchen, took a highchair to a bedroom, and then placed a child in the highchair, during which time defendant called the children’s school, giving him sufficient time to reflect on his conduct and recommit himself to abusing the victim. State v. Abel, 2019 VT 22, 210 Vt. 1, 210 A.3d 439, 2019 Vt. LEXIS 39 (2019).

Because it was unquestioned that jeopardy attached when the jury was empaneled and sworn in, and a mistrial over defendant’s objection was an abuse of discretion that did not evince the manifest necessity without which the ends of public justice would otherwise be defeated, the Double Jeopardy Clause precluded retrial of defendant on the mistried charges. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

Defendant’s convictions for aggravated assault with a deadly weapon and attempted simple assault by physical menace violated the Double Jeopardy Clause of the Fifth Amendment, as the simple assault was a lesser included offense of the aggravated assault charge. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

There was no merit to defendant’s suggestion that the same prior felonies could not support a habitual-offender enhancement on more than one subsequent charge. The trial court’s application of the habitual-offender enhancement did not violate the Double Jeopardy Clause, and was thus not error of any kind, much less plain error. State v. Stanley, 2015 VT 117, 200 Vt. 341, 131 A.3d 1114, 2015 Vt. LEXIS 97 (2015).

Upon examination of the statutes for sexual assault and sexual assault of a vulnerable adult, it could not be concluded that the arguably irrational disparity in punishments between them with respect to sexual assault demonstrated a clear legislative intent to allow cumulative punishments under the circumstances of defendant’s case, where he had engaged in one incident with the victim. State v. Breed, 2015 VT 43, 198 Vt. 574, 117 A.3d 829, 2015 Vt. LEXIS 27 (2015).

Charge of impeding a public officer required proof that defendant committed the unlawful act of giving false information to a police officer implicating his wife. In effect, the impeding charge incorporated the false information charge, making false information a predicate offense to defendant’s conviction for impeding, and in such circumstances, a guilty verdict obtained on both the predicate and compounding offense violated the Double Jeopardy Clause. State v. Neisner, 2010 VT 112, 189 Vt. 160, 16 A.3d 597, 2010 Vt. LEXIS 117 (2010).

Although the trial court erred in allowing the jury to try defendant on multiplicitous counts, it subsequently dismissed one count so that defendant stood convicted on only one charge and received one sentence for it. Thus, the trial court’s action addressed the primary “vice” of multiplicity, the receipt of multiple punishments for the same offense. State v. Hazelton, 2009 VT 93, 186 Vt. 342, 987 A.2d 915, 2009 Vt. LEXIS 94 (2009).

When defendant was sentenced on two counts of boating while intoxicated, and the second count was vacated on appeal because both counts arose out of the same incident, the aggregate sentence imposed on defendant on remand, though it required his reincarceration, was less than his original aggregate sentence, and so did not violate the Double Jeopardy Clause. State v. Martin, 2009 VT 15, 185 Vt. 286, 973 A.2d 56, 2009 Vt. LEXIS 10 (2009).

Convictions of defendant for attempted felony violation of a relief from abuse order by following or stalking the victim, and contempt for violating his condition of release by coming within 100 feet of the victim or her vehicle, did not violate double jeopardy. State v. Prior, 2007 VT 1, 181 Vt. 564, 917 A.2d 466, 2007 Vt. LEXIS 1 (2007) (mem.).

The Double Jeopardy Clause prohibits second or subsequent prosecutions for the same offense as well as multiple impositions of punishment for an offense. The Double Jeopardy Clause does not, however, prevent cumulative punishments when the Legislature has proscribed conduct by more than one criminal statute or offense. State v. Wiley, 2007 VT 13, 181 Vt. 300, 917 A.2d 501, 2007 Vt. LEXIS 9 (2007).

Defendant’s convictions for attempted first-degree murder, aggravated assault, and kidnapping arising from the same event did not violate double jeopardy because each of the crimes requires proof of a fact that the others do not. State v. Stevens, 2003 VT 15, 175 Vt. 503, 825 A.2d 8, 2003 Vt. LEXIS 14 (2003) (mem.).

Defendant’s convictions for aggravated domestic assault and aggravated assault did not violate double jeopardy, since he was not punished twice for the “same offense,” but in fact received two sentences for two different crimes. State v. Karov, 170 Vt. 650, 756 A.2d 1236, 2000 Vt. LEXIS 137 (2000) (mem.).

Guarantees against double jeopardy found in Fifth and Fourteenth Amendments bar subsequent prosecution for a lesser offense if, in proving the greater offense, prosecution relies on and proves elements of the lesser offense as an element of the greater offense. State v. Crawford, 169 Vt. 371, 737 A.2d 366, 1999 Vt. LEXIS 204 (1999).

Dismissal “with prejudice” pursuant to Interstate Agreement on Detainers barred defendant’s prosecution on dismissed sexual assault and burglary charges, but did not prohibit his subsequent prosecution for trespass arising out of the same alleged criminal transaction, since newly charged crime was not a lesser included offense of dismissed charge, and collateral estoppel protection embodied in the Fifth Amendment did not apply. State v. Crawford, 169 Vt. 371, 737 A.2d 366, 1999 Vt. LEXIS 204 (1999).

Defendant’s right not to be placed in second jeopardy is personal and can be waived voluntarily. State v. Maunsell, 170 Vt. 543, 743 A.2d 580, 1999 Vt. LEXIS 244 (1999) (mem.).

Where defendant was convicted of both aggravated murder and aggravated sexual assault, his sentence for aggravated sexual assault was impermissible under the Double Jeopardy Clause; serious bodily injury is always proved by proof of death and therefore aggravated sexual assault was a lesser-included offense of aggravated murder, since the lesser offense required no proof beyond that required of the greater offense. State v. Grega, 168 Vt. 363, 721 A.2d 445, 1998 Vt. LEXIS 162 (1998).

Multiple convictions cannot stand to provide a backup conviction in event that conviction on greater offense is reversed, and therefore murder defendant’s conviction for aggravated sexual assault was vacated. State v. Grega, 168 Vt. 363, 721 A.2d 445, 1998 Vt. LEXIS 162 (1998).

The court’s decision, in a prosecution for first-degree murder, to submit a reduced charge of second-degree murder to the jury was within its authority and did not violate the Double Jeopardy Clause. A defendant charged with first-degree murder may be convicted of the lesser-included offenses of second-degree murder or manslaughter. A court may thus submit to the jury the lesser offense if it determines that the evidence is insufficient to establish an element of the greater offense. State v. Hatcher, 167 Vt. 338, 706 A.2d 429, 1997 Vt. LEXIS 262 (1997).

Trial court’s decision that a single act of domestic assault, committed under two separate aggravating circumstances, could be punished as separate offenses violated defendant’s right against double jeopardy. State v. Ritter, 167 Vt. 632, 714 A.2d 624, 1998 Vt. LEXIS 64 (1998) (mem.).

Prosecution of defendant for manufacture of marijuana did not constitute double jeopardy on account of prior civil in rem forfeiture of his property pursuant to federal statute. United States v. Brophil, 96 F.3d 31, 1996 U.S. App. LEXIS 24038 (2d Cir. 1996).

A two-step analysis is required to determine whether the government has subjected a defendant to multiple punishment by instituting both a criminal prosecution and a civil forfeiture proceeding: (1) whether the civil forfeiture action and the claimant’s criminal prosecution constituted separate proceedings; and (2) whether the civil forfeiture constituted a punishment. United States v. Brophil, 899 F. Supp. 1257, 1995 U.S. Dist. LEXIS 14269 (D. Vt. 1995), rev'd, 96 F.3d 31, 1996 U.S. App. LEXIS 24038 (2d Cir. 1996).

Rather than follow the per se rule that jeopardy never attaches when a defendant fails to appear at a civil forfeiture proceeding, the court, in multiple punishment cases, will analyze each case individually in order to determine whether the government has used separate proceedings against a defendant to impose multiple punishments for the same offense. United States v. Brophil, 899 F. Supp. 1257, 1995 U.S. Dist. LEXIS 14269 (D. Vt. 1995), rev'd, 96 F.3d 31, 1996 U.S. App. LEXIS 24038 (2d Cir. 1996).

Double Jeopardy Clause has two components: prosecution component protects against subsequent prosecution for same offense after either an acquittal or conviction, and punishment component protects against multiple punishments for the same offense. United States v. McCormick, 798 F. Supp. 203, 1992 U.S. Dist. LEXIS 12530 (D. Vt. 1992), aff'd, 992 F.2d 437, 1993 U.S. App. LEXIS 9955 (2d Cir. 1993).

Double Jeopardy Clause protects against both subsequent prosecution for same offense after acquittal or conviction, and multiple punishments for same offense. United States v. McCormick, 992 F.2d 437, 1993 U.S. App. LEXIS 9955 (2d Cir. 1993).

Multiple punishments prong of Double Jeopardy Clause limits prosecutorial and judicial action but does not prevent Legislature from assigning multiple punishments for same conduct. United States v. McCormick, 992 F.2d 437, 1993 U.S. App. LEXIS 9955 (2d Cir. 1993).

Absent evidence to the contrary, it is assumed that Congress ordinarily does not intend to punish the same offense under two different statutes. United States v. McCormick, 992 F.2d 437, 1993 U.S. App. LEXIS 9955 (2d Cir. 1993).

A defendant’s right to be free from double jeopardy is not infringed by sentencing enhancements based upon acquitted, much less dismissed, counts of an indictment. United States v. Streich, 987 F.2d 104, 1993 U.S. App. LEXIS 3280 (2d Cir. 1993).

Defendant was not subjected to double jeopardy when court granted his motion for judgment of acquittal on two counts and then reversed its ruling during trial, where both initial decision and its recall were outside hearing of jury. United States v. Washington, 836 F. Supp. 192, 1993 U.S. Dist. LEXIS 15725 (D. Vt. 1993).

Insofar as 33 V.S.A. § 5527(c) permits the transfer of a juvenile matter from family court to district court and trial of a juvenile defendant as an adult, following an adjudication of delinquency in the family court, that statute violates the double jeopardy protections of the Fifth Amendment of the United States Constitution.In re J.G., 161 Vt. 563, 632 A.2d 39, 1993 Vt. LEXIS 80 (1993) (mem.).

The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992).

Under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992).

Fact that a statute designed primarily to serve remedial purposes incidentally serves the purpose of punishment as well does not mean that the statute results in punishment for double jeopardy purposes. State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992).

For purposes of double jeopardy protections, civil license suspension was not a “punishment,” where governing statute’s plain language indicated suspension was of civil nature, statutory scheme was not so punitive as to negate Legislature’s intent to make it civil in nature, suspension was actually the revocation of a privilege voluntarily granted, license suspensions had historically served a regulatory purpose, element of deterrence present in suspension was common in all losses of licenses or privileges and was not primary focus of statutory scheme, and suspension served rational remedial purpose of protecting public safety. State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992).

A civil driver’s license suspension is not a criminal prosecution for purposes of double jeopardy, since Legislature intended a civil proceeding, civil procedure rules apply, evidentiary standard of proof is civil, and no criminal sanction may be imposed through the proceeding. State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992).

Defendant charged in Vermont with bank fraud and related crimes was entitled to dismissal, on double jeopardy grounds, of Vermont counts considered during sentencing in earlier prosecution in district of Connecticut; defendant was already punished for Vermont conduct where sentencing judge in Connecticut increased defendant’s base offense level and corresponding range of penalties based on consideration of Vermont conduct, there was no clear evidence Congress intended an individual committing bank fraud in two states to receive punishment both from an increase in the base offense level in one proceeding and from a conviction and sentence based on the same fraud in a second proceeding, and even a totally concurrent sentence in the district of Vermont would violate punishment component of Double Jeopardy Clause. United States v. McCormick, 798 F. Supp. 203, 1992 U.S. Dist. LEXIS 12530 (D. Vt. 1992), aff'd, 992 F.2d 437, 1993 U.S. App. LEXIS 9955 (2d Cir. 1993).

Where defendant claimed that his DUI prosecution following his license suspension violated Double Jeopardy Clause by constituting multiple punishment after multiple prosecution for the same conduct, fact that his civil proceeding addressing the same conduct came first was not determinative, since exaction of a civil sanction had the same double jeopardy effect whether before or after imposition of criminal punishment. State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992).

Double jeopardy does not prevent a judge from imposing a harsher sentence on a defendant than originally intended after acceptance of his plea. State v. Duval, 156 Vt. 122, 589 A.2d 321, 1991 Vt. LEXIS 36 (1991).

At trial for driving under the influence where trial court’s decision not to appoint counsel for defendant was based on incomplete information and on resulting sentencing prediction that defendant would not be incarcerated or fined in excess of $1,000, jeopardy did not attach upon the court’s acceptance of defendant’s guilty plea, and therefore the court was not precluded from imposing harsher sentence after giving defendant opportunity to withdraw his plea. State v. Duval, 156 Vt. 122, 589 A.2d 321, 1991 Vt. LEXIS 36 (1991).

Where parents were charged with violating, on only two days, truancy statute that proscribed failure to send the child to school “for the full number of days for which a school is held,” double jeopardy claim was premature, but could be raised if parents were again prosecuted for failure to send their child to school in the same school year. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

The Double Jeopardy Clause required reversal of a trial court’s declaration of mistrial based on sheriff ’s misconduct in murder case; manifest necessity for mistrial did not exist where it was declared after the jury reached its verdict of not guilty but before the jury had been dismissed; trial judge should have reconsidered his decision in light of fact that sheriff ’s misconduct had not deprived defendant of a fair trial or favorable verdict. Corey v. District Court of Vermont, Unit No. 1, 917 F.2d 88, 1990 U.S. App. LEXIS 18545 (2d Cir. 1990).

Once jeopardy attaches, defendant has a valued right to have his trial completed by a particular tribunal, but this right is not absolute, and must be balanced against public interest in ensuring that prosecutor receives one full opportunity to present his case against accused. State v. Corey, 151 Vt. 325, 561 A.2d 87, 1989 Vt. LEXIS 70 (1989).

Defendant’s right against double jeopardy was not violated when trial court, without dismissing charges, declared a mistrial based on sheriff ’s pacing off the distance from which defendant allegedly shot victim, during jury’s deliberations in response to a question without notice to the court. State v. Corey, 151 Vt. 325, 561 A.2d 87, 1989 Vt. LEXIS 70 (1989).

Double Jeopardy Clause was not violated at hearing on motion for judgment of acquittal at close of State’s case-in-chief, by allowing the State to recall victim to make positive identification of defendant as her assailant. State v. Sorrell, 152 Vt. 543, 568 A.2d 376, 1989 Vt. LEXIS 197 (1989).

During a trial by jury, jeopardy attaches with the empanelling and swearing in of the jury. State v. Corey, 151 Vt. 325, 561 A.2d 87, 1989 Vt. LEXIS 70 (1989).

Defendant’s double jeopardy protection was not violated by prosecution of charges after those charges had been taken into consideration in sentencing defendant on a prior, unrelated conviction. State v. Doucette, 150 Vt. 125, 549 A.2d 268, 1988 Vt. LEXIS 106 (1988).

The Double Jeopardy Clause of this amendment protects against a second prosecution for the same offense after acquittal. State v. Ramsay, 146 Vt. 70, 499 A.2d 15, 1985 Vt. LEXIS 341 (1985).

Where prosecutorial conduct which led to a mistrial was merely negligent, was not intended to provoke the defendant into moving for a mistrial, and did not render unmeaningful defendant’s choice to continue or to abort the proceeding, retrial was not barred by the Double Jeopardy Clause of this amendment. State v. Wood, 146 Vt. 57, 498 A.2d 494, 1985 Vt. LEXIS 346 (1985).

The guarantee of this amendment against double jeopardy protects against a separate prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. State v. Rice, 145 Vt. 25, 483 A.2d 248, 1984 Vt. LEXIS 545 (1984).

The Double Jeopardy Clause of this amendment does not provide a defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. State v. Rice, 145 Vt. 25, 483 A.2d 248, 1984 Vt. LEXIS 545 (1984).

The Double Jeopardy Clause of this amendment does not require that a sentence be given a degree of finality that prevents its later increase. State v. Boyer, 144 Vt. 393, 481 A.2d 15, 1984 Vt. LEXIS 606 (1984).

The mere possibility that the prosecution may seek to rely on all the elements of a lesser offense to establish a greater offense that has been charged is not sufficient to bar prosecution for the greater offense under the Double Jeopardy Clause of this amendment. State v. Bourn, 139 Vt. 14, 421 A.2d 1281, 1980 Vt. LEXIS 1382 (1980).

Vermont law relating to former jeopardy has, through the operation of the Fourteenth Amendment, become the law of the Double Jeopardy Clause of this amendment. In re Dunkerley, 135 Vt. 260, 376 A.2d 43, 1977 Vt. LEXIS 603 (1977).

Federal double jeopardy standards of this amendment apply to the states. State v. Lebo, 129 Vt. 449, 282 A.2d 804, 1971 Vt. LEXIS 289 (1971).

Jeopardy attaches with the empanelling and swearing in of the jury, or, in a trial by court, when the court begins to receive evidence. In re Dunkerley, 135 Vt. 260, 376 A.2d 43, 1977 Vt. LEXIS 603 (1977).

It is a violation of the guarantee against double jeopardy of this amendment to fail, upon resentencing, to give credit for punishment already endured. Stewart v. Smith, 129 Vt. 182, 274 A.2d 504, 1971 Vt. LEXIS 242 (1971).

In resentencing, this amendment does not bar an increase in a sentence, but it must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing, and not on retaliatory or vindictive motivations. Stewart v. Smith, 129 Vt. 182, 274 A.2d 504, 1971 Vt. LEXIS 242 (1971).

Disciplinary action imposed upon inmates for a breach of confinement in the course of the administration of a correctional institution constitutes no double jeopardy barrier to a criminal prosecution for escape. Stewart v. Smith, 129 Vt. 182, 274 A.2d 504, 1971 Vt. LEXIS 242 (1971).

When a criminal charge has been nol prossed and a second prosecution for the same offense has not been brought, respondent is premature in claiming the protection of this amendment against double jeopardy as grounds for judgment of acquittal on the first charge. State v. Woodmansee, 124 Vt. 387, 205 A.2d 407, 1964 Vt. LEXIS 119 (1964).

The phrase “jeopardy of life or limb,” as used in this amendment, while by strict construction extending only to treasons and felonies, applies to all indictable offenses, including misdemeanors. State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934).

A plea of former conviction must be upon a prosecution for the identical crime, and must make it to appear that the offenses charged in both cases are the same in law as well as in fact. State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934).

Second jeopardy for same offense is prohibited by this amendment, not second jeopardy for same act. State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934).

Due process.

Defendant’s ongoing pretrial detention did not violate due process, as his criminal history displayed a disrespect for authority and conditions, he would not have consistent supervision due to his partner’s work schedule, the proposed residence was near schools, and the pandemic-related delay was not attributable to intentional governmental interference. State v. Labrecque, 2022 VT 6, — Vt. —, 273 A.3d 642, 2022 Vt. LEXIS 5 (Vt. 2022).

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).

Even if plaintiff, who sought to establish paternity after the mother and her partner had already been determined to be the child’s legal parents, were found by genetic testing to be the child’s biological father, he would not have a constitutionally protected parental interest that trumped the parentage statute’s bar against subsequent parentage cases. Plaintiff did not seek to establish a legal tie to the minor child until more than two years after the child’s birth; he never had any significant custodial, personal, or financial relationship with the minor child; and he had ample opportunity to formally declare and pursue his assertion of parentage through a voluntary acknowledgment of parentage or a parentage action in court. Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, 2013 Vt. LEXIS 4 (2013).

Asserting jurisdiction over termination of parental rights proceedings based on status does not offend the Due Process Clause. In re R.W., 2011 VT 124, 191 Vt. 108, 39 A.3d 682, 2011 Vt. LEXIS 127 (2011).

While it is important to satisfy the due process rights of parents, the best interests of children must also be satisfied. Therefore, as long as the State uses due diligence to contact parents outside of Vermont, the lack of response should be no impediment to proceeding with termination if that is in the children’s best interests. In re R.W., 2011 VT 124, 191 Vt. 108, 39 A.3d 682, 2011 Vt. LEXIS 127 (2011).

There was no merit to defendant’s argument that his denial of bail violated federal due process. A presumption of incarceration under the statute regarding release in cases punishable by life imprisonment did not violate due process. State v. Brillon, 2010 VT 48, 188 Vt. 537, 996 A.2d 1187, 2010 Vt. LEXIS 44 (2010) (mem.).

Medical Practice Board’s reliance on a supplemental affidavit submitted by the State’s investigator did not deprive a physician whose license was summarily suspended of fair notice of the charges to be addressed. While the supplemental affidavit provided additional detail, it did not alter the basic charges against the physician or present an unfair surprise at the post-suspension hearing. In re Miller, 2009 VT 112, 186 Vt. 505, 989 A.2d 982, 2009 Vt. LEXIS 124 (2009).

There is no merit to the argument that the provision of the Administrative Procedure Act regarding licenses violates due process on its face by permitting a summary suspension in exigent circumstances. Indeed, consistent with the high court’s recognition of an emergency exception to the pre-deprivation hearing requirement, numerous states have adopted identical or similar statutes based on a provision in the Model State Administrative Procedures Act authorizing the summary suspension of a state-issued license where public health, safety, or welfare imperatively requires emergency action. In re Miller, 2009 VT 112, 186 Vt. 505, 989 A.2d 982, 2009 Vt. LEXIS 124 (2009).

Within one month of a summary suspension order of a physician’s license, the physician requested, and the Medical Practice Board promptly granted, an evidentiary hearing to reconsider the order. Therefore, any facial or as-applied due-process challenge to the provision of the Administrative Procedure Act regarding licenses predicated on the lack of a prompt post-suspension hearing was rendered moot. In re Miller, 2009 VT 112, 186 Vt. 505, 989 A.2d 982, 2009 Vt. LEXIS 124 (2009).

Physician whose license was summarily suspended was afforded the opportunity to submit pre-filed testimony challenging the State’s evidence, to cross-examine the State’s investigator on the charges, and to testify in his own behalf. This was sufficient to satisfy the requisites of due process pending a more comprehensive final hearing on the merits. In re Miller, 2009 VT 112, 186 Vt. 505, 989 A.2d 982, 2009 Vt. LEXIS 124 (2009).

In a proceeding to summarily suspend a physician’s license, the failure to admit four letters from the physician’s former colleagues did not violate due process. To the extent that these were offered as testimonials to his good character, they were properly excluded as more appropriate to a merits hearing and ultimate questions relating to discipline and mitigation; to the extent that the letters contained information attesting to his judgment, they had some relevance to the question whether a remedy short of suspension would be sufficient to protect the public, but any error was harmless because it was clear that the Medical Practice Board implicitly considered and rejected the limited-remedy option. In re Miller, 2009 VT 112, 186 Vt. 505, 989 A.2d 982, 2009 Vt. LEXIS 124 (2009).

Education.

The right of parents to direct the education of their children, which is protected by this amendment and the Fourteenth Amendment as a matter of privacy, is not absolute and must give way to reasonable State regulation. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

Private school reporting statute and conviction of truancy of parents whose child was enrolled in religious school not in compliance with reporting requirements did not infringe substantive due process rights of parents to direct the education of their children; State regulation of education was reasonable. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

Egregious governmental conduct.

Municipal police department’s knowing transfer of firearm to convicted felon, notification of federal agents, and ensuing federal arrest did not amount to egregious governmental conduct rising to level of due process violation. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Factors for determining violation of right.

The transfer of legal guardianship and custody over defendant, a juvenile determined to be a child in need of care and supervision, to the Department of Social and Rehabilitation Services was not an actual restraint imposed by arrest and holding to answer to a criminal charge. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

Foreclosure sale.

District Court’s failure to provide farm owner with an evidentiary hearing or oral argument prior to confirmation of foreclosure sale did not deprive him of due process of law. United States v. Munger, 2000 U.S. App. LEXIS 15809 (2d Cir. June 29, 2000).

Immunity.

Requiring defendant, as a condition of his probation after a conviction of sexual assault, to admit his guilt for 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).

When a witness in a Judicial Conduct Board proceeding asserts his or her privilege against self-incrimination, such witness may be compelled to testify, but the State may not use such testimony as a springboard to a future criminal proceeding, and, in the event that criminal charges are forthcoming, the witness may object to the introduction of any evidence taken or derived from his or her testimony before the Board, and the burden will then be on the State to demonstrate an independent source for such evidence. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

One compelled to provide self-incriminating evidence must be given immunity adequate to supplant the privilege. State v. Couture, 146 Vt. 563, 632 A.2d 39 (1985) (mem.).

Indictment.

The Due Process Clause of the Fifth Amendment of the United States Constitution may require the dismissal of an indictment if it is shown that a preindictment delay caused substantial prejudice to defendant’s rights to a fair trial, and that the delay was an intentional device to gain tactical advantage over the accused. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

The State is not required to use the grand jury procedure of this amendment in all felony prosecutions. In re Mahoney, 128 Vt. 462, 266 A.2d 444, 1970 Vt. LEXIS 255 (1970).

Indictment provision of this amendment refers only to offenses cognizable before federal courts. State v. Keyes, 8 Vt. 57, 1836 Vt. LEXIS 10 (1836).

Inferences.

Inferences, either favorable or unfavorable to a defendant, may not be drawn from a witness’s refusal to testify based on this amendment. State v. Benneig, 146 Vt. 391, 505 A.2d 1192, 1985 Vt. LEXIS 398 (1985).

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).

Police officers’ request for consent to search defendant’s pick-up truck was not designed to elicit an incriminating response, and it therefore did not constitute “interrogation” within meaning of Fifth Amendment. State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 2000 Vt. LEXIS 14 (2000).

The right against self-incrimination, under both the United States Constitution and the Vermont Constitution, does not attach absent custodial interrogation or a situation approximating incommunicado interrogation in a police-dominated atmosphere. State v. Houle, 162 Vt. 41, 642 A.2d 1178, 1994 Vt. LEXIS 46 (1994).

Miranda warnings were required under this amendment when defendant employees of municipal water system were subjected to custodial interrogation by officials from Environmental Protection Agency (EPA) in investigation of which defendants were targets; questions were designed to elicit incriminating responses and EPA investigators were acting under color of laws and regulations that compelled subjects to answer questions. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

In order for questioning to constitute an interrogation giving rise to necessity of Miranda warnings under this amendment, questioning itself must be of a kind reasonably likely to elicit incriminating responses from the subject; although central focus is on subjective impression of the subject of investigation, law enforcement officials’ intentions and knowledge of special susceptibilities of the subject at time of questioning are also relevant. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

Where defendant was not in custody when his probation officer questioned him about pending attempted sexual assault charge, admission of statements defendant made to the probation officer did not violate this amendment. State v. Brown, 153 Vt. 263, 571 A.2d 643, 1989 Vt. LEXIS 272 (1989).

Custodial interrogation is not defined by officer’s or defendant’s subjective intent or by officer’s unarticulated purposes; rather, courts should evaluate how a reasonable man in the suspect’s position would have understood the situation. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Defendant was not in custody and officers were not required to administer Miranda warnings where defendant was questioned briefly and told that he was not under arrest and that he could choose whether or not to accompany officers to search his residence, and defendant voluntarily accompanied officers to his home; custom agent’s statement that he had “subject in custody” was police jargon and did not imply that defendant was not free to leave. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Noncustodial questioning of defendant during search of his residence was not coercive where defendant was advised he had right to remain silent and to have counsel present, defendant was not in unfamiliar surroundings or unable to communicate with outsiders, and behavior of law enforcement officials did not overbear defendant’s will to resist. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Any knowledge the police may have had concerning the unusual susceptibility of a suspect to a particular form of persuasion may be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect. State v. Smith, 140 Vt. 247, 437 A.2d 1093, 1981 Vt. LEXIS 598 (1981).

Custodial interrogation initiated by law enforcement personnel is violative of one’s privilege against self-incrimination under this amendment, 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).

Lack of remorse.

Defendant’s right to remain silent under this amendment 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 for purposes of Miranda when a probation officer interviewed him in his home, as there was no evidence that the State would penalize an exercise of his Fifth Amendment self-incrimination privilege by revoking his furlough status, the questioning took place in his living room and was conducted by an officer he knew well, defendant knew that he was on the highest level of supervision, the initial questions were open-ended and even the later questions were not accusatory, and the fact that the officers were questioning him in response to a complaint and that they searched his bedroom were not indicators of custody. State v. Powers, 2016 VT 110, 203 Vt. 388, 157 A.3d 39, 2016 Vt. LEXIS 116 (2016).

Even if defendant’s rights under Miranda and the Public Defender Act were violated by the State Police when they interrogated him, that violation did not taint the execution of a nontestimonial identification order. State v. Marallo, 175 Vt. 469, 817 A.2d 1271, 2002 Vt. LEXIS 431 (2002) (mem.).

Defendant’s statements were not taken in violation of his Fifth Amendment rights, where he freely and voluntarily waived his Miranda rights, officer’s interviews with defendant occurred after the waiver, and there was no evidence that defendant told officer he wished to exercise any of his constitutional rights. United States v. Everett, 40 F. Supp. 2d 539, 1999 U.S. Dist. LEXIS 2466 (D. Vt. 1999).

Where defendant was informed of his rights under Miranda and chose to waive them, the Fifth Amendment did not require suppression of the statements he made at his home and at Drug Enforcement Agency headquarters. United States v. Zuber, 899 F. Supp. 188, 1995 U.S. Dist. LEXIS 17907 (D. Vt. 1995).

Where suspected illegal aliens were told that any statement they made could be used against them in an administrative proceeding, but were not told that they need not speak at all or that any statement could be used against them in a court of law, warnings were fatally deficient under Miranda, requiring suppression. United States v. Tehrani, 826 F. Supp. 789, 1993 U.S. Dist. LEXIS 9291 (D. Vt. 1993), aff'd, 49 F.3d 54, 1995 U.S. App. LEXIS 3659 (2d Cir. 1995).

Miranda warnings are required prior to questioning when the questioning is an “interrogation” as defined in Miranda and its progeny, and is performed while the subject is in custody or a custody-like situation. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

Procedural safeguards of Miranda apply only if a defendant is “in custody” and subjected to custodial interrogation; normally, the custody inquiry is whether, under totality of the circumstances, a reasonable person would believe he was at liberty to leave or to decline to answer the officer’s questions. State v. Lancto, 155 Vt. 168, 582 A.2d 448, 1990 Vt. LEXIS 174 (1990).

Questioning conducted in a police cruiser does not, in itself, establish custody for purposes of Miranda warnings; such questioning is not necessarily coercive, absent some evidence the officer’s actions were calculated to break the suspect’s will. State v. Lancto, 155 Vt. 168, 582 A.2d 448, 1990 Vt. LEXIS 174 (1990).

Defendant’s questioning, conducted in police cruiser, following trooper’s determination that injured defendant was registered owner of car that trooper reasonably suspected of having been involved in an accident, was not custodial and therefore defendant was not entitled to Miranda warnings; the detention was brief, conducted on public highway by only one officer, and trooper’s statement that he knew defendant had been in an automobile accident rather than in a fight as defendant claimed was insufficient to constitute a formal arrest. State v. Lancto, 155 Vt. 168, 582 A.2d 448, 1990 Vt. LEXIS 174 (1990).

In determining whether waiver of Miranda rights is voluntarily made, where doubt is raised about defendant’s capacity or physical ability to understand the nature of the asserted waiver, it is incumbent upon the trial court to inquire into all circumstances surrounding the interrogation, including defendant’s age, experience, education, background, intelligence, and capacity to understand his Fifth Amendment rights and consequences of waiver. State v. Austin, 155 Vt. 531, 586 A.2d 545, 1990 Vt. LEXIS 252 (1990).

Inquiring into the subjective thoughts of either the police or the defendant is likely to pervert the fact-finding process in a Miranda hearing, and such inquiry is not permissible. State v. Willis, 145 Vt. 459, 494 A.2d 108, 1985 Vt. LEXIS 317 (1985).

In determining when a suspect has been taken into custody or otherwise deprived of his freedom of action in any significant way for Miranda purposes, courts should make an objective inquiry into the totality of the circumstances to determine if a reasonable person would believe he or she were free to leave or refuse to answer police questioning. State v. Willis, 145 Vt. 459, 494 A.2d 108, 1985 Vt. LEXIS 317 (1985).

Trial court erred in determining that defendant convicted of first degree murder was in custody when asked by the police if he wanted to show them where the victim’s body was, where defendant was never specifically summoned for questioning, but walked into the officers’ presence, defendant was asked only one simple question, phrased in a nonthreatening way, defendant was just outside his home when the question was asked, there was no discernible pressure or restraint of any sort on defendant, and the questioning lasted only seconds. State v. Willis, 145 Vt. 459, 494 A.2d 108, 1985 Vt. LEXIS 317 (1985).

Although trial court erroneously concluded that defendant convicted of first degree murder had been in custody when asked by police if he wanted to show them where the victim’s body was, there was no reversible error, since the court had refused to suppress the evidence of defendant’s leading the police to the body on the ground that failure to give Miranda warnings before the question was asked was excused by an exception to the exclusionary rule. State v. Willis, 145 Vt. 459, 494 A.2d 108, 1985 Vt. LEXIS 317 (1985).

When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way, he must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. State v. Shores, 143 Vt. 224, 465 A.2d 269, 1983 Vt. LEXIS 481 (1983).

Custodial interrogation resulting in a confession violates the privilege against self-incrimination secured by this amendment unless the prosecution clearly demonstrates that the defendant has received the safeguards required by Miranda v. Arizona, 384 U.S. 436 (1966), prior to interrogation and that he has knowingly and voluntarily waived his rights thereunder. State v. Breznick, 134 Vt. 261, 356 A.2d 540, 1976 Vt. LEXIS 648 (1976).

Police officer’s warning that defendant could not be compelled to answer and had the right to refuse to answer any questions while in custody, and that he was entitled to talk to a lawyer before answering any questions, was sufficient under Miranda v. Arizona, 384 U.S. 436 (1966), and it was not fatal that defendant was not advised he had the right to remain silent, that he was entitled to talk to a lawyer before any questions were asked, and that he could stop answering questions if he wished. State v. Harbaugh, 132 Vt. 569, 326 A.2d 821, 1974 Vt. LEXIS 395 (1974).

In dealing with admissions obtained through interrogation of one accused of a crime, instituted by representatives of the State, adequate observance of the commands of this amendment 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).

Motor vehicle license suspension.

State administrative motor vehicle license suspension procedure is not criminal, and defendant is not entitled to a jury trial, appointed counsel, protection against self-incrimination, proof beyond a reasonable doubt, or confrontation of witnesses, as those protections apply to criminal proceedings. State v. O'Brien, 158 Vt. 275, 609 A.2d 981, 1992 Vt. LEXIS 52 (1992).

Penalties.

There was no merit to a taxpayer’s contention that its due process rights were violated due to the differential between the penalty requested by the Department of Taxes and the penalty imposed by the Commissioner of Taxes. The taxpayer had full notice that the Department intended to argue for the imposition of a penalty at a hearing and that the Commissioner had the authority to waive, reduce, or compromise any penalties imposed by the Department; as such, the taxpayer was not deprived of an opportunity to respond and present evidence and argument on all issues involved in the appeal hearing. TD Banknorth, N.A. v. Dep't of Taxes, 2008 VT 120, 185 Vt. 45, 967 A.2d 1148, 2008 Vt. LEXIS 132 (2008).

Rule announced in Provost that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt is not a watershed rule of criminal procedure, and as such, fails to meet the standard for an exception to the common-law rule that new constitutional rules of criminal procedure apply retroactively only to cases on direct review. State v. White, 2007 VT 113, 182 Vt. 510, 944 A.2d 203, 2007 Vt. LEXIS 262 (2007).

Environmental Law Division (ELD) was within its discretion to impose a larger penalty on construction company for land use violations than Agency of Natural Resources had, since ELD could determine anew the penalty and there was no realistic likelihood of vindictiveness or violation of defendants’ due process rights in its so doing. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

Probation.

Court’s one-year delay between conclusion of probation-violation merits hearing and issuance of a decision did not result in substantial prejudice to defendant amounting to a denial of due process. State v. Page, 171 Vt. 110, 757 A.2d 1038, 2000 Vt. LEXIS 160 (2000).

For purposes of due process right guaranteed by this amendment, defendant whose certificate of probation conditions require him to complete a sexual therapy program and who was told by both probation officer and therapist that failure to admit having had sexual intercourse with his stepdaughter was impeding successful completion of the program was given fair notice that refusal to admit full extent of his sexual conduct could result in revocation of probation. Mace v. Amestoy, 765 F. Supp. 847, 1991 U.S. Dist. LEXIS 7919 (D. Vt. 1991).

Probation revocation proceedings.

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).

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).

Psychiatric examinations.

Once the court found defendant to be incompetent to stand trial, she was no longer at risk of conviction and punishment. Thus, the hospitalization portion of the proceeding entailed a non-incriminating use of the evidence derived from a doctor’s examination and did not implicate defendant’s privilege against self-incrimination. State v. McCarty, 2006 VT 4, 179 Vt. 593, 892 A.2d 250, 2006 Vt. LEXIS 23 (2006) (mem.).

The Fifth Amendment privilege against self-incrimination applies in compelled pretrial psychiatric examinations. State v. Bushey, 147 Vt. 140, 513 A.2d 1177, 1986 Vt. LEXIS 377 (1986).

Purpose of right.

The central purpose of the privilege against self-incrimination is to protect the defendant from being compelled to testify against himself at his own trial. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

Request to see parent.

Nineteen-year-old defendant’s request to see his nonlawyer father was not a request to remain silent nor a request to see an attorney. 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).

Right to counsel.

Right to counsel recognized in Escobedo has been limited to arising only when the suspect is in police custody. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

Escobedo applies only to a defendant’s Fifth Amendment rights. Hence, Escobedo did not support defendant’s claim that his Sixth Amendment right to counsel was violated. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

Because defendant was not in custody, there was no violation of his Fifth Amendment right to counsel. Thus, the police were not obligated to stop questioning defendant even if he unequivocally asked to speak with a lawyer. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

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.).

Fifth Amendment right to counsel protects an individual at pre-arraignment stage and thereafter whenever there is a custodial interrogation. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Invocation of Sixth Amendment right to counsel does not imply an invocation of Fifth Amendment right, and police may question a suspect about crimes not formally charged even though suspect may have asserted his Sixth Amendment right as to other charges. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Once an individual asserts his right to counsel under this amendment, all interrogation must cease until counsel is available; rule is not offense-specific, and suspect may not be reapproached regarding any offense unless counsel is present, although rule does not apply to suspects not in continuous custody. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Even assuming defendant’s Fifth Amendment right to counsel was invoked in earlier State proceeding, right was vitiated upon his release from State custody and did not apply to later questioning by federal agents relative to federal offenses. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Trial court erred in failing to suppress statements of defendant in police custody for DUI processing who had asked for an attorney and spoken to one on the telephone but who had subsequently responded to police-initiated questioning; once defendant asked for counsel, regardless of what advice attorney gave over the telephone, there could be no further police-initiated questioning without presence of his attorney. State v. Parker, 155 Vt. 340, 583 A.2d 98, 1990 Vt. LEXIS 193 (1990).

Before a preindictment suspect facing interrogation invokes the right to counsel, the right is in existence and available for exercise, but police-initiated interrogation will not be barred until the suspect requests the assistance of counsel. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Once an accused has invoked the right to counsel, the Edwards rule prohibits police-initiated interrogation about either the same offense or an unrelated offense and any waiver of the right to counsel for that police-initiated interrogation is invalid. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

The Sixth Amendment right to counsel parallels the Fifth Amendment right to counsel in two ways: (1) before the Edwards rule will bar police-initiated questioning, the right to counsel must be invoked; and (2) before the right to counsel is invoked, Miranda warnings are sufficient to inform the accused of his right to counsel and to obtain a valid waiver of that right. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Defendant, while being accused of charges respecting which he had previously waived his Sixth Amendment right to counsel, could validly waive his Fifth Amendment right to counsel in connection with police questioning regarding an offense for which he had not been charged. United States v. Roberts, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Once a criminal defendant has invoked Fifth Amendment right to counsel, he is not subject to further interrogation by authorities until counsel has been made available to him, unless accused himself initiates further communication, exchanges, or conversations with police, and if authorities initiate further interrogation, any waiver of defendant’s right to counsel for that interrogation is invalid. State v. Preston, 150 Vt. 511, 555 A.2d 360, 1988 Vt. LEXIS 203, cert. denied, 488 U.S. 934, 109 S. Ct. 327, 102 L. Ed. 2d 345, 1988 U.S. LEXIS 4815 (1988).

Broad interpretation must be given to defendant’s request for counsel, and court must presume, absent evidence to contrary, that such an individual has invoked full extent of constitutional right to counsel. State v. Preston, 150 Vt. 511, 555 A.2d 360, 1988 Vt. LEXIS 203, cert. denied, 488 U.S. 934, 109 S. Ct. 327, 102 L. Ed. 2d 345, 1988 U.S. LEXIS 4815 (1988).

When defendant had requested an attorney at arraignment on another charge, and while in custody was interrogated and purportedly waived his right to counsel following a Miranda warning, his waivers of his Fifth Amendment right were invalid and his confession to murder charge was inadmissible. State v. Preston, 150 Vt. 511, 555 A.2d 360, 1988 Vt. LEXIS 203, cert. denied, 488 U.S. 934, 109 S. Ct. 327, 102 L. Ed. 2d 345, 1988 U.S. LEXIS 4815 (1988).

Parent who is not lawyer and who is not trained in law is not in position to offer type of legal assistance necessary to protect rights under this amendment of accused undergoing custodial interrogation. 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).

Rights of defendants.

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.).

Qualified right to possession of dogs and other animals, and strong public interest in assuring their permanent placement in a suitable environment, amply supported town’s decision to provide for sale or transfer of impounded dogs if unclaimed after seven days, and town’s posting of descriptive notices in town clerk’s office, post office, and village store, in conformity with ordinance, did not deprive lost dog owners of their constitutional right to due process. Lamare v. North Country Animal League, 170 Vt. 115, 743 A.2d 598, 1999 Vt. LEXIS 331 (1999).

In determining the prejudicial impact of an incriminating hearsay statement by a nontestifying accomplice in a murder prosecution, the probative force of the statement had to be compared with the admissible evidence that supported the verdict. State v. Gundlah, 166 Vt. 518, 702 A.2d 52, 1997 Vt. LEXIS 114 (1997).

Defendant’s due process rights were not violated by rejection of his challenges for cause against potential jurors who had prior knowledge of related State murder trial; challenges based simply on fact that a juror knew there was a related State case were insufficient to show a legally cognizable basis for partiality, and defendant did nothing to demonstrate actual existence of an opinion of any juror that would have raised a presumption of partiality. United States v. Washington, 836 F. Supp. 192, 1993 U.S. Dist. LEXIS 15725 (D. Vt. 1993).

Presumption that a person was driving while intoxicated if his blood alcohol content is .08 or more within two hours of operating vehicle does not violate due process clause of this amendment, because presumption is rebuttable rather than irrebuttable, and because there is a rational connection between the fact proved and the ultimate fact presumed. State v. Paya, 159 Vt. 625, 617 A.2d 165, 1992 Vt. LEXIS 128 (1992) (mem.).

Police officer’s failure to preserve notes taken from interviews with witness and victim in lewd and lascivious behavior case did not deprive defendant of due process, where bad faith on officer’s part was neither alleged nor found. State v. Benoit, 158 Vt. 359, 609 A.2d 230, 1992 Vt. LEXIS 47 (1992).

Scope of right.

Defendant’s acknowledgement of his ownership of pick-up truck, in consent to search form, was not sufficiently testimonial to create a Fifth Amendment violation. State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 2000 Vt. LEXIS 14 (2000).

The acquisition of incriminating statements by trickery and deceit violates this amendment’s right against self-incrimination. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

Under this amendment’s right against self-incrimination, it is impermissible for a governmental official investigating a defendant to remain silent as to the nature of the investigation when a legal or moral standard requires the official to reveal his or her purpose. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

When the government relies on the force of its legal authority to compel participation in an interrogation, or when it relies on a statutorily created collaborative role to conduct an investigation, it must then ensure that incriminating statements made by suspects are made after voluntary and knowing waiver of this amendment’s right against self-incrimination. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

Requiring defendant as condition of probation to admit during course of sexual therapy treatment program to having had sexual intercourse with stepdaughter violated his privilege against self-incrimination under this amendment, notwithstanding that, since defendant had been convicted only of lewd and lascivious conduct regarding incident with his stepdaughter about which he was being questioned in treatment program, threat of self-incrimination was not realistic as prosecution for different sexual acts against his stepdaughter on different days was unlikely; the burden of eliminating the threat of prosecution by assuring defendant that such admission would not be used against him was on the State. Mace v. Amestoy, 765 F. Supp. 847, 1991 U.S. Dist. LEXIS 7919 (D. Vt. 1991).

Since defendant convicted of sexual offense faced no threat of subsequent prosecution for the offense, this amendment and the Fourteenth Amendment did not prohibit conditioning probation on defendant’s willingness to discuss, in the context of therapeutic treatment, the sexual issues surrounding the conviction even if disclosure of information could potentially lead to revocation of probation; the privilege against self-incrimination still operated to protect defendant with respect to further criminal prosecution of different acts. State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1990 Vt. LEXIS 60 (1990).

Since defendant convicted of lewd or lascivious conduct with a child retained no privilege against self-incrimination with respect to his actions surrounding the crime, probation condition requiring defendant to admit to having sexual intercourse with stepdaughter in context of sexual therapy program was permissible under this amendment, even though defendant theoretically could face prosecution for sexual acts with stepdaughter not the subject of the original charge and plea agreement; defendant made no showing of a realistic threat of self-incrimination associated with future prosecution. State v. Mace, 154 Vt. 430, 578 A.2d 104, 1990 Vt. LEXIS 107 (1990).

The privilege against self-incrimination applies in civil as well as criminal litigation. In re M.C.P., 153 Vt. 275, 571 A.2d 627, 1989 Vt. LEXIS 267 (1989).

Deprivation of custody of a child is a sanction for purposes of the privilege against self-incrimination. In re M.C.P., 153 Vt. 275, 571 A.2d 627, 1989 Vt. LEXIS 267 (1989).

The State cannot compel an individual to testify against himself or herself at least without an appropriate grant of immunity in any subsequent criminal prosecution. In re M.C.P., 153 Vt. 275, 571 A.2d 627, 1989 Vt. LEXIS 267 (1989).

Undergoing a field sobriety test is not the sort of activity protected by the privilege against self-incrimination. State v. Schmitt, 150 Vt. 503, 554 A.2d 666, 1988 Vt. LEXIS 209 (1988).

There is no privilege against self-incrimination with respect to testimony that might prejudice judge in judicial misconduct case pending against her, since Judicial Conduct Board proceedings are not criminal in nature. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

Despite jury verdict against her in criminal case, respondent’s privilege against self-incrimination was available until the case was fully concluded, including any appeals. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

The privilege against self-incrimination is not necessarily implicated whenever a person suspected of criminal activity is compelled in some way to cooperate in generating evidence which may be used against him; the privilege only protects the accused from being compelled to provide evidence that is testimonial or communicative in nature. State v. Lombard, 146 Vt. 411, 505 A.2d 1182, 1985 Vt. LEXIS 390 (1985).

Field dexterity tests given by police officers, designed to reveal objective information about a driver’s coordinative abilities, are not within the privilege against self-incrimination and officers need not give Miranda warnings to defendants prior to administering them. State v. Lombard, 146 Vt. 411, 505 A.2d 1182, 1985 Vt. LEXIS 390 (1985).

Although a defendant may refuse to take the stand at all, a witness may only assert the privilege against self-incrimination regarding specific incriminating answers. State v. Couture, 146 Vt. 268, 502 A.2d 846, 1985 Vt. LEXIS 382 (1985).

A trial court should exercise discretion in limiting assertion by witnesses of the privilege against self-incrimination to questions raising a real danger of injurious disclosure. State v. Couture, 146 Vt. 268, 502 A.2d 846, 1985 Vt. LEXIS 382 (1985).

Trial court erred by permitting witnesses to refuse to answer, on the basis of the privilege against self-incrimination, numerous innocuous questions that posed no discernible risk of incrimination. State v. Couture, 146 Vt. 268, 502 A.2d 846, 1985 Vt. LEXIS 382 (1985).

The privilege against self-incrimination protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and it does not protect an individual from being compelled to produce real or physical evidence, such as submitting to fingerprinting, photographing, or even physical measurements. State v. Picknell, 142 Vt. 215, 454 A.2d 711, 1982 Vt. LEXIS 621 (1982).

A handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside the protection of this amendment. State v. Picknell, 142 Vt. 215, 454 A.2d 711, 1982 Vt. LEXIS 621 (1982).

There is no right to remain silent under this amendment. State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979).

This amendment does not confer upon an accused the privilege to remain silent about the crimes of others, at least not where there is no showing that the practical effect of such disclosures will be to incriminate the accused. State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979).

The privilege against self-incrimination extends to the right to refuse to testify as to a fact that would be a necessary link in a chain of evidence to prove the commission of a crime by the witness or would be a source from which evidence of his commission of a crime might be obtained. Heaton Hospital, Inc. v. Emrick, 128 Vt. 405, 264 A.2d 806, 1970 Vt. LEXIS 243 (1970).

A witness is not privileged to refuse to answer a question on the ground that his answer might expose him to a civil action or a pecuniary loss. Heaton Hospital, Inc. v. Emrick, 128 Vt. 405, 264 A.2d 806, 1970 Vt. LEXIS 243 (1970).

Self-incrimination.

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, — Vt. —, 255 A.3d 747, 2021 Vt. LEXIS 41 (Vt. 2021).

One-hour delay between when the Miranda warnings were administered and the more pointed questions leading to defendant’s confession did not require fresh Miranda warnings. Not only was the subject of the interview consistent between the time of the warnings and defendant’s confession, but the warnings were given in the same room as the subsequent interrogation, by the same officers who had been and were continuing to interview defendant. State v. Prue, 2016 VT 98, 203 Vt. 123, 153 A.3d 551, 2016 Vt. LEXIS 102 (2016).

Trial court properly found that defendant’s initial waiver of his Miranda rights was voluntary, as the interview transcript and audio recording supported the trial court’s findings that defendant followed the conversation, understood the nature of the interview, and knowingly and intelligently waived his rights; defendant’s argument that there was no evidence that he knew the Miranda warnings were given because the troopers were going to question him about the homicide was not supported by the record; and the trooper’s description of the constitutional requirement embodied in Miranda as a “formality” did not undermine the validity of defendant’s waiver. State v. Prue, 2016 VT 98, 203 Vt. 123, 153 A.3d 551, 2016 Vt. LEXIS 102 (2016).

Defendant’s confession was voluntary. Defendant knowingly and intelligently waived his right to remain silent after the troopers read him the Miranda warnings; defendant’s statements throughout the interview reflected his understanding of his situation; the record did not reflect any improper promises; defendant was resistant to some of the interrogation tactics; defendant made repeated demands for additional evidence to inform his calculus of his own self-interest; the officers did not attempt to “sweat” out defendant; the troopers never crossed the line from being confrontational into being coercive; and although defendant was initially lured to the barracks through a ruse, he had multiple opportunities to terminate the interview. State v. Prue, 2016 VT 98, 203 Vt. 123, 153 A.3d 551, 2016 Vt. LEXIS 102 (2016).

Miranda warning given in the interrogation room after defendant’s unwarned statement at the holding cell was effective to convey to defendant his rights to remain silent and to an attorney. Defendant gave little detail in his initial statement; the overlapping information between interviews was inconsequential; and the warned interview happened outside the realm of the first and was in no way based on earlier questions or responses. State v. Brooks, 2013 VT 27, 193 Vt. 461, 70 A.3d 1014, 2012 Vt. LEXIS 108 (2013).

There was no merit to defendant’s contention that he did not voluntarily waive his rights following a Miranda warning. Defendant’s continued assertion of innocence after waiving his rights strongly suggested that he did not consider his earlier statement to be incriminating and that, consequently, he did not feel manipulated or coerced by the first, unwarned interrogation; furthermore, defendant did not testify that he was pressured, coerced, or threatened into speaking. State v. Brooks, 2013 VT 27, 193 Vt. 461, 70 A.3d 1014, 2012 Vt. LEXIS 108 (2013).

Police who questioned defendant in a police cruiser for one hour engaged in a custodial interview of defendant without providing the necessary Miranda warnings. Defendant was not told he was free to leave; he was confronted with evidence of his guilt throughout; and defendant did not voluntarily initiate contact with police, but spoke with the detectives after they sought him out, waited for him to come home, and placed him inside the police car. State v. Hieu Tran, 2012 VT 104, 193 Vt. 148, 71 A.3d 1201, 2012 Vt. LEXIS 103 (2012).

In determining whether defendant was in custody for purposes of Miranda, there was no error in considering the officers’ subjective belief in defendant’s guilt. This belief was relevant because it was communicated to defendant during the questioning. State v. Hieu Tran, 2012 VT 104, 193 Vt. 148, 71 A.3d 1201, 2012 Vt. LEXIS 103 (2012).

Trial court did not err under Miranda in suppressing statements that defendant made early in his interview with police. From the outset of the questioning, there were indicia of custody and police dominance over defendant; thus, under the totality of the circumstances, the court could not say that defendant’s statements even at the beginning of the interview were made in response to mere questioning rather than the product of a custodial interrogation. State v. Hieu Tran, 2012 VT 104, 193 Vt. 148, 71 A.3d 1201, 2012 Vt. LEXIS 103 (2012).

There was ample evidence to support the trial court’s decision that defendant’s waiver of his Miranda rights was valid. Defendant was twice informed of his Miranda rights and signed a written waiver form, a portion of which was read aloud to him, on the second occasion. State v. Robitaille, 2011 VT 135, 191 Vt. 91, 38 A.3d 52, 2011 Vt. LEXIS 135 (2011).

Trial court’s discussion of the validity of the waiver of defendant’s Miranda rights was sufficient, particularly given that defendant signed a written waiver attesting to his awareness of his rights and the consequences of waiving them. Moreover, while defendant testified that he had just finishing using six “Oxycontin 60s” when he was arrested, he stated that he was “awake” when the police officer was talking to him and “functional,” which was further illustrated by his verbal exchanges with an officer, and he also testified that he sought to make a deal to prevent his girlfriend from getting into trouble. State v. Robitaille, 2011 VT 135, 191 Vt. 91, 38 A.3d 52, 2011 Vt. LEXIS 135 (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).

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).

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).

Considering all the facts regarding the circumstances of defendant’s interview, a reasonable person would have believed he was free to leave, and, thus, defendant was not in custody and officers were not obliged to inform him of his Miranda rights. While defendant had just confessed to three crimes that he believed to have been misdemeanors, the sergeants repeatedly told defendant that he was free to leave at any time, including after defendant’s confession; the questioning was not coercive, defendant was unrestrained and had free access to an unlocked door, and the officers repeatedly assured him that he was free to leave; and the statement, “I want to talk to you for a little while longer,” did not require defendant to continue the conversation, but merely expressed the officer’s request and did not negate all the other police statements that defendant was free to leave at any time. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

Defendant was not in custody when he made incriminating statements, considering the trial court’s uncontroverted factual findings, which were not clearly erroneous and thus were binding on appeal, regarding the circumstances of defendant’s questioning. The trial court made the following findings of fact: (1) defendant voluntarily left a convenience store to talk with the police; (2) defendant voluntarily went to the station and interview room; (3) the police could not have made it any clearer to him that he was there voluntarily, that he was free to leave, and that he could leave; (4) defendant was not handcuffed and had free access to an unlocked door; and (5) there was no evidence on a video or from any testimony that he was deprived of his freedom of action in a significant way. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

Noncustodial situation does not become custodial automatically because the interviewee has confessed to a crime; a confession is just one of the circumstances to consider in evaluating whether a reasonable person would believe he or she were free to leave. Once a suspect confesses to committing a serious criminal act, this fact is significant in this evaluation; however, the severity of the crime confessed to affects the weight attributed to this factor. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

Assuming, without deciding, that it was 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).

In a case where a detective should have known that his request to defendant, who had invoked his right to silence, was reasonably likely to elicit an incriminating response, the court declined the State’s invitation to apply the United States Supreme Court’s decision in a Fourth Amendment case involving good-faith reliance on a police database. How this radically different factual scenario—and the disparate legal framework under which the Court analyzed it—might inform the present court’s analysis in a Fifth Amendment case was murky at best. State v. Christmas, 2009 VT 75, 186 Vt. 244, 980 A.2d 790, 2009 Vt. LEXIS 81 (2009).

Having never administered Miranda warnings and aware that defendant had invoked his right to remain silent, a detective directly asked him whether he was ready to talk about the crime for which he was under arrest, and about which he had earlier asserted his right to remain silent. This direct request for information was squarely contrary to Innis, as the detective should have known that such a request was reasonably likely to elicit an incriminating response; consequently, the trial court properly suppressed defendant’s statements. State v. Christmas, 2009 VT 75, 186 Vt. 244, 980 A.2d 790, 2009 Vt. LEXIS 81 (2009).

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).

When defendant was questioned at home before being taken to the police station, where he confessed after being given Miranda warnings for the first time, the Miranda warnings meaningfully informed defendant of his right to remain silent. The initial questioning elicited a minimal amount of detail from defendant; there was minimal overlap between the information elicited in the two interrogations; the settings were distinct and involved different officers as the primary questioners; and the second round of questioning was not continuous with the first in that defendant had not confessed during the initial interrogation. State v. Fleurie, 2008 VT 118, 185 Vt. 29, 968 A.2d 326, 2008 Vt. LEXIS 113 (2008).

Sentence.

Since District Court may rely on facts not proven beyond a reasonable doubt in sentencing, court did not violate defendant’s due process rights in basing sentence enhancement on facts contained in dismissed count of indictment. United States v. Streich, 987 F.2d 104, 1993 U.S. App. LEXIS 3280 (2d Cir. 1993).

There is no due process to an individualized sentence, and to the judicial discretion it accords, in a noncapital crime. United States v. Delibac, 925 F.2d 610, 1991 U.S. App. LEXIS 2680 (2d Cir. 1991).

Sentencing guidelines do not, in the absence of bona fide charge that prosecutor was motivated by bad faith or discrimination, vest undue sentencing authority in prosecutors. United States v. Delibac, 925 F.2d 610, 1991 U.S. App. LEXIS 2680 (2d Cir. 1991).

Where sentence is imposed in retaliation for threat of appeal and in order to prevent appeal it is a violation of due process under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 656 (1969). State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

A sentence conditioned on a restriction or prohibition of right of appeal denies due process. State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

Sentences imposed in retaliation for a successful exercise of right of appeal deny due process of law. State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

Trial court violated defendant’s due process by raising her fine after defendant questioned legality of proposed order in restitution and noted intent to appeal, where higher sentence was vindictive and no nonretaliatory justification for increase existed. State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

Sentence reconsideration.

Sentence reconsideration is not part of the basic criminal case for purposes of the privilege against self-incrimination. State v. Platt, 158 Vt. 423, 610 A.2d 139, 1992 Vt. LEXIS 68 (1992).

Compelling HIV positive defendant to testify about his medical needs at sentence reconsideration hearing, if error, was harmless; the testimony related to defendant’s conduct since sentencing, was irrelevant to a sentence reconsideration hearing, and defendant suffered no prejudice. State v. Platt, 158 Vt. 423, 610 A.2d 139, 1992 Vt. LEXIS 68 (1992).

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).

Imposition of sentence extinguishes right of self-incrimination with respect to the crime for which a defendant is convicted. State v. Platt, 158 Vt. 423, 610 A.2d 139, 1992 Vt. LEXIS 68 (1992).

At sentencing for sexual assault, defendant’s objection on Fifth Amendment grounds to inclusion in presentence investigation report of statements that he continued to deny guilt was without merit; defendant’s speculation that admitting guilt at sentencing would have shown remorse and resulted in lighter sentence was unrealistic, where defendant took stand and proclaimed innocence at trial, and changing story and admitting guilt after trial would only have confirmed what sentencer may have suspected—that he lied at trial—and would have been perceived as self-serving. State v. Noyes, 157 Vt. 114, 596 A.2d 340, 1991 Vt. LEXIS 164 (1991).

Standing.

Privilege to not give self-incriminating evidence does not exist, for practical purposes, unless claimed by the person entitled to it. Heaton Hospital, Inc. v. Emrick, 128 Vt. 405, 264 A.2d 806, 1970 Vt. LEXIS 243 (1970).

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 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).

Statutory vagueness.

A criminal statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. United States v. Carter, 981 F.2d 645, 1992 U.S. App. LEXIS 32517 (2d Cir. 1992), cert. denied, 507 U.S. 1023, 113 S. Ct. 1827, 123 L. Ed. 2d 456, 1993 U.S. LEXIS 2651 (1993).

When First Amendment considerations are not at issue, court must evaluate vagueness challenges to a statute as it is applied to facts of case. United States v. Carter, 981 F.2d 645, 1992 U.S. App. LEXIS 32517 (2d Cir. 1992), cert. denied, 507 U.S. 1023, 113 S. Ct. 1827, 123 L. Ed. 2d 456, 1993 U.S. LEXIS 2651 (1993).

Statute that made it a federal crime for a convicted felon to knowingly possess a firearm “in or affecting commerce” was not unconstitutionally vague; in context of firearm control, it was well established that to fall within Commerce Clause a firearm need only have travelled previously in interstate commerce, and where defendant’s firearms were inscribed with words “made in Massachusetts” and “made in West Germany,” defendant was on notice that his firearms had traveled to Vermont, where he possessed them, via interstate commerce. United States v. Carter, 981 F.2d 645, 1992 U.S. App. LEXIS 32517 (2d Cir. 1992), cert. denied, 507 U.S. 1023, 113 S. Ct. 1827, 123 L. Ed. 2d 456, 1993 U.S. LEXIS 2651 (1993).

The constitutional test of vagueness of a criminal statute is satisfied if, upon reasonable inquiry, a person of ordinary intelligence is made aware of the nature of the prohibitions. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

When wilfulness is an essential element of a crime, one convicted cannot allege that the statute is vague. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Taking of property.

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. 598, 193 A.3d 1174, 2018 Vt. LEXIS 74 (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 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).

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 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).

Enactment of statute providing for reorganization of domestic mutual insurance companies into mutual insurance holding companies did not effect an unconstitutional taking, since it could not be interpreted to have denied policyholders the economically viable use of their property. Cranley v. National Life Insurance Co., 144 F. Supp. 2d 291, 2001 U.S. Dist. LEXIS 6915 (D. Vt. 2001), aff'd, 318 F.3d 105, 2003 U.S. App. LEXIS 922 (2d Cir. 2003).

Interim reimbursement scheme for Medicare home health services lacked the necessary legal compulsion over home health agencies to constitute a taking, and thus there could be no unconstitutional taking in violation of this amendment. Vermont Assembly of Home Health Agencies v. Shalala, 18 F. Supp. 2d 355, 1998 U.S. Dist. LEXIS 13668 (D. Vt. 1998).

Taxpayers were not entitled to interest on a refund of taxes that had been imposed in violation of the Commerce Clause; failure to pay interest on the tax refund was not a taking. In re Williams, 166 Vt. 21, 686 A.2d 964, 1996 Vt. LEXIS 114 (1996), cert. denied, 520 U.S. 1264, 117 S. Ct. 2432, 138 L. Ed. 2d 193, 1997 U.S. LEXIS 3558 (1997).

If government commits or authorizes a permanent physical occupation of property, the Takings Clause of this amendment generally requires compensation. 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).

If government action constitutes a permanent physical occupation of property, there is a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner. 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).

A regulatory taking occurs when purpose of governmental regulation and its economic effect on property owner render regulation substantively equivalent to an eminent domain proceeding, and requires government to pay compensation to property owner. 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).

Developer did not suffer a physical taking when its application for a land use permit was denied due to adverse effect project would have on deeryard; developer did not lose right to possess allegedly occupied land forming part of deeryard, developer retained substantial power to control use of property, and since many uses were still available to any owner of the deeryard land, developer’s right to sell the land was not worthless. 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).

In order for a regulatory takings claim to be ripe for review, government entity charged with enforcing regulations at issue must have rendered a final decision, and plaintiff must have sought compensation if State provides a reasonable, certain, and adequate provision for obtaining compensation. 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).

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).

Environmental Board’s denial of application for land use permit was not a final decision, and developer’s substantive due process and regulatory takings claims were not ripe for review, where developer submitted only one permit application and it was not clear whether board would deny approval for all uses that would enable developer to derive economic benefit from property, and it could be inferred that Board would be receptive to a subdivision proposal that placed lots in different segment of property so as to minimize impact on deeryard. 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).

There was no governmental compulsion in connection with denial of land use permit and developer’s claim of a physical taking was properly dismissed, where developer voluntarily proposed to construct a residential subdivision project, and in so doing engaged in activity it knew would subject it to the permit review process. 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).

—Rational basis.

Constitutionality of interim reimbursement scheme for Medicare home health services was properly reviewed under rational basis analysis, not heightened or intermediate scrutiny, as the scheme concerned no recognized suspect or quasi-suspect class, nor any fundamental right. Vermont Assembly of Home Health Agencies v. Shalala, 18 F. Supp. 2d 355, 1998 U.S. Dist. LEXIS 13668 (D. Vt. 1998).

Interim reimbursement scheme for Medicare home health services did not violate equal protection; though there could be fairer methods of temporarily holding down home health costs, scheme was rationally related to legitimate Congressional purpose of reducing Medicare spending, waste, and home health agency abuse. Vermont Assembly of Home Health Agencies v. Shalala, 18 F. Supp. 2d 355, 1998 U.S. Dist. LEXIS 13668 (D. Vt. 1998).

Use of information obtained in violation of privilege.

Incriminating statements will be suppressed under this amendment if there is clear and convincing evidence that government officials performed one or more affirmative acts that materially misled the defendant in order to elicit the statements. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

Statements made to EPA officials could not be admitted regardless of whether interrogation was custodial giving rise to necessity of Miranda warnings, where EPA officials affirmatively elicited incriminating statements through trickery and deception and therefore defendants could not have made voluntary and knowing waiver of their right under this amendment against self-incrimination. United States v. Mitchell, 763 F. Supp. 1262, 1991 U.S. Dist. LEXIS 7022 (D. Vt. 1991), rev'd, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992).

Consideration by court, during sentencing, of information obtained from defendant involuntarily as a result of coercion violated defendant’s privilege against self-incrimination, even though court had similar but not identical information properly before it. State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986), cert. dismissed, 484 U.S. 173, 108 S. Ct. 479, 98 L. Ed. 2d 479, 1987 U.S. LEXIS 5211 (1987).

Vested rights.

Assuming, without deciding, that defendant had a vested right to 20 months’ good-time credit, applying that credit under the applicable statute to his new maximum sentence (60 months) could not—and, as a constitutional matter, did not have to—reduce his maximum sentence below his new minimum (48 months). Thus, there was no due process violation. State v. Martin, 2009 VT 15, 185 Vt. 286, 973 A.2d 56, 2009 Vt. LEXIS 10 (2009).

Vested rights are property, the impairment or deprivation of which is prohibited the federal government by this amendment. United States use of J.G. Strait & Son v. United States Fidelity & Guaranty Co., 80 Vt. 84, 66 A. 809, 1907 Vt. LEXIS 78 (1907).

Waiver of right.

Testimony of arresting officer, that defendant had several prior contacts with police, was reliable and could be used to determine whether defendant waived Miranda rights, since it was based on information officer acquired from court documents, conversations with other police officers, defendant’s parole officer and defendant himself, and from computer checks. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

The State has the burden to establish by a preponderance of the evidence that a confession was voluntary and that defendant knowingly and intelligently waived his Fifth Amendment rights. State v. Brunell, 150 Vt. 388, 554 A.2d 242, 1988 Vt. LEXIS 191 (1988), cert. denied, 488 U.S. 1047, 109 S. Ct. 879, 102 L. Ed. 2d 1001, 1989 U.S. LEXIS 511 (1989).

While it may be possible to waive the privilege against self-incrimination expressly, or impliedly, by agreement, the waiver must be clear and intentional and cannot be lightly inferred. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

Representations made by respondent’s counsel to the Supreme Court that respondent would testify in a Judicial Conduct Board proceeding if she obtained a continuance did not constitute a waiver of respondent’s privilege against self-incrimination. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

The fact that respondent testified in criminal trial against her did not constitute a waiver of her right to assert her privilege against self-incrimination in another forum. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

A waiver of the right to remain silent is involuntary and therefore invalid if defendant was threatened, tricked, or cajoled into the waiver. State v. Comes, 144 Vt. 103, 472 A.2d 1253, 1984 Vt. LEXIS 412 (1984).

This amendment gives a defendant the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

It is not necessary that a waiver of rights form or written confession be signed in order for the prosecution to sustain its burden of proving that a person in custody waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966); such a waiver may be implied where warranted from the facts and circumstances of a particular case. State v. Breznick, 134 Vt. 261, 356 A.2d 540, 1976 Vt. LEXIS 648 (1976).

Zoning.

Because a zoning ordinance requiring planned residential development (PRD) designs to protect important natural resources provided no guidance as to what might be fairly expected from landowners who owned a parcel containing wildlife habitat or scenic views and who wished to develop their property into a PRD, it violated property owners’ due process rights. In re JAM Golf, LLC, 2008 VT 110, 185 Vt. 201, 969 A.2d 47, 2008 Vt. LEXIS 104 (2008).

City plan contained no specific standards to guide enforcement and thus was not enforceable. While it did specifically identify some generic natural resources to be protected, it failed to define what in particular was to be protected, and provided no standards as to how or when development should be restricted to accomplish protection; furthermore, it provided insufficient guidance as to how competing concerns were to be balanced when applying for or evaluating a permit application. In re JAM Golf, LLC, 2008 VT 110, 185 Vt. 201, 969 A.2d 47, 2008 Vt. LEXIS 104 (2008).

Cited.

Cited in Western Union Telegraph Co. v. Burlington Traction Co., 90 Vt. 506, 99 A. 4, 1916 Vt. LEXIS 306 (1916); State v. Felch, 92 Vt. 477, 105 A. 23, 1918 Vt. LEXIS 203 (1918); Niebyski v. Welcome, 93 Vt. 418, 108 A. 341, 1919 Vt. LEXIS 181 (1919); Pelaggi & Co. v. Central Vermont Railway, 97 Vt. 1, 121 A. 441, 1923 Vt. LEXIS 205 (1923); State v. Dewar, 102 Vt. 340, 148 A. 489, 1930 Vt. LEXIS 126 (1930); State v. Stacy, 104 Vt. 379, 160 A. 257, 1932 Vt. LEXIS 158 (1932); Fairbanks, Morse & Co. v. Commissioner of Taxes, 114 Vt. 425, 47 A.2d 123, 1946 Vt. LEXIS 90 (1946); State v. Watson, 114 Vt. 543, 49 A.2d 174, 1946 Vt. LEXIS 105 (1946); State v. Pierce, 120 Vt. 373, 141 A.2d 419, 1958 Vt. LEXIS 114 (1958); In re Raymo, 121 Vt. 246, 154 A.2d 487, 1959 Vt. LEXIS 114 (1959); State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966); In re Davis, 126 Vt. 142, 224 A.2d 905, 1966 Vt. LEXIS 179 (1966); State v. Ovitt, 126 Vt. 320, 229 A.2d 237, 1967 Vt. LEXIS 192 (1967); State v. Gilfel of Rutland, Inc., 128 Vt. 595, 270 A.2d 153, 1970 Vt. LEXIS 281 (1970); Bogie v. Town of Barnet, 129 Vt. 46, 270 A.2d 898, 1970 Vt. LEXIS 199 (1970); In re Milne, 129 Vt. 81, 271 A.2d 842, 1970 Vt. LEXIS 206 (1970); State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971); In re Morrill, 129 Vt. 460, 282 A.2d 811, 1971 Vt. LEXIS 291 (1971); State v. Emrick, 129 Vt. 475, 282 A.2d 821, 1971 Vt. LEXIS 294 (1971); Wetmore v. Smith, 130 Vt. 618, 298 A.2d 567, 1972 Vt. LEXIS 325 (1972); Bowles v. Robbins, 359 F. Supp. 249, 1973 U.S. Dist. LEXIS 14057 (D. Vt. 1973); Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620, 1973 Vt. LEXIS 263 (1973); State v. Rocheleau, 131 Vt. 563, 313 A.2d 33, 1973 Vt. LEXIS 356 (1973); State v. Bleau, 132 Vt. 101, 315 A.2d 448, 1974 Vt. LEXIS 308 (1974); In re Maher, 132 Vt. 560, 326 A.2d 142, 1974 Vt. LEXIS 392 (1974); State v. Girouard, 135 Vt. 123, 373 A.2d 836, 1977 Vt. LEXIS 571 (1977); State v. Lapham, 135 Vt. 393, 377 A.2d 249, 1977 Vt. LEXIS 638 (1977); State v. Hohman, 136 Vt. 341, 392 A.2d 935, 1978 Vt. LEXIS 627 (1978); John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 394 A.2d 1134, 1978 Vt. LEXIS 655 (1978); State v. Bartlett, 137 Vt. 400, 407 A.2d 163, 1979 Vt. LEXIS 1008 (1979); State v. Wall, 137 Vt. 482, 408 A.2d 632, 1979 Vt. LEXIS 1068 (1979); Whitney v. Fisher, 138 Vt. 468, 417 A.2d 934, 1980 Vt. LEXIS 1270 (1980); In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981); State v. Billado, 141 Vt. 175, 446 A.2d 778, 1982 Vt. LEXIS 493 (1982); In re E. T. C., 141 Vt. 375, 449 A.2d 937, 1982 Vt. LEXIS 538 (1982); State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982); In re Kasper, 142 Vt. 31, 451 A.2d 1125, 1982 Vt. LEXIS 592 (1982); Burke Mountain Academy, Inc. v. United States, 715 F.2d 779, 1983 U.S. App. LEXIS 24622 (2d Cir. 1983); Rutz v. Essex Junction Prudential Committee, 142 Vt. 400, 457 A.2d 1368, 1983 Vt. LEXIS 405 (1983); State v. Clark, 143 Vt. 11, 460 A.2d 449, 1983 Vt. LEXIS 455 (1983); In re Mecier, 143 Vt. 23, 460 A.2d 472, 1983 Vt. LEXIS 464 (1983); State v. Hamlin, 143 Vt. 477, 468 A.2d 557, 1983 Vt. LEXIS 562 (1983); In re Stoddard, 144 Vt. 6, 470 A.2d 1185, 1983 Vt. LEXIS 591 (1983); State v. Richards, 144 Vt. 16, 470 A.2d 1187, 1983 Vt. LEXIS 590 (1983); State v. Gilman, 145 Vt. 84, 483 A.2d 598, 1984 Vt. LEXIS 547 (1984); State v. Mecier, 145 Vt. 173, 488 A.2d 737, 1984 Vt. LEXIS 595 (1984); American Trucking Ass'ns v. Conway, 146 Vt. 579, 508 A.2d 408, 1986 Vt. LEXIS 331 (1986); State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986); State v. Norton, 147 Vt. 223, 514 A.2d 1053, 1986 Vt. LEXIS 397 (1986); City of Burlington v. New York Times Co., 148 Vt. 275, 532 A.2d 562, 1987 Vt. LEXIS 506 (1987); State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987); State v. Wheel, 148 Vt. 439, 535 A.2d 328, 1987 Vt. LEXIS 525 (1987); State v. Malinowski, 148 Vt. 517, 536 A.2d 921, 1987 Vt. LEXIS 557 (1987); In re Grand Jury Subpoena, 118 F.R.D. 558, 1987 U.S. Dist. LEXIS 13001 (D. Vt. 1987); In re Grand Jury Proceedings, 862 F.2d 430, 1988 U.S. App. LEXIS 17021 (2d Cir. 1988); Lafayette v. Frank, 688 F. Supp. 138, 1988 U.S. Dist. LEXIS 5196 (D. Vt. 1988); State v. Muir, 150 Vt. 549, 554 A.2d 671, 1988 Vt. LEXIS 193 (1988); Dubuque v. Yeutter, 728 F. Supp. 303, 1989 U.S. Dist. LEXIS 15859 (D. Vt. 1989); Choquette v. Perrault, 153 Vt. 45, 569 A.2d 455, 1989 Vt. LEXIS 228 (1989); State v. Olson, 153 Vt. 226, 571 A.2d 619, 1989 Vt. LEXIS 261 (1989); United States v. Santiago, 906 F.2d 867, 1990 U.S. App. LEXIS 10806 (2d Cir. 1990); P.C. v. McLaughlin, 913 F.2d 1033, 1990 U.S. App. LEXIS 15886 (2d Cir. 1990); Southview Assocs. v. Individual Members of Vermont Environmental Bd., 782 F. Supp. 279, 1991 U.S. Dist. LEXIS 19208 (D. Vt. 1991); United States v. Mitchell, 966 F.2d 92, 1992 U.S. App. LEXIS 13068 (2d Cir. 1992); All Season's Kitchen, Inc. v. FDIC, 145 B.R. 391, 1992 Bankr. LEXIS 1531 (Bankr. D. Vt. 1992); In re Diel, 158 Vt. 549, 614 A.2d 1223, 1992 Vt. LEXIS 85 (1992); State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993); State v. Cartee, 161 Vt. 73, 632 A.2d 1108, 1993 Vt. LEXIS 94 (1993); Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436, 1997 Vt. LEXIS 270 (1997); State v. Ely, 167 Vt. 323, 708 A.2d 1332, 1997 Vt. LEXIS 286 (1997).

Law Reviews —

Recreational rights in public water overlying private property, see 8 Vt. L. Rev. 301 (1983).

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

For note, “Vermont’s Efforts to Protect Mobile Home Park Tenants: Is There a Taking?,” see 16 Vt. L. Rev. 1027 (1992).

For essay, “Where Are South Carolina and the Supreme Court Taking Us?,” see 16 Vt. L. Rev. 1111 (1992).

For paper, “Regulatory Takings: Coherent Concept or Logical Contradiction,” see 17 Vt. L. Rev. 647 (1993).

For paper, “After Lucas : No More Wetland Takings,” see 17 Vt. L. Rev. 683 (1993).

For paper, “The Takings Issue and the Due Process Clause: A Way Out of a Doctrinal Confusion,” see 17 Vt. L. Rev. 695 (1993).

For paper, “Economic Implications of Wider Compensation for “Takings” or, What If Agricultural Policies Ruled the World?,” see 17 Vt. L. Rev. 723 (1993).

For note, “Relevant Conduct and the Impact of the Preponderance Standard of Proof Under the Federal Sentencing Guidelines: A Denial of Due Process,” see 18 Vt. L. Rev. 529 (1994).

For article, “The Interaction of the Public Trust and the ‘Takings’ Doctrines: Protecting Wetlands and Critical Coastal Areas,” see 20 Vt. L. Rev. 81 (1995).

For essay, “Ted Kaczynski’s Diary,” see 22 Vt. L. Rev. 83 (1997).

For note, “You Can’t Touch This: A Discussion of the Perils of Phillips v. Washington Legal Foundation and the Detrimental Effect to Individuals of Expanding the Definition of Property Without Proper Consideration,” see 24 Vt. L. Rev. 1183 (2000).

For article, “Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism,” see 31 Vt. L. Rev. 447 (2007).

For note, “A Warning to States—Accepting This Invitation May Be Hazardous to Your Health (Safety and Public Welfare): An Analysis of Post-Kelo Legislative Activity,” see 31 Vt. L. Rev. 663 (2007).

Amendment VI. Rights of defendant in criminal prosecutions

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favour, and to have the Assistance of Counsel for his defense.

History

Proposal and ratification. See note set out under Amendment I.

CROSS REFERENCES

Prompt disposition of criminal cases, see Administrative Order No. 5, Administrative Orders of the Supreme Court.

Public defenders, see 13 V.S.A. § 5201 et seq.

Rights under State Constitution of persons accused of crime, see Vt. Const. Ch. I, Art. 10.

Right to jury trial in criminal cases, see U.S. Const., Art. III, § 2.

Rules governing assignment of counsel and payment therefor by the Defender General, see Administrative Order No. 4, Administrative Orders of the Supreme Court.

Securing the attendance of witnesses from without the State in criminal cases, see 13 V.S.A. § 6641 et seq.

ANNOTATIONS

Actions by State officials.

Where defendant at DUI trial was denied appointed counsel on basis of sentence forecast predicting he would not be incarcerated and defendant acting pro se pled guilty, and upon presentation of additional facts the trial court determined incarceration might be appropriate, defendant’s constitutional right to assistance of counsel was preserved by the trial court’s offer to defendant to withdraw his guilty plea. State v. Duval, 156 Vt. 122, 589 A.2d 321, 1991 Vt. LEXIS 36 (1991).

Whether post-indictment actions by State officials so interfere with an individual’s right to counsel as to violate this amendment depends on whether those actions constitute deliberate elicitation of incriminating statements. State v. Brown, 153 Vt. 263, 571 A.2d 643, 1989 Vt. LEXIS 272 (1989).

Admission of evidence.

In an attempted sexual assault case, the trial court did not commit plain error under the Sixth Amendment by excluding evidence of the complainant’s prior drug use under the rule allowing exclusion of relevant evidence for confusion, prejudice, or waste of time. It was concerned that the jury might place too much weight on such evidence, and defendant was not prevented from presenting a defense or challenging the complainant’s credibility. State v. Faham, 2011 VT 55, 190 Vt. 524, 21 A.3d 701, 2011 Vt. LEXIS 57 (2011) (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).

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).

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).

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).

This amendment does not mandate the admission of all evidence. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Applicability.

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).

Application to states.

The right of an accused in a criminal prosecution to the assistance of counsel under this amendment is made obligatory upon the states by the Fourteenth Amendment. In re Shuttle, 125 Vt. 257, 214 A.2d 48, 1965 Vt. LEXIS 235 (1965).

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 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).

Assistance of counsel.

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).

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).

Under this amendment, before imposing an obligation to reimburse the State for the services of appointed counsel, the court must make a finding that the defendant is or will be able to pay the reimbursement amount ordered within the 60 days provided by statute. State v. Morgan, 173 Vt. 533, 789 A.2d 928, 2001 Vt. LEXIS 412 (2001) (mem.).

While, before imposing an obligation to reimburse the State for the services of appointed counsel, the court must consider the income of defendant’s parents under the statute, it must also make the constitutionally required finding that defendant will be able to repay the reimbursement amount within 60 days. State v. Morgan, 173 Vt. 533, 789 A.2d 928, 2001 Vt. LEXIS 412 (2001) (mem.).

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).

Under appropriate circumstances, preclusion of witnesses as a discovery sanction does not offend defendant’s right to compulsory process for obtaining witnesses in his favor. State v. Edwards, 153 Vt. 649, 569 A.2d 1075, 1989 Vt. LEXIS 238 (1989) (mem.).

Compulsory process is mandated only where the witness to be called will offer testimony which 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).

Right to compulsory process assured by this amendment was not denied by application of common law rule against substantive consideration of prior out-of-court statements made by a testifying witness. State v. Miller, 146 Vt. 164, 502 A.2d 832, 1985 Vt. LEXIS 381 (1985).

Compulsory process for obtaining witnesses guaranteed by this amendment 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).

This amendment 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).

Conflict of interest.

When the specter of conflicts of interest arises, the District Court (1) must establish whether the attorney, in fact, labors under an actual or a potential conflict, and, if so, (2) must then ensure that the conflict is either eliminated or waived. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

When a District Court learns of even the possibility of a conflict of interest, it must inquire into the details of the attorney’s interests to determine whether the conflict is actual, potential, or nonexistent; failure to fulfill this obligation constitutes per se reversible error. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

When a possible conflict of interest is established, the District Court then had the more demanding task of determining whether the conflict could be resolved by a waiver, or whether counsel had to be disqualified; if a conflict is so egregious that no rational defendant would knowingly and voluntarily desire the attorney’s representation, then the court must disqualify the attorney. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

When a defense attorney cross-examines a former client who is a witness against the defendant, a conflict of interest may exist; absent a waiver from the former client, the attorney cannot inquire into privileged matters. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

To secure a valid waiver of a potential conflict of interest, the court must: (1) advise the defendant about potential conflicts; (2) determine whether the defendant understands the risks of those conflicts; and (3) give the defendant time to digest and contemplate the risks, with the aid of independent counsel if desired. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

When a court fails to obtain from the defendant an adequate waiver of the conflict, the defendant still has not suffered ineffective assistance of counsel unless his attorney has either (1) a potential conflict of interest that resulted in prejudice to the defendant; or (2) an actual conflict of interest that adversely affected the attorney’s performance; an attorney labors under an actual, as opposed to a potential, conflict when, during the course of the representation, the attorney’s and defendant’s interests diverge with respect to a material factual or legal issue or to a course of action. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

Where defendant knowingly and voluntarily waived his attorney’s potential conflict of interest, he was not denied effective assistance of counsel. United States v. Lussier, 71 F.3d 456, 1995 U.S. App. LEXIS 23311 (2d Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1321, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1987 (1996).

To establish a violation of this amendment due to ineffective assistance of counsel resulting from divided loyalties on the part of trial counsel, a defendant who has raised no objection at trial must establish that counsel’s active representation of the opposing interest adversely affected the assistance he provided the accused. Lace v. United States, 606 F. Supp. 50, 1984 U.S. Dist. LEXIS 22903 (D. Vt. 1984).

The right to challenge the propriety of an appointment of counsel on the basis of diversity of interests may be waived by an accused, and where a guilty plea is voluntarily made, it waives the right to contend that there was a conflict of interest between defendants represented by the same counsel. In re Shuttle, 125 Vt. 257, 214 A.2d 48, 1965 Vt. LEXIS 235 (1965).

Confrontation of witnesses.

Trial court did not infringe upon defendant’s constitutional right to cross-examine the victim’s mother. Defense counsel had been questioning the mother for quite some time before the trial court asked counsel to “move along” and “wrap this up” within 15 minutes, and defendant did not point to the evidence defense counsel would have elicited had he been given more time to cross-examine the mother. State v. Lambert, 2021 VT 23, — Vt. —, 255 A.3d 747, 2021 Vt. LEXIS 41 (Vt. 2021).

Trial court did not violate the Confrontation Clause by excluding testimony about the maximum sentence of 15 years a cooperating witness faced at the time he agreed to testify, as defendant was able to elicit testimony that the witness received a reduced sentence in exchange for his agreement to testify, which satisfied the Luciano-Mosquera approach by exposing potential biases, and that he received 15 years, reduced to three years to serve if he complied with probation, which satisfied the Chandler approach. State v. Robitille, 2019 VT 36, 210 Vt. 202, 213 A.3d 437, 2019 Vt. LEXIS 60 (2019).

Victim’s statements to a police officer were testimonial under the Confrontation Clause in that the officer was focused on getting a statement rather than addressing an ongoing emergency. The officer arrived 15 minutes after the initial report, other officers were already on the scene, the officer testified that he was trying to calm the victim so she could give a statement, and there was no evidence that defendant was believed to be at or near the scene. State v. Alers, 2015 VT 74, 199 Vt. 373, 123 A.3d 825, 2015 Vt. LEXIS 54 (2015).

Trial court did not deny defendant’s Sixth Amendment right to confrontation by prohibiting evidence that the complainant had lied about having an abortion. The episode did not concern a material issue or a topic of direct examination, and defendant had already introduced evidence of the complainant’s untruthfulness. State v. Lawrence, 2013 VT 55, 194 Vt. 315, 80 A.3d 58, 2013 Vt. LEXIS 63 (2013).

Assuming, without deciding, that counsel could in some circumstances stipulate to a waiver of a defendant’s Confrontation Clause rights pursuant to a prudent trial strategy, in this case, where defendant timely objected to such a waiver on the record, the purported waiver was invalid. Accordingly, the trial court erred in admitting the out-of-court testimony of the witness over defendant’s objection. State v. Tribble, 2012 VT 105, 193 Vt. 194, 67 A.3d 210, 2012 Vt. LEXIS 101 (2012).

In a murder trial, the trial court’s Confrontation Clause error in admitting a preservation deposition of a medical examiner who was out of the country was not harmless, as the Court could not conclude that the jury would have convicted defendant of murder without the testimony. The testimony was an important part of the State’s case, especially insofar as it provided substantial support to the State’s rebuttal of defendant’s own account of his confrontation with the victim, and the testimony was not cumulative. State v. Tribble, 2012 VT 105, 193 Vt. 194, 67 A.3d 210, 2012 Vt. LEXIS 101 (2012).

Absent a valid waiver, the Constitution does not except “preservation deposition” testimony from the requirements of the Confrontation Clause. State v. Tribble, 2012 VT 105, 193 Vt. 194, 67 A.3d 210, 2012 Vt. LEXIS 101 (2012).

Witness who was working out of the country was not unavailable for Confrontation Clause purposes when he indisputably indicated his willingness to return from New Zealand for the trial and stated that he would require a business class ticket. The only two impediments to his testifying at the trial were inconvenience and cost, which had been expressly rejected as factors sufficient to support a finding of unavailability. State v. Tribble, 2012 VT 105, 193 Vt. 194, 67 A.3d 210, 2012 Vt. LEXIS 101 (2012).

Vermont Supreme Court has found no authority to support the proposition that counsel can stipulate to the admission of out-of-court testimony thereby waiving a defendant’s Confrontation Clause rights in the face of the defendant’s express objection. State v. Tribble, 2012 VT 105, 193 Vt. 194, 67 A.3d 210, 2012 Vt. LEXIS 101 (2012).

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).

Trial court did not violate the Sixth Amendment in admitting a videotape of the child victim’s interview. The victim testified prior to the admission of the videotape, but defendant was entirely free to recall her to the stand for cross-examination; he did not, and therefore he could not show that his right to confront adverse witnesses was violated. State v. Hoch, 2011 VT 4, 189 Vt. 560, 18 A.3d 562, 2011 Vt. LEXIS 4 (2011) (mem.).

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).

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).

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).

Defendant’s cross-examination of a detective was not nearly as limited as defendant claimed. The trial court properly recognized that defendant could use otherwise inadmissible information to impeach the detective, but only to the extent that the detective opened the door, and defendant was permitted to elicit testimony from the detective that highlighted what defendant viewed as deficiencies in the investigation. State v. Godfrey, 2010 VT 29, 187 Vt. 495, 996 A.2d 237, 2010 Vt. LEXIS 29 (2010).

Trial court did not abuse its discretion in finding that there was no direct connection between two third parties and the crime charged and thus did not err in not allowing defendant to cross-examine a detective about those two parties. Defendant had established no direct link between the third parties and the crime of which he was accused, but merely gathered together a number of remote acts, unsubstantiated statements, and unconnected activities or proclivities to try to implicate others; furthermore, much of the evidence that defendant wished to introduce against these third parties was inadmissible hearsay not falling under any exception. State v. Godfrey, 2010 VT 29, 187 Vt. 495, 996 A.2d 237, 2010 Vt. LEXIS 29 (2010).

Given how attenuated the evidence of third-party guilt was, if any probative value could have been gleaned from such evidence, it was substantially outweighed by the significant potential for confusing the jury, and the trial court therefore properly excluded it. Thus, the trial court did not err in limiting defendant’s cross-examination of a detective regarding a possible third-party perpetrator. State v. Godfrey, 2010 VT 29, 187 Vt. 495, 996 A.2d 237, 2010 Vt. LEXIS 29 (2010).

Trial court did not improperly prevent defendant from cross-examining the victim regarding bruises on her face when she picked up her children from their paternal grandfather. Because the court excluded the testimony of the grandfather, an exclusion defendant had not challenged on appeal, there was no foundation for the cross-examination, and the victim’s statement to the police indicated that she would deny that she had been bruised at all; thus, the questions were likely to produce no evidence of probative value but to create a substantial risk of prejudice. State v. Forty, 2009 VT 118, 187 Vt. 79, 989 A.2d 509, 2009 Vt. LEXIS 140 (2009).

In determining whether a hearsay statement is testimonial under the Sixth Amendment, the fact that a complainant is injured may be relevant if the complainant requires emergency medical attention, because such injuries would themselves constitute the kind of bona fide physical threat mentioned by the United States Supreme Court in Davis. But these injuries must create an ongoing emergency to trigger the exception for nontestimonial hearsay explained in Davis. State v. Shea, 2008 VT 114, 184 Vt. 453, 965 A.2d 504, 2008 Vt. LEXIS 99 (2008).

Initial basic information disclosed by the complainant to an officer, including the name of the perpetrator, was nontestimonial for purposes of the Sixth Amendment because the evidence objectively showed that the officer faced an emergency situation and that he questioned the complainant for the purpose of resolving that emergency. The officer did not know the extent of the complainant’s injuries or whether the perpetrator was on or near the scene, and he needed to identify the perpetrator in order to prevent him from harming anyone on the scene; furthermore, he was acting to resolve the emergency, as was shown by the facts that he obtained only minimal information, conducted a very unstructured interview, and searched the apartment for defendant. State v. Shea, 2008 VT 114, 184 Vt. 453, 965 A.2d 504, 2008 Vt. LEXIS 99 (2008).

In determining whether a hearsay statement is testimonial under the Sixth Amendment, the main factors for analysis are: (1) whether the emergency was ongoing because the crime was being committed at the time of the hearsay statement or because the complainant or officer was in imminent physical danger; and (2) whether the officer’s primary purpose was to resolve an emergency or to investigate a possible criminal act. State v. Shea, 2008 VT 114, 184 Vt. 453, 965 A.2d 504, 2008 Vt. LEXIS 99 (2008).

Construction with other law.

Invocation of Sixth Amendment right to counsel does not imply an invocation of Fifth Amendment right, and police may question a suspect about crimes not formally charged even though suspect may have asserted his Sixth Amendment right as to other charges. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Recidivism statute imposing criminal sanctions for driving with a suspended license (DLS) after two prior uncounseled DLS civil violations does not violate a defendant’s right to counsel and due process. State v. Lafountain, 160 Vt. 313, 628 A.2d 1243, 1993 Vt. LEXIS 63 (1993).

The Sixth Amendment right to counsel parallels the Fifth Amendment right to counsel in two ways: (1) before the Edwards rule will bar police-initiated questioning, the right to counsel must be invoked; and (2) before the right to counsel is invoked, Miranda warnings are sufficient to inform the accused of his right to counsel and to obtain a valid waiver of that right. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Defendant, while being accused of charges respecting which he had previously waived his Sixth Amendment right to counsel, could validly waive his Fifth Amendment right to counsel in connection with police questioning regarding an offense for which he had not been charged. United States v. Roberts, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Cross-examination.

Because there was other evidence of lying on part of minor victim, victim’s delinquency adjudication was not necessary to defense and court did not err or violate defendant’s confrontation rights by excluding it. State v. Quiroz, 171 Vt. 509, 757 A.2d 464, 2000 Vt. LEXIS 168 (2000) (mem.).

While the Confrontation Clause guarantees the opportunity to effectively cross-examine a witness as part of defendant’s right of confrontation, it does not follow that the right to cross-examine is denied by the State whenever the witness’ lapse of memory impedes one method of discrediting him. State v. Carter, 156 Vt. 437, 593 A.2d 88, 1991 Vt. LEXIS 81 (1991).

Where accomplice on cross-examination by defendant testified that he could not recall whether a charge against him unrelated to the present proceeding had been dismissed in exchange for his testimony, the trial court’s refusal to admit the accomplice’s criminal records did not violate the Confrontation Clause since the record as a whole demonstrated that defendant had an adequate opportunity to demonstrate through cross-examination the possible bias of the accomplice, including the fact that charges against the accomplice in the present proceeding had been dismissed. State v. Carter, 156 Vt. 437, 593 A.2d 88, 1991 Vt. LEXIS 81 (1991).

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).

Right to confrontation is not unlimited; trial judge retains a wide degree of discretion to impose reasonable limits on cross-examination when there is a risk of harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. State v. Dunbar, 152 Vt. 399, 566 A.2d 970, 1989 Vt. LEXIS 185 (1989).

Defendant was not denied right of confrontation at sexual assault trial by the court’s failure to order expert witness to testify as to his professional relationship with the juvenile complainant, since expert testified about the unique psychological effects of sexual abuse on children, and did not testify specifically about the juvenile complainant; fact that expert and juvenile complainant had a professional relationship did not, by itself, suggest bias. State v. Dunbar, 152 Vt. 399, 566 A.2d 970, 1989 Vt. LEXIS 185 (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 which 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 questions of witness inquired into veracity. State v. French, 152 Vt. 72, 564 A.2d 1058, 1989 Vt. LEXIS 130 (1989).

The Confrontation Clause of this amendment guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. State v. Gabaree, 149 Vt. 229, 542 A.2d 272, 1988 Vt. LEXIS 16 (1988); State v. Raymond, 148 Vt. 617, 538 A.2d 164, 1987 Vt. LEXIS 581 (1987).

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. Tedesco, 147 Vt. 133, 513 A.2d 1164, 1986 Vt. LEXIS 379 (1986).

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).

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).

Effective assistance.

Actions specifically prohibited by the arson-causing-death statute are defined by reference to the victim, and a defendant may therefore be charged with multiple counts of arson causing death where multiple deaths result from the same act of setting a fire. Thus, counsel was not ineffective for not raising a multiplicity challenge. In re Williams, 2014 VT 67, 197 Vt. 39, 101 A.3d 151, 2014 Vt. LEXIS 70 (2014).

Defense counsel was not ineffective for ceasing his search for a fire expert after the one he retained offered no criticism of the police investigation. The fact that petitioner eventually found an expert who offered an opinion more helpful to his position did not demonstrate that defense counsel was ineffective for failing to obtain similar testimony prior to the guilty plea. In re Williams, 2014 VT 67, 197 Vt. 39, 101 A.3d 151, 2014 Vt. LEXIS 70 (2014).

At sentencing in a case where three children and their grandmother died in a fire started when defendant set fire to a trash can, defense counsel was ineffective when he did not conduct any independent investigation, present testimony, or prepare a sentencing memorandum but instead offered a few remarks about petitioner’s childhood, essentially repeating the information in the presentence investigation report. In re Williams, 2014 VT 67, 197 Vt. 39, 101 A.3d 151, 2014 Vt. LEXIS 70 (2014).

Defects in defense counsel’s performance at sentencing supported a finding of actual prejudice, given the highly unusual gap between the minimum sentences of 20 and 50 years allowed by the plea agreement, the need to give the sentencing judge reasons to impose a sentence at the low end of the permitted range, the need to develop the positive information about petitioner that appeared in a brief sketch of a few pages in the presentence investigation report, and the need to stand up to the strong emotional feelings present in the courtroom. In re Williams, 2014 VT 67, 197 Vt. 39, 101 A.3d 151, 2014 Vt. LEXIS 70 (2014).

Counsel was not ineffective for advising petitioner to plead guilty. Defense counsel devoted significant time and attention to the case prior to the change of plea and after concluding that the evidence against petitioner was strong, recommended that petitioner accept the State’s offer to plead guilty in exchange for amending the charges to involuntary manslaughter. In re Williams, 2014 VT 67, 197 Vt. 39, 101 A.3d 151, 2014 Vt. LEXIS 70 (2014).

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.).

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).

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).

Juvenile did not receive effective assistance of counsel, where counsel did not adequately explain to his parents and him the right to not speak with police and the consequences of confession, juvenile was allowed to face police interrogation unaccompanied by counsel, giving the police significant evidence when it was doubtful police had enough evidence to convict prior to the interview, and counsel failed to consider before allowing interview whether State was willing to settle matter without litigation. In re J.B., 159 Vt. 321, 618 A.2d 1329, 1992 Vt. LEXIS 186 (1992).

Juvenile’s counsel’s failure to subject prosecution case to meaningful adversary testing was a denial of juvenile’s Sixth Amendment rights to effective assistance, and, thus, the adversary process became presumptively unreliable; no specific showing of prejudice was required beyond that. In re J.B., 159 Vt. 321, 618 A.2d 1329, 1992 Vt. LEXIS 186 (1992).

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).

The benchmark for judging any claim of ineffectiveness of counsel resulting in a violation of this amendment must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Lace v. United States, 606 F. Supp. 50, 1984 U.S. Dist. LEXIS 22903 (D. Vt. 1984).

The standard employed for reviewing the effectiveness of counsel under this amendment 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 of counsel and applies whether counsel is retained by the accused or appointed by the court. In re Shuttle, 125 Vt. 257, 214 A.2d 48, 1965 Vt. LEXIS 235 (1965); State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968); In re Savo, 139 Vt. 527, 431 A.2d 482, 1981 Vt. LEXIS 510 (1981).

Assigned counsel must have sufficient ability and experience fairly to 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).

Judgment of conviction will not be vitiated on claim of inadequate counsel unless the record demonstrates the representation is so rife with shortcomings and of such low caliber as to amount to no representation. In re Murphy, 125 Vt. 272, 214 A.2d 317, 1965 Vt. LEXIS 238 (1965).

Elements.

The right of summation in criminal cases is an essential element of the right to counsel. In re A.C., 134 Vt. 284, 357 A.2d 536, 1976 Vt. LEXIS 653 (1976).

Exceptions.

Although the rule allowing a child witness in a sexual-assault case to testify without hearing or seeing the defendant in certain circumstances could on its face unconstitutionally allow for an exception to a defendant’s confrontation rights without a sufficient showing, the trial court here made a constitutionally sufficient finding to support its ruling. In particular, after making findings about the trauma the child experienced in connection with the events giving rise to this prosecution, and her reaction to attempts to discuss the topic, the trial court found that it was highly likely that the child would completely shut down and respond in a very strong emotional manner; thus, the trial court found a high likelihood — not just a substantial risk — that the victim would be traumatized and that the trauma would impair her ability to testify. State v. Bergquist, 2019 VT 17, 210 Vt. 102, 211 A.3d 946, 2019 Vt. LEXIS 38 (2019).

Witness’s excited utterance to defendant’s cousin shortly after defendant threatened to kill him was not testimonial because his statement was not made in the context of a formal interrogation or other structured environment; rather, he was excitedly expressing his fear to a friend, and, therefore, the Confrontation Clause did not bar admission of his hearsay statement against defendant. State v. Wilkinson, 2005 VT 46, 178 Vt. 174, 879 A.2d 445, 2005 Vt. LEXIS 79, cert. denied, 546 U.S. 1063, 126 S. Ct. 798, 163 L. Ed. 2d 630, 2005 U.S. LEXIS 9082 (2005).

Since hearsay testimony could properly be considered at sentencing, District Court did not violate defendant’s confrontation rights in relying on presentence report in sentencing. United States v. Streich, 987 F.2d 104, 1993 U.S. App. LEXIS 3280 (2d Cir. 1993).

Severance of trials, due to incriminating post-arrest statements of co-defendants, was not required to protect moving defendants’ confrontation rights under this amendment, where government stated it would not introduce statements and would redact any reference to movants which might be contained in co-defendants’ admissions. United States v. Washington, 819 F. Supp. 358, 1993 U.S. Dist. LEXIS 4988 (D. Vt. 1993).

To allow admission of former testimony against criminal defendant, the witness must be unavailable despite the State having made a “good-faith” effort to obtain his presence at trial, the length to which the State must go in producing the witness being a question of reasonableness. State v. Lynds, 158 Vt. 37, 605 A.2d 501, 1992 Vt. LEXIS 18 (1992).

Requirement of V.R.E. 804a, the hearsay exception for statements of putative child victims, that the child victim be available to testify, does not violate the Confrontation Clause of this amendment. State v. Gallagher, 150 Vt. 341, 554 A.2d 221, 1988 Vt. LEXIS 176, cert. denied, 488 U.S. 995, 109 S. Ct. 563, 102 L. Ed. 2d 588, 1988 U.S. LEXIS 5609 (1988).

On issue of admission of former testimony against defendant, the State bears the burden of establishing a witness’ unavailability. State v. Lynds, 158 Vt. 37, 605 A.2d 501, 1992 Vt. LEXIS 18 (1992).

When a witness who cannot be present at trial has given earlier testimony subject to cross-examination by the defendant, the testimony may be admitted as an exception to the Confrontation Clause if the prosecution demonstrates that the declarant is unavailable and satisfies the court that the prior testimony bears sufficient indicia of reliability. State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986).

For purposes of exception to Confrontation Clause allowing admission of testimony of an unavailable witness who has given earlier testimony subject to cross-examination by the defendant, the witness is not unavailable unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986).

Prior testimony subject to an opportunity for adequate cross-examination by the defendant will ordinarily exhibit sufficient indicia of reliability to allow for its admission at trial. State v. Tedesco, 147 Vt. 133, 513 A.2d 1164, 1986 Vt. LEXIS 379 (1986).

Co-conspirators’ statements, though admissible under V.R.E. 801(d)(2)(E), are not trustworthy per se for purposes of the Confrontation Clause of this amendment. State v. Tedesco, 147 Vt. 133, 513 A.2d 1164, 1986 Vt. LEXIS 379 (1986).

Execution of warrant.

The right to a speedy trial does not attach where an arrest warrant has been issued but no other action taken. State v. Ellis, 149 Vt. 264, 542 A.2d 279, 1988 Vt. LEXIS 10 (1988).

One year delay in executing probation violation warrant did not violate defendant’s right to a speedy trial. State v. Ellis, 149 Vt. 264, 542 A.2d 279, 1988 Vt. LEXIS 10 (1988).

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).

Defendant’s detention as a material witness was not for the purpose of answering a criminal charge, and it did not trigger defendant’s speedy trial rights. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

Defendant’s speedy trial rights did not attach until her indictment, and therefore, the trial court properly rejected her speedy trial claim. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

Trial court properly determined defendant’s right to speedy trial was not violated where period of delay, excluding delays occasioned by defendant’s search for private counsel, his absence from the jurisdiction, public defender’s motion to withdraw, and other motions and continuances, did not exceed 90 days. State v. Lavalette, 154 Vt. 426, 578 A.2d 108, 1990 Vt. LEXIS 108 (1990).

Defendant was not denied speedy trial where allegation of prejudice was unsupported, defendant never asserted speedy trial right, six-and-a-half 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).

Defendant was not denied speedy trial, despite 17-month delay, where defendant was not incarcerated, he completed college education and obtained employment, and State did not show bad faith, even though one witness died prior to trial and two other witnesses allegedly suffered impaired recall of details, and some delay was attributable to court system. State v. Yudichak, 151 Vt. 400, 561 A.2d 407, 1989 Vt. LEXIS 76 (1989).

Defendant’s right to speedy trial was not violated, even though seven months elapsed between arrest and trial and defendant was in jail, where delays were caused by discovery and scheduling, defendant did not assert right until over five months after arraignment, and defendant did not make specific allegations of prejudice or anxiety. State v. Roy, 151 Vt. 17, 557 A.2d 884, 1989 Vt. LEXIS 20 (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).

Length of delay between arrest and criminal trial is a triggering mechanism, and if long enough may require consideration of factors of length of delay, reason for it, defendant’s assertion of his right, and prejudice to defendant, in determining whether right to a speedy trial has been violated. State v. Unwin, 139 Vt. 186, 424 A.2d 251, 1980 Vt. LEXIS 1505 (1980), cert. denied, 450 U.S. 1033, 101 S. Ct. 1746, 68 L. Ed. 2d 229, 1981 U.S. LEXIS 1518 (1981).

Impartial jury.

Out-of-court contact between a juror and a police witness did not violate defendant’s Sixth Amendment right to a fair trial. The communication did not relate to a material issue in the case; there was nothing inflammatory about the conversation; and the officer did not attempt to influence the juror. State v. Mead, 2012 VT 36, 192 Vt. 1, 54 A.3d 485, 2012 Vt. LEXIS 43 (2012).

In a case involving a charge of aggravated sexual assault on a child, the trial court erred in finding that a juror’s Internet research about the Somalian culture and religion was not prejudicial. Even if only one juror reported the research, suggesting that the information did not affect the verdict of the other 11 jurors, a defendant was entitled to be tried by 12 impartial jurors; furthermore, the information related directly to a subject that pervaded the trial from start to finish—Somali Bantu culture and its impact on the behavior and testimony of the trial witnesses—and the verdict turned exclusively on the jury’s credibility assessment of the trial testimony. State v. Abdi, 2012 VT 4, 191 Vt. 162, 45 A.3d 29, 2012 Vt. LEXIS 5 (2012).

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).

Change of venue was not required to safeguard defendant’s right to fair trial, where selection process prior to jury voir dire had produced group of potential jurors who either knew nothing about the case or related State murder trial, or who if they had some prior knowledge, did not know nature of or verdict in State case. United States v. Washington, 836 F. Supp. 192, 1993 U.S. Dist. LEXIS 15725 (D. Vt. 1993).

This amendment guarantees defendant, through the Fourteenth Amendment, an impartial jury. State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991).

The Sixth Amendment does not require that the jury selection process result in jury venires that are a statistical mirror of the community; it is not a representative jury the Constitution demands, but an impartial one. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

For purposes of Sixth Amendment fair cross section analysis, whether a class or group of people is sufficiently distinct is a question of fact for the trial court; however, the court may determine as a matter of law that a particular group is not distinct if defendant fails to meet its initial burden of proof with respect to the question. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

For purposes of Sixth Amendment fair cross section analysis, evidence that a class or group of persons is distinct must specifically describe the area from which the jury is drawn. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

For purposes of Sixth Amendment fair cross section analysis, findings of the trial court that 18- to 20-year-olds and 18- to 24-year-olds represented distinctive groups rested upon testimony of sociologist, which was wholly insufficient to overcome presumption against his position; sociologist’s testimony that these age groups were distinctive was sparse, logically inconsistent, and general. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

Defendant failed to show that jury selection method of drawing names from voter registration and driver’s license lists systematically excluded young adults up to the age of 24 from the jury selection process; the group of persons who do not vote is not distinctive, and methods used to extract names or exempt persons from jury duty were not specifically challenged. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

Jury selection system of jury lists every two years did not systematically exclude persons under 21 years of age for purposes of Sixth Amendment fair cross section requirement, despite fact that time frame resulted in fewer persons under that age as time went on. State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990).

This amendment was not violated where defendant had to use last peremptory challenge to remove allegedly biased juror, so long as jury which was ultimately selected was fair and impartial. United States v. Towne, 870 F.2d 880, 1989 U.S. App. LEXIS 3675 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S. Ct. 2456, 104 L. Ed. 2d 1010, 1989 U.S. LEXIS 2715 (1989).

District judge in firearms case did not abuse his discretion in refusing to excuse potential juror who had heard of defendant through media, knew him to be convicted rapist, and was aware of pending homicide charges against him, where judge questioned her carefully about willingness to be fair and impartial juror and she promised she would try to decide case based on evidence presented. United States v. Towne, 870 F.2d 880, 1989 U.S. App. LEXIS 3675 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S. Ct. 2456, 104 L. Ed. 2d 1010, 1989 U.S. LEXIS 2715 (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).

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 judgment, 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).

The right to an unbiased jury guaranteed by this amendment is a personal right that may be waived only by defendant and only with a knowing and intelligent waiver; it is not enough that counsel for uninformed defendant satisfies himself that jury is unbiased. State v. Prime, 137 Vt. 340, 403 A.2d 270, 1979 Vt. LEXIS 967 (1979).

The Supreme Court has a duty to set aside a guilty verdict when confronted with a record that discloses even a possible infringement of the right to a jury free and untainted by any suspicion of extraneous influences. State v. Woodard, 134 Vt. 154, 353 A.2d 321, 1976 Vt. LEXIS 618 (1976).

The test for prejudice to a jury through extraneous influences and considerations is not whether the irregular matter actually influenced the result, but rather, whether it had the capacity of doing so. State v. Woodard, 134 Vt. 154, 353 A.2d 321, 1976 Vt. LEXIS 618 (1976).

Purpose of requirement under this amendment that a jury be selected from a representative cross section of the community is to ensure that distinctive groups are not excluded from the jury pool. State v. Murphy, 134 Vt. 106, 353 A.2d 346, 1976 Vt. LEXIS 606 (1976).

Interlocutory appeal.

Period from defendant’s pretrial motion to suppress evidence, which began interlocutory appeal sequence, through resolution of defendant’s motion to dismiss interlocutory appeal, was not considered for purposes of defendant’s right to speedy trial, even though defendant did not initiate interlocutory appeal. State v. Yudichak, 151 Vt. 400, 561 A.2d 407, 1989 Vt. LEXIS 76 (1989).

Jurisdiction of offenses.

This amendment permits a person who commits a crime partly in one state and partly in another to be tried in either state. State v. Harrington, 128 Vt. 242, 260 A.2d 692, 1969 Vt. LEXIS 233 (1969).

Length of delay.

Length of elapsed time alone between arraignment and trial is not determinative of whether defendant was deprived of his right to a speedy trial. State v. Messier, 146 Vt. 145, 499 A.2d 32, 1985 Vt. LEXIS 376 (1985).

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

Although length of delay in bringing a defendant to trial is not dispositive of the constitutional question of denial of the right to a speedy trial, and at most operates as a triggering device for further inquiry, as a threshold matter the Supreme Court demands an accurate determination of the time elapsed from the time of incarceration to the date of trial. State v. Williams, 143 Vt. 396, 467 A.2d 667, 1983 Vt. LEXIS 544 (1983).

Motor vehicle license suspension.

State administrative motor vehicle license suspension procedure is not criminal, and defendant is not entitled to a jury trial, appointed counsel, protection against self-incrimination, proof beyond a reasonable doubt, or confrontation of witnesses, as those protections apply to criminal proceedings. State v. O'Brien, 158 Vt. 275, 609 A.2d 981, 1992 Vt. LEXIS 52 (1992).

Nature and cause of accusation.

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.).

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.).

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.).

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 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).

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

An information must set forth the charge with such particularity as will reasonably indicate the exact offense with which the accused is charged and enable him to make intelligent preparation for his defense and, if the trial goes against him, to plead his conviction in any subsequent prosecution for the same offense. State v. Holden, 136 Vt. 158, 385 A.2d 1092, 1978 Vt. LEXIS 708 (1978).

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).

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).

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

Preclusion of witnesses.

Neither the Sixth Amendment of the U.S. Constitution nor Chapter I, Article 10 of the Vermont Constitution 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).

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).

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).

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).

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); State v. Williams, 143 Vt. 396, 467 A.2d 667, 1983 Vt. LEXIS 544 (1983).

Dismissal for lack of speedy trial in cases where defendant is incarcerated due to mental disease or defect prior to an adjudication of guilt would hinge upon court’s determination of whether the delay resulted in a prejudice to the defendant and would deny the constitutional right to a fair trial. State v. Williams, 143 Vt. 396, 467 A.2d 667, 1983 Vt. LEXIS 544 (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 which were of his own making, and showed no prejudice from any delays that did occur, defendant was not denied his right to a speedy trial. State v. Bristol, 143 Vt. 245, 465 A.2d 278, 1983 Vt. LEXIS 504 (1983).

Presence of defendant.

Because defendant was present at the initial sentencing, the trial court reimposed the same minimum sentence, and the trial court had no discretion in correcting the maximum sentence, defendant had no right to be present when the court imposed the corrected sentence. His absence could not thwart a fair and just hearing. State v. Tobin, 2018 VT 108, 208 Vt. 518, 199 A.3d 1069, 2018 Vt. LEXIS 161 (2018).

Defendant had a right under the Sixth Amendment and the Vermont Rules of Criminal Procedure to be present at the hearing on his motion to suppress, as the trial court conducted a full evidentiary hearing, heard testimony, and entered findings, and this was not a case where the only issue was one of law and the outcome could not have been affected by his absence. State v. Grace, 2016 VT 113, 204 Vt. 68, 165 A.3d 122, 2016 Vt. LEXIS 120 (2016).

Where a court is asked to make factual findings based on the evidence presented at a suppression hearing, a defendant must be accorded the right to be present in order to confront the witnesses arrayed against him or her, to assist counsel in formulating a defense, and ultimately to ensure a fair hearing and reliable result. State v. Grace, 2016 VT 113, 204 Vt. 68, 165 A.3d 122, 2016 Vt. LEXIS 120 (2016).

Defendant had not waived the right to be present at the suppression hearing, as the general written waiver of appearance he signed merely tracked the language of the rule governing a defendant’s presence in providing for a waiver of appearance at status conferences and “arguments on questions of law”; furthermore, while defense counsel appeared to acquiesce in the hearing going forward, his explanation for defendant’s absence made it clear that it was not based on a knowing and voluntary waiver by defendant of his right to be present in that counsel stated that he had sent defendant a notice of the hearing but had not explained to defendant his need to be present in person. State v. Grace, 2016 VT 113, 204 Vt. 68, 165 A.3d 122, 2016 Vt. LEXIS 120 (2016).

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).

There is a presumption of competency attendant upon the appointment of a member of the bar in good standing. In re Cronin, 133 Vt. 234, 336 A.2d 164, 1975 Vt. LEXIS 374 (1975).

When a trial court appoints or accepts the appearance of a member of the bar in good standing as counsel for defendant in a criminal proceeding, there is a presumption that counsel is competent. In re Murphy, 125 Vt. 272, 214 A.2d 317, 1965 Vt. LEXIS 238 (1965); State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968).

Pretrial proceedings and documents.

The press and public have a qualified right of access to pretrial suppression hearings and affidavits of probable cause, which must be balanced with defendant’s Sixth Amendment right to a fair trial. State v. Schaefer, 157 Vt. 339, 599 A.2d 337, 1991 Vt. LEXIS 193 (1991), cert. denied, 502 U.S. 1077, 112 S. Ct. 981, 117 L. Ed. 2d 144, 1992 U.S. LEXIS 721 (1992).

The press and public have a qualified right of access to affidavits of probable cause, which must be balanced with defendant’s right to a fair trial. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

Trial court correctly denied petitioner’s motion to continue order sealing affidavits of probable cause, where petitioner presented evidence of no more than the mere possibility of prejudice if the contents of the affidavits became public. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

To rebut the presumption that pretrial criminal proceedings and documents are open to the public, party seeking closure must demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

The First Amendment right of access to pretrial proceedings and documents is not an absolute right, especially when defendant’s right to trial by an impartial jury might be jeopardized by public disclosures prior to trial. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

A court can temporarily seal an affidavit of probable cause upon a preliminary examination of the likelihood of adverse publicity and its potential effect on the accused’s right to a fair trial; however, such an order must be carefully drawn to afford the maximum recognition of the rights of both the defendant and the public. Greenwood v. Wolchik, 149 Vt. 441, 544 A.2d 1156, 1988 Vt. LEXIS 51 (1988).

Pretrial criminal proceedings and documents are presumably open to the public, closure being the exception rather than the rule. State v. Tallman, 148 Vt. 465, 537 A.2d 422, 1987 Vt. LEXIS 549 (1987).

—Custodial interrogation.

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).

Procedural safeguards of Miranda apply only if a defendant is “in custody” and subjected to custodial interrogation; normally, the custody inquiry is whether, under totality of the circumstances, a reasonable person would believe he was at liberty to leave or to decline to answer the officer’s questions. State v. Lancto, 155 Vt. 168, 582 A.2d 448, 1990 Vt. LEXIS 174 (1990).

Questioning conducted in a police cruiser does not, in itself, establish custody for purposes of Miranda warnings; such questioning is not necessarily coercive, absent some evidence the officer’s actions were calculated to break the suspect’s will. State v. Lancto, 155 Vt. 168, 582 A.2d 448, 1990 Vt. LEXIS 174 (1990).

Defendant’s questioning, conducted in police cruiser, following trooper’s determination that injured defendant was registered owner of car which trooper reasonably suspected of having been involved in an accident, was not custodial and therefore defendant was not entitled to Miranda warnings; the detention was brief, conducted on public highway by only one officer, and trooper’s statement that he knew defendant had been in an automobile accident rather than in a fight as defendant claimed was insufficient to constitute a formal arrest. State v. Lancto, 155 Vt. 168, 582 A.2d 448, 1990 Vt. LEXIS 174 (1990).

Psychiatric examination.

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 trial court refused defendant both access to complainants’ psychiatric records, and to conduct an independent examination and evaluation of complainants; defendant received all medical information (including limited access to hospital discharge and evaluation reports covering time after 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 complainants’ mental disorders and some inconsistencies in details of their stories, there was substantial evidence that 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’s failure to grant defendant’s motion for psychiatric examination of alleged victim did not violate defendant’s right to confront witnesses against him where defense counsel had ample opportunity to bring forth evidence of the alleged victim’s reputation for truthfulness. State v. Gabaree, 149 Vt. 229, 542 A.2d 272, 1988 Vt. LEXIS 16 (1988).

Public trial.

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).

Purpose of right.

Defendant’s right to confrontation was violated by a seating arrangement that prevented defendant from seeing a child witness while she testified, as well as by the trial court’s failure to make adequate findings concerning the necessity of such an arrangement. State v. Lipka, 174 Vt. 377, 817 A.2d 27, 2002 Vt. LEXIS 317 (2002).

One of the primary purposes of the Confrontation Clause of this amendment is to secure an effective opportunity for cross-examination. State v. Messier, 146 Vt. 145, 499 A.2d 32, 1985 Vt. LEXIS 376 (1985).

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).

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).

While there was a nine-month delay between arraignment and trial on defendant’s charge of lewd and lascivious conduct, the delay was neither long nor prejudicial enough to have constituted a Sixth Amendment speedy-trial violation in light of defendant’s less than aggressive assertion of the right. The delay was not extreme in relation to either the nature of the case or the minimum delay needed to trigger judicial examination; an apparent scheduling error caused just over one month of delay, and defendant did not claim that any part of an unexplained three-month delay could have been avoided by the diligence of the trial court; defendant had not aggressively asserted his speedy-trial right; and he had not shown prejudice. State v. Vargas, 2009 VT 31, 185 Vt. 629, 971 A.2d 665, 2009 Vt. LEXIS 32 (2009) (mem.).

Thirty-four month incarceration between arrest and trial did not violate defendant’s right to speedy trial, where he caused majority of delay himself and he alleged no prejudice other than being incarcerated before trial. State v. Crannell, 170 Vt. 387, 750 A.2d 1002, 2000 Vt. LEXIS 14 (2000).

In determining whether a defendant’s trial is improperly delayed more than 90 days, delays occasioned by pretrial motions, continuances granted by the court, absences of the defendant, and changes of counsel are omitted. State v. Lavalette, 154 Vt. 426, 578 A.2d 108, 1990 Vt. LEXIS 108 (1990).

Delay arising out of the relationship between attorney and client must be attributed to defendant and omitted from consideration of motion to dismiss for lack of a speedy trial. State v. Trombly, 148 Vt. 293, 532 A.2d 963, 1987 Vt. LEXIS 504 (1987).

Delays attributable to proceedings necessary to determine competency to stand trial and pretrial motions are excluded from consideration in determining whether defendant was deprived of his right to a speedy trial. State v. Messier, 146 Vt. 145, 499 A.2d 32, 1985 Vt. LEXIS 376 (1985).

Where defendant, who was convicted of aggravated assault and kidnapping, failed to present any specific claims of prejudice resulting from the delay between the time of his incarceration to the date of his trial, the reasons for the delay were defense-requested continuances and defendant’s court-ordered psychiatric examination at the State Hospital, to which all parties acquiesced, and the record revealed that the State was prepared to go forward to trial when defendant requested the continuances, defendant’s constitutional right to a speedy trial was not infringed. State v. Williams, 143 Vt. 396, 467 A.2d 667, 1983 Vt. LEXIS 544 (1983).

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 a 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).

Right to counsel.

Defendant, who was questioned after he had been charged with disorderly conduct and after counsel had been appointed, was not afforded counsel during the questioning and did not waive counsel, and the questioning related to the offenses for which counsel had been appointed. Thus, a detective violated defendant’s Sixth Amendment rights. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Because a confession was not a fruit of an interview where there had been a Sixth Amendment violation, the interview did not provide grounds to suppress the confession. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Even if defendant was questioned about his alleged disorderly conduct and his allegation that his wife and a minor complained against him so they could engage in sexual activity unhindered by him, that violation of the Sixth Amendment provided him no help in his claim that his confession to a different crime, sexual assault, had to be suppressed. There was no question that disorderly conduct and sexual assault were separate offenses; thus, defendant’s Sixth Amendment right did not prevent the detective from questioning him about the alleged sexual assault before charging him with that offense. State v. Barron, 2011 VT 2, 189 Vt. 193, 16 A.3d 620, 2011 Vt. LEXIS 8 (2011).

Sixth Amendment right to counsel attaches at the initiation of judicial criminal proceedings, whether the judicial proceedings have been initiated by way of formal charge, preliminary hearing, indictment, information, or arraignment. Because judicial criminal proceedings had not yet been initiated against defendant at the time of the interview, his Sixth Amendment right to counsel was not violated, even if defendant unambiguously requested counsel. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

Escobedo applies only to a defendant’s Fifth Amendment rights. Hence, Escobedo did not support defendant’s claim that his Sixth Amendment right to counsel was violated. State v. Oney, 2009 VT 116, 187 Vt. 56, 989 A.2d 995, 2009 Vt. LEXIS 139 (2009).

The taking of nontestimonial evidence, such as blood samples or dental impressions, is not a critical stage requiring notice to a defendant’s counsel or triggering the right to counsel. State v. Marallo, 175 Vt. 469, 817 A.2d 1271, 2002 Vt. LEXIS 431 (2002) (mem.).

Since defendant had no right to counsel with respect to the execution of a nontestimonial identification order (NTO), and in any event, suffered no prejudice because of the absence of counsel, there were no grounds to suppress evidence gained through the NTO. State v. Marallo, 175 Vt. 469, 817 A.2d 1271, 2002 Vt. LEXIS 431 (2002) (mem.).

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).

Scope of right.

For a defendant to successfully challenge trial court’s exclusion of evidence on grounds that it violates his rights under Confrontation Clause, excluded evidence must be admissible. State v. Fuller, 168 Vt. 396, 721 A.2d 475, 1998 Vt. LEXIS 252 (1998).

Right of confrontation is a trial right that is not implicated by pretrial discovery restrictions, and therefore rape shield statute’s prohibition against deposing complaining witnesses concerning prior sexual conduct did not violate defendant’s Sixth Amendment rights. State v. Roya, 167 Vt. 594, 708 A.2d 908, 1998 Vt. LEXIS 7 (1998) (mem.).

While the defendant’s right to present a defense and confront adverse witnesses may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, restrictions on this right may not be arbitrary or disproportionate to the purposes they are designed to serve; a defendant’s Sixth Amendment rights may be violated by a discovery sanction that entirely excludes a defendant’s proffered evidence. State v. Passino, 161 Vt. 515, 640 A.2d 547, 1994 Vt. LEXIS 20 (1994).

The rights conferred by this amendment are not absolute; an exception to the right of confrontation is made when an unavailable witness has given testimony at a prior proceeding provided the proponent of the hearsay evidence establishes the unavailability of the declarant and satisfies the court that the proffered testimony possesses indicia of reliability sufficient to evaluate the truth of the prior statement. State v. Roberts, 154 Vt. 59, 574 A.2d 1248, 1990 Vt. LEXIS 52 (1990).

For purposes of evidentiary rule permitting the introduction of certain hearsay evidence upon a showing of declarant’s unavailability, the question of unavailability is of constitutional proportion. State v. Roberts, 154 Vt. 59, 574 A.2d 1248, 1990 Vt. LEXIS 52 (1990).

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

There is no obligation under the Confrontation Clause to confer witness immunity in order to secure witness’ live testimony at trial. State v. Roberts, 154 Vt. 59, 574 A.2d 1248, 1990 Vt. LEXIS 52 (1990).

In determining whether prior testimony of a now-unavailable witness at defendant’s murder trial possessed sufficient indicia of reliability to justify its admission under the prior testimony exception to the hearsay rule in defendant’s present kidnapping trial, this amendment did not require a particularized search for such indicia of reliability in the testimony itself; rather, the accouterments of the murder trial itself and the motivation it provided defendant to cross-examine witness satisfies requirement of trustworthiness. State v. Roberts, 154 Vt. 59, 574 A.2d 1248, 1990 Vt. LEXIS 52 (1990).

The Confrontation Clause of this amendment does not prohibit introduction of hearsay testimony at a sentencing hearing. State v. Gallagher, 150 Vt. 341, 554 A.2d 221, 1988 Vt. LEXIS 176, cert. denied, 488 U.S. 995, 109 S. Ct. 563, 102 L. Ed. 2d 588, 1988 U.S. LEXIS 5609 (1988).

This amendment 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).

Right to confrontation under this amendment applies to criminal proceedings, and not to civil rights action. In re J.R., 146 Vt. 185, 499 A.2d 1155, 1985 Vt. LEXIS 361 (1985).

Confrontation Clause of this amendment does not require substantive consideration of prior out-of-court statements made by a testifying witness who is subject to full cross-examination. State v. Miller, 146 Vt. 164, 502 A.2d 832, 1985 Vt. LEXIS 381 (1985).

The right to confrontation is basically a trial right that 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).

Rights of an accused in a criminal prosecution to confrontation and cross-examination are not absolute; those rights may, in certain cases, be outweighed by the interest of the State and the victim in excluding certain evidence. State v. Patnaude, 140 Vt. 361, 438 A.2d 402, 1981 Vt. LEXIS 622 (1981).

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 proper 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).

Seating arrangements.

Seating arrangement during trial for sexual assault and lewd and lascivious conduct involving a child, allowing the complaining witness to sit at floor level, facing the jury and not the defendant, with “support persons” sitting with her, did not violate defendant’s Sixth Amendment right to confront his accuser. State v. Dunbar, 152 Vt. 399, 566 A.2d 970, 1989 Vt. LEXIS 185 (1989).

Defendant’s right to confrontation was not violated merely because of seating arrangements in the trial courtroom that allegedly left defendant personally unable to view parts of photographs pointed at and discussed by witnesses on the stand, where witnesses were subjected to cross-examination, and no timely objection was made at trial. State v. Messier, 146 Vt. 145, 499 A.2d 32, 1985 Vt. LEXIS 376 (1985).

Sentence.

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.).

The speedy trial guarantee of this amendment applies to sentencing. State v. Dean, 148 Vt. 510, 536 A.2d 909, 1987 Vt. LEXIS 560 (1987).

Sentence reconsideration is not part of the “trial” for purposes of the right to a speedy trial. State v. Dean, 148 Vt. 510, 536 A.2d 909, 1987 Vt. LEXIS 560 (1987).

Speedy trial.

18-month delay between arraignment and trial did not deprive defendant of his right to a speedy trial, as the majority of the delay was attributable to the withdrawal of several defense attorneys, the stipulated discovery and trial-ready schedule designed to accommodate the ordinary needs of trial preparation, and defense counsel’s unavailability. Moreover, defendant complained about the delay but did not move for an immediate trial or take other action, and defendant did not maintain that his ability to defend himself was impaired in a specific way. State v. Lafaso, 2021 VT 4, — Vt. —, 251 A.3d 935, 2021 Vt. LEXIS 7 (Vt. 2021).

—Purpose.

Speedy trial protections are triggered by either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

Although delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment, or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

When there are no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. State v. Beer, 2004 VT 99, 177 Vt. 245, 864 A.2d 643, 2004 Vt. LEXIS 280 (2004).

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 his 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).

Stages at which assistance required.

Recording of defendant’s conversation with informant did not violate Sixth Amendment, since recording occurred before any adversarial proceedings had commenced and thus before right to counsel attached. State v. Lang, 167 Vt. 572, 702 A.2d 135, 1997 Vt. LEXIS 251 (1997), dismissed, 182 Vt. 650, 936 A.2d 1317 (2007) (mem.).

Sixth Amendment right to counsel is offense-specific and cannot be invoked once for all future prosecutions, since it does not attach until a prosecution is commenced. United States v. Garey, 813 F. Supp. 1069, 1993 U.S. Dist. LEXIS 2179 (D. Vt. 1993), aff'd, 19 F.3d 8, 1994 U.S. App. LEXIS 4927 (2d Cir. 1994).

Trial court erred in failing to suppress statements of defendant in police custody for DUI processing who had asked for an attorney and spoken to one on the telephone but who had subsequently responded to police-initiated questioning; once defendant asked for counsel, regardless of what advice attorney gave over the telephone, there could be no further police-initiated questioning without presence of his attorney. State v. Parker, 155 Vt. 340, 583 A.2d 98, 1990 Vt. LEXIS 193 (1990).

The right to counsel vests when an individual becomes an accused. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Once the right to counsel attaches, government efforts to elicit information from the accused, including interrogation, represent critical stages at which this amendment applies. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Once the right to counsel attaches, it continues until the individual is no longer an accused, by virtue of conviction, acquittal, or dismissal of the charges. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Defendant’s right to counsel attached upon the filing of a complaint charging him with attempted arson. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

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 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).

Sixth Amendment rights attached to defendant under indictment on charges related to matters grand jury was investigating. United States v. Morales-Martinez, 672 F. Supp. 762, 1987 U.S. Dist. LEXIS 10198 (D. Vt. 1987).

Right to counsel under this amendment attaches to critical stages of the prosecution to protect the defendant’s basic right to a fair trial and to have effective assistance of counsel at the trial itself. State v. Lombard, 146 Vt. 411, 505 A.2d 1182, 1985 Vt. LEXIS 390 (1985).

Decision to take or refuse to take an alcohol breath test does not implicate a defendant’s right to counsel under this amendment, since there is a minimal risk that counsel’s absence will affect defendant’s right to a fair trial, and since it is not until after the State commits itself to a criminal prosecution that need for counsel rises to the level of a federal constitutional right. State v. Lombard, 146 Vt. 411, 505 A.2d 1182, 1985 Vt. LEXIS 390 (1985).

A critical stage of the prosecution, at which the right to counsel attaches, is reached upon formal charge, preliminary hearing, indictment, information, or arraignment. State v. Smith, 140 Vt. 247, 437 A.2d 1093, 1981 Vt. LEXIS 598 (1981).

Once adversary proceedings have commenced against an individual, he has a right under this amendment to legal representation when the government interrogates him. State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979).

The right to counsel is not provided at a critical pretrial stage, the right may be rendered meaningless. State v. Welch, 135 Vt. 316, 376 A.2d 351, 1977 Vt. LEXIS 616 (1977).

Police officials may not, without reason, deny access between an accused and his lawyer, when such success is requested, is readily available, and will not interfere with investigation of the matter at hand. State v. Welch, 135 Vt. 316, 376 A.2d 351, 1977 Vt. LEXIS 616 (1977).

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

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).

Uncounseled statements.

The rights of a talkative inmate are not violated when a jailmate acts in an entrepreneurial way to seek information of potential value, without having been deputized by the government to question that defendant. The informant probably engaged the defendant in conversation in the hope that the informant would get something valuable to take to the police, but the informant’s agreement with the State about other matters did not make the informant a roving agent. Absent solicitation, there was no constitutional violation. United States v. Birbal, 113 F.3d 342, 1997 U.S. App. LEXIS 11620 (2d Cir.), cert. denied, 522 U.S. 976, 118 S. Ct. 433, 139 L. Ed. 2d 333, 1997 U.S. LEXIS 6868 (1997).

Because the right to counsel does not attach until after the initiation of formal charges, defendant had no argument that his rights were violated by jailmate informant’s testimony when defendant was not indicted for the other offense until after the conversation occurred. United States v. Birbal, 113 F.3d 342, 1997 U.S. App. LEXIS 11620 (2d Cir.), cert. denied, 522 U.S. 976, 118 S. Ct. 433, 139 L. Ed. 2d 333, 1997 U.S. LEXIS 6868 (1997).

Where during a routine meeting defendant’s probation officer asked defendant what his court status was as far as pending attempted sexual assault charge, defendant’s unresponsive incriminating statements were not obtained in violation of his right to counsel. State v. Brown, 153 Vt. 263, 571 A.2d 643, 1989 Vt. LEXIS 272 (1989).

Violations.

At parole violation hearing on charge that defendant had violated parole by traveling outside the State without his probation officer’s permission, where affidavit of out-of-state police officer was presented but the police officer was not present, the defendant was denied his right to confront the witness as provided by the Confrontation Clause. State v. Austin, 165 Vt. 389, 685 A.2d 1076, 1996 Vt. LEXIS 92 (1996).

Waiver.

Defendant had not waived right to be present at suppression hearing, as general written waiver of appearance he signed merely tracked language of rule governing defendant’s presence in providing for waiver of appearance at status conferences and “arguments on questions of law”; furthermore, while defense counsel appeared to acquiesce in hearing going forward, his explanation for defendant’s absence made it clear that it was not based on a knowing and voluntary waiver by defendant of his right to be present in that counsel stated that he had sent defendant notice of the hearing but had not explained to defendant his need to be present in person. State v. Grace, 2016 VT 113, 204 Vt. 68, 165 A.3d 122, 2016 Vt. LEXIS 120 (2016).

An individual may waive the right to assistance of counsel during custodial interrogation provided the waiver is made voluntarily, knowingly, and intelligently. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Once an accused has invoked the right to counsel, the Edwards rule prohibits police-initiated interrogation about either the same offense or an unrelated offense and any waiver of the right to counsel for that police-initiated interrogation is invalid. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Once defendant invoked his right to counsel at his initial appearance before a magistrate, the Edwards rule barred subsequent police-initiated interrogation and any waiver of defendant’s right to counsel for such interrogation was invalid. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

After invoking his right to counsel at his initial appearance before a magistrate, defendant could waive his right to counsel for interrogation only if he initiated a conversation with the police. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Defendant’s waiver of his right to counsel on occasions when he was cooperating with the government concerning matters contemplated within the scope of his plea agreement was not a waiver of his right to counsel when dealing with the government in an adversarial context concerning matters outside the scope of the plea agreement. United States v. Roberts, 690 F. Supp. 1368, 1988 U.S. Dist. LEXIS 6787 (D. Vt. 1988), rev'd, 869 F.2d 70, 1989 U.S. App. LEXIS 1963 (2d Cir. 1989).

Compulsory appointment of a guardian ad litem in all cases where a minor is charged with a crime does not violate the right of a criminal defendant to personally conduct his defense without the assistance of counsel, recognized as implicit in this amendment. In re Raymond, 137 Vt. 171, 400 A.2d 1004, 1979 Vt. LEXIS 952 (1979).

A defendant in a criminal trial has a right under this amendment 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 represent 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 amendment may be waived, if done competently and intelligently. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964).

Waiver of jury trial.

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).

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).

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).

Waiver of Miranda rights.

Testimony of arresting officer, that defendant had had several prior contacts with police, was reliable and could be used to determine whether defendant waived Miranda rights, since it was based on information officer acquired from court documents, conversations with other police officers, defendant’s parole officer and defendant himself, and from computer checks. State v. Towne, 158 Vt. 607, 615 A.2d 484, 1992 Vt. LEXIS 112 (1992).

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).

Waiver of right.

While a defendant has a right under this amendment to be present at trial and that right can be waived, since the ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right, a decision on a motion to be tried in absentia is best left to the trial court’s discretion. State v. Hohman, 138 Vt. 502, 420 A.2d 852, 1980 Vt. LEXIS 1365 (1980).

A defendant’s conduct may effect a waiver of his right under this amendment to confront a witness testifying against him, as where the defendant absents himself from trial, or intimidates a witness from testifying. State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986).

A defendant can waive his right under this amendment to confront a witness testifying against him. State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986).

A defendant may voluntarily waive his right under this amendment to confront a witness testifying against him by explicitly stating that he waives the right, or by entering into a plea bargain. State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986).

A judge may allow a noncapital trial to proceed in the absence of a defendant given an effective waiver of his right under this amendment to be present to confront the witnesses against him. In re Dunkerley, 135 Vt. 260, 376 A.2d 43, 1977 Vt. LEXIS 603 (1977).

Cited.

Cited in 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); State v. Dellveneri, 128 Vt. 85, 258 A.2d 834, 1969 Vt. LEXIS 204 (1969); State v. Bruley, 129 Vt. 124, 274 A.2d 467, 1970 Vt. LEXIS 216 (1970); State v. Becker, 130 Vt. 153, 287 A.2d 580, 1972 Vt. LEXIS 244 (1972); In re Bousley, 130 Vt. 296, 292 A.2d 249, 1972 Vt. LEXIS 272 (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); In re Duhamel, 131 Vt. 532, 310 A.2d 16, 1973 Vt. LEXIS 346 (1973); State v. Rocheleau, 131 Vt. 563, 313 A.2d 33, 1973 Vt. LEXIS 356 (1973); State v. Bleau, 132 Vt. 101, 315 A.2d 448, 1974 Vt. LEXIS 308 (1974); In re King, 133 Vt. 245, 336 A.2d 195, 1975 Vt. LEXIS 376 (1975); Cartin v. Continental Homes of New Hampshire, 134 Vt. 362, 360 A.2d 96, 1976 Vt. LEXIS 676 (1976); State v. Girouard, 135 Vt. 123, 373 A.2d 836, 1977 Vt. LEXIS 571 (1977); State v. Welch, 136 Vt. 442, 394 A.2d 1115, 1978 Vt. LEXIS 771 (1978); In re Parizo, 137 Vt. 365, 404 A.2d 114, 1979 Vt. LEXIS 978 (1979); State v. LaRose, 137 Vt. 531, 408 A.2d 651, 1979 Vt. LEXIS 1070 (1979); State v. Mecier, 138 Vt. 149, 412 A.2d 291, 1980 Vt. LEXIS 1043 (1980); Herald Association, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323, 1980 Vt. LEXIS 1362 (1980); State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981); In re J.S., 140 Vt. 458, 438 A.2d 1125, 1981 Vt. LEXIS 632 (1981); In re E. T. C., 141 Vt. 375, 449 A.2d 937, 1982 Vt. LEXIS 538 (1982); State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982); 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. Wetherby, 142 Vt. 248, 453 A.2d 1124, 1982 Vt. LEXIS 630 (1982); In re Mecier, 143 Vt. 23, 460 A.2d 472, 1983 Vt. LEXIS 464 (1983); State v. Comes, 144 Vt. 103, 472 A.2d 1253, 1984 Vt. LEXIS 412 (1984); State v. Mecier, 145 Vt. 173, 488 A.2d 737, 1984 Vt. LEXIS 595 (1984); State v. Hall, 145 Vt. 299, 487 A.2d 166, 1984 Vt. LEXIS 594 (1984); In re Smith, 146 Vt. 43, 498 A.2d 497, 1985 Vt. LEXIS 344 (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. Robillard, 146 Vt. 623, 508 A.2d 709, 1986 Vt. LEXIS 334 (1986); United States v. Snaith, 666 F. Supp. 645, 1987 U.S. Dist. LEXIS 7739 (D. Vt. 1987); State v. Hemingway, 148 Vt. 90, 528 A.2d 746, 1987 Vt. LEXIS 458 (1987); In re Fadden, 148 Vt. 116, 530 A.2d 560, 1987 Vt. LEXIS 460 (1987); State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987); State v. Malinowski, 148 Vt. 517, 536 A.2d 921, 1987 Vt. LEXIS 557 (1987); State v. Shaw, 149 Vt. 275, 542 A.2d 1106, 1987 Vt. LEXIS 617 (1987); 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. Brunell, 150 Vt. 388, 554 A.2d 242, 1988 Vt. LEXIS 191 (1988); State v. Goodrich, 151 Vt. 367, 564 A.2d 1346, 1989 Vt. LEXIS 137 (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. Hugo, 156 Vt. 339, 592 A.2d 875, 1991 Vt. LEXIS 87 (1991); In re C.M., 157 Vt. 100, 595 A.2d 293, 1991 Vt. LEXIS 124 (1991); State v. Curtis, 157 Vt. 275, 597 A.2d 770, 1991 Vt. LEXIS 176 (1991); State v. Robar, 157 Vt. 387, 601 A.2d 1376, 1991 Vt. LEXIS 210 (1991); State v. Strong, 158 Vt. 56, 605 A.2d 510, 1992 Vt. LEXIS 9 (1992); United States v. McCormick, 992 F.2d 437, 1993 U.S. App. LEXIS 9955 (2d Cir. 1993); State v. Densmore, 160 Vt. 131, 624 A.2d 1138, 1993 Vt. LEXIS 36 (1993); 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); State v. Pellerin, 161 Vt. 229, 637 A.2d 1078, 1993 Vt. LEXIS 120 (1993); Town of Hinesburg v. Dunkling, 167 Vt. 514, 711 A.2d 1163, 1998 Vt. LEXIS 168 (1998); Fuller v. Gorczyk, 273 F.3d 212, 2001 U.S. App. LEXIS 25286 (2d Cir. 2001); State v. Hill, 174 Vt. 566, 816 A.2d 440, 2002 Vt. LEXIS 329 (2002); State v. Yoh, 2006 VT 49, 2006 VT 49A, 180 Vt. 317, 910 A.2d 853, 2006 Vt. LEXIS 147 (2006) (mem.).

Law Reviews —

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

For note, “A Question of Competence: The Indigent Criminal Defendant’s Right to Adequate and Competent Psychiatric Assistance After Ake v. Oklahoma ,” see 14 Vt. L. Rev. 121 (1989).

For article, “Making a Burlesque of the Constitution: Military Trials of Civilians in the War Against Terrorism,” see 31 Vt. L. Rev. 447 (2007).

Amendment VII. Right to jury trial

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

History

Proposal and ratification. See note set out under Amendment I.

CROSS REFERENCES

Right to jury trial in criminal cases, see U.S. Const., Art. III, § 2.

Right to jury trial under State Constitution, see Vt. Const. Ch. I, Art. 12 and Ch. II, § 38.

ANNOTATIONS

Application.

Because adjudication of restitution order was an adjunct of sentencing and was therefore part of a criminal proceeding, this amendment did not apply. Lyndonville Savings Bank & Trust Co. v. Lussier, 211 F.3d 697, 2000 U.S. App. LEXIS 8710 (2d Cir. 2000).

This amendment applies only to proceedings in federal court, and does not govern or regulate trials by jury in State courts. Parizo v. Wilson, 101 Vt. 514, 144 A. 856, 1929 Vt. LEXIS 201 (1929).

This amendment relates only to trials in federal courts. Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893).

Construction.

The term “common law” in this amendment means those suits in which legal rights or relief were determined as opposed to equitable rights or relief. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122, 1992 Vt. LEXIS 213 (1992).

Scope.

When judgment is entered pursuant to inconsistent findings of fact, trial court necessarily sanctions one factual finding at expense of its inconsistent counterpart, but when court enters judgment pursuant to inconsistent verdicts, without contradictory factual findings by jury, the same unconstitutional reexamination of the jury’s factual determinations is not present. Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 1992 U.S. App. LEXIS 21262 (2d Cir. 1992).

The right to trial by jury guaranteed by this amendment 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 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).

Specific cases.

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).

Religious organization has no constitutionally protected right to have its own parishioners sit on its jury. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Striking a juror who was a member of defendant diocese on the basis of implied bias would not violate the United States Constitution. The juror was not being struck because she was affiliated with a religious organization, but because she was a member of the defendant organization and presumed to be biased. Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101, 186 Vt. 396, 987 A.2d 960, 2009 Vt. LEXIS 118 (2009).

Cited.

Cited in Wetmore v. Smith, 130 Vt. 618, 298 A.2d 567, 1972 Vt. LEXIS 325 (1972); State v. Jarvis, 146 Vt. 636, 509 A.2d 1005, 1986 Vt. LEXIS 350 (1986); Maynard v. Travelers Insurance Co., 149 Vt. 158, 540 A.2d 1032, 1987 Vt. LEXIS 608 (1987).

Amendment VIII. Bail; fines; punishments

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

History

Proposal and ratification. See note set out under Amendment I.

CROSS REFERENCES

Bail and recognizances generally, see 13 V.S.A. § 7551 et seq.

Excessive bail restricted by State Constitution, see Vt. Const. Ch. II, § 40.

Requirement of State Constitution that fines be proportioned to offenses, see Vt. Const. Ch. II, § 39.

ANNOTATIONS

Bail.

When defendant was charged with grand larceny and assault and robbery with a dangerous weapon, the amount of his $150,000 bail was not improper under the Vermont bail statute or excessive under the Eighth Amendment, as he was facing serious charges involving the use of a dangerous weapon that carried a potential 25-year sentence, he had two failures to appear and two probation violations, and he used a Maine address and had allegedly gone to Maine after the charged crimes. State v. Dunn, 196 Vt. 467, 93 A.3d 1057, 2014 Vt. LEXIS 50 (2014).

A prisoner charged with any offense, unless in execution, or for a capital offense when the proof is evident or presumption great, has a right to bail provided by this amendment. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

Ability of the accused to furnish bail, nature of the offense, penalty for the offense charged, character and reputation of the accused, health of the accused, character and strength of the evidence, probability of the accused appearing at trial, and whether the accused was a fugitive from justice when arrested are factors to be taken into account by the court in determining the amount of bail. State v. Toomey, 126 Vt. 123, 223 A.2d 473, 1966 Vt. LEXIS 175 (1966).

Construction with other law.

In Medicaid fraud case there was no relevant difference between constitutional standards for judging validity of criminal penalties under Chapter II, § 39 of Vermont Constitution and this amendment. State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989).

Cumulative punishment.

District Court’s enhancement of sentence based upon facts contained in dismissed count of indictment did not violate defendant’s rights under this amendment, where resulting 18-month sentence was 102 months less than statutory maximum. United States v. Streich, 987 F.2d 104, 1993 U.S. App. LEXIS 3280 (2d Cir. 1993).

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).

Constitutional inhibition of unusual punishments and excessive fines has no application to cumulative punishments imposed for distinct offenses in the same prosecution. State v. O'Neil, 58 Vt. 140, 2 A. 586, 1885 Vt. LEXIS 20 (1885).

Excessive fines.

Forfeiture of 1650 cases of liquor valued at approximately $100,000 was remedial, rather than punitive, and was therefore not subject to Excessive Fines Clause of the Eighth Amendment; case involved an in rem civil forfeiture proceeding in which State proceeded against property rather than its owner, and forfeited liquor was contraband, the value of which could be viewed as liquidated damages for costs to State of enforcing its liquor control laws. In re 1650 Cases of Seized Liquor, 168 Vt. 314, 721 A.2d 100, 1998 Vt. LEXIS 251 (1998).

Excessive Fines Clause of this amendment does not apply to awards of punitive damages in case between private parties. Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219, 1989 U.S. LEXIS 3285 (1989).

At the time of drafting and ratification of this amendment, “fines” was understood to mean payment to a sovereign as punishment for some offense. Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219, 1989 U.S. LEXIS 3285 (1989).

Excessive Fines Clause of this amendment was intended to limit only those fines directly imposed by, and payable to, the government. Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219, 1989 U.S. LEXIS 3285 (1989).

Punishment proportionate to offense.

Vermont law reflects the State’s enhanced concern for the protection and well-being of minors and the gravity it attaches to crimes involving the exploitation of minors. There are no grounds upon which to conclude that the Legislature’s policy choice regarding the sentence for aggravated sexual assault of a child runs counter to the Eighth Amendment. State v. Bellanger, 2018 VT 13, 206 Vt. 489, 183 A.3d 550, 2017 Vt. LEXIS 146 (2018).

Petitioner’s sentence of life without parole for attempted murder did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment based on disproportionality. Petitioner planned to kill the victim in a particularly cruel and painful manner, burning her to death in his van, and his culpability was not diminished by the fact that neighbors intervened; moreover, the trial court heard evidence that petitioner had previously shot at his family members, who escaped by sheer luck. In re Stevens, 2014 VT 6, 195 Vt. 486, 90 A.3d 910, 2014 Vt. LEXIS 7 (2014).

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. Hodgson, 66 Vt. 134, 28 A. 1089, 1893 Vt. LEXIS 23 (1893); State v. Burlington Drug Co., 84 Vt. 243, 78 A. 882, 1911 Vt. LEXIS 264 (1911); State v. O'Brien, 106 Vt. 97, 170 A. 98, 1934 Vt. LEXIS 147 (1934); In re Blake, 107 Vt. 18, 175 A. 252, 1934 Vt. LEXIS 137 (1934); State v. Webb, 132 Vt. 418, 320 A.2d 626, 1974 Vt. LEXIS 361 (1974); State v. Lake, 132 Vt. 546, 325 A.2d 1, 1974 Vt. LEXIS 388 (1974); State v. Pray, 133 Vt. 537, 346 A.2d 227, 1975 Vt. LEXIS 448 (1975); Sherwin v. Hogan, 136 Vt. 606, 401 A.2d 895, 1979 Vt. LEXIS 910 (1979); State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979); State v. Bacon, 167 Vt. 88, 702 A.2d 116, 1997 Vt. LEXIS 243 (1997).

Law Reviews —

Restricting the right to bail: Vermont’s new constitutional bail amendment, see 8 Vt. L. Rev. 347 (1983).

For article, “The Death Penalty for Drug Kingpins: Constitutional and International Implications,” see 24 Vt. L. Rev. 1 (1999).

Amendment IX. Rights retained by the people

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

History

Proposal and ratification. See note set out under Amendment I.

ANNOTATIONS

Cited.

Cited in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593, 1985 U.S. LEXIS 103 (1985).

Law Reviews —

For article, “Contributions of State Constitutional Law to the Third Century of American Federalism,” see 13 Vt. L. Rev. 49 (1988).

Amendment X. Powers reserved to the states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

History

Proposal and ratification. See note set out under Amendment I.

ANNOTATIONS

Background checks.

The requirement of background checks and form transmittals contained in the Brady Handgun Violence Protection Act of 1993 ( 18 U.S.C. § 922(s) (2)) is unconstitutional under this amendment. Frank v. United States, 129 F.3d 273, 1997 U.S. App. LEXIS 32040 (2d Cir. 1997).

Construction with other law.

Application of federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., to appointed State-court judges who would otherwise mandatorily be retired pursuant to State law did not violate this amendment. Equal Employment Opportunity Commission v. Vermont Office of Court Administrator, 717 F. Supp. 261, 1989 U.S. Dist. LEXIS 8386 (D. Vt. 1989), aff'd, 904 F.2d 794, 1990 U.S. App. LEXIS 8464 (2d Cir. 1990), disapproved, Gregory v. Ashcroft, 898 F.2d 598, 1990 U.S. App. LEXIS 3103 (8th Cir. 1990).

Standing.

Home health agencies lacked standing to bring Tenth Amendment claim on behalf of State, where claim alleged that interim reimbursement scheme for Medicare home health services stymied Vermont’s health care policy; any injury to agencies was a by-product, not a direct result, of a Tenth Amendment concern. Vermont Assembly of Home Health Agencies v. Shalala, 18 F. Supp. 2d 355, 1998 U.S. Dist. LEXIS 13668 (D. Vt. 1998).

Sheriff had standing under this amendment to challenge the constitutionality of the Brady Handgun Violence Protection Act of 1993 ( 18 U.S.C. § 922(s) (2)). Frank v. United States, 129 F.3d 273, 1997 U.S. App. LEXIS 32040 (2d Cir. 1997).

Cited.

Cited in State v. Randall, 2 Aik. 89 (Vt. 1827); Lincoln v. Smith, 27 Vt. 328, 1855 Vt. LEXIS 40 (1855); In re Guerra, 94 Vt. 1, 110 A. 224, 1920 Vt. LEXIS 162 (1920); State v. Lucia, 104 Vt. 53, 157 A. 61, 1931 Vt. LEXIS 145 (1931); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593, 1985 U.S. LEXIS 103 (1985).

Law Reviews —

For article, “Contributions of State Constitutional Law to the Third Century of American Federalism,” see 13 Vt. L. Rev. 49 (1988).

Amendment XI. Suits against the states

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

History

Proposal and ratification. This amendment was proposed by the Third Congress on March 4, 1794, and was declared ratified on January 8, 1798. The states that ratified this amendment and the dates of ratification are: New York, March 27, 1794; Rhode Island, March 31, 1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, June 26, 1794; Vermont, between October 9 and November 9, 1794; Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7, 1794; Maryland, December 26, 1794; Delaware, January 23, 1795; North Carolina, February 7, 1795; and South Carolina, December 4, 1797.

CROSS REFERENCES

Claims against State Employees, see 3 V.S.A. § 1101 et seq.

Tort claims against the State, see 12 V.S.A. § 5601 et seq.

ANNOTATIONS

Suit against State.

Eleventh Amendment did not bar qui tam suit against State agency brought by United States under the federal False Claims Act. United States ex rel. Stevens v. Vermont Agency of Natural Resources, 162 F.3d 195, 1998 U.S. App. LEXIS 30995 (2d Cir. 1998), rev'd, 529 U.S. 765, 120 S. Ct. 1858, 146 L. Ed. 2d 836, 2000 U.S. LEXIS 3428 (2000).

Vermont’s sovereign immunity was not abrogated by 42 U.S.C. § 1983, and therefore prisoner’s civil rights claim against Department of Corrections was barred by Eleventh Amendment. Gorton v. Burlington Police Dep't, 23 F. Supp. 2d 454, 1998 U.S. Dist. LEXIS 16245 (D. Vt. 1998).

This amendment provides the defense of sovereign immunity in suits in federal court against a state by a citizen of the same state. Dubuque v. Yeutter, 728 F. Supp. 303, 1989 U.S. Dist. LEXIS 15859 (D. Vt. 1989).

Absent waiver, this amendment bars a damages action to recover monies already spent against the State and arms of the State in either federal or State court. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

Dismissal was required of taxpayers’ civil rights action against State of Vermont, also naming individual officers in their official capacity, which sought refund of Vermont use tax paid on automobiles under unconstitutional statute; the State was not a “person” within the meaning of the statute and the relief sought against official in his official capacity was a retrospective one for monetary damages. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

Suit against State officer.

The defense of sovereign immunity extends to an action to enjoin a State official to pay retroactive benefits wrongfully withheld by the State in a federal-State program funded by the State and federal governments and administered by the State. Dubuque v. Yeutter, 728 F. Supp. 303, 1989 U.S. Dist. LEXIS 15859 (D. Vt. 1989).

Defense of sovereign immunity, if not waived, applies to a claim against the Commissioner of Social Welfare for retroactive benefits under the Food Stamp Act; although the federal government pays 100% of the benefits, State provision of benefits entails administrative expenses to be paid from the State Treasury. Dubuque v. Yeutter, 728 F. Supp. 303, 1989 U.S. Dist. LEXIS 15859 (D. Vt. 1989).

Where the claim is that the statute pursuant to which a State officer is acting is unconstitutional, the suit is deemed to be against the officer in his individual capacity and such suit in federal court is not barred by this amendment. Chrysler Corp. v. Malloy, 294 F. Supp. 524, 1968 U.S. Dist. LEXIS 10114 (D. Vt. 1968), rev'd, 419 F.2d 499 (2d Cir. 1969).

Waiver of sovereign immunity.

Complaint filed by debtor in bankruptcy seeking to avoid the State’s claim to his Federal Supplemental Security Income (SSI) payments, which had been assigned to the State in exchange for the State’s provision of public assistance pending determination of the debtor’s eligibility for SSI benefits, was not barred by this provision since Congress, by enacting 11 U.S.C. § 106, had expressly waived the State’s sovereign immunity to suit. In re Anderson, 70 B.R. 759, 1987 Bankr. LEXIS 293 (Bankr. D. Vt. 1987).

By the enactment of 29 V.S.A. § 1403 , waiving sovereign immunity from liability to the extent of insurance coverage, the State of Vermont has not waived its immunity to suit in federal court. Lewis v. Vermont, 289 F. Supp. 246, 1968 U.S. Dist. LEXIS 9018 (D. Vt. 1968).

Where, by 19 V.S.A. § 1371 , the State has provided by specific statute a substantive right against a town for negligence in performing a governmental function and a remedy for its enforcement in the courts, a town may be properly joined as a party defendant in the United States District Court under the Constitution and laws of the United States. Lewis v. Vermont, 289 F. Supp. 246, 1968 U.S. Dist. LEXIS 9018 (D. Vt. 1968).

Cited.

Cited in American Trucking Ass'ns v. Conway, 146 Vt. 579, 508 A.2d 408, 1986 Vt. LEXIS 331 (1986); Southview Assocs. v. Individual Members of Vermont Environmental Bd., 782 F. Supp. 279, 1991 U.S. Dist. LEXIS 19208 (D. Vt. 1991). .

Amendment XII. Presidential elections

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted:—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

History

Proposal and ratification. This amendment was proposed by the Eighth Congress on December 9, 1803, and was declared ratified on September 25, 1804. The states that ratified this amendment and the dates of ratification are: North Carolina, December 22, 1803; Maryland, December 24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and December 30, 1803; Virginia, between December 20, 1803, and February 3, 1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, between February 27 and March 12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July 27, 1804.

Amendment XIII.

§ 1. [Slavery and involuntary servitude prohibited]

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

§ 2. [Enforcement powers]

Congress shall have power to enforce this article by appropriate legislation.

History

Proposal and ratification. This amendment was proposed by the Thirty-eighth Congress on January 31, 1865, and was declared ratified on December 18, 1865. The states that ratified this amendment and the dates of ratification are: Illinois, February 1, 1865; Rhode Island, February 2, 1865; Michigan, February 2, 1865; Maryland, February 3, 1865; New York, February 3, 1865; West Virginia, February 3, 1865; Missouri, February 6, 1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts, February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9, 1865; Ohio, February 10, 1865; Louisiana, February 15 or 16, 1865; Indiana, February 16, 1865; Nevada, February 16, 1865; Minnesota, February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865; Tennessee, April 7, 1865; Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire, June 30, 1865; South Carolina, November 13, 1865; Alabama, December 2, 1865; North Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, December 11, 1865; California, December 15, 1865; Florida, December 28, 1865; Iowa, January 17, 1866; New Jersey, January 23, 1866; Texas, February 18, 1870; and Delaware, February 12, 1901.

CROSS REFERENCES

Slavery prohibited by State Constitution, see Vt. Const. Ch. I, Art. 1.

ANNOTATIONS

Cited.

Cited in United States use of J.G. Strait & Son v. United States Fidelity & Guaranty Co., 80 Vt. 84, 66 A. 809, 1907 Vt. LEXIS 78 (1907); Niebyski v. Welcome, 93 Vt. 418, 108 A. 341, 1919 Vt. LEXIS 181 (1919); In re Lorette, 126 Vt. 286, 228 A.2d 790, 1967 Vt. LEXIS 185 (1967).

Amendment XIV.

§ 1. Citizens; privileges and immunities; due process; equal protection

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

§ 2. Representatives apportioned

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

§ 3. Rebellion disqualifies from office; removal of disability

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

§ 4. Public debt; debts and claims incurred in aid of rebellion

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

§ 5. Enforcement powers

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

History

Proposal and ratification. This amendment was proposed by the Thirty-ninth Congress on June 13, 1866, and was declared ratified on July 28, 1868. The states that ratified this amendment and the dates of ratification are: Connecticut, June 25, 1866; New Hampshire, July 6, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (consent to ratification withdrawn, March 24, 1868); Oregon, September 19, 1866 (consent to ratification withdrawn, October 15, 1868); Vermont, October 30, 1866; New York, January 10, 1867; Ohio, January 11, 1867 (consent to ratification withdrawn January 15, 1868); Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas, January 17, 1867; Minnesota, January 17, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 25, 1867; Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867; Wisconsin, February 17, 1867; Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 16, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 2, 1868; Louisiana, July 9, 1868; South Carolina, July 9, 1868; Alabama, July 13, 1868; Georgia, July 21, 1868; Virginia, October 8, 1869; Mississippi, January 17, 1870; Texas, February 18, 1870; Delaware, February 12, 1901; Maryland, April 4, 1959; and California, May 6, 1959.

CROSS REFERENCES

Citizens entitled to privileges and immunities, see § 2 of Article IV.

Due process requirement applicable to the federal government, see Amendment V.

Periodic reapportionment of House of Representatives and Senate, see 17 V.S.A. § 1901 et seq.

Requirements of State Constitution for deprivation of liberty, see Vt. Const. Ch I, Art. 10.

Notes to Opinions

I. GENERALLY.

Police power.

The police power cannot be invoked for the protection of one class of citizens against another unless it is in reality for the protection of the public in general. 1960-62 Vt. Op. Att'y Gen. 65.

III. DUE PROCESS GENERALLY.

Property.

To prohibit, absolutely, a public utility, engaged in the business of generating, transmitting, and selling electric energy, from the sale of retail merchandise, would be an arbitrary and unreasonable infringement of property rights in violation of the Due Process Clause of this amendment and therefore unconstitutional. 1960-62 Vt. Op. Att'y Gen. 65.

ANNOTATIONS

I. GENERALLY.
Application of other amendments.

Sixth Amendment guarantees defendant, through this amendment, an impartial jury. State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991).

The Proportional Contribution Clause of the Vermont Constitution and the Equal Protection Clause of the U.S. 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).

Since defendant convicted of sexual offense faced no threat of subsequent prosecution for the offense, the Fifth Amendment and this amendment did not prohibit conditioning probation on defendant’s willingness to discuss, in the context of therapeutic treatment, the sexual issues surrounding the conviction even if disclosure of information could potentially lead to revocation of probation; the privilege against self-incrimination still operated to protect defendant with respect to further criminal prosecution of different acts. State v. Gleason, 154 Vt. 205, 576 A.2d 1246, 1990 Vt. LEXIS 60 (1990).

Vermont law relating to former jeopardy has, through the operation of this amendment, become the law of the Double Jeopardy Clause of the Fifth Amendment. In re Dunkerley, 135 Vt. 260, 376 A.2d 43, 1977 Vt. LEXIS 603 (1977).

Federal double jeopardy standards of the Fifth Amendment apply to the states by way of this amendment. State v. Lebo, 129 Vt. 449, 282 A.2d 804, 1971 Vt. LEXIS 289 (1971).

This amendment secures against State invasion the same privilege that the Fifth Amendment guarantees against federal infringement-the right of a person to remain silent until he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence. State v. Miner, 128 Vt. 55, 258 A.2d 815, 1969 Vt. LEXIS 202 (1969).

Use of evidence secured by police through an unreasonable search and seizure is barred in State prosecutions by the Fourth and this amendment. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966).

The right of an accused in a criminal prosecution to the assistance of counsel under the Sixth Amendment is made obligatory upon the states under this amendment. In re Shuttle, 125 Vt. 257, 214 A.2d 48, 1965 Vt. LEXIS 235 (1965).

The requirements of due process under this amendment carry over to the State courts the prohibitions of the Fourth Amendment. State v. Ball, 123 Vt. 26, 179 A.2d 466, 1962 Vt. LEXIS 188 (1962).

The basic concept of religious liberty and the separation of church and state was made applicable to states with ratification of this amendment. Swart v. South Burlington Town Sch. Dist., 122 Vt. 177, 167 A.2d 514, 1961 Vt. LEXIS 54, cert. denied, 366 U.S. 925, 81 S. Ct. 1349, 6 L. Ed. 2d 384, 1961 U.S. LEXIS 1176 (1961).

Construction of terms.

The commands for “equal protection” and “due process” are not subject to application by precise formula or exact definition. Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875, 1959 Vt. LEXIS 90 (1959).

Construction with Vermont Constitution.

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).

Equal protection.

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).

Resign-to-run restriction was not irrational for purposes of equal protection; it applied only to judges because it was imposed by the Vermont Supreme Court, which had power only over judges. It reflected the national recognition, however, that one had to protect the fairness, and perceived fairness, of judicial decision-making and minimize the distraction of election campaigns. In re Hodgdon, 2011 VT 19, 189 Vt. 265, 19 A.3d 598, 2011 Vt. LEXIS 14 (2011).

The fact that defendant’s conduct was punishable under either the aggravated murder statute or under the first-degree murder statute, which contained different penalties, did not violate equal protection under the Fourteenth Amendment. Because the circumstances were indistinguishable from those in the United States Supreme Court’s decision of Batchelder, the broad holding of Batchelder foreclosed defendant’s requested relief under the Fourteenth Amendment. State v. Rooney, 2011 VT 14, 189 Vt. 306, 19 A.3d 92, 2011 Vt. LEXIS 11 (2011).

It was premature to dismiss inmates’ claim that not allowing them stamps violated equal protection. The fact that the inmates were housed out-of-state did not alone show that they were not situated similarly with in-state inmates for purposes of an entitlement to stamps. Nichols v. Hofmann, 2010 VT 36, 188 Vt. 1, 998 A.2d 1040, 2010 Vt. LEXIS 36 (2010).

State v. Pontbriand, 2005 VT 20, 178 Vt. 120, 878 A.2d 227, 2005 Vt. LEXIS 26 (2005).

Requirement of 21 V.S.A. § 1321(f) that noncontributing employers reimburse the Department of Employment and Training for any benefits “paid but denied on appeal” does not violate the Equal Protection Clause of the United States Constitution. Holton v. Department of Employment and Training, 2005 VT 42, 178 Vt. 147, 878 A.2d 1051, 2005 Vt. LEXIS 71 (2005).

Personal jurisdiction.

Vermont’s relief-from-abuse statute cannot extend the court’s personal jurisdiction beyond the bounds of federal due process, as the Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of State courts to enter judgments affecting rights or interests of nonresident defendants. Moreover, the provision stating that the action may be commenced in the county in which the plaintiff resides is fundamentally about venue, not jurisdiction; it does not purport to expand Vermont’s jurisdiction over nonresident defendants. Fox v. Fox, 2014 VT 100, 197 Vt. 466, 106 A.3d 919, 2014 Vt. LEXIS 99 (2014), cert. denied, 574 U.S. 1075, 135 S. Ct. 952, 190 L. Ed. 2d 831, 2015 U.S. LEXIS 180 (2015).

New Hampshire defendant’s assault of plaintiff in New Hampshire did not by itself support personal jurisdiction with regard to a final relief-from-abuse order in Vermont because by attacking plaintiff in New Hampshire, defendant did not avail himself of any benefits or protections of Vermont’s laws, or subject himself to the authority of Vermont’s courts. Furthermore, the fact that defendant took note of plaintiff’s Vermont license plate number was not tantamount to stalking plaintiff in Vermont when defendant never physically came to Vermont, contacted plaintiff in Vermont, or contacted anyone else in Vermont in order to threaten or stalk plaintiff. Fox v. Fox, 2014 VT 100, 197 Vt. 466, 106 A.3d 919, 2014 Vt. LEXIS 99 (2014), cert. denied, 574 U.S. 1075, 135 S. Ct. 952, 190 L. Ed. 2d 831, 2015 U.S. LEXIS 180 (2015).

Police power.

The police power may be exerted in the form of State legislation where otherwise the effect may be to invade rights guaranteed by this amendment only when such legislation bears a real and substantial relationship to the public health, safety, morals, or some other phase of public welfare. State v. Solomon, 128 Vt. 197, 260 A.2d 377, 1969 Vt. LEXIS 225 (1969).

Since 23 V.S.A. § 1256 , requiring persons operating and riding upon motorcycles to wear protective headgear, applies to all motorcyclists equally, is directly related to highway safety, bears a real and substantial relation to the promotion of the welfare and safety of the general public as distinguished from the welfare solely of the individual motorcycle riders, does not deprive a motorcyclist of his liberty or restrain his person or actions, and protects persons in other vehicles from exposure to danger created by a motorcycle out of control, it is clearly within the State’s police power and, accordingly, does not violate this amendment. State v. Solomon, 128 Vt. 197, 260 A.2d 377, 1969 Vt. LEXIS 225 (1969).

Police power legislation does not come within this amendment unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his property without due process of law. Sowma v. Parker, 112 Vt. 241, 22 A.2d 513, 1941 Vt. LEXIS 163 (1941).

The State possesses wide discretion with respect to making classifications in exercise of its police power, with the qualification that a classification must not be purely arbitrary or irrational, but based upon a real and substantial difference, having a reasonable relation to the subject of the particular legislation. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

An ordinance legally enacted by a municipality, within police power delegated by Legislature, has force of State law, and its validity is to be measured by provisions of this amendment. Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 650, 1930 Vt. LEXIS 108 (1930).

II. PRIVILEGES AND IMMUNITIES.
Corporations.

Refusal of license to nonresident to transact insurance business in this State as agent of foreign insurance corporation does not deprive him of rights guaranteed by the Privileges and Immunities Clause of this amendment, since a corporation is not a citizen within the meaning of the Clause, and the State therefore has the right to impose conditions on foreign corporations doing business in the State, including a condition whereby a corporation is licensed to conduct business by resident agents only. Cook v. Howland, 74 Vt. 393, 52 A. 973, 1902 Vt. LEXIS 147 (1902).

A corporation is not a citizen within the meaning of the Privileges and Immunities Clause of this amendment. Hawley v. Hurd, 72 Vt. 122, 47 A. 401, 1900 Vt. LEXIS 97 (1900); Cook v. Howland, 74 Vt. 393, 52 A. 973, 1902 Vt. LEXIS 147 (1902).

Jury trial.

A trial by jury in suits at common law pending in state courts is not a privilege or immunity of national citizenship that the states are forbidden by this amendment to abridge. Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893).

III. DUE PROCESS GENERALLY.
Administrative procedure.

The defendants did not violate the plaintiff’s due process rights under the Fourteenth Amendment when they revoked vanity plates bearing the letters “SHTHPNS” after issuing them in error, notwithstanding plaintiff’s contention that she was entitled to a pre-revocation hearing, where (1) she was given notice that her vanity plates were to be revoked and was afforded a post-revocation hearing at which she prevailed, (2) the defendants attempted to contact her to give her temporary plates so that she could drive pending the result of the hearing, and (3) the defendants even reinstated the “SHTHPNS” plates pending the result of the hearing because the plaintiff insisted, contrary to the view of the defendants, that she would have waived her right to appeal had she accepted the temporary plates. Perry v. McDonald, 280 F.3d 159, 2001 U.S. App. LEXIS 22463 (2d Cir. 2001).

Where the notice of a violation of a zoning ordinance told defendant to remove junk on his property or face fines, but did not inform him of the procedure provided by 24 V.S.A. § 4464(a) to contest the administrator’s finding that he was in violation of the zoning ordinance, the notice was not reasonably calculated to inform him that he could contest such a determination and that he had only 15 days to take action, and, therefore, violated the Due Process Clause of the Fourteenth Amendment. The notice of a zoning violation must state the facts that support the finding of a violation, the action the town intends to take, and information on how to challenge the notice. Town of Randolph v. Estate of White, 166 Vt. 280, 693 A.2d 694, 1997 Vt. LEXIS 15 (1997).

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).

Environmental Law Division (ELD) was within its discretion to impose a larger penalty on construction company for land use violations than Agency of Natural Resources had, since ELD could determine anew the penalty and there was no realistic likelihood of vindictiveness or violation of defendants’ due process rights in its so doing. Vermont Agency of Natural Resources v. Duranleau, 159 Vt. 233, 617 A.2d 143, 1992 Vt. LEXIS 135 (1992).

The fact that 30 V.S.A. § 225(a) allows the Public Service Board to grant utility rate increase without specific prior notice to ratepayers does not deprive ratepayers of due process of law contrary to Fourteenth Amendment guarantees, since due process protections apply strictly only to agency determinations that are adjudicative in nature, and ratemaking proceedings that affect customers of a utility generally are legislative in nature. Ratepayers Coalition of Rochester v. Rochester Electric Light & Power Co., 153 Vt. 327, 571 A.2d 606, 1989 Vt. LEXIS 262 (1989).

It was a denial of due process of law for unemployment compensation appeals referee to refuse to grant claimant’s request to issue a subpoena to employer’s bookkeeper, where hearsay statements of the bookkeeper were introduced into the record at the hearing on the appeal. Langlois v. Department of Employment & Training, 149 Vt. 498, 546 A.2d 1365, 1988 Vt. LEXIS 77 (1988).

Assistant judges.

Participation of assistant judges at sentencing stage of criminal proceedings does not violate due process. State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985).

Defendant’s due process rights were not violated by the participation of assistant judges in the sentencing process. State v. Messier, 146 Vt. 145, 499 A.2d 32, 1985 Vt. LEXIS 376 (1985).

Attachment of property.

Except in extraordinary circumstances, the Due Process Clause of this amendment requires a hearing before issuance of a writ of attachment, possessory or nonpossessory, of either real or personal property. Filter Equipment Co. v. International Business Machines Corp., 142 Vt. 499, 458 A.2d 1091, 1983 Vt. LEXIS 434 (1983).

This amendment requires that notice be given to nonresidents when their property in the State is attached. Batchelder v. Mantak, 136 Vt. 456, 392 A.2d 945, 1978 Vt. LEXIS 773 (1978).

Attachment or garnishment is not a deprivation of property without due process inasmuch as there must be an adjudication of rights of parties before the property can be subject to plaintiff ’s claim. Shell Oil Co. v. Milne, 127 Vt. 249, 246 A.2d 837, 1968 Vt. LEXIS 217 (1968), cert. denied, 395 U.S. 965, 89 S. Ct. 2109, 23 L. Ed. 2d 750, 1969 U.S. LEXIS 1311 (1969).

Burden of proof.

Jury instructions on alibi did not impermissibly shift the burden of proof to defendant. The instructions made it clear that it was the State’s duty to prove beyond a reasonable doubt each of the essential elements of each offense, including the identity of defendant as the person who committed each offense on the date and at the place alleged. State v. Forty, 2009 VT 118, 187 Vt. 79, 989 A.2d 509, 2009 Vt. LEXIS 140 (2009).

Instruction did not shift the burden of proof to defendant when in order for the jury to consider an attempt to establish an alibi evidence of guilt, it had to first find beyond a reasonable doubt that the alibi was false or fictitious—that is, the State had to affirmatively disprove the alibi beyond a reasonable doubt. A mere failure to establish an alibi could not be taken as evidence of guilt under this instruction; furthermore, it mentioned nothing about a failed attempt to establish an alibi, but rather addressed a permissible consequence of the State proving that an alibi was false or fictitious. State v. Forty, 2009 VT 118, 187 Vt. 79, 989 A.2d 509, 2009 Vt. LEXIS 140 (2009).

A defendant may be convicted of a crime only where the State proves beyond a reasonable doubt every fact necessary to constitute the crime. State v. Baker, 154 Vt. 411, 579 A.2d 479, 1990 Vt. LEXIS 105 (1990).

The burden of proving an affirmative defense by a preponderance of the evidence may constitutionally be placed on a defendant provided that the affirmative defense does not serve to negate any facts of the crime that the State is to prove in order to convict. State v. Baker, 154 Vt. 411, 579 A.2d 479, 1990 Vt. LEXIS 105 (1990).

Once it has been determined that an affirmative defense does not challenge any elements of a crime that the State is constitutionally required to prove beyond a reasonable doubt, the burden of persuasion may be placed either on the defendant to prove the defense by a preponderance of the evidence or on the prosecution to disprove the defense beyond a reasonable doubt. State v. Baker, 154 Vt. 411, 579 A.2d 479, 1990 Vt. LEXIS 105 (1990).

The due process rights of a defendant under this amendment require that the State prove each element of a crime beyond a reasonable doubt. State v. Gagne, 148 Vt. 587, 535 A.2d 790, 1987 Vt. LEXIS 531 (1987).

The Due Process Clause of this amendment requires that the State prove every element of a crime charged beyond a reasonable doubt. State v. Dusablon, 142 Vt. 95, 453 A.2d 79, 1982 Vt. LEXIS 607 (1982).

It violates due process to shift the burden of proof on an essential element of a crime charged from the State to the defendant. State v. Dusablon, 142 Vt. 95, 453 A.2d 79, 1982 Vt. LEXIS 607 (1982).

Conduct of trial.

The fact that during trial the judge interrupted defense counsel during his examination of witnesses and during closing argument did not deny defendant due process where defendant failed to show that the interruptions resulted in any prejudice to him. State v. Bushey, 147 Vt. 140, 513 A.2d 1177, 1986 Vt. LEXIS 377 (1986).

Confessions.

Defendant’s statements were not involuntary under the Due Process Clause of the Fourteenth Amendment, because while defendant was highly intoxicated, police did nothing to coerce her statements, and the two-and-a-half-hour delay before formal questioning, during which officers gave her water and tissues and allowed her to use the restroom, was not coercive, given that this was a double homicide in which officers needed time to familiarize themselves with the facts before questioning her. State v. O'Neill, 2019 VT 19, 209 Vt. 599, 209 A.3d 1213, 2019 Vt. LEXIS 42 (2019).

Detective’s false claim that there was DNA evidence to prove defendant’s guilt, defendant’s surprise upon learning of the sexual assault allegations by his niece when he had thought that the detectives wanted to talk about his job, and the suggestion by the detectives that his niece would have to testify unless he confessed did not render his confession involuntary. State v. Kolts, 2018 VT 131, 209 Vt. 351, 205 A.3d 504, 2018 Vt. LEXIS 221 (2018).

In addition to the Fifth Amendment’s prohibition against self-incrimination, the Due Process Clause of the Fourteenth Amendment prevents admission of involuntary statements into evidence, regardless of the defendant’s custodial situation. Thus, a court may not admit statements that were given involuntarily, regardless of whether Miranda warnings were administered or even necessary. State v. Pontbriand, 2005 VT 20, 178 Vt. 120, 878 A.2d 227, 2005 Vt. LEXIS 26 (2005).

Where the agents did not threaten defendant in any way and made no attempt to pressure him into confessing but instead provided defendant with his Miranda rights, and where he agreed to cooperate and then gave a statement detailing his involvement with cocaine distribution, defendant’s statement was fully voluntary. United States v. Zuber, 899 F. Supp. 188, 1995 U.S. Dist. LEXIS 17907 (D. Vt. 1995).

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).

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).

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).

Consistency between verdicts.

Logical consistency between verdicts is not required by law; upholding a verdict that is inconsistent with the jury’s determination on another count does not violate due process principles. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

Custodial 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 is not defined by officer’s or defendant’s subjective intent or by officer’s unarticulated purposes; rather, courts should evaluate how a reasonable man in the suspect’s position would have understood the situation. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Custody.

More than a coercive atmosphere is required to determine whether or not an individual is in custody; defendant must be deprived of his freedom of action in significant way or deprived of freedom of action to degree associated with formal arrest. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Defendant was not in custody during search of his residence where he was allowed to make phone calls, was told he was not under arrest, was advised of his right to remain silent and have attorney present, was told he did not need to assist in search, and was educated engineer and in familiar surroundings. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Defendant was not in custody and officers were not required to administer Miranda warnings where defendant was questioned briefly and told that he was not under arrest and that he could choose whether or not to accompany officers to search his residence, and defendant voluntarily accompanied officers to his home; custom agent’s statement that he had “subject in custody” was police jargon and did not imply that defendant was not free to leave. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Definitions.

“Due process of law” means at least some legal procedure in which person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself. Bioni v. Haselton, 99 Vt. 453, 134 A. 606, 1926 Vt. LEXIS 160 (1926).

The due process of law referred to in this amendment is due process according to constitution and laws of the particular state involved, provided fundamental principles of our civil and political institutions are not violated. State v. Felch, 92 Vt. 477, 105 A. 23, 1918 Vt. LEXIS 203 (1918).

Discovery.

Due Process Clause of the Fourteenth Amendment establishes disclosure rights relevant to a defendant’s pretrial claims. A defendant must pursue this due process claim before the trial court, however; thus, when the claim was not raised until defendant’s motion for discovery pending appeal, filed more than a year after the trial, the court reviewed only for plain error. State v. Mayo, 2008 VT 2, 183 Vt. 113, 945 A.2d 846, 2008 Vt. LEXIS 3 (2008).

There was no plain error under the Due Process Clause of the Fourteenth Amendment with regard to the denial of defendant’s pretrial motion for discovery, given the lack of evidence presented by defendant that the particular recordings he was requesting would provide material evidence, and the opportunity provided by the trial court for defendant to gather the information needed through call logs. State v. Mayo, 2008 VT 2, 183 Vt. 113, 945 A.2d 846, 2008 Vt. LEXIS 3 (2008).

Police officer’s confidential file in Department of Public Safety’s Office of Internal Investigation was not available to defendant accused of assault on law enforcement officer to show violent character of officer, where defendant did not raise issue until day of trial, defendant moved to require prosecution to produce file rather than issuing subpoena to record custodian, defendant did not request an in camera inspection, defendant was precluded by V.R.E. 405 from showing officer’s character through specific instances of conduct and did not show that information would lead to admissible evidence, and confidentiality provision of 20 V.S.A. § 1923(d) made no provision for access by courts, though access to internal investigation files in a proper case and in a proper manner was not ruled out. State v. Roy, 151 Vt. 17, 557 A.2d 884, 1989 Vt. LEXIS 20 (1989).

Where criminal defendant who relied on insanity defense had been required to submit to interviews by the State’s psychiatric experts, failure of trial court to order the victim to submit to interviews by defense psychiatric experts did not violate defendant’s due process right to reciprocal discovery; reciprocity, to the extent that it applied, gave defendant full access to the opinions of the State’s witnesses, including expert witnesses, bearing on defendant’s sanity. State v. Percy, 149 Vt. 623, 548 A.2d 408, 1988 Vt. LEXIS 84 (1988).

Criminal defendant’s due process rights were not violated by trial court’s failure to order the State to disclose the names of any mental health professionals who had treated the victim, to produce those persons for deposition, and to produce all records prepared by or from such persons relevant to the crime alleged, where the information sought to be discovered was not in the possession of the State or any of its agencies and defendant made virtually no showing that the information sought included material evidence. State v. Percy, 149 Vt. 623, 548 A.2d 408, 1988 Vt. LEXIS 84 (1988).

When a defendant challenges a confession or inculpatory statement, the prosecution must establish by a preponderance of the evidence that the confession or statement was made voluntarily, and that defendant knowingly waived the Fifth Amendment privilege. State v. Pontbriand, 2005 VT 20, 178 Vt. 120, 878 A.2d 227, 2005 Vt. LEXIS 26 (2005).

Double jeopardy.

Defendant’s convictions for aggravated domestic assault and aggravated assault did not violate double jeopardy, since he was not punished twice for the “same offense,” but in fact received two sentences for two different crimes. State v. Karov, 170 Vt. 650, 756 A.2d 1236, 2000 Vt. LEXIS 137 (2000) (mem.).

Guarantees against double jeopardy found in Fifth and Fourteenth Amendments bar subsequent prosecution for a lesser offense if, in proving the greater offense, prosecution relies on and proves elements of the lesser offense as an element of the greater offense. State v. Crawford, 169 Vt. 371, 737 A.2d 366, 1999 Vt. LEXIS 204 (1999).

Education.

Private school reporting statute and conviction of truancy of parents whose child was enrolled in religious school not in compliance with reporting requirements did not infringe substantive due process rights of parents to direct the education of their children; State regulation of education was reasonable. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

The right of parents to direct the education of their children, that is protected by the Fifth and Fourteenth Amendments as a matter of privacy, is not absolute and must give way to reasonable State regulation. State v. DeLaBruere, 154 Vt. 237, 577 A.2d 254, 1990 Vt. LEXIS 74 (1990).

Eminent domain.

In proceedings for taking property by eminent domain, if an impartial tribunal is provided for determination of questions of necessity and compensation, and notice, hearing, decision upon evidence, and judicial determination of questions of law are all provided for, due process is accorded although determination of facts is left to an administrative body exercising quasi-judicial functions. George v. Consolidated Lighting Co., 87 Vt. 411, 89 A. 635, 1914 Vt. LEXIS 248 (1914).

Any permanent occupation of private property for public use, so as to exclude the owner from its beneficial use, regardless of how title is left, must be by exercise of right of eminent domain and upon recompense, unless it can be referred to some other governmental power, as the police power, and the subjection of land to an easement such as a public highway is as much a taking of property as if absolute title were taken. Sanborn v. Village of Enosburg Falls, 87 Vt. 479, 89 A. 746, 1914 Vt. LEXIS 264 (1914).

Employment.

Plaintiff, whose contract as a school principal was terminated, had not shown a Fourteenth Amendment due process violation based on bias of the school board, in which both administrative and judicial authority were vested. The fact that the board had thought about plaintiff’s performance prior to the hearing was not dispositive, so long as it was open to consider the matter based on the evidence; furthermore, as parents had withdrawn an open-meeting lawsuit, plaintiff had not shown a conflict of interest, plaintiff consented to the process that enabled the board chair to testify if he recused himself, and any error in excluding an e-mail was harmless because it simply showed the types of discussion that occurred before termination. Burch-Clay v. Taylor, 2015 VT 110, 200 Vt. 166, 130 A.3d 180, 2015 Vt. LEXIS 89 (2015).

Trial court properly ordered a city to give an employee a new post-termination grievance hearing that fully satisfied her due process rights, because in the context of a tenured municipal employee protected by a “justifiable cause” provision, post-termination administrative proceedings are required to satisfy due process where pre-termination proceedings do not include a full hearing but instead meet only the minimum pre-termination requirements of Loudermill . In the absence of post-termination administrative proceedings, neither an appeal under the rule applying to review of governmental action nor a breach-of-contract action filed in the trial court provides sufficient post-termination process to satisfy the Due Process Clause. Hallsmith v. City of Montpelier, 2015 VT 83, 199 Vt. 488, 125 A.3d 882, 2015 Vt. LEXIS 65 (2015).

Plaintiff teacher’s due process claims under 42 U.S.C. § 1983 based upon the revocation of her license to teach elementary level students which defendants, Department of Education and its licensing officer, had erroneously issued and reissued to her over the course of several years were properly dismissed because she had no legitimate claim of entitlement to elementary teaching certification, and the lack of a hearing prior to the license withdrawal did not visit any harm upon her. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

Nothing in statute governing municipal planning commissions granted commissioners a right or entitlement to their positions; on the contrary, statute stated that planning commissioners could be removed “at any time,” and former commissioners’ unilateral expectation that they would serve out their entire terms, without more, did not rise to a protectable property interest sufficient to implicate procedural due process. Brennan v. Town of Colchester, 169 Vt. 175, 730 A.2d 601, 1999 Vt. LEXIS 74 (1999).

State employees who have joined a collective bargaining agreement have a vested property interest in their employment, thereby raising due process considerations when they are faced with the possibility of termination of employment. Due process requires a hearing in advance of termination and requires that the hearing be preceded by adequate notice and afford the employee a meaningful opportunity to speak; however, an employer is not required to state that disciplinary action is contemplated, so where a State employee had fair notice that her conduct could result in dismissal and had notice of charges, opportunity to respond, and a subsequent hearing, the requirements of due process were satisfied. In re Gregoire, 166 Vt. 66, 689 A.2d 431, 1996 Vt. LEXIS 129 (1996).

Evidence showing that a delinquent tax compliance officer for the Department of Employment and Training had intentionally violated the Department’s policy by shielding her family business from the normal collection process and that the employee had fair notice that such conduct could result in dismissal, when judged in the light of the ultimate criterion of just cause, which is “whether the employer acted reasonably in discharging the employee because of misconduct,” supported a finding that just cause for the employee’s dismissal existed as a matter of law. In re Gregoire, 166 Vt. 66, 689 A.2d 431, 1996 Vt. LEXIS 129 (1996).

Enforcement of default judgment.

Due process did not prevent enforcement of New York default judgment in Vermont where defendant’s counsel stipulated to conditions in connection with defendant’s motion to reopen the judgment, even if counsel did not honor defendant’s wishes. Hall v. McCormick, 154 Vt. 592, 580 A.2d 968, 1990 Vt. LEXIS 115 (1990).

Evidence.

In admitting hearsay evidence in a probation revocation proceeding, the trial court failed to find “good cause” for dispensing with defendant’s Fourteenth Amendment due process right to confront adverse witnesses. The documents did not bear sufficient indicia of reliability in that they were unsigned, unsworn, and uncertified and there was no evidence as to who took defendant’s alleged admissions; furthermore, the State’s proffered reason for failing to procure defendant’s Delaware probation officer, that Delaware had no interest in coming to Vermont, was insufficient. State v. Eldert, 2015 VT 87, 199 Vt. 520, 125 A.3d 139, 2015 Vt. LEXIS 63 (2015).

For a defendant to successfully challenge trial court’s exclusion of evidence on grounds that it violates his rights under Confrontation Clause, excluded evidence must be admissible. State v. Fuller, 168 Vt. 396, 721 A.2d 475, 1998 Vt. LEXIS 252 (1998).

Rape shield statute’s prohibition against deposing complaining witnesses concerning prior sexual conduct did not violate defendant’s right to due process, where evidence in question was not in hands of State, and defendant made no offer of proof to show that evidence was material to his defense and not otherwise available. State v. Roya, 167 Vt. 594, 708 A.2d 908, 1998 Vt. LEXIS 7 (1998) (mem.).

Presumption that a person was driving while intoxicated if his blood alcohol content is .08 or more within two hours of operating vehicle does not violate Due Process Clause of this amendment, because presumption is rebuttable rather than irrebuttable, and because there is a rational connection between the fact proved and the ultimate fact presumed. State v. Paya, 159 Vt. 625, 617 A.2d 165, 1992 Vt. LEXIS 128 (1992) (mem.).

Defendant was not denied due process at sexual assault trial by the court’s failure to order expert witness to testify as to his professional relationship with the juvenile complainant, where expert testified about the unique psychological effects of sexual abuse on children, and did not testify specifically about the juvenile complainant. State v. Dunbar, 152 Vt. 399, 566 A.2d 970, 1989 Vt. LEXIS 185 (1989).

A conviction obtained through the use of false evidence, known to be such by the State, and either solicited by the State or allowed to go uncorrected, violates this amendment. State v. Ladabouche, 146 Vt. 279, 502 A.2d 852, 1985 Vt. LEXIS 379 (1985).

Execution of warrant.

One year delay in execution of warrant to arrest defendant for violating terms of his probation was a violation of defendant’s right to due process or speedy justice, where defendant made no claim that the delay prejudiced his defense in his probation revocation hearing or that the State intentionally caused the delay to gain a tactical advantage. State v. Ellis, 149 Vt. 264, 542 A.2d 279, 1988 Vt. LEXIS 10 (1988).

Eyewitness identification.

Pretrial identification was not suggestive. The lineup at issue consisted of eight photographs, all of men with round faces, stocky builds, fair complexions, light hair, and in their late twenties to early forties; an officer handed each of the eight photos to the victim sequentially, telling him that he should examine them and choose his assailant; the victim was told that the officer could not answer any questions during the process; and the victim examined the photos and selected two who resembled the person who had assaulted him. State v. Mayo, 2008 VT 2, 183 Vt. 113, 945 A.2d 846, 2008 Vt. LEXIS 3 (2008).

While defendant’s allegations that the victim’s testimony demonstrated that he knew who defendant was before a photo lineup and that the victim had not given a sufficient description of his attacker before he was shown the lineup, if believed, might go to the weight the jury would accord the lineup, they had no bearing on the court’s inquiry under the Fourteenth Amendment, which was to ascertain if the lineup was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Mayo, 2008 VT 2, 183 Vt. 113, 945 A.2d 846, 2008 Vt. LEXIS 3 (2008).

Trial court was within its discretion in admitting the victim’s in-court identification of defendant. Although the assault lasted but minutes, the victim testified that he observed defendant with “perfect vision” as defendant was bent over on top of the victim, punching him in the face; the victim gave descriptions of his attackers to the police a month after the attack, when interviewed at the station, and also at a hearing less than three months after the incident occurred; and while not “100 percent sure,” he was able to narrow an eight-man photo array presented to him down to two photographs, one of which depicted defendant. State v. Mayo, 2008 VT 2, 183 Vt. 113, 945 A.2d 846, 2008 Vt. LEXIS 3 (2008).

Guardian ad litem.

The retention of a guardian ad litem for an adult found competent to stand trial seriously impinges upon due process rights guaranteed by this amendment. State v. Ladd, 139 Vt. 642, 433 A.2d 294, 1981 Vt. LEXIS 547 (1981).

Insanity.

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).

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, due process of law requires that it be only in pursuance of a judgment 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).

Jury instructions.

Obvious though the error may have been, and though it may have violated a substantial right for due process purposes, an instruction that created a mandatory inference was not ultimately prejudicial. Simply put, the question of why defendant lashed out at police officers was never at issue. State v. Myers, 2011 VT 43, 190 Vt. 29, 26 A.3d 9, 2011 Vt. LEXIS 43 (2011).

This amendment does not require a charge on presumption of innocence. State v. Demag, 118 Vt. 273, 108 A.2d 390, 1954 Vt. LEXIS 116 (1954).

Jury trial.

The Due Process Clause of this amendment does not necessarily imply that all trials in State courts affecting the property of persons must be by jury. Hall v. Armstrong, 65 Vt. 421, 26 A. 592, 1893 Vt. LEXIS 70 (1893).

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).

—Right to trial.

Determination of whether a defendant was denied the right to a speedy trial requires examination of the length of the delay, the reason for the delay, defendant’s efforts at obtaining a speedy trial, and the prejudice to the defendant. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

Rather than guarantee prompt disposition of criminal cases, the federal right to a speedy trial requires the dismissal of criminal charges only against a very few defendants who have suffered egregious delays and prejudicial consequences due to the government’s failure to process their cases in a timely manner. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

The most important factor in deciding a right of speedy trial issue is whether the defendant was prejudiced. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

Claim was rejected that 20 month delay between arraignment and trial violated speedy trial right where only obvious prejudice to defendant was the long period of incarceration. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

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

Limitation of actions.

A state legislature’s enactment of a law that extends a statute of limitations by means of a rule of discovery is not per se unconstitutional. Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

Where Roman Catholic Diocese, defending against allegations of childhood sexual abuse occurring 40 years in the past, made no showing that it had no access to records or witnesses, only that it would be burdensome to attempt to locate records or witnesses, this burden did not amount to a violation of due process. Barquin v. Roman Catholic Diocese of Burlington, Vt., Inc., 839 F. Supp. 275, 1993 U.S. Dist. LEXIS 17777 (D. Vt. 1993).

Long-arm jurisdiction.

The defendant had sufficient contacts with the State to warrant personal jurisdiction under the Due Process Clause of the United States Constitution; defendant purposely availed itself of Vermont’s market by selling its products to a well known national distributorship that does business in Vermont, and such jurisdiction does not offend traditional notions of fair play and substantial justice. Hedges v. Western Auto Supply Co., 161 Vt. 614, 640 A.2d 536, 1994 Vt. LEXIS 12, cert. denied, 511 U.S. 1127, 114 S. Ct. 2134, 128 L. Ed. 2d 864, 1994 U.S. LEXIS 4151 (1994).

Wife’s residence for three years and birth of her first child in Texas were insufficient ties to subject her to personal jurisdiction in Texas. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

Constitutional touchstone for establishing personal jurisdiction requires that defendant has established certain minimum contacts with forum state before court may assert personal jurisdiction, and determinative factor is foreseeability; defendant’s conduct and connection with forum must be such that he should reasonably anticipate being haled into court there. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Due process requirements protect an individual who does not have meaningful contacts or ties with a forum state from being subjected to binding judgments in that state. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

For court to assert in personam jurisdiction over a nonresident defendant, it is not necessary that cause of action being litigated arise out of contacts defendant has with forum state, if defendant has established sufficient contacts with jurisdiction in general; exercise of such general jurisdiction comports with due process when it is based on general business contacts which are continuous and systematic in nature. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

Nonresident surgeon and practice group did not have general business contacts with Vermont sufficient to confer general jurisdiction over them, where they were not licensed in Vermont, did not own property or maintain an office in Vermont, did not advertise or solicit business in Vermont, and only a small number of Vermont residents either occasionally went to Plattsburgh, New York for treatment or became ill while visiting and sought treatment on an emergency basis. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

There was no authority to support exercise of general personal jurisdiction over nonresident surgeon and practice group in absence of requisite minimum contacts, and argument was rejected that requiring defendants to defend malpractice action in Vermont would be reasonable and comport with fair play and substantial justice, where defendants could not have foreseen that their allegedly unintentional tortious conduct toward plaintiff, then a resident of New York, while treating plaintiff in New York, would have effects in Vermont. Bechard v. Constanzo, 810 F. Supp. 579, 1992 U.S. Dist. LEXIS 20505 (D. Vt. 1992).

A forum state may only invoke personal jurisdiction over a defendant where defendant has certain “minimum contacts” with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice; requirement of minimum contacts protects defendants from being forced to defend themselves in a distant or inconvenient forum and it acts to ensure that states do not reach out beyond the limits imposed on them as coequal sovereigns in a federal system. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

Before a nonresident defendant can be brought into a Vermont court, the plaintiff must show that the Vermont long arm statute reaches the defendant, and that jurisdiction over him may be maintained without offending the Due Process Clause. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

Once a defendant is found to have purposefully established minimum contacts with the forum state, the court must consider the burden on defendant, the interests of the forum state, the plaintiff ’s interest in obtaining relief, the interstate judicial system’s interest in efficient conflict resolution, and the shared interest of states in furthering fundamental substantive state policies in order to determine whether the forum state’s exercise of personal jurisdiction will offend traditional notions of fair play and substantial justice under the Due Process Clause. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

Since the Vermont long arm statute reflects a clear policy to assert jurisdiction over individuals to the full extent permitted by the Due Process Clause, issue of whether Vermont court may exercise personal jurisdiction over nonresident defendants must be resolved under federal constitutional law. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

The critical consideration in determining whether a forum may invoke personal jurisdiction over a nonresident defendant is not merely whether being summoned into the forum was foreseeable, but whether the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being hauled into court there; thus, a defendant cannot be summoned into a jurisdiction merely as a result of fortuitous, attenuated, or random contacts but only where he purposefully directs his activities toward residents of the forum and the litigation arises out of those activities. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382, 1990 Vt. LEXIS 25 (1990).

Express provision of 12 V.S.A. § 855 , the long-arm statute, that the litigation arise or grow out of foreign corporation’s contact with or activity in the State, must be established to comport with the due process requirements of this amendment. Huey v. Bates, 135 Vt. 160, 375 A.2d 987, 1977 Vt. LEXIS 575 (1977).

To satisfy the due process requirements of this amendment, a suit against a nonresident corporation must arise or grow out of the contact or activity asserted as the basis of jurisdiction. Davis v. Saab Scania of Amer., Inc., 133 Vt. 317, 339 A.2d 456, 1975 Vt. LEXIS 393 (1975).

Municipalities.

Qualified right to possession of dogs and other animals, and strong public interest in assuring their permanent placement in a suitable environment, amply supported town’s decision to provide for sale or transfer of impounded dogs if unclaimed after seven days, and town’s posting of descriptive notices in town clerk’s office, post office, and village store, in conformity with ordinance, did not deprive lost dog owners of their constitutional right to due process. Lamare v. North Country Animal League, 170 Vt. 115, 743 A.2d 598, 1999 Vt. LEXIS 331 (1999).

The Due Process Clause of this amendment imposes a test of reasonableness upon municipal ordinances. City of Burlington v. Jay Lee, Inc., 130 Vt. 212, 290 A.2d 23, 1972 Vt. LEXIS 256 (1972).

The power of the State over rights and property of municipal corporations is not restrained by this amendment. Town of Brighton v. Town of Charleston, 114 Vt. 316, 44 A.2d 628, 1945 Vt. LEXIS 87 (1945).

The power of the State over municipal property held and used for governmental purposes is unrestrained by the Due Process Clause of this amendment. Jones v. Vermont Asbestos Corp., 108 Vt. 79, 182 A. 291, 1936 Vt. LEXIS 154 (1936).

Noncustodial questioning.

Noncustodial questioning of defendant during search of his residence was not coercive where defendant was advised he had right to remain silent and to have counsel present, defendant was not in unfamiliar surroundings or unable to communicate with outsiders, and behavior of law enforcement officials did not overbear defendant’s will to resist. United States v. Rakowski, 714 F. Supp. 1324, 1987 U.S. Dist. LEXIS 14952 (D. Vt. 1987).

Notice and hearing.

Oklahoma judgment in a child support proceeding could not be collaterally attacked on due process grounds of inadequate notice where the mother litigated the issue in Oklahoma, the Oklahoma court rejected her position, and she failed to appeal. OCS/Pappas v. O'Brien, 2013 VT 11, 193 Vt. 340, 67 A.3d 916, 2013 Vt. LEXIS 14 (2013).

Even if a mother’s due process argument that the father’s petition failed to advise her that he would be seeking child support were not precluded, the court would reject it on the merits. Once the Oklahoma trial court’s jurisdiction was invoked, the statutes prescribed what issues the trial court would decide; furthermore, the mother clearly had actual notice that child support would be discussed, and owing and being owed child support were sufficiently related such that the lack of notice concerning the potential imposition of child support did not rise to the level of a due process violation. OCS/Pappas v. O'Brien, 2013 VT 11, 193 Vt. 340, 67 A.3d 916, 2013 Vt. LEXIS 14 (2013).

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).

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.).

There was no Fourteenth Amendment due process violation when a trial court remanded an application to a town zoning board of adjustment for reconsideration under a 1989 zoning ordinance on the ground that a later ordinance was void. The applicant would know the standard and have an opportunity to respond to it before final action was taken on his permit application. In re Paynter 2-Lot Subdivision, 2010 VT 28, 187 Vt. 637, 996 A.2d 219, 2010 Vt. LEXIS 31 (2010) (mem.).

When petitioner failed to take the steps necessary to secure a merits hearing on a substantiation of child abuse, there was no due process violation, since petitioner was plainly provided adequate notice of the agency’s decision and informed of his right to appeal. There was no due process violation when a board simply enforced its properly noticed filing deadlines, as occurred here. In re Beer, 2010 VT 31, 187 Vt. 641, 996 A.2d 225, 2010 Vt. LEXIS 30 (2010) (mem.).

Qualified right to possession of dogs and other animals, and strong public interest in assuring their permanent placement in a suitable environment, amply supported town’s decision to provide for sale or transfer of impounded dogs if unclaimed after seven days, and town’s posting of descriptive notices in town clerk’s office, post office, and village store, in conformity with ordinance, did not deprive lost dog owners of their constitutional right to due process. Lamare v. North Country Animal League, 170 Vt. 115, 743 A.2d 598, 1999 Vt. LEXIS 331 (1999).

In dispute over whether tort action was timely brought, governing statute of limitations did not deny plaintiff due process of law by not providing actual notice to tort claimants of triggering of two-year limitations period, where diligent plaintiffs would not fail to discover a potential defendant’s death during the statute’s time limit, and the State’s interest in preventing stale claims was too great. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Trial court’s grant of motions to enforce a judgment of divorce and for contempt issued without hearing were reversed and remanded; defendant’s failure or refusal to comply with divorce order was not committed in the face of the court, therefore defendant was constitutionally entitled to notice and fair hearing. Martin v. Martin, 154 Vt. 651, 578 A.2d 110, 1990 Vt. LEXIS 111 (1990) (mem.).

Where the essential elements of a contempt offense occur outside the presence of the court, due process requires that the contemnor receive notice and fair hearing. Martin v. Martin, 154 Vt. 651, 578 A.2d 110, 1990 Vt. LEXIS 111 (1990) (mem.).

Where plaintiff seeks enforcement of a visitation order, he is entitled to reasonable notice of what is at issue and to an opportunity to be heard on defendant’s request for modification. Brown v. Brown, 154 Vt. 625, 580 A.2d 975, 1990 Vt. LEXIS 134 (1990).

The essence of due process is the requirement of notice and an opportunity to be heard prior to State action resulting in deprivation of a property interest. Perry v. Department of Employment & Training, 147 Vt. 621, 523 A.2d 1242, 1987 Vt. LEXIS 429 (1987).

The essentials of due process must be met in administrative hearings. Perry v. Department of Employment & Training, 147 Vt. 621, 523 A.2d 1242, 1987 Vt. LEXIS 429 (1987).

Where a party making a claim for benefits is represented by an attorney of record in an administrative proceeding before the Department of Employment and Training, notice of decisions affecting the substantial rights of the party must be given to both the party and his attorney. Perry v. Department of Employment & Training, 147 Vt. 621, 523 A.2d 1242, 1987 Vt. LEXIS 429 (1987).

Termination of residual parental rights without a hearing is a violation of the Due Process Clause of this amendment. In re C.W., 148 Vt. 282, 532 A.2d 566, 1987 Vt. LEXIS 502 (1987).

Where reimbursable municipal employer was not notified that former employees had filed claims for unemployment benefits until it received notices that its account would be charged for benefits paid to claimants, opportunity for a hearing after the claims had been granted did not comply with due process. City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573, 1987 Vt. LEXIS 630 (1987).

Constructive notice procedures prescribed by statute providing for notification of adjoining landowners of application for construction permit under scheme governing State land use permits was constitutionally adequate; property interests of adjoining landowners were not such as to require actual notice of hearings under Due Process Clause of this amendment. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981).

It is essential to due process that the right to a hearing be granted at a meaningful time and in a meaningful manner. In re Maher, 132 Vt. 560, 326 A.2d 142, 1974 Vt. LEXIS 392 (1974).

Postponement of a hearing until after deprivation of a property right is valid under the Due Process Clause of this amendment provided there has been notice and some eventual opportunity to be heard. In re Maher, 132 Vt. 560, 326 A.2d 142, 1974 Vt. LEXIS 392 (1974).

The fundamental requisite of due process of law is the opportunity to be heard, but this right is only worthwhile if one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. Aiken v. Malloy, 132 Vt. 200, 315 A.2d 488, 1974 Vt. LEXIS 324 (1974).

Failure to afford adequate notice and an opportunity to be heard violates the very essence of the meaning of due process. Emrick v. Connarn, 128 Vt. 202, 260 A.2d 380, 1969 Vt. LEXIS 226 (1969).

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).

Notice and an opportunity to be heard are the very essence of due process of law. In re Hanrahan's Will, 109 Vt. 108, 194 A. 471, 1937 Vt. LEXIS 123 (1937); Emerson v. Hughes, 117 Vt. 270, 90 A.2d 910, 1952 Vt. LEXIS 134 (1952).

A judgment rendered without notice or appearance is absolutely void under the Due Process Clause of this amendment. In re Hanrahan's Will, 109 Vt. 108, 194 A. 471, 1937 Vt. LEXIS 123 (1937).

Persons protected.

Recidivism statute imposing criminal sanctions for driving with a suspended license (DLS) after two prior uncounseled DLS civil violations does not violate a defendant’s right to counsel and due process. State v. Lafountain, 160 Vt. 313, 628 A.2d 1243, 1993 Vt. LEXIS 63 (1993).

In determining whether an appellant proceeding in forma pauperis is entitled to all or part of a transcript at State expense, relevant legal requirements are the Equal Protection and Due Process Clauses of this amendment. In re L.G., 158 Vt. 639, 603 A.2d 381, 1992 Vt. LEXIS 6 (1992) (mem.).

A corporation is a “person” within the meaning of the Due Process Clause of this amendment. Lawrence v. Rutland Railroad, 80 Vt. 370, 67 A. 1091, 1907 Vt. LEXIS 115 (1907).

Pleas.

A guilty plea is an admission of guilt according to the law at the time it is accepted by the court, and except in rare cases, the validity of a conviction on such a plea is to be judged by the constitutional due process standards applicable at that time. In re Mahoney, 128 Vt. 462, 266 A.2d 444, 1970 Vt. LEXIS 255 (1970); State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Presence of defendant.

Because defendant was present at the initial sentencing, the trial court reimposed the same minimum sentence, and the trial court had no discretion in correcting the maximum sentence, defendant had no right to be present when the court imposed the corrected sentence. His absence could not thwart a fair and just hearing. State v. Tobin, 2018 VT 108, 208 Vt. 518, 199 A.3d 1069, 2018 Vt. LEXIS 161 (2018).

Presumptions.

A mandatory presumption, that is, one which is conclusive or which shifts the burden of proof to the defendant on an essential element of the offense, violates the Due Process Clause of this amendment. State v. McBurney, 145 Vt. 201, 484 A.2d 926, 1984 Vt. LEXIS 568 (1984).

Procedural due process.

Petitioners, whose grandson had been adjudicated a child in need of care or supervision (CHINS), were not deprived of due process under the Fourteenth Amendment by being denied a hearing before the Human Services Board, as they had access to the family division in that they could fully apprise the family court of their willingness and ability to care for the child by filing for party status in the CHINS case, and they could request that the family court order the Department for Children and Families to assess them for custody or placement. In re Appeal of T.O. & L.O., 2021 VT 41, — Vt. —, 257 A.3d 240, 2021 Vt. LEXIS 55 (Vt. 2021).

To maintain procedural due process action against a governmental entity, plaintiff must show that he was deprived of interests protected by Fourteenth Amendment. LaFlamme v. Essex Junction School District, 170 Vt. 475, 750 A.2d 993, 2000 Vt. LEXIS 4, cert. denied, 531 U.S. 927, 121 S. Ct. 304, 148 L. Ed. 2d 244, 2000 U.S. LEXIS 6647 (2000).

Public censure or reprimand does not give rise to a procedural due process claim so long as injury is solely to plaintiff’s reputation. LaFlamme v. Essex Junction School District, 170 Vt. 475, 750 A.2d 993, 2000 Vt. LEXIS 4, cert. denied, 531 U.S. 927, 121 S. Ct. 304, 148 L. Ed. 2d 244, 2000 U.S. LEXIS 6647 (2000).

Social workers investigating suspected child abuse by father had a reasonable basis for their substantiation determination, and there was thus no violation of plaintiffs’ constitutional right to family integrity. Wilkinson v. Russell, 182 F.3d 89, 1999 U.S. App. LEXIS 13331 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072, 2000 U.S. LEXIS 1038 (2000).

Judicial Conduct Board did not violate respondent’s due process by allowing its own prosecutor to actively participate in Board’s deliberative process. In re O'Dea, 159 Vt. 590, 622 A.2d 507, 1993 Vt. LEXIS 20 (1993).

Proceedings before the Judicial Conduct Board must be conducted so as to afford the respondent procedural due process of law. In re O'Dea, 159 Vt. 590, 622 A.2d 507, 1993 Vt. LEXIS 20 (1993).

Federal constitutional standards, rather than State statutes, define the requirements of procedural due process. Robison v. Via, 821 F.2d 913, 1987 U.S. App. LEXIS 7886 (2d Cir. 1987).

Property.

Town’s adoption of new zoning regulations was a legislative enactment because the regulations affected the entire community by generally detailing how the town’s land could be developed, the adoption of the regulations was not concerned with determining underlying facts, and the adoption of the regulations affected future land use in the town, not past land use. Because the town’s adoption of the regulations was a legislative enactment, the landowner could not assert a constitutionally protected property interest in the town’s strict compliance with the statute concerning the adoption of zoning ordinances. Gould v. Town of Monkton, 2016 VT 84, 202 Vt. 535, 150 A.3d 1084, 2016 Vt. LEXIS 81 (2016).

Landowner did not have a constitutionally protected property interest in the 1978 zoning regulations, as a permit application cannot retroactively vest a right in prior regulations and the new regulations, not the 1978 ones, were in effect when landowner applied for the permit. Gould v. Town of Monkton, 2016 VT 84, 202 Vt. 535, 150 A.3d 1084, 2016 Vt. LEXIS 81 (2016).

Plaintiff had not stated a claim for a due process violation under the Fourteenth Amendment, as her unilateral hope or expectation that she would win a public contract was insufficient to create the needed property interest. Skaskiw v. Vermont Agency of Agric., 2014 VT 133, 198 Vt. 187, 112 A.3d 1277, 2014 Vt. LEXIS 139 (2014).

As an elected official, a town treasurer did not have a property interest in retaining her position in the absence of the liberty claim compensable in the stigma-plus context. Stone v. Town of Irasburg, 2014 VT 43, 196 Vt. 356, 98 A.3d 769, 2014 Vt. LEXIS 38 (2014).

Notice requirement of the statute relating to certificates of public good for communications facilities was not sufficiently robust to confer upon adjoining landowners a property right protected under the Fourteenth Amendment; likewise, a grant of permissive intervention was expressly limited to the concerns expressed in the respective motions to intervene, and was granted solely in the discretion of the Public Service Board pursuant to its rules. These factors were not sufficient to support a legitimate claim of entitlement to a particular outcome in the proceeding, as opposed to a unilateral expectation. In re New Cingular Wireless PCS, 2012 VT 46, 192 Vt. 20, 54 A.3d 141, 2012 Vt. LEXIS 42 (2012).

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).

Facial challenge to statute providing for reorganization of domestic mutual insurance companies into mutual insurance holding companies was dismissed for failure to state a claim, since mere existence of statute did not deprive policyholders of any fundamental property interest. Cranley v. National Life Insurance Co., 144 F. Supp. 2d 291, 2001 U.S. Dist. LEXIS 6915 (D. Vt. 2001), aff'd, 318 F.3d 105, 2003 U.S. App. LEXIS 922 (2d Cir. 2003).

School board member was not deprived of a property interest and there was thus no violation of his right to procedural due process, where he retained his position for approximately one year following board’s public censure and then voluntarily resigned, and even if censure impaired his pursuit of position as village trustee, his unilateral hope of being elected to that office was not an entitlement and could not result in deprivation of a property interest. LaFlamme v. Essex Junction School District, 170 Vt. 475, 750 A.2d 993, 2000 Vt. LEXIS 4, cert. denied, 531 U.S. 927, 121 S. Ct. 304, 148 L. Ed. 2d 244, 2000 U.S. LEXIS 6647 (2000).

Plaintiffs’ constitutional claims, arising out of events at public information meeting related to town’s construction of bridge, were properly dismissed for failure to state claim upon which relief could be granted, where meeting was not an adjudicative proceeding to which due process requirements applied, plaintiffs did not have a cognizable property interest at stake in meeting or affected by outcome of agency’s permit decision, and plaintiffs did not allege that State agency officer conducting meeting ruled their representative out of order on basis of any suspect classification or illicit motive such that equal protection was implicated. Parker v. Town of Milton, 169 Vt. 74, 726 A.2d 477, 1998 Vt. LEXIS 405 (1998).

Public utilities in Vermont have a right to a reasonable, nonconfiscatory rate of return, and this right has a constitutional dimension; however, there was no violation of the Fourteenth Amendment to the United States Constitution in regard to the rate base of a formerly private but now public sewer company, where the Public Service Board reasonably concluded that most of the investment of the sewer system was already recovered from customers, and the Board did not confiscate the rate base by excluding those customer contributions from its rate base calculation. In re Quechee Service Co., 166 Vt. 50, 690 A.2d 354, 1996 Vt. LEXIS 127 (1996).

In determining whether to grant a certificate of public good (CPG) to a public utility that had formerly been private, the Public Service Board was entitled to consider the past management practices of the utility. However, contrary to the utility’s claim that consideration of past acts in ruling on the petition violated Due Process and Equal Protection rights, the Board’s consideration of past acts did not violate any constitutional rights nor constitute retroactive application of 30 V.S.A. § 203(6) ; any CPG applicant must expect the Board to consider past incidents of mismanagement in making its decision and the utility had no vested property right to conduct a business that could be affected by the Board’s denial. In re Quechee Service Co., 166 Vt. 50, 690 A.2d 354, 1996 Vt. LEXIS 127 (1996).

Due process rights of dental clinic owner to enter into partnerships without State hindrance were not violated by decision of employment security board characterizing owner as employer of dentist and office managers, despite owner’s good faith attempt to create relationships that could not be characterized as employment. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672, 1989 Vt. LEXIS 277 (1989).

Unemployment compensation benefits are a form of property protected by the Due Process Clause of this amendment. City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573, 1987 Vt. LEXIS 630 (1987).

Due process requirements of this amendment apply to the granting or denying of unemployment benefits, and protect the rights of the employer along with those of the claimant. City of Burlington v. Department of Employment & Training, 148 Vt. 151, 530 A.2d 573, 1987 Vt. LEXIS 630 (1987).

Public college and university graduates have protected property interest in their degrees, which are entitled to protection under the Due Process Clause of this amendment. Merrow v. Goldberg, 672 F. Supp. 766, 1987 U.S. Dist. LEXIS 10174 (D. Vt. 1987).

Teacher who took college courses could establish a protected property interest in credits earned by proving that his understanding of entitlement to the credits had an objective basis in college’s policies and practices of general application. Merrow v. Goldberg, 674 F. Supp. 1130, 1986 U.S. Dist. LEXIS 19222 (D. Vt. 1986).

Unemployment benefits are constitutionally protected property rights. Perry v. Department of Employment & Training, 147 Vt. 621, 523 A.2d 1242, 1987 Vt. LEXIS 429 (1987).

Under Vermont law, registered operators of family day care centers have a property interest in continued registration, which is protected by the Due Process Clause. Gour v. Morse, 652 F. Supp. 1166, 1987 U.S. Dist. LEXIS 1083 (D. Vt. 1987).

Property interests subject to procedural due process protection are not limited by a few rigid, technical forms and include interests arising out of existing rules or understandings, rather than the wooden distinction between rights and privileges. Burroughs v. West Windsor Board of School Directors, 138 Vt. 575, 420 A.2d 861, 1980 Vt. LEXIS 1368 (1980).

Nonprobationary employment in the public sector is a property right entitled to protection under this amendment. In re Maher, 132 Vt. 560, 326 A.2d 142, 1974 Vt. LEXIS 392 (1974); Audette v. Greer, 134 Vt. 300, 360 A.2d 66, 1976 Vt. LEXIS 657 (1976).

It is beyond the power of the State, as limited by the Due Process Clause of this amendment, whether by legislative fiat or by the regulating order of a commission, to convert property used exclusively in private business into a public utility, or to impose upon the owner the obligation of indiscriminate service. Valcour v. Village of Morrisville, 108 Vt. 242, 184 A. 881, 1936 Vt. LEXIS 181 (1936).

Public office with prescribed emoluments is thing of value, of which de jure officer cannot be deprived without due process of law. Finneran v. City of Burlington, 89 Vt. 1, 93 A. 254, 1915 Vt. LEXIS 247 (1915).

A franchise has the character of property or estate, in which the holder has a vested right, and it is entitled to same protection under constitutional guaranties as other property. State v. Gibbs, 82 Vt. 526, 74 A. 229, 1909 Vt. LEXIS 322 (1909).

Public assistance.

Regulatory scheme that placed limit on how far back the State could reach to recoup general assistance benefits paid prior to award of Supplemental Security Income, which arguably would result in double benefit to some recipients, was not lacking in rationality so as to offend due process; recipients were the needy and funds would be long-since spent at time of deduction from SSI award. Slocum v. Department of Social Welfare, 154 Vt. 474, 580 A.2d 951, 1990 Vt. LEXIS 118 (1990).

Punishment.

There is no right to equivalent sentencing of co-defendants under federal Equal Protection Clause. State v. Bacon, 169 Vt. 268, 733 A.2d 50, 1999 Vt. LEXIS 91 (1999).

Because sentencing is an individualized determination, disparate sentences for co-perpetrators do not implicate federal equal protection so long as there is no showing of invidious discrimination and sentences imposed are within statutory limitations. State v. Bacon, 169 Vt. 268, 733 A.2d 50, 1999 Vt. LEXIS 91 (1999).

Where defendant was convicted of both aggravated murder and aggravated sexual assault, his sentence for aggravated sexual assault was impermissible under the Double Jeopardy Clause; serious bodily injury is always proved by proof of death and therefore aggravated sexual assault was a lesser-included offense of aggravated murder, since the lesser offense required no proof beyond that required of the greater offense. State v. Grega, 168 Vt. 363, 721 A.2d 445, 1998 Vt. LEXIS 162 (1998).

Multiple convictions cannot stand to provide a backup conviction in event that conviction on greater offense is reversed, and therefore murder defendant’s conviction for aggravated sexual assault was vacated. State v. Grega, 168 Vt. 363, 721 A.2d 445, 1998 Vt. LEXIS 162 (1998).

Where sentence is imposed in retaliation for threat of appeal and in order to prevent appeal it is a violation of due process under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 656 (1969). State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

A sentence conditioned on a restriction or prohibition of right of appeal denies due process. State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

Sentences imposed in retaliation for a successful exercise of right of appeal deny due process of law. State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

Trial court violated defendant’s due process by raising her fine after defendant questioned legality of proposed order of restitution and noted intent to appeal, where higher sentence was vindictive and no nonretaliatory justification for increase existed. State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992).

Imposition of higher sentence upon retrial by different judge did not violate defendant’s due process rights where defendant did not allege actual vindictiveness and nothing in the record suggested that the second judge was motivated by vindictiveness. 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).

Due process requires a sentence to be based on an activity for which a defendant has been charged and convicted. State v. Bushey, 147 Vt. 140, 513 A.2d 1177, 1986 Vt. LEXIS 377 (1986).

The fixing of punishments for crimes and of penalties for unlawful acts is within the police power of the State, but a fine may not be so grossly excessive as to amount to a deprivation of property without due process of law. State v. Diamondstone, 132 Vt. 303, 318 A.2d 654, 1974 Vt. LEXIS 338 (1974).

Requirements.

On a stigma-plus claim by a former town treasurer against a town, it was error to grant summary judgment to the town, as a factfinder could reasonably conclude that the selectboard failed to grant the treasurer a sufficient opportunity to clear her name. There was no occasion for the treasurer to question the key individuals involved in the allegations or to present her own evidence on the substance of the allegations. Stone v. Town of Irasburg, 2014 VT 43, 196 Vt. 356, 98 A.3d 769, 2014 Vt. LEXIS 38 (2014).

Because the purpose of the hearing in a stigma-plus case is not to determine the correctness of the discipline, but to allow an opportunity to clear one’s name, an opportunity for formal cross-examination is not always required to satisfy due process. The formality and procedural requirements of the hearing vary depending on the interests at stake; nonetheless, there must be a meaningful opportunity to counter the allegations by argument, and if necessary, by proof, however informal. Stone v. Town of Irasburg, 2014 VT 43, 196 Vt. 356, 98 A.3d 769, 2014 Vt. LEXIS 38 (2014).

On a stigma-plus claim, plaintiff was not entitled to a pre-deprivational hearing before receiving a certain letter, as the reputational damage that formed part of the stigma-plus claim did not occur until after receipt and publication of the letter. Stone v. Town of Irasburg, 2014 VT 43, 196 Vt. 356, 98 A.3d 769, 2014 Vt. LEXIS 38 (2014).

There was inadequate good cause for denying defendant his due process right of confrontation at a parole revocation hearing, because the hearsay evidence received by the Parole Board was unreliable. Police reports were not reliable evidence of guilt; police affidavits were lacking a crucial detail; statements by the parolee’s mother and sister were oral; and these witnesses refused to testify at the hearing. Rodriguez v. Pallito, 2014 VT 18, 195 Vt. 612, 93 A.3d 102, 2014 Vt. LEXIS 13 (2014).

Requirements of due process do not demand an ideal system for administration of justice, with provision against every hardship that may befall. Vermont Electric Power Co. v. Anderson, 121 Vt. 72, 147 A.2d 875, 1959 Vt. LEXIS 90 (1959).

Residency periods.

In determining whether a qualifying residency period is violative of due process as guaranteed by this amendment, the nature of the privilege or right being withheld during the qualifying period is of prime significance, together with the compelling nature of the State’s interest in that right or privilege. Place v. Place, 129 Vt. 326, 278 A.2d 710, 1971 Vt. LEXIS 265 (1971).

Review standards.

Test of due process is one of reviewing the substantive effect of State’s implementation of various civil rights, and variations in procedure will not constitute a violation of the constitution as applied to the several states. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966); In re Davis, 126 Vt. 142, 224 A.2d 905, 1966 Vt. LEXIS 179 (1966).

Right to appeal.

A substantive due process claim premised on arbitrary and capricious government conduct is not ripe for review unless government entity in question has rendered a final decision. 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).

For a substantive due process claim to be ripe for review, when it is premised on theory that regulation has gone too far, government entity charged with enforcing regulations must have rendered a final decision, and plaintiff must have sought compensation if State provides a reasonable, certain, and adequate provision for obtaining compensation. 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).

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).

Environmental Board’s denial of application for land use permit was not a final decision, and developer’s substantive due process and regulatory takings claims were not ripe for review, where developer submitted only one permit application and it was not clear whether Board would deny approval for all uses that would enable developer to derive economic benefit from property, and it could be inferred that Board would be receptive to a subdivision proposal that placed lots in different segment of property so as to minimize impact on deeryard. 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).

Want of provision for adequate judicial review of the orders of an administrative body does not violate the Due Process Clause of this amendment, for powers given to the Supreme Court on appeal from an order of any board or commission, and common law remedies for protection of rights that cannot be safeguarded by means of hearing and appeal provided for by statute, are sufficient to protect parties from all acts of a board or commission in excess of its authority. Sabre v. Rutland Railroad, 86 Vt. 347, 85 A. 693, 1913 Vt. LEXIS 205 (1913).

Right to counsel.

Although the Public Defender Act, 13 V.S.A. §§ 5201-5277 , does not authorize courts to assign civil contempt proceedings to the Defender General even where the trial court considers ordering incarceration, nor does it authorize compensation of appointed counsel to be made from funds appropriated to the Office of the Defender General, the court has the inherent power to require attorneys to serve and protect the vital interests of uncounselled litigants where circumstances demand it. Public defenders, like all members of the bar, are subject to such appointment. Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 1997 Vt. LEXIS 96 (1997).

The right to counsel granted by this amendment does not attach at the time of decision to take or refuse to take a breath test in accordance with 23 V.S.A. § 1202(c) , the implied consent law. State v. West, 151 Vt. 140, 557 A.2d 873, 1988 Vt. LEXIS 240 (1988).

Rights and interests protected.

The interests protected by the Due Process Clause of this amendment are not created by the Constitution; they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as State law. In re Great Waters of America, Inc., 140 Vt. 105, 435 A.2d 956, 1981 Vt. LEXIS 566 (1981).

— Liberty.

Plaintiff teacher’s substantive due process claim based upon the revocation of her license to teach elementary level students which defendants, Department of Education and its licensing officer had erroneously issued and reissued to her over the course of several years was properly dismissed because the State’s withdrawal of her elementary endorsement, and its refusal to grant a waiver outside its normal procedures, did not foreclose altogether her ability to pursue teaching as a profession, and, therefore, she had no liberty interest for which the substantive component of the Due Process Clause might afford her relief. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

School board’s public censure of one of its members did not involve deprivation of liberty interest sufficient to support finding violation of member’s due process rights, where jury found that no violation of member’s right to free speech had occurred, and stigma to his reputation resulting from censure was insufficient to amount to a deprivation of his right of free association. LaFlamme v. Essex Junction School District, 170 Vt. 475, 750 A.2d 993, 2000 Vt. LEXIS 4, cert. denied, 531 U.S. 927, 121 S. Ct. 304, 148 L. Ed. 2d 244, 2000 U.S. LEXIS 6647 (2000).

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).

A patient committed to the Vermont State Hospital and conditionally released has a liberty status; revocation of the conditional release falls well within the standard of a “massive curtailment of liberty” thereby implicating a due process requirement. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

The conditional liberty of a paroled criminal falls within the scope of this amendment and is entitled to due process protection. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

The first step in weighing the impact of government action on individual rights is to determine whether the specific interest purportedly threatened by government is within the contemplation of the liberty or property language of this amendment. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

The liberty interest at stake in a civil commitment proceeding is as valuable an interest as the liberty at stake in a criminal proceeding. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

State’s power to intervene to protect child, and if necessary to terminate parent-child relationship, does not deny parent due process of law. In re R.B., 152 Vt. 415, 566 A.2d 1310, 1989 Vt. LEXIS 174 (1989), cert. denied, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055, 1990 U.S. LEXIS 830 (1990).

The right of a parent to the care, custody, and control of her children is a fundamental liberty interest protected by the Due Process Clause of this amendment. In re C.L., 143 Vt. 554, 468 A.2d 563, 1983 Vt. LEXIS 564 (1983).

Both the right of a parent to custody and the liberty interest of parents and children to relate to one another in the context of the family, free of governmental interference, are rights protected by the Due Process Clause of this amendment. Guardianship of H.L., 143 Vt. 62, 460 A.2d 478, 1983 Vt. LEXIS 465 (1983).

The freedom of children and parents to relate to one another in the context of the family, free of government interference, is a liberty interest protected by the Due Process Clause of this amendment. Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303, 1980 Vt. LEXIS 1394 (1980).

Threat of expulsion from State college for student with prior investment in pursuit of degree and loss of student’s good name and reputation constituted loss of liberty within the purview of this amendment. Nzuve v. Castleton State College, 133 Vt. 225, 335 A.2d 321, 1975 Vt. LEXIS 373 (1975).

This amendment does not permit State either by fine or tax, however small, to deprive a person of his liberty to enter into a valid contract that is neither made nor to be performed in such State, and especially where both contracting parties reside outside State. State v. International Paper Co., 96 Vt. 506, 120 A. 900, 1923 Vt. LEXIS 198 (1923).

School disciplinary proceedings.

In school disciplinary cases, the underlying question should be whether the student’s interests have been properly protected, so that he was not prejudiced by the failure to give written notice, per se, or by any failure of strict and literal compliance by school authorities with their own regulations; if that question can be answered in the affirmative, there has been no necessary violation of the Due Process Clause. Rutz v. Essex Junction Prudential Committee, 142 Vt. 400, 457 A.2d 1368, 1983 Vt. LEXIS 405 (1983).

The opinion of the United States Supreme Court in Goss v. Lopez, 419 U.S. 565 (1975), which dealt with the procedural requirements for student suspension, means that, at least beyond the constitutional minimum requirements of notice of hearing, each case, as far as this amendment is concerned, must ultimately be determined on its own peculiar facts, and that the rudimentary elements of fair play meet general requirements of due process. Rutz v. Essex Junction Prudential Committee, 142 Vt. 400, 457 A.2d 1368, 1983 Vt. LEXIS 405 (1983).

Self-incrimination.

Where judicial misconduct case was pending against an assistant judge who was called as a witness in a Judicial Conduct Board proceeding against a Supreme Court Justice, the Due Process Clause of this amendment did not create an equivalent to the self-incrimination privilege based on the impact on fair adjudication of the assistant judge’s disciplinary proceeding. In re Hill, 149 Vt. 431, 545 A.2d 1019, 1988 Vt. LEXIS 53 (1988).

Service of process.

Publication is not, as a method of service, the equivalent of other prescribed means; it is rooted in the necessity raised by the total inability of other service procedures to be used to provide notice. Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, 1987 Vt. LEXIS 450 (1987).

When service of process by publication is ordered, the publication must be reasonably calculated to notify a defendant of the proceedings against him. Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, 1987 Vt. LEXIS 450 (1987).

Although lack of personal service can be waived and jurisdiction obtained thereby, where the flaw in the proceedings is lack of any notice sufficiently complying with due process standards, the shortage cannot be supplied by implication of waiver without any evidence of actual notice. Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, 1987 Vt. LEXIS 450 (1987).

Due process does not require that personal service shall be made on a party where proceeding is only a continuation of litigation which is already within jurisdiction of court. Cukor v. Cukor, 114 Vt. 456, 49 A.2d 206, 1946 Vt. LEXIS 95 (1946).

State action.

It was the mutual insurance company and its policyholders, not the State, that engaged in the conduct of which dissenting policyholders complained, and therefore claims of dissenting policyholders failed for lack of State action. Cranley v. National Life Insurance Co., 144 F. Supp. 2d 291, 2001 U.S. Dist. LEXIS 6915 (D. Vt. 2001), aff'd, 318 F.3d 105, 2003 U.S. App. LEXIS 922 (2d Cir. 2003).

A “State action” occurs where the challenged action of a private party is “fairly attributable” to the State, that is, when (1) the deprivation is caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and (2) the party charged with the deprivation is a person who may fairly be said to be a State actor. Logan v. Bennington College Corp., 72 F.3d 1017, 1995 U.S. App. LEXIS 35254 (2d Cir. 1995), amended, 1996 U.S. App. LEXIS 4624 (2d Cir. Mar. 11, 1996), cert. denied, 519 U.S. 822, 117 S. Ct. 79, 136 L. Ed. 2d 37, 1996 U.S. LEXIS 4822 (1996).

Characterizing a private party as a “State actor” is a fact-specific inquiry, and courts considering the issue typically look to such factors as the public function of the party’s conduct, whether the private party acted under State compulsion, the nexus between the party’s conduct and the State, and whether the party’s conduct was jointly undertaken with the State. Logan v. Bennington College Corp., 72 F.3d 1017, 1995 U.S. App. LEXIS 35254 (2d Cir. 1995), amended, 1996 U.S. App. LEXIS 4624 (2d Cir. Mar. 11, 1996), cert. denied, 519 U.S. 822, 117 S. Ct. 79, 136 L. Ed. 2d 37, 1996 U.S. LEXIS 4822 (1996).

Where college revised its policy to comply with Vermont law, but its action in terminating professor was in no way dictated by State law or State actors, there was an insufficient nexus to warrant a finding of State action. Logan v. Bennington College Corp., 72 F.3d 1017, 1995 U.S. App. LEXIS 35254 (2d Cir. 1995), amended, 1996 U.S. App. LEXIS 4624 (2d Cir. Mar. 11, 1996), cert. denied, 519 U.S. 822, 117 S. Ct. 79, 136 L. Ed. 2d 37, 1996 U.S. LEXIS 4822 (1996).

For purposes of due process requirements, degree of State involvement in particular limitation of actions statutory provision is sufficient to constitute “State action,” where probate court issues letters testamentary or letters of administration after notice by publication and hearing, there is no notice of this action by the court or by the executor or administrator, and the legal proceedings trigger the time bar so that the statute is not self-executing. Martel v. Stafford, 157 Vt. 604, 603 A.2d 345, 1991 Vt. LEXIS 229 (1991).

Statutory vagueness.

Noise ordinance was not unconstitutional under the Fourteenth Amendment as applied to appellants, who operated a motocross track on their property, because the noise level here, exceeding 80 dBA, was more than twice as loud as the limit often used, a neighbor described the noise as extremely loud, irritating, assaultive, and disruptive, and the noise occurred for ten to fifteen seconds every five minutes over the course of two hours. In re LaBerge NOV, 2016 VT 99, 203 Vt. 98, 152 A.3d 1165, 2016 Vt. LEXIS 98 (2016).

Noise ordinance was not unconstitutionally vague on its face under the Fourteenth Amendment, because not only did it incorporate an objective “reasonableness” standard, it identified key factors of intensity, duration, and frequency in assessing reasonableness, which focused the reasonableness inquiry, guarded against arbitrary enforcement, and put individuals on notice of the law’s requirements. In re LaBerge NOV, 2016 VT 99, 203 Vt. 98, 152 A.3d 1165, 2016 Vt. LEXIS 98 (2016).

Vermont Supreme Court interprets “for the purpose of . . . influencing an election” in the statute defining a political action committee (PAC) to mean “for the objective purpose of persuading someone to vote in a certain manner in an election.” So construed, the definition of a PAC (and the similarly construed definition of “expenditure”) is not vague under the Fourteenth Amendment. State v. Green Mt. Future, 2013 VT 87, 194 Vt. 625, 86 A.3d 981, 2013 Vt. LEXIS 85 (2013).

“Magic words” of Buckley need not be required in a communication from a political action committee in order to uphold a registration, disclosure, or identification requirement of the type contained in the relevant Vermont statutes against either a vagueness challenge under the Fourteenth Amendment or an overbreadth challenge under the First Amendment. State v. Green Mt. Future, 2013 VT 87, 194 Vt. 625, 86 A.3d 981, 2013 Vt. LEXIS 85 (2013).

Under McConnell and Citizens United, Vermont’s disclosure requirements for political action committees as applied to defendant survived a basic First Amendment challenge and were not overbroad or vague under the First or Fourteenth Amendment. State v. Green Mt. Future, 2013 VT 87, 194 Vt. 625, 86 A.3d 981, 2013 Vt. LEXIS 85 (2013).

The meaning of 23 V.S.A. § 1201(a) , which prohibits a person who is under the influence of intoxicating liquor from being “in actual physical control” of a vehicle, is not vague or uncertain within the strictures of the Due Process Clause of this amendment, since its language is sufficient to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. State v. Trucott, 145 Vt. 274, 487 A.2d 149, 1984 Vt. LEXIS 588 (1984).

Department of Liquor Control General Regulation 17 was not unconstitutionally vague as applied to a licensee. The licensee clearly violated the regulation by allowing an obviously intoxicated person to remain on its premises for 10 minutes, and the licensee’s argument that a person engaging in an activity such as dancing was not loitering failed, as the licensee recognized that any person showing signs of intoxication had to be asked to leave, regardless of what activities he or she was engaged in at the time. In re Rusty Nail Acquisition, 2009 VT 68, 186 Vt. 195, 980 A.2d 758, 2009 Vt. LEXIS 50 (2009).

Instead of using any of the Administrative Procedures Act procedures, or using the Liquor Control Board’s training program that was administered to all licensees, to clarify the meaning of a regulation, a licensee waited until it was cited for violating the regulation to challenge its constitutionality. Thus, the court would approach the licensee’s vagueness challenge with a critical eye. In re Rusty Nail Acquisition, 2009 VT 68, 186 Vt. 195, 980 A.2d 758, 2009 Vt. LEXIS 50 (2009).

“Loiter” is not defined in the context of Department of Liquor Control General Regulation 17, but this does not render it impermissibly vague per se. In re Rusty Nail Acquisition, 2009 VT 68, 186 Vt. 195, 980 A.2d 758, 2009 Vt. LEXIS 50 (2009).

Testimony of a licensee’s manager showed that practically speaking, Department of Liquor Control General Regulation 17 showed no confusion over drunken loitering, despite the lack of further definition, but rather prohibited a licensee from allowing an intoxicated person to remain on the licensed premises. Since the licensee’s manager articulated the same meaning of the regulation as that expressed by the Liquor Control Board, and fairly appearing in the rule itself, the regulation adequately apprised the licensee of the conduct prohibited. In re Rusty Nail Acquisition, 2009 VT 68, 186 Vt. 195, 980 A.2d 758, 2009 Vt. LEXIS 50 (2009).

Department of Liquor Control General Regulation 17 specifically requires that a patron be intoxicated and allowed to remain on the premises before a violation may be found. This plain and unambiguous requirement defines the prohibited conduct with sufficient clarity to prevent arbitrary enforcement. In re Rusty Nail Acquisition, 2009 VT 68, 186 Vt. 195, 980 A.2d 758, 2009 Vt. LEXIS 50 (2009).

Condition of noticeable intoxication is specific and clearly demonstrable, and is not unreasonably subject to arbitrary interpretation; investigators must see patrons showing signs of alcohol impairment, rather than just tarrying, before they can cite a licensee for violating Department of Liquor Control General Regulation 17, so licensees are not subject to the whims of the investigators. Since the patron must exhibit signs of intoxication before the licensee can be cited for violating the regulation, the licensee remains capable of preventing a violation through diligent oversight, which is exactly what the regulation encourages. In re Rusty Nail Acquisition, 2009 VT 68, 186 Vt. 195, 980 A.2d 758, 2009 Vt. LEXIS 50 (2009).

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 amendment is that no man shall be held criminally responsible for conduct that he could not reasonably understand to be proscribed. State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981).

A statute violates the Due Process Clause of this amendment if it imposes a burden on the exercise of a person’s liberty for failure to conform his conduct to a standard that is so vague and indefinite that no one could know what it is. Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303, 1980 Vt. LEXIS 1394 (1980).

Vague standards in statutes may be saved from a finding of unconstitutionality under the Due Process Clause of this amendment if the needed specificity has been supplied by the Supreme Court. Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303, 1980 Vt. LEXIS 1394 (1980).

The Due Process Clause of this amendment compels the State to draw its statutes narrowly enough to not sweep beyond that area that the State seeks to regulate. In re Neglected Child, 130 Vt. 525, 296 A.2d 250, 1972 Vt. LEXIS 312 (1972).

A criminal statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739, 1970 Vt. LEXIS 269 (1970); State v. Bartlett, 128 Vt. 618, 270 A.2d 166 (1970); State v. Stevens, 137 Vt. 473, 408 A.2d 622, 1979 Vt. LEXIS 1071 (1979).

The constitutional test of vagueness of a criminal statute is satisfied if, upon reasonable inquiry, a person of ordinary intelligence is made aware of the nature of the prohibitions. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Where wilfullness is an essential element of a crime, one convicted cannot allege that the statute is vague. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Targeting individual for investigation.

Due process concerns may arise when the government chooses an individual as a target of investigation, lacking prior knowledge of his or her criminal activity, and pays an informant to convict that individual. State v. Simpson, 156 Vt. 349, 592 A.2d 891, 1991 Vt. LEXIS 85 (1991).

Pretargeting of an individual as a target of police investigation does not always generate due process concerns; the usual focus of a pretargeting analysis is government overreaching. State v. Simpson, 156 Vt. 349, 592 A.2d 891, 1991 Vt. LEXIS 85 (1991).

Defendant’s due process rights were not violated even though an informant fingered defendant as someone she could purchase drugs from, convinced the police to pay her to gather evidence to implicate him, and played a big part in building the case against defendant; the police took precautions by monitoring the transactions between defendant and the informant, searching informant before and after the transactions, debriefing her afterward, and confiscating all drugs she purchased from defendant. State v. Simpson, 156 Vt. 349, 592 A.2d 891, 1991 Vt. LEXIS 85 (1991).

Use of force by State officers.

Not every push or shove by a State officer constitutes a violation of substantive due process; whether the constitutional line has been crossed depends on such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Robison v. Via, 821 F.2d 913, 1987 U.S. App. LEXIS 7886 (2d Cir. 1987).

Waiver of rights.

Use of statements of a defendant who lacked capacity to make a knowing and intelligent waiver of his constitutional rights would violate due process. State v. Harvey, 145 Vt. 654, 497 A.2d 356 (1985), But see State v. Robinson (1992) 158 Vt. 286, 611 A.2d 852 noting that Harvey was effectively overruled by Supreme Court’s decision in Colorado v. Connelly (1986) 497 U.S. 157, to the extent that the Vermont Supreme Court relied on the U.S. Constitution to hold that statements made by a defendant lacking mental capacity were involuntary in the absence of police coercion.

A formal arraignment of, and plea by, respondent before beginning trial is not necessarily required by Due Process Clause, and is waived by his proceeding to trial without making objection on that ground. State v. Prouty, 94 Vt. 359, 111 A. 559, 1920 Vt. LEXIS 218 (1920).

Witnesses.

Defendant’s argument that the State’s use of a witness’s testimony violated his due process rights because it was knowingly false depended entirely on the fact that the witness’s deposition testimony differed from his earlier sworn statement. That fact, however, did not support his claim of error. State v. Davis, 2010 VT 9, 187 Vt. 594, 992 A.2d 302, 2010 Vt. LEXIS 8 (2010) (mem.).

State did not ask the jury to believe the “false” portions of a witness’s testimony; instead, it attempted to impeach the witness with his prior sworn statement so as to discredit the statements that went against the State’s theory of the case. As the State did not attempt to mislead the jury through the presentation of the witness’s false testimony, there was no due process violation. State v. Davis, 2010 VT 9, 187 Vt. 594, 992 A.2d 302, 2010 Vt. LEXIS 8 (2010) (mem.).

Claim that a prosecutor has knowingly relied upon false testimony must be distinguished from the use of a witness who has made prior inconsistent statements under oath, particularly where the defendant is aware of those statements. Thus, it was not a due process violation for the State to put a witness on the stand, despite the fact that he gave testimony at his deposition that differed in part from his prior sworn statement; defendant’s argument that the State had every reason to believe that the witness would testify consistent with his deposition and contrary to his initial statement to the police was unavailing and did not convert anticipation into legal knowledge. State v. Davis, 2010 VT 9, 187 Vt. 594, 992 A.2d 302, 2010 Vt. LEXIS 8 (2010) (mem.).

Impeaching a witness, even a party’s own witness, is simply not the same as misleading the jury and therefore is not a due process violation. State v. Davis, 2010 VT 9, 187 Vt. 594, 992 A.2d 302, 2010 Vt. LEXIS 8 (2010) (mem.).

— Liberty.

Plaintiff teacher’s substantive due process claim based upon the revocation of her license to teach elementary level students which defendants, Department of Education and its licensing officer had erroneously issued and reissued to her over the course of several years was properly dismissed because the State’s withdrawal of her elementary endorsement, and its refusal to grant a waiver outside its normal procedures, did not foreclose altogether her ability to pursue teaching as a profession, and, therefore, she had no liberty interest for which the substantive component of the Due Process Clause might afford her relief. Mellin v. Flood Brook Union School District, 173 Vt. 202, 790 A.2d 408, 2001 Vt. LEXIS 407 (2001).

School board’s public censure of one of its members did not involve deprivation of liberty interest sufficient to support finding violation of member’s due process rights, where jury found that no violation of member’s right to free speech had occurred, and stigma to his reputation resulting from censure was insufficient to amount to a deprivation of his right of free association. LaFlamme v. Essex Junction School District, 170 Vt. 475, 750 A.2d 993, 2000 Vt. LEXIS 4, cert. denied, 531 U.S. 927, 121 S. Ct. 304, 148 L. Ed. 2d 244, 2000 U.S. LEXIS 6647 (2000).

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).

A patient committed to the Vermont State Hospital and conditionally released has a liberty status; revocation of the conditional release falls well within the standard of a “massive curtailment of liberty” thereby implicating a due process requirement. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

The conditional liberty of a paroled criminal falls within the scope of this amendment and is entitled to due process protection. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

The first step in weighing the impact of government action on individual rights is to determine whether the specific interest purportedly threatened by government is within the contemplation of the liberty or property language of this amendment. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

The liberty interest at stake in a civil commitment proceeding is as valuable an interest as the liberty at stake in a criminal proceeding. G.T. v. Stone, 159 Vt. 607, 622 A.2d 491, 1992 Vt. LEXIS 208 (1992).

State’s power to intervene to protect child, and if necessary to terminate parent-child relationship, does not deny parent due process of law. In re R.B., 152 Vt. 415, 566 A.2d 1310, 1989 Vt. LEXIS 174 (1989), cert. denied, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055, 1990 U.S. LEXIS 830 (1990).

The right of a parent to the care, custody, and control of her children is a fundamental liberty interest protected by the Due Process Clause of this amendment. In re C.L., 143 Vt. 554, 468 A.2d 563, 1983 Vt. LEXIS 564 (1983).

Both the right of a parent to custody and the liberty interest of parents and children to relate to one another in the context of the family, free of governmental interference, are rights protected by the Due Process Clause of this amendment. Guardianship of H.L., 143 Vt. 62, 460 A.2d 478, 1983 Vt. LEXIS 465 (1983).

The freedom of children and parents to relate to one another in the context of the family, free of government interference, is a liberty interest protected by the Due Process Clause of this amendment. Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303, 1980 Vt. LEXIS 1394 (1980).

Threat of expulsion from State college for student with prior investment in pursuit of degree and loss of student’s good name and reputation constituted loss of liberty within the purview of this amendment. Nzuve v. Castleton State College, 133 Vt. 225, 335 A.2d 321, 1975 Vt. LEXIS 373 (1975).

This amendment does not permit State either by fine or tax, however small, to deprive a person of his liberty to enter into a valid contract that is neither made nor to be performed in such State, and especially where both contracting parties reside outside State. State v. International Paper Co., 96 Vt. 506, 120 A. 900, 1923 Vt. LEXIS 198 (1923).

—Right to trial.

Determination of whether a defendant was denied the right to a speedy trial requires examination of the length of the delay, the reason for the delay, defendant’s efforts at obtaining a speedy trial, and the prejudice to the defendant. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

Rather than guarantee prompt disposition of criminal cases, the federal right to a speedy trial requires the dismissal of criminal charges only against a very few defendants who have suffered egregious delays and prejudicial consequences due to the government’s failure to process their cases in a timely manner. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

The most important factor in deciding a right of speedy trial issue is whether the defendant was prejudiced. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

Claim was rejected that 20 month delay between arraignment and trial violated speedy trial right where only obvious prejudice to defendant was the long period of incarceration. State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993).

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

IV. EQUAL PROTECTION GENERALLY.
Classifications.

Landowner was not denied equal protection of the laws, because there were rational bases for legislative classifications that gave municipality two ways in which it could seek judicial enforcement of its zoning ordinance, one of which did not include a right to jury trial. In re Letourneau, 168 Vt. 539, 726 A.2d 31, 1998 Vt. LEXIS 409 (1998).

In Equal Protection Clause challenge to zoning classification alleging impermissible spot zoning, plaintiff has burden of demonstrating that classification is not related to public health, safety, morals, or general welfare. Granger v. Town of Woodford, 167 Vt. 610, 708 A.2d 1345, 1998 Vt. LEXIS 56 (1998) (mem.).

Town’s decision to change zoning classification of .82 acre parcel of land from “rural residential” to “roadside commercial” did not constitute impermissible spot zoning; town contained little land suitable for development and there were other commercial uses in immediate vicinity, there was a discernible benefit to the community, and change in classification did not significantly conflict with town plan. Granger v. Town of Woodford, 167 Vt. 610, 708 A.2d 1345, 1998 Vt. LEXIS 56 (1998) (mem.).

32 V.S.A. § 8911(8) , which imposes a use tax on family transfers of vehicles coming from outside the State, but does not impose a similar tax on the same family transfer inside the State, violates both the Equal Protection Clause and the Commerce Clause of the United States Constitution. Pawa v. McDonald, 921 F. Supp. 227, 1996 U.S. Dist. LEXIS 5256 (D. Vt. 1996).

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).

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).

Under this amendment, legislation that, without a rational purpose, treats differently classes of persons otherwise similarly situated is unconstitutional; however, in order to trigger equal protection analysis at all, a defendant must show that he was treated differently as a member of one class from treatment of members of another class similarly situated. State v. George, 157 Vt. 580, 602 A.2d 953, 1991 Vt. LEXIS 230 (1991).

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).

A court must uphold a statutory classification if it finds that it serves any of the purposes that are conceivably behind the statute in question. State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981).

In analyzing a claim that a statutory classification violates the Equal Protection Clause of this amendment, the test to be applied when no fundamental right or suspect class is involved is whether a rational basis serving a legitimate public policy objective can be articulated in defense of the challenged classification. State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981).

The Equal Protection Clause of this amendment does not require that statutory distinctions be perfect to be sustained, only that they be rational. State v. Carpenter, 138 Vt. 140, 412 A.2d 285, 1980 Vt. LEXIS 1041 (1980).

This amendment permits the states a wide scope of discretion in enacting laws that affect some groups of citizens differently than others, and the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739, 1970 Vt. LEXIS 269 (1970); State v. Shop and Save Food Markets, 138 Vt. 332, 415 A.2d 235, 1980 Vt. LEXIS 1219 (1980).

Presumption of constitutionality sets the standard in determining the legislative purposes of classifications in a statute, including the presumption that the Legislature has not acted unreasonably, and if any reasonable policy or purpose for the legislative classification may be conceived of, the enactment will be upheld. Andrews v. Lathrop, 132 Vt. 256, 315 A.2d 860, 1974 Vt. LEXIS 330 (1974).

The Equal Protection Clause of this amendment prohibits legislative classifications that are arbitrary and unreasonable. Veilleux v. Springer, 131 Vt. 33, 300 A.2d 620, 1973 Vt. LEXIS 263 (1973).

The Equal Protection Clause of this amendment does not prohibit legislative classification and the imposition of statutory restraints on one class that are not imposed on another. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

Statutory classification is not invalidated merely because inequality actually results, but only if inequality produced is actually and palpably unreasonable and arbitrary. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

The burden of proving that a legislative classification is essentially arbitrary and rests upon no reasonable basis is upon the party who asserts it. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

Where inequalities result from a classification that is founded upon real differences and is not unreasonable, any resulting discrimination is not arbitrary or prohibited by this amendment. Clark v. City of Burlington, 101 Vt. 391, 143 A. 677, 1928 Vt. LEXIS 168 (1928).

When a statutory classification is based upon a distinction wholly fanciful or arbitrary, having no possible reasonable connection with any proper purpose to be served by the enactment, it is unconstitutional and void. State v. Cadigan, 73 Vt. 245, 50 A. 1079, 1901 Vt. LEXIS 165 (1901).

Discrimination.

Sole fact that a party moves to strike the only minority juror from the venire is insufficient, by itself, to establish a prima facie case of discriminatory motive. Even a single additional circumstance can suffice to trigger a legitimate Batson inquiry. State v. Bol, 2011 VT 99, 190 Vt. 313, 29 A.3d 1249, 2011 Vt. LEXIS 98 (2011).

Defendant was entitled to a new trial when the trial court prevented his counsel from using a peremptory challenge to strike the only black member of the jury pool. The trial court relied on nothing else than the fact that there was a peremptory challenge to the single black juror to support its suspicion of discrimination; absent from the instant case was anything additionally noted by the trial court, such as counsel’s tone, demeanor, pattern, past conduct, or other surrounding circumstance, suggestive of a discriminatory motivation behind the peremptory challenge. State v. Bol, 2011 VT 99, 190 Vt. 313, 29 A.3d 1249, 2011 Vt. LEXIS 98 (2011).

Trial court’s prima facie determination of discrimination rested on nothing other than defense counsel’s proposed strike of the sole black juror from the venire, without any other reason, stated or apparent, for its insistence on a race-neutral explanation for the peremptory challenge. Thus, its decision was reviewed de novo. State v. Bol, 2011 VT 99, 190 Vt. 313, 29 A.3d 1249, 2011 Vt. LEXIS 98 (2011).

Plaintiff, a supplier of gravel to builders of State and local roads, failed to state a cause of action, as its claim was not within the zone of interests of § 1983, but was a routine procurement dispute dressed up as a civil rights claim. Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 693 A.2d 1045, 1997 Vt. LEXIS 33 (1997).

The manner of enforcement of a statute that is valid on its face may be invalid if it is discriminatory in violation of the Equal Protection Clause of this amendment. In re Smith, Bell & Hauck Real Estate, Inc., 132 Vt. 295, 318 A.2d 183, 1974 Vt. LEXIS 337 (1974).

State Legislature is presumed to have acted within its constitutional power even if, practice, its laws result in some inequality, and statutory discrimination will not be set aside if any statement of facts may be reasonably conceived to justify it. State v. Giant of St. Albans, Inc., 128 Vt. 539, 268 A.2d 739, 1970 Vt. LEXIS 269 (1970); State v. Shop and Save Food Markets, 138 Vt. 332, 415 A.2d 235, 1980 Vt. LEXIS 1219 (1980).

A licensee is entitled to relief against a regulation, alleged to violate the Equal Protection Clause of this amendment, only if the regulation as applied discriminates injuriously against it. Green Mountain Post No. 1 v. Liquor Control Board, 117 Vt. 405, 94 A.2d 230, 1953 Vt. LEXIS 107 (1953).

The burden of showing discrimination in violation of the Equal Protection Clause of this amendment is on the party alleging it. Green Mountain Post No. 1 v. Liquor Control Board, 117 Vt. 405, 94 A.2d 230, 1953 Vt. LEXIS 107 (1953).

A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it. State v. Auclair, 110 Vt. 147, 4 A.2d 107, 1939 Vt. LEXIS 122 (1939).

The Equal Protection Clause of this amendment merely requires that all persons subjected to specific legislation shall be treated alike under like circumstances and conditions both in privileges conferred and in liabilities imposed. State v. Reynolds, 109 Vt. 308, 1 A.2d 730, 1938 Vt. LEXIS 137 (1938).

The Equality Clause of this amendment applies to discrimination by State against its own citizens, as well as in their favor. State v. Hoyt, 71 Vt. 59, 42 A. 973, 1898 Vt. LEXIS 24 (1898).

Geographical differences.

The fact that 24 V.S.A. § 4404 , governing proposed changes in zoning bylaws, provides for different voting requirements between urban and rural areas does not violate the Equal Protection Clause; since the Legislature could find that higher populations introduce new and different zoning and planning problems that warrant differences in the governmental response, the distinction is not arbitrary. Smith v. Town of St. Johnsbury, 150 Vt. 351, 554 A.2d 233, 1988 Vt. LEXIS 189 (1988).

“One person, one vote”.

Because the Northwest Regional Planning Commission (NWRPC) performs so few “governmental functions,” it is constitutionally permissible for the State to provide for appointment of NWRPC commissioners without violating the “one person, one vote” doctrine of the Equal Protection Clause. City of St. Albans v. Northwest Regional Planning Comm'n, 167 Vt. 466, 708 A.2d 194, 1998 Vt. LEXIS 52 (1998).

Persons protected.

Exclusion of Micmac and Abenaki tribes from federal Indian Child Welfare Act did not violate Equal Protection Clause, since United States did not have same historical responsibility to preserve cultural and social standards in those tribes that it did with respect to federally recognized tribes. In re A.J., 169 Vt. 577, 733 A.2d 36, 1999 Vt. LEXIS 75 (1999) (mem.).

In determining whether an appellant proceeding in forma pauperis is entitled to all or part of a transcript at State expense, relevant legal requirements are the Equal Protection and Due Process Clauses of this amendment. In re L.G., 158 Vt. 639, 603 A.2d 381, 1992 Vt. LEXIS 6 (1992) (mem.).

A corporation is a person within the meaning of the Equality Clause of this amendment. Hawley v. Hurd, 72 Vt. 122, 47 A. 401, 1900 Vt. LEXIS 97 (1900); Lawrence v. Rutland Railroad, 80 Vt. 370, 67 A. 1091, 1907 Vt. LEXIS 115 (1907).

Right to travel.

The right to travel protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents. 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).

Standing.

Plaintiff, a supplier of gravel to builders of State and local roads, which brought a 42 U.S.C. § 1983 civil rights action against the State when it adopted a policy of not allowing gravel to be used in areas where stone was available, lacked standing to assert an equal protection claim because its interest in competing on an equal basis with suppliers of stone was neither a legally protected interest guaranteed by the Equal Protection Clause nor was it within the “zone of interests” protected by § 1983. Plaintiff was not a bidder or a prospective bidder, but, at best, had a hope that if the bid specifications were changed, it might enter into a subcontract with a company that might obtain a primary contract from defendant in the future. Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 693 A.2d 1045, 1997 Vt. LEXIS 33 (1997).

As a general rule, one must be a member of the class discriminated against in order to have standing to attack a law as denying the equal protection of the laws. Lague, Inc. v. State, 136 Vt. 413, 392 A.2d 942, 1978 Vt. LEXIS 764 (1978).

Tests.

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).

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).

Equal protection guarantee under Vermont Constitution is similar to Equal Protection Clause of this 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).

Where legislation’s alleged discrimination is based on gender, courts scrutinize the legislative classification by the higher standard of whether it is “substantially related” to an important and legitimate State interest. State v. George, 157 Vt. 580, 602 A.2d 953, 1991 Vt. LEXIS 230 (1991).

Where no fundamental right or suspect class is involved, challenges under the Equal Protection Clause are reviewed under the rational basis test. Smith v. Town of St. Johnsbury, 150 Vt. 351, 554 A.2d 233, 1988 Vt. LEXIS 189 (1988).

Distinctions reviewed under the rational basis test will be found unconstitutional only if similar persons are treated differently on wholly arbitrary and capricious grounds; if there is a rational basis for the distinctions, serving a legitimate policy objective, there is no equal protection violation. Smith v. Town of St. Johnsbury, 150 Vt. 351, 554 A.2d 233, 1988 Vt. LEXIS 189 (1988).

Under the strict scrutiny test, any classification that serves to penalize the exercise of a fundamental right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional. 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).

The strict scrutiny test is invoked upon a showing of some penalty resulting from the exercise of a fundamental right, such as the right to travel; there is no requirement of a showing that a person was deterred from traveling, only that there was a penalty for doing so. 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).

Absent a showing of either a suspect classification or an infringement upon a fundamental constitutional right, a statute will not violate the Equal Protection Clause of this amendment as long as it bears a rational relationship to a legitimate governmental interest. Riddel v. Department of Employment Security, 140 Vt. 82, 436 A.2d 1086, 1981 Vt. LEXIS 576 (1981).

In determining whether economic regulation is violative of the Equal Protection Clause of this amendment, the Supreme Court is required to impose only the minimum scrutiny of the “rational basis test,” which permits a determination of unconstitutionality only where the relevant law classifies similar persons for different treatment upon wholly arbitrary and capricious grounds, and where the classification rests upon some reasonable consideration of legislative policy it will not be found unconstitutional. Hadwen, Inc. v. Department of Taxes, 139 Vt. 37, 422 A.2d 255, 1980 Vt. LEXIS 1391 (1980), app. dismissed, 451 U.S. 977, 101 S. Ct. 2300, 68 L. Ed. 2d 834, 1981 U.S. LEXIS 2016 (1981).

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.).

V. TAXATION.
Classifications.

For purposes of the exemption from use tax for sales of newspapers, the distinction between newspapers and other periodicals is neither arbitrary nor capricious because the State has a legitimate interest in encouraging the inexpensive and wide dissemination of newspapers in order for its citizens to be informed of current affairs, and in removing the collection burden where the tax amounts are de minimus. In re Picket Fence Review, 173 Vt. 369, 795 A.2d 1242, 2002 Vt. LEXIS 51 (2002).

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).

In determining whether a legislative classification of taxpayers violates the Vermont and U.S. Constitutions, 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).

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 in 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).

Presence of exceptions in unemployment compensation statute concerning qualification as employer did not render statute void, and owner of dental clinic assessed for unpaid contributions under the statute was not thereby denied equal protection of the laws; statute would violate equal protection only where exceptions were so pervasive as to render entire act irrational. Burchesky v. Department of Employment & Training, 154 Vt. 355, 577 A.2d 672, 1989 Vt. LEXIS 277 (1989).

Residency requirement of 32 V.S.A. § 5922 , providing tax credits for renewable energy systems installed in private residences, which extended the credit only to taxpayers who resided in the State for the entire calendar year in which the system was installed, violated the Equal Protection Clause of this amendment. Bagley v. Vermont Department of Taxes, 146 Vt. 120, 500 A.2d 223, 1985 Vt. LEXIS 358 (1985).

Any classification of taxation is permissible which rationally furthers a legitimate State purpose. 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).

In an action challenging a municipal tax scheme on the basis of the Equal Protection Clause of this amendment, once a classification has been shown to exist, and its effect on the complaining party made clear, the municipality must then justify that classification. Colchester Fire District No. 2 v. Sharrow, 145 Vt. 195, 485 A.2d 134, 1984 Vt. LEXIS 571 (1984).

The Equal Protection Clause of this amendment requires, in State tax legislation, that any discriminatory classification not be capricious or arbitrary, but rest on some reasonable consideration of legislative policy; and judicial inquiry is, therefore, directed not toward a comparison of legislative purposes, but rather, toward the nexus between the classification and such purposes as it may serve. Town of Cambridge v. Bassett, 142 Vt. 171, 453 A.2d 413, 1982 Vt. LEXIS 620 (1982); Andrews v. Lathrop, 132 Vt. 256, 315 A.2d 860, 1974 Vt. LEXIS 330 (1974).

While the State may not make a palpably arbitrary classification for purposes of taxation, any plan is valid under the Equal Protection Clause of this amendment, provided it rests upon some ground or difference having a fair and substantial relation to the object of legislation, so that all persons similarly circumstanced shall be treated alike. Town of Hartland v. Damon's Estate, 103 Vt. 519, 156 A. 518, 1931 Vt. LEXIS 201 (1931).

Equality Clause of this amendment does not prohibit classification of property by State for purposes of taxation, so long as classification rests upon some ground of difference having a fair and reasonable relation to subject of legislation, so that all persons similarly situated are treated alike. Village of Hardwick v. Town of Wolcott, 98 Vt. 343, 129 A. 159, 1925 Vt. LEXIS 138 (1925).

The Equal Protection Clause of this amendment does not prevent a classification of property for the purpose of taxation, but it requires that the classification be based on some distinction that bears a just relation to the purpose of the enactment. State v. Clement National Bank, 84 Vt. 167, 78 A. 944, 1911 Vt. LEXIS 261 (1911), aff'd, 231 U.S. 120, 34 S. Ct. 31, 58 L. Ed. 147, 1913 U.S. LEXIS 2599 (1913).

Although the Equality Clause of this amendment does not prohibit classification for the purposes of taxation, it does require that the classification should be founded upon some reasonable basis; and such a basis is not found in the fact that goods are manufactured in different states. State v. Hoyt, 71 Vt. 59, 42 A. 973, 1898 Vt. LEXIS 24 (1898).

Corporations.

It is not essential to the validity of a tax imposed upon a foreign corporation for the privilege of doing business within the State that an exact result be obtained in allocating the share of the corporation’s net income for purpose of fixing the tax to be paid. Gulf Oil Corp. v. Morrison, 120 Vt. 324, 141 A.2d 671, 1958 Vt. LEXIS 107 (1958).

Discrimination.

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).

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).

The Equal Protection Clause of this amendment imposes no iron rule of equality of State tax impact, thereby encouraging the flexibility and variety that are appropriate to reasonable schemes of State taxation. Andrews v. Lathrop, 132 Vt. 256, 315 A.2d 860, 1974 Vt. LEXIS 330 (1974).

A 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).

Income tax.

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).

Income tax.

Taxation of nonresident’s adjusted gross income earned in Vermont is not discriminatory so as to violate constitutional rights of equal protection of the laws or privileges and immunities, and does not tax property beyond jurisdiction of Vermont in violation of due process, even though nonresident taxpayer with income from sources outside Vermont would pay at higher rate than resident taxpayer with equivalent income from Vermont but without income from other sources. Wheeler v. State, 127 Vt. 361, 249 A.2d 887, 1969 Vt. LEXIS 238, app. dismissed, 396 U.S. 4, 90 S. Ct. 24, 24 L. Ed. 2d 4, 1969 U.S. LEXIS 785 (1969).

Minimum contacts.

In order that state may have jurisdiction to tax foreign corporation, it is necessary that corporation have certain minimum contacts with taxing state such that payment of tax does not offend traditional notions of fair play and substantial justice. Ruppert v. Commissioner of Taxes, 117 Vt. 83, 85 A.2d 584, 1952 Vt. LEXIS 103 (1952).

Municipal property.

Property held by municipal corporations for public or governmental purposes, in a legal sense, belongs to the State, and its taxability is unaffected by operation of the Equality Clause of this amendment. Village of Hardwick v. Town of Wolcott, 98 Vt. 343, 129 A. 159, 1925 Vt. LEXIS 138 (1925).

Notice and hearing.

With regard to plaintiffs’ claim that defendant Vermont Department of Labor and Industry failed to provide them with due process, in the form of notice and a hearing, prior to ordering that they vacate their homes, because each of defendant’s orders to vacate or cut off utility service was supported by findings of dangerous code violations, and plaintiffs’ complaint conceded the existence, and in most cases, the seriousness, of these violations, no further factual development was necessary to determine that the violations at issue posed enough of a threat to merit ordering plaintiffs to vacate their homes, and it was, therefore, appropriate for the court to dismiss plaintiffs’ due process claims. Alger v. Department of Labor & Industry, 2006 VT 115, 181 Vt. 309, 917 A.2d 508, 2006 Vt. LEXIS 315 (2006).

There was no implied right of action for damages directly under this amendment in action by taxpayers to recover taxes paid under unconstitutional statute against State officials, where federal Civil Rights Act expressly provided a damage remedy against State officials who have violated federal law. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

Where statute itself makes an assessment of property for purposes of taxation, the tax being recoverable by suit, it is not required, in order to constitute due process of law, that any other notice than that contained in the statute be given the taxpayer; but where the Legislature commits to some subordinate body duty of making the assessment, due process of law requires that, at some stage of proceedings, before the tax becomes irrevocably fixed, taxpayer must have opportunity to be heard, and notice of time and place of hearing. Clark v. City of Burlington, 101 Vt. 391, 143 A. 677, 1928 Vt. LEXIS 168 (1928).

Due process of law does not require that one liable to assessment for special benefits conferred by a public improvement should have an opportunity to be heard on question whether public good requires the improvement since no property is taken by the improvement, but only a foundation laid for exercise of a particular right of taxation. Corliss v. Village of Richford, 85 Vt. 85, 81 A. 234, 1911 Vt. LEXIS 212 (1911).

—Construction with Vermont Constitution.

The Equal Protection Clause of this amendment and the Proportional Contribution Clause of Chapter I, Article 9 of the Vermont Constitution 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).

Property valuation.

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. Burlington Electric Dept. v. Department of Taxes, 154 Vt. 332, 576 A.2d 450, 1990 Vt. LEXIS 58 (1990).

Where there are no really comparable properties, this amendment 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).

This amendment 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).

—Burden of proof.

To show a violation of privileges and immunities and right to equal protection, nonresident taxpayer has burden of demonstrating discrimination to the extent that is arbitrary and unreasonable, and to show such discrimination, taxpayer must first demonstrate that he is disadvantaged compared to another in an equivalent position. Wheeler v. State, 127 Vt. 361, 249 A.2d 887, 1969 Vt. LEXIS 238, app. dismissed, 396 U.S. 4, 90 S. Ct. 24, 24 L. Ed. 2d 4, 1969 U.S. LEXIS 785 (1969).

Tests.

Where no fundamental right or suspect class is involved, tax laws challenged under the Equal Protection Clause of this amendment are reviewed by the minimum scrutiny of the rational basis test, under which there will be a determination of unconstitutionality only where the relevant law classifies similar persons for different treatment upon wholly arbitrary and capricious grounds; where the classification rests upon some reasonable consideration of legislative policy, it will not be unconstitutional. Colchester Fire District No. 2 v. Sharrow, 145 Vt. 195, 485 A.2d 134, 1984 Vt. LEXIS 571 (1984).

Ordinarily, when the Supreme Court is called upon to determine whether a tax law violates the Equal Protection Clause of this amendment, the court is required to impose only the minimum scrutiny of the rational basis test, which permits a determination of unconstitutionality only where the relevant law classifies similar persons for different treatment upon wholly arbitrary and capricious grounds; where the classification rests upon some reasonable consideration of legislative policy, it will not be found unconstitutional. 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).

Where plaintiff, who purchased an automobile while residing in Wisconsin and paid a sales tax to that state, claimed that requirement of 32 V.S.A. § 8903 that he pay a use tax as a condition of registering the vehicle in Vermont was an unconstitutional infringement of his right to travel under the Equal Protection Clause, trial court correctly applied “rational basis” test to measure the constitutionality of that section, since plaintiff suffered no restrictions on his right to travel in Vermont and incurred no penalty as a result of the exercise of that right, plaintiff was free to bring the automobile to Vermont and plaintiff ’s right to register the vehicle, which triggered the use tax obligation, did not implicate the fundamental right to travel. 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).

Motor vehicle purchase and use tax imposed under 32 V.S.A. § 8903 does not violate the Equal Protection Clause of this amendment by its failure to afford a new resident who registers a vehicle in Vermont credit for a sales tax paid on the vehicle, which was purchased, used and registered in a former state of residence, since the exempt classification established by 32 V.S.A. § 8911 is rationally related to the legitimate purpose of promoting commerce within the State and raising taxes to help maintain and improve the State and interstate highway system, and it is not an arbitrary one because a new resident who registers his vehicle pays the same tax and is treated in exactly the same manner as all nonexempt persons. Leverson v. Conway, 144 Vt. 523, 41 A.2d 1029 (1984).

—Burden of proof.

To show a violation of privileges and immunities and right to equal protection, nonresident taxpayer has burden of demonstrating discrimination to the extent that is arbitrary and unreasonable, and to show such discrimination, taxpayer must first demonstrate that he is disadvantaged compared to another in an equivalent position. Wheeler v. State, 127 Vt. 361, 249 A.2d 887, 1969 Vt. LEXIS 238, app. dismissed, 396 U.S. 4, 90 S. Ct. 24, 24 L. Ed. 2d 4, 1969 U.S. LEXIS 785 (1969).

—Construction with Vermont Constitution.

The Equal Protection Clause of this amendment and the Proportional Contribution Clause of Chapter I, Article 9 of the Vermont Constitution 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).

—Tests.

This amendment requires that if a state places a taxpayer under duress promptly to pay tax when due and relegates him to a post-payment refund action in which he can challenge the tax’s legality, it must provide meaningful backward-looking relief to rectify any unconstitutional deprivation, and therefore holding of American Trucking Ass’ns v. Conway, 146 Vt. 579, 508 A.2d 408 (1986), that the State cannot be sued without its consent for injuries resulting from the exercise of essentially governmental functions is overruled. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

Under its constitutional obligation to provide taxpayers a meaningful remedy to permit the recoupment of unconstitutionally exacted taxes, the State may choose and limit the remedy so long as its remedy comports with due process principles. Williams v. State, 156 Vt. 42, 589 A.2d 840, 1990 Vt. LEXIS 271 (1990), cert. denied, 502 U.S. 821, 112 S. Ct. 81, 116 L. Ed. 2d 54, 1991 U.S. LEXIS 5600 (1991), cert. denied, 502 U.S. 984, 112 S. Ct. 590, 116 L. Ed. 2d 614, 1991 U.S. LEXIS 6964 (1991).

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).

A tax law is not in conflict with the Due Process Clause of this amendment unless it proposes, or clearly results in, such flagrant and palpable inequality between the burden imposed and the benefit received as to amount to an arbitrary taking of property without compensation. Clark v. City of Burlington, 101 Vt. 391, 143 A. 677, 1928 Vt. LEXIS 168 (1928); Colgate v. Harvey, 107 Vt. 28, 175 A. 352, 1934 Vt. LEXIS 138 (1934), rev'd, 296 U.S. 404, 56 S. Ct. 252, 80 L. Ed. 299, 1935 U.S. LEXIS 588 (1935).

VI. ELECTIONS.
Equal protection.

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).

Giving towns, regardless of population, one vote on accepting or rejecting any proposal for division of a legislative district did not offend equal protection under the federal constitution. In re Reapportionment of Town of Hartland, 160 Vt. 9, 624 A.2d 323, 1993 Vt. LEXIS 27 (1993).

With respect to reapportionment of State Senate, the key demand of the Equal Protection Clause is representation on a balanced population basis, and other considerations, such as giving each county as presently established at least one Senator and maintaining the integrity of counties as senatorial districts, must yield. In re Senate Bills 177 & 83, 132 Vt. 282, 318 A.2d 157, 1974 Vt. LEXIS 335 (1974).

Plan reapportioning State Senate did not violate equal protection because one county had six Senators, due to its high population, and the other counties had from one to three Senators. In re Senate Bills 177 & 83, 132 Vt. 282, 318 A.2d 157, 1974 Vt. LEXIS 335 (1974).

Multimember legislative districts as established in the Senate and the House are permissible under Equal Protection Clause of this amendment. Buckley v. Hoff, 243 F. Supp. 873, 1965 U.S. Dist. LEXIS 7412 (D. Vt. 1965).

Equal Protection Clause of this amendment permits use either of total residents or of registered voters as basis of apportionment of the Senate and House of Representatives. Buckley v. Hoff, 243 F. Supp. 873, 1965 U.S. Dist. LEXIS 7412 (D. Vt. 1965).

Redistricting of State Senate along county lines on basis of total residents with multimember districts and redistricting of House of Representatives along town lines on basis of registered voters with multimember districts is valid under the Equal Protection Clause of this amendment. Buckley v. Hoff, 243 F. Supp. 873, 1965 U.S. Dist. LEXIS 7412 (D. Vt. 1965).

Potential abuse resulting from utilization of registered voters as criterion for legislative apportionment in other areas of country was no ground for holding that its use in Vermont would be violative of equal protection lacking any evidence that anyone had been unjustly denied franchise in elections to Vermont General Assembly. Buckley v. Hoff, 243 F. Supp. 873, 1965 U.S. Dist. LEXIS 7412 (D. Vt. 1965).

In particular cases, selection of total residents or registered voters as basis of apportionment of State Legislature may violate Equal Protection Clause of this amendment if it evidences an attempt to perpetuate prior malapportionment. Buckley v. Hoff, 243 F. Supp. 873, 1965 U.S. Dist. LEXIS 7412 (D. Vt. 1965).

Reapportionment plans providing for reapportionment and redistricting of Senate along county lines on basis of total residents with multimember districts and of House on town lines on basis of registered voters with multimember districts complied with basic standards of equality among voters in the apportionment of seats in the State Legislature required under Equal Protection Clause of this amendment, where disparity in registered voters per representative, between largest and smallest districts of House was 1.30:1 and maximum disparity in residents per Senator was 1.60:1. Buckley v. Hoff, 243 F. Supp. 873, 1965 U.S. Dist. LEXIS 7412 (D. Vt. 1965).

Cited.

Cited in Quimby v. Hazen, 54 Vt. 132, 1881 Vt. LEXIS 82 (1881); Town of St. Albans v. National Car Co., 57 Vt. 68, 1885 Vt. LEXIS 50 (1885); Bartlett v. Wilson, 59 Vt. 23, 8 A. 321, 1886 Vt. LEXIS 21 (1886); State v. Hodgson, 66 Vt. 134, 28 A. 1089, 1893 Vt. LEXIS 23 (1893); Grout v. Johnson, 73 Vt. 268, 50 A. 1055 (1901); Town of Clarendon v. Rutland Railroad, 75 Vt. 6, 52 A. 1057, 1902 Vt. LEXIS 84 (1902); State v. Shedroi, 75 Vt. 277, 54 A. 1081, 1903 Vt. LEXIS 129 (1903); Godfrey v. Bennington Water Co., 75 Vt. 350, 55 A. 654, 1903 Vt. LEXIS 139 (1903); Hersey v. Northern Assurance Co., 75 Vt. 441, 56 A. 95, 1903 Vt. LEXIS 158 (1903); State v. Dodge, 76 Vt. 197, 56 A. 983, 1904 Vt. LEXIS 122 (1904); Hubbard v. Hubbard, 77 Vt. 73, 58 A. 969, 1904 Vt. LEXIS 98 (1904); State v. Scampini, 77 Vt. 92, 59 A. 201, 1904 Vt. LEXIS 100 (1904); State v. Abraham, 78 Vt. 53, 61 A. 766, 1905 Vt. LEXIS 80 (1905); State v. Niles, 78 Vt. 266, 62 A. 795, 1906 Vt. LEXIS 146 (1906); State v. Hazelton, 78 Vt. 467, 63 A. 305, 1906 Vt. LEXIS 176 (1906); F.R. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 A. 938, 1906 Vt. LEXIS 92 (1906); In re Consolidated Rendering Co., 80 Vt. 55, 66 A. 790, 1907 Vt. LEXIS 77 (1907); Durkee v. City of Barre, 81 Vt. 530, 71 A. 819, 1909 Vt. LEXIS 331 (1909); Lazelle v. City of Barre, 81 Vt. 545, 71 A. 824, 1909 Vt. LEXIS 332 (1909); City of Burlington v. Central Vermont Railway, 82 Vt. 5, 71 A. 826, 1909 Vt. LEXIS 237 (1909); State Board of Health v. Village of St. Johnsbury, 82 Vt. 276, 73 A. 581, 1909 Vt. LEXIS 287 (1909); Barber v. Vinton, 82 Vt. 327, 73 A. 881, 1909 Vt. LEXIS 296 (1909); Bacon v. Boston & Maine Railroad, 83 Vt. 421, 76 A. 128, 1910 Vt. LEXIS 212 (1910); Rand v. Marshall, 84 Vt. 161, 78 A. 790, 1911 Vt. LEXIS 260 (1911); State v. Burlington Drug Co., 84 Vt. 243, 78 A. 882, 1911 Vt. LEXIS 264 (1911); State v. Morse, 84 Vt. 387, 80 A. 189, 1911 Vt. LEXIS 283 (1911); State v. Haskell, 84 Vt. 429, 79 A. 852, 1911 Vt. LEXIS 286 (1911); In re Sargood, 86 Vt. 130, 83 A. 718, 1912 Vt. LEXIS 157 (1912); State v. Alfred, 87 Vt. 157, 88 A. 534, 1913 Vt. LEXIS 182 (1913); Bondi v. MacKay, 87 Vt. 271, 89 A. 228, 1913 Vt. LEXIS 200 (1913); State ex rel. Martin v. Foley, 89 Vt. 193, 94 A. 841, 1915 Vt. LEXIS 204 (1915); Western Union Telegraph Co. v. Burlington Traction Co., 90 Vt. 506, 99 A. 4, 1916 Vt. LEXIS 306 (1916); In re Dexter, 93 Vt. 304, 107 A. 134, 1919 Vt. LEXIS 165 (1919); Carpenter v. Central Vermont Railway, 93 Vt. 357, 107 A. 569, 1919 Vt. LEXIS 171 (1919); Niebyski v. Welcome, 93 Vt. 418, 108 A. 341, 1919 Vt. LEXIS 181 (1919); Barclay v. Wetmore & Morse Granite Co., 94 Vt. 227, 110 A. 1, 1920 Vt. LEXIS 196 (1920); City of St. Albans v. Avery, 95 Vt. 249, 114 A. 31, 1921 Vt. LEXIS 208 (1921); City of Montpelier v. National Surety Co., 97 Vt. 111, 122 A. 484, 1923 Vt. LEXIS 222 (1923); In re James, 99 Vt. 265, 132 A. 40, 1926 Vt. LEXIS 131 (1926); State v. Shady, 100 Vt. 404, 138 A. 777, 1927 Vt. LEXIS 173 (1927); Everett v. Wing, 103 Vt. 488, 156 A. 393, 1931 Vt. LEXIS 197 (1931); State v. Lucia, 104 Vt. 53, 157 A. 61, 1931 Vt. LEXIS 145 (1931); State v. Stacy, 104 Vt. 379, 160 A. 257, 1932 Vt. LEXIS 158 (1932); 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); State v. Greaves, 112 Vt. 222, 22 A.2d 497, 1941 Vt. LEXIS 157 (1941); State v. Gladstone, 112 Vt. 233, 22 A.2d 490, 1941 Vt. LEXIS 161 (1941); McFeeters v. Parker, 113 Vt. 139, 30 A.2d 300, 1943 Vt. LEXIS 145 (1943); In re Estate of Moody, 115 Vt. 1, 49 A.2d 562, 1946 Vt. LEXIS 71 (1946); State v. Baker, 115 Vt. 94, 53 A.2d 53, 1947 Vt. LEXIS 84 (1947); In re Greenough, 116 Vt. 277, 75 A.2d 569, 1950 Vt. LEXIS 147 (1950); Smyth v. Twin State Imp. Corp., 116 Vt. 569, 80 A.2d 664, 1951 Vt. LEXIS 134 (1951); Ackerman v. Kogut, 117 Vt. 40, 84 A.2d 131, 1951 Vt. LEXIS 99 (1951); Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A.2d 271, 1954 Vt. LEXIS 105 (1954); Hanley v. United Steel Workers of America, 119 Vt. 187, 122 A.2d 872, 1956 Vt. LEXIS 99 (1956); State v. Goyet, 120 Vt. 12, 132 A.2d 623, 1957 Vt. LEXIS 68 (1957); McKinney v. Kelley, 120 Vt. 299, 141 A.2d 660, 1957 Vt. LEXIS 86 (1957); In re Charizio, 120 Vt. 208, 138 A.2d 430, 1958 Vt. LEXIS 95 (1958); In re Monaghan, 122 Vt. 199, 167 A.2d 81, 1961 Vt. LEXIS 56 (1961); In re Estate of Valiquette, 122 Vt. 362, 173 A.2d 832 (1961); Mikell v. Rousseau, 123 Vt. 139, 183 A.2d 817, 1962 Vt. LEXIS 211 (1962); O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568, 1963 Vt. LEXIS 99 (1963); Granai v. Witters, Longmoore, Akley & Brown, 123 Vt. 468, 194 A.2d 391, 1963 Vt. LEXIS 136 (1963); State v. Rickert, 124 Vt. 380, 205 A.2d 547, 1964 Vt. LEXIS 118 (1964); Hutchinson v. Cooley, 125 Vt. 303, 214 A.2d 828, 1965 Vt. LEXIS 242 (1965); Smith v. Buraczynski, 125 Vt. 310, 214 A.2d 826, 1965 Vt. LEXIS 243 (1965); In re Robinson, 125 Vt. 343, 215 A.2d 525, 1965 Vt. LEXIS 252 (1965); In re Newton, 125 Vt. 453, 218 A.2d 394, 1966 Vt. LEXIS 207 (1966); State v. Rockdale Assocs., 125 Vt. 495, 218 A.2d 718, 1966 Vt. LEXIS 218 (1966); In re Lorette, 126 Vt. 286, 228 A.2d 790, 1967 Vt. LEXIS 185 (1967); State v. Ovitt, 126 Vt. 320, 229 A.2d 237, 1967 Vt. LEXIS 192 (1967); State v. Rushford, 127 Vt. 105, 241 A.2d 306, 1968 Vt. LEXIS 185 (1968); Russell v. Smith, 127 Vt. 225, 245 A.2d 563, 1968 Vt. LEXIS 211 (1968); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68, 1968 Vt. LEXIS 220 (1968); LaFlamme v. Milne, 127 Vt. 301, 248 A.2d 692, 1968 Vt. LEXIS 228 (1968); State v. Pecor, 127 Vt. 401, 250 A.2d 736, 1969 Vt. LEXIS 243 (1969); State v. Duranleau, 128 Vt. 206, 260 A.2d 383, 1969 Vt. LEXIS 227 (1969); Heaton Hospital, Inc. v. Emrick, 128 Vt. 405, 264 A.2d 806, 1970 Vt. LEXIS 243 (1970); State v. Gilfel of Rutland, Inc., 128 Vt. 595, 270 A.2d 153, 1970 Vt. LEXIS 281 (1970); State v. Blondin, 128 Vt. 613, 270 A.2d 165, 1970 Vt. LEXIS 286 (1970); Trivento v. Smith, 129 Vt. 346, 278 A.2d 722, 1971 Vt. LEXIS 270 (1971); State v. Lane, 129 Vt. 436, 282 A.2d 796, 1971 Vt. LEXIS 286 (1971); In re Morrill, 129 Vt. 460, 282 A.2d 811, 1971 Vt. LEXIS 291 (1971); Segalla v. Segalla, 129 Vt. 517, 283 A.2d 237, 1971 Vt. LEXIS 300 (1971); In re Davenport, 129 Vt. 546, 283 A.2d 452, 1971 Vt. LEXIS 303 (1971); State v. Mayer, 129 Vt. 564, 283 A.2d 863, 1971 Vt. LEXIS 304 (1971); Mikell v. Town of Williston, 129 Vt. 586, 285 A.2d 713, 1971 Vt. LEXIS 309 (1971); Miserak v. Terrill, 130 Vt. 7, 285 A.2d 753, 1971 Vt. LEXIS 214 (1971); In re Senate Bill 177, 130 Vt. 358, 294 A.2d 653, 1972 Vt. LEXIS 283 (1972); Woodmansee v. Smith, 130 Vt. 383, 296 A.2d 182, 1972 Vt. LEXIS 287 (1972); F.W. Woolworth Co. v. Commissioner of Taxes, 130 Vt. 544, 298 A.2d 839, 1972 Vt. LEXIS 314 (1972); Landgraf v. Commissioner of Taxes, 130 Vt. 589, 298 A.2d 551, 1972 Vt. LEXIS 320 (1972); Bowles v. Robbins, 359 F. Supp. 249, 1973 U.S. Dist. LEXIS 14057 (D. Vt. 1973); In re Mayer, 131 Vt. 248, 303 A.2d 803, 1973 Vt. LEXIS 300 (1973); In re Shuttle, 131 Vt. 457, 306 A.2d 667, 1973 Vt. LEXIS 333 (1973); In re Duhamel, 131 Vt. 532, 310 A.2d 16, 1973 Vt. LEXIS 346 (1973); State v. Kelly, 131 Vt. 582, 312 A.2d 906, 1973 Vt. LEXIS 358 (1973); Aronstam v. Cashman, 132 Vt. 538, 325 A.2d 361, 1974 Vt. LEXIS 387 (1974); Allen v. Vermont Employment Security Board, 133 Vt. 166, 333 A.2d 122, 1975 Vt. LEXIS 358 (1975); Boone v. Boone, 133 Vt. 170, 333 A.2d 98, 1975 Vt. LEXIS 359 (1975); State v. Moffitt, 133 Vt. 366, 340 A.2d 39, 1975 Vt. LEXIS 405 (1975); Marsh v. Department of Employment Security, 133 Vt. 425, 340 A.2d 93, 1975 Vt. LEXIS 423 (1975); Bieling v. Malloy, 133 Vt. 522, 346 A.2d 204, 1975 Vt. LEXIS 444 (1975); State v. Killary, 133 Vt. 604, 349 A.2d 216, 1975 Vt. LEXIS 466 (1975); Powell v. Board of School Directors, 133 Vt. 609, 349 A.2d 879, 1975 Vt. LEXIS 468 (1975); State v. Murphy, 134 Vt. 106, 353 A.2d 346, 1976 Vt. LEXIS 606 (1976); State v. Breznick, 134 Vt. 261, 356 A.2d 540, 1976 Vt. LEXIS 648 (1976); Nolan v. Davidson, 134 Vt. 295, 357 A.2d 129, 1976 Vt. LEXIS 656 (1976); Village of Morrisville Water & Light Dept. v. Town of Hyde Park, 134 Vt. 325, 360 A.2d 882, 1976 Vt. LEXIS 666 (1976); Colonial Swimming Pool Co. v. Camperama of Vermont, Inc., 134 Vt. 463, 365 A.2d 262, 1976 Vt. LEXIS 704 (1976); In re J.F., 134 Vt. 478, 365 A.2d 258, 1976 Vt. LEXIS 707 (1976); In re M. A. C., 134 Vt. 522, 365 A.2d 254, 1976 Vt. LEXIS 718 (1976); Dunbar v. Gabaree, 135 Vt. 269, 376 A.2d 51, 1977 Vt. LEXIS 605 (1977); Town of Barnet v. Palazzi Corp., 135 Vt. 298, 376 A.2d 24, 1977 Vt. LEXIS 612 (1977); Napro Development Corp. v. Town of Berlin, 135 Vt. 353, 376 A.2d 342, 1977 Vt. LEXIS 628 (1977); Colombo v. Times-Argus Association, Inc., 135 Vt. 454, 380 A.2d 80, 1977 Vt. LEXIS 654 (1977); Trivento v. Commissioner of Corrections, 135 Vt. 475, 380 A.2d 69, 1977 Vt. LEXIS 660 (1977); State v. Brean, 136 Vt. 147, 385 A.2d 1085, 1978 Vt. LEXIS 706 (1978); State v. Holden, 136 Vt. 158, 385 A.2d 1092, 1978 Vt. LEXIS 708 (1978); State v. Welch, 136 Vt. 442, 394 A.2d 1115, 1978 Vt. LEXIS 771 (1978); John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 394 A.2d 1134, 1978 Vt. LEXIS 655 (1978); Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139, 1978 Vt. LEXIS 659 (1978); Mobil Oil Corp. v. Commissioner of Taxes, 136 Vt. 545, 394 A.2d 1147, 1978 Vt. LEXIS 664 (1978); Bard Bldg. Supply Co., Inc. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023, 1979 Vt. LEXIS 944 (1979); Lyon v. Bennington College Corp., 137 Vt. 135, 400 A.2d 1010, 1979 Vt. LEXIS 949 (1979); In re Raymond, 137 Vt. 171, 400 A.2d 1004, 1979 Vt. LEXIS 952 (1979); State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979); Governor Clinton Council, Inc. v. Koslowski, 137 Vt. 240, 403 A.2d 689, 1979 Vt. LEXIS 974 (1979); State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979); In re Parizo, 137 Vt. 365, 404 A.2d 114, 1979 Vt. LEXIS 978 (1979); State v. Meunier, 137 Vt. 586, 409 A.2d 583, 1979 Vt. LEXIS 1095 (1979); Rowe-Genereux, Inc. v. Department of Taxes, 138 Vt. 130, 411 A.2d 1345, 1980 Vt. LEXIS 1038 (1980); State v. Mecier, 138 Vt. 149, 412 A.2d 291, 1980 Vt. LEXIS 1043 (1980); State v. Prue, 138 Vt. 331, 415 A.2d 234, 1980 Vt. LEXIS 1218 (1980); State v. Blaise, 138 Vt. 430, 418 A.2d 27, 1980 Vt. LEXIS 1258 (1980); Whitney v. Fisher, 138 Vt. 468, 417 A.2d 934, 1980 Vt. LEXIS 1270 (1980); Herald Association, Inc. v. Ellison, 138 Vt. 529, 419 A.2d 323, 1980 Vt. LEXIS 1362 (1980); Gilbert v. Department of Employment Security, 139 Vt. 24, 421 A.2d 1295, 1980 Vt. LEXIS 1388 (1980); Stoneman v. Vergennes Union High School District # 5, 139 Vt. 50, 421 A.2d 1307, 1980 Vt. LEXIS 1395 (1980); Northwood AMC Corp. v. American Motors Corp., 139 Vt. 145, 423 A.2d 846, 1980 Vt. LEXIS 1496 (1980); Vermont Castings, Inc. v. Evans Products Co., 510 F. Supp. 940, 1981 U.S. Dist. LEXIS 11279 (D. Vt. 1981); Burns v. Times-Argus Association, Inc., 139 Vt. 381, 430 A.2d 773, 1981 Vt. LEXIS 490 (1981); Robinson v. International Industries Limited, Inc., 139 Vt. 444, 430 A.2d 457, 1981 Vt. LEXIS 483 (1981); Bouvier v. Wilson, 139 Vt. 494, 431 A.2d 465, 1981 Vt. LEXIS 503 (1981); In re Savo, 139 Vt. 527, 431 A.2d 482, 1981 Vt. LEXIS 510 (1981); State v. Phillips, 140 Vt. 210, 436 A.2d 746, 1981 Vt. LEXIS 583 (1981); State v. Patnaude, 140 Vt. 361, 438 A.2d 402, 1981 Vt. LEXIS 622 (1981); State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791, 1982 Vt. LEXIS 516 (1982); Fyles v. Schmidt, 141 Vt. 419, 449 A.2d 962, 1982 Vt. LEXIS 549 (1982); State v. Badger, 141 Vt. 430, 450 A.2d 336, 1982 Vt. LEXIS 553 (1982); State v. Shattuck, 141 Vt. 523, 450 A.2d 1122, 1982 Vt. LEXIS 572 (1982); In re Vermont Electric Cooperative, Inc., 141 Vt. 595, 451 A.2d 1110, 1982 Vt. LEXIS 588 (1982); Beauregard v. City of St. Albans, 141 Vt. 624, 450 A.2d 1148, 1982 Vt. LEXIS 571 (1982); American Trucking Ass'ns v. Conway, 142 Vt. 17, 451 A.2d 42, 1982 Vt. LEXIS 575 (1982); In re Kasper, 142 Vt. 31, 451 A.2d 1125, 1982 Vt. LEXIS 592 (1982); State v. White, 142 Vt. 73, 451 A.2d 1137, 1982 Vt. LEXIS 599 (1982); State v. Picknell, 142 Vt. 215, 454 A.2d 711, 1982 Vt. LEXIS 621 (1982); State v. Towne, 142 Vt. 241, 453 A.2d 1133, 1982 Vt. LEXIS 635 (1982); In re Mecier, 143 Vt. 23, 460 A.2d 472, 1983 Vt. LEXIS 464 (1983); Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 143 Vt. 66, 461 A.2d 414, 1983 Vt. LEXIS 466 (1983); State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983); State v. Loehmann, 143 Vt. 372, 467 A.2d 118, 1983 Vt. LEXIS 554 (1983); State v. Doucette, 143 Vt. 573, 470 A.2d 676, 1983 Vt. LEXIS 575 (1983); Galvin v. Vermont, 598 F. Supp. 144, 1984 U.S. Dist. LEXIS 22097 (D. Vt. 1984); In re Central Vermont Public Service Corp., 144 Vt. 46, 473 A.2d 1155, 1984 Vt. LEXIS 409 (1984); State v. Bailey, 144 Vt. 86, 475 A.2d 1045, 1984 Vt. LEXIS 420 (1984); City of Vergennes v. State, 144 Vt. 146, 473 A.2d 1172, 1984 Vt. LEXIS 427 (1984); State v. Chambers, 144 Vt. 377, 477 A.2d 974, 1984 Vt. LEXIS 485 (1984); State v. Mecier, 145 Vt. 173, 488 A.2d 737, 1984 Vt. LEXIS 595 (1984); Williams v. Vermont, 472 U.S. 14, 105 S. Ct. 2465, 86 L. Ed. 2d 11, 1985 U.S. LEXIS 90 (1985); State v. Martin, 145 Vt. 562, 496 A.2d 442, 1985 Vt. LEXIS 327 (1985); State v. Paquette, 146 Vt. 1, 497 A.2d 358, 1985 Vt. LEXIS 419 (1985); State v. Maguire, 146 Vt. 49, 498 A.2d 1028, 1985 Vt. LEXIS 349 (1985); State v. Ramsay, 146 Vt. 70, 499 A.2d 15, 1985 Vt. LEXIS 341 (1985); In re J.R., 146 Vt. 185, 499 A.2d 1155, 1985 Vt. LEXIS 361 (1985); In re R.A., 146 Vt. 289, 501 A.2d 743, 1985 Vt. LEXIS 385 (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. Lombard, 146 Vt. 411, 505 A.2d 1182, 1985 Vt. LEXIS 390 (1985); State v. Gonyaw, 146 Vt. 559, 507 A.2d 944, 1985 Vt. LEXIS 416 (1985); Shockley v. Vermont State Colleges, 793 F.2d 478, 1986 U.S. App. LEXIS 26370 (2d Cir. 1986); Dale v. State of Vermont, 630 F. Supp. 107, 1986 U.S. Dist. LEXIS 30672 (D. Vt. 1986); Nash v. Wennar, 645 F. Supp. 238, 1986 U.S. Dist. LEXIS 19107 (D. Vt. 1986); American Trucking Ass'ns v. Conway, 146 Vt. 579, 508 A.2d 408, 1986 Vt. LEXIS 331 (1986); State v. Robillard, 146 Vt. 623, 508 A.2d 709, 1986 Vt. LEXIS 334 (1986); State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986); State v. Mitchell, 147 Vt. 218, 514 A.2d 1047, 1986 Vt. LEXIS 387 (1986); State v. Norton, 147 Vt. 223, 514 A.2d 1053, 1986 Vt. LEXIS 397 (1986); State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986); State v. Sird, 148 Vt. 35, 528 A.2d 1114, 1987 Vt. LEXIS 448 (1987); City of Burlington v. New York Times Co., 148 Vt. 275, 532 A.2d 562, 1987 Vt. LEXIS 506 (1987); State v. Jewett, 148 Vt. 324, 532 A.2d 958, 1987 Vt. LEXIS 632 (1986); State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 1987 Vt. LEXIS 513 (1987); State v. Catsam, 148 Vt. 366, 534 A.2d 184, 1987 Vt. LEXIS 511 (1987); State v. Ballou, 148 Vt. 427, 535 A.2d 1280, 1987 Vt. LEXIS 536 (1987); In re Hval, 149 Vt. 58, 539 A.2d 537, 1987 Vt. LEXIS 591 (1987); Herald Ass'n v. Judicial Conduct Board, 149 Vt. 233, 544 A.2d 596, 1988 Vt. LEXIS 30 (1988); State v. Brunell, 150 Vt. 388, 554 A.2d 242, 1988 Vt. LEXIS 191 (1988); State v. Hunt, 150 Vt. 483, 555 A.2d 369, 1988 Vt. LEXIS 213 (1988); Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219, 1989 U.S. LEXIS 3285 (1989); Dubuque v. Yeutter, 728 F. Supp. 303, 1989 U.S. Dist. LEXIS 15859 (D. Vt. 1989); Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073, 1989 Vt. LEXIS 34 (1989); State v. Cantrell, 151 Vt. 130, 558 A.2d 639, 1989 Vt. LEXIS 13 (1989); State v. Corey, 151 Vt. 325, 561 A.2d 87, 1989 Vt. LEXIS 70 (1989); State v. Venman, 151 Vt. 561, 564 A.2d 574, 1989 Vt. LEXIS 109 (1989); State v. Griffin, 152 Vt. 41, 563 A.2d 642, 1989 Vt. LEXIS 120 (1989); Nicholas & Co. v. Geibel, 152 Vt. 50, 564 A.2d 596, 1989 Vt. LEXIS 123 (1989); Alexander v. Town of Barton, 152 Vt. 148, 565 A.2d 1294, 1989 Vt. LEXIS 283 (1989); Ladabouche v. Walton, 152 Vt. 224, 565 A.2d 1324, 1989 Vt. LEXIS 166 (1989); In re One Church Street, 152 Vt. 260, 565 A.2d 1349, 1989 Vt. LEXIS 171 (1989); State v. Briggs, 152 Vt. 531, 568 A.2d 779, 1989 Vt. LEXIS 204 (1989); Choquette v. Perrault, 153 Vt. 45, 569 A.2d 455, 1989 Vt. LEXIS 228 (1989); Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592, 1989 Vt. LEXIS 285 (1989); In re J.S., 153 Vt. 365, 571 A.2d 658, 1989 Vt. LEXIS 265 (1989); State v. Edwards, 153 Vt. 649, 569 A.2d 1075, 1989 Vt. LEXIS 238 (1989); In re A.K., 153 Vt. 462, 571 A.2d 75, 1990 Vt. LEXIS 7 (1990); P.C. v. McLaughlin, 913 F.2d 1033, 1990 U.S. App. LEXIS 15886 (2d Cir. 1990); State v. Pelican, 154 Vt. 496, 580 A.2d 942, 1990 Vt. LEXIS 133 (1990); Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153, 1990 Vt. LEXIS 175 (1990); Southview Assocs. v. Individual Members of Vermont Environmental Bd., 782 F. Supp. 279, 1991 U.S. Dist. LEXIS 19208 (D. Vt. 1991); 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); Barringer v. Griffes, 964 F.2d 1278, 1992 U.S. App. LEXIS 11136 (2d Cir. 1992); Covino v. Patrissi, 967 F.2d 73, 1992 U.S. App. LEXIS 14230 (2d Cir. 1992); Barringer v. Griffes, 801 F. Supp. 1282, 1992 U.S. Dist. LEXIS 14953 (D. Vt. 1992); State v. O'Brien, 158 Vt. 275, 609 A.2d 981, 1992 Vt. LEXIS 52 (1992); State v. Robinson, 158 Vt. 286, 611 A.2d 852, 1992 Vt. LEXIS 53 (1992); In re Diel, 158 Vt. 549, 614 A.2d 1223, 1992 Vt. LEXIS 85 (1992); United States v. Westover, 812 F. Supp. 38, 1992 U.S. Dist. LEXIS 20794 (D. Vt. 1992); State v. Blackmer, 160 Vt. 451, 631 A.2d 1134, 1993 Vt. LEXIS 75 (1993); LaFaso v. Patrissi, 161 Vt. 46, 633 A.2d 695, 1993 Vt. LEXIS 96 (1993); State v. DeRosa, 161 Vt. 78, 633 A.2d 277, 1993 Vt. LEXIS 93 (1993); 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); State v. Meyer, 167 Vt. 608, 708 A.2d 1343, 1998 Vt. LEXIS 19 (1998); Chittenden v. Waterbury Center Community Church, 168 Vt. 478, 726 A.2d 20, 1998 Vt. LEXIS 400 (1998); State v. Hill, 174 Vt. 566, 816 A.2d 440, 2002 Vt. LEXIS 329 (2002) (mem.).

Law Reviews —

For note relating to proposed administrative license suspension procedures, see 11 Vt. L. Rev. 75 (1986).

For article, “Equality, Classifications, and Irrelevant Characteristics,” see 12 Vt. L. Rev. 11 (1987).

For note, “The Rights of the Biological Father: From Adoption and Custody to Surrogate Motherhood,” see 12 Vt. L. Rev. 87 (1987).

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

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

For article, “Federalism and State Constitutions,” see 13 Vt. L. Rev. 127 (1988).

For note, “A Question of Competence: The Indigent Criminal Defendant’s Right to Adequate and Competent Psychiatric Assistance After Ake v. Oklahoma ”, see 14 Vt. L. Rev. 121 (1989).

For note, “A Crisis in Confidence: Municipal Officials Under Fire,” see 16 Vt. L. Rev. 579 (1992).

For article, “The Moral Confusion of Affirmative Action Jurisprudence or When Will We Learn to Bear the Shame of Guilt?,” see 16 Vt. L. Rev. 777 (1992).

For note, “An Analysis of the Doctrines and Goals of Feminist Legal Theory and Their Constitutional Implications”, see 19 Vt. L. Rev. 137 (1994).

For article, “The Quick of the Matter: The Proposition of Takings Litigation Under the Save Our Springs Ordinance,” see 25 Vt. L. Rev. 545 (2001).

Amendment XV.

§ 1. Impartial suffrage

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

§ 2. Enforcement powers

The Congress shall have power to enforce this article by appropriate legislation.

History

Proposal and ratification. This amendment was proposed by the Fortieth Congress on February 26, 1869, and was declared ratified on March 30, 1870. The states that ratified this amendment and the dates of ratification are: Nevada, March 1, 1869; West Virginia, March 3, 1869; North Carolina, March 5, 1869; Louisiana, March 5, 1869; Illinois, March 5, 1869; Michigan, March 8, 1869; Wisconsin, March 9, 1869; Maine, March 11, 1869; Massachusetts, March 12, 1869; South Carolina, March 15, 1869; Arkansas, March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869 (consent to ratification withdrawn, January 5, 1870); Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869; Alabama, November 16, 1869; Missouri, January 7, 1870; Minnesota, January 13, 1870; Mississippi, January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, 1870; Ohio, January 27, 1870; Georgia, February 2, 1870; Iowa, February 3, 1870; Nebraska, February 17, 1870; Texas, February 18, 1870; New Jersey, February 15, 1871; Delaware. February 12, 1901; and California, April 3, 1962.

CROSS REFERENCES

Woman suffrage, see Amendment XIX.

Amendment XVI. Income taxes

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

History

Proposal and ratification. This amendment was proposed by the Sixty-first Congress on July 12, 1909, and was declared ratified on February 25, 1913. The states that ratified this amendment and the dates of ratification are: Alabama, August 10, 1909; Kentucky, February 8, 1910; South Carolina, February 19, 1910; Illinois, March, 1, 1910; Mississippi, March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911; Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January 26, 1911; Montana, January 27, 1911; Indiana, January 30, 1911; California, January 31, 1911; Nevada, January 31, 1911; South Dakota, February 1, 1911; Nebraska, February 9, 1911; North Carolina, February 11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911; Kansas, March 2, 1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April 7, 1911; Arkansas, April 22, 1911; Wisconsin, May 16, 1911; New York, July 12, 1911; Arizona, April 3, 1912; Minnesota, June 11, 1912; Louisiana, June 28, 1912; West Virginia, January 31, 1913; Delaware, February 3, 1913; Wyoming, February 3, 1913; New Mexico, February 3, 1913; New Jersey, February 4, 1913; Vermont, February 19, 1913; Massachusetts, March 4, 1913; and New Hampshire, March 7, 1913.

CROSS REFERENCES

State income taxes, see 32 V.S.A. § 5811 et seq.

Tax liability under State Constitution, see Vt. Const. Ch. I, Art. 9.

ANNOTATIONS

Cited.

Cited in Bieling v. Malloy, 133 Vt. 522, 346 A.2d 204, 1975 Vt. LEXIS 444 (1975).

Amendment XVII. Election of Senators by direct vote

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.

The electors in each State shall have the qualifications requisite for electors of each most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies; Provided, that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to effect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

History

Proposal and ratification. This amendment was proposed by the Sixty-second Congress on May 13, 1912, and was declared ratified on May 31, 1913. The states that ratified this amendment and the dates of ratification are: Massachusetts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, January 15, 1913: Kansas, January 17, 1913; Oregon, January 23, 1913; California, January 28, 1913; Michigan, January 28, 1913; Iowa, January 30, 1913; Montana, January 30, 1913; Idaho, January 31, 1913; West Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13, 1913; North Dakota, February 14, 1913; Wisconsin, February 18. 1913; Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont, February 19, 1913; South Dakota, February 19, 1913; Maine, February 20, 1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri, March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2, 1913; Connecticut, April 8, 1913; and Louisiana, June 5, 1914.

Amendment XVIII.

§ 1. Intoxicating liquor prohibited

After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof, into, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

§ 2. Enforcement powers

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

§ 3. Ratification

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

History

Proposal and ratification. This amendment was proposed by the Sixty-fifth Congress on December 18, 1917, and was declared ratified on January 29, 1919. The states that ratified this amendment and the dates of ratification are: Mississippi, January 8, 1918; Virginia, January 11, 1918; Kentucky, January 14, 1918; North Dakota, January 28, 1918; South Carolina, January 29, 1918; Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4, 1918; Delaware, March 18, 1918; South Dakota, March 20, 1918; Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26. 1918; Louisiana, August 9, 1918; Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January 8, 1919; West Virginia, January 9, 1919; California, January 13, 1919; Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919; Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919; Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina, January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919; Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin, January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21, 1919; New York, January 29, 1919; Vermont, January 29, 1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; and New Jersey, March 9, 1922.

Proposal and ratification. This amendment was repealed by Amendment XXI.

ANNOTATIONS

Application to State.

Adoption of this amendment did not impair right of State by exercise of its police power to protect its citizens in its own way from evil effects of intoxicating liquor, except that after such adoption it could not permit sale, use, or possession of intoxicating liquor of a kind, or in a manner, prohibited by laws of United States. State v. Lucia, 104 Vt. 53, 157 A. 61, 1931 Vt. LEXIS 145 (1931).

Cited.

Cited in In re Guerra, 94 Vt. 1, 110 A. 224, 1920 Vt. LEXIS 162 (1920); State v. Semeraro, 99 Vt. 275, 131 A. 798, 1926 Vt. LEXIS 132 (1926); Chase v. Billings, 106 Vt. 149, 170 A. 903, 1934 Vt. LEXIS 152 (1934); State v. Van Ness, 109 Vt. 392, 199 A. 759, 1938 Vt. LEXIS 146 (1938).

Amendment XIX. Woman suffrage; enforcement powers

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

History

Proposal and ratification. This amendment was proposed by the Sixty-sixth Congress on May 4, 1919, and was declared ratified on August 26, 1920. The states that ratified this amendment and the dates of ratification are: Illinois, June 10, 1919; Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June 24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July 2, 1919; Missouri, July 3, 1919; Arkansas, July 28, 1919; Montana, August 2, 1919; Nebraska, August 2, 1919; Minnesota, September 8, 1919; New Hampshire, September 10, 1919; Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, 1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919; Colorado, December 15, 1919; Kentucky, January 6, 1920; Rhode Island, January 6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9, 1920; Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico, February 21, 1920; Oklahoma, February 28, 1920; West Virginia, March 10, 1920; Washington, March 22, 1920; Tennessee, August 18, 1920; Connecticut, September 14, 1920; Vermont, February 8, 1921; Virginia, February 21, 1952; Florida, May 13, 1969; Georgia, February 20, 1970; Louisiana, June 11, 1970; and Mississippi, March 22, 1984.

CROSS REFERENCES

Impartial suffrage, see Amendment XV.

Amendment XX.

§ 1. Terms of President, Vice President and members of Congress

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

§ 2. Time of assembling of Congress

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day.

§ 3. Vacancies in office of President and Vice President

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President, or the manner in which one who is to act shall be selected and such person shall act accordingly until a President or Vice President shall have qualified.

§ 4. Vacancies in list of persons from whom President and Vice President may be chosen

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice may have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

§ 5. Effective date

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

§ 6. Ratification

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

History

Proposal and ratification. This amendment was proposed by the Seventy-second Congress on March 3, 1932, and was declared ratified on February 6, 1933. The states that ratified this amendment and the date of ratification are: Virginia, March 4, 1932; New York, March 11, 1932; Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March 17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932; Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14, 1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia, July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932; Texas, September 7, 1932; Alabama, September 13, 1932; California, January 4, 1933; North Carolina, January 5, 1933; North Dakota, January 9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming, January 19, 1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933; Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23, 1933; Utah, January 23, 1933; Colorado, January 24, 1933; Massachusetts, January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26, 1933; Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont, February 2, 1933; Maryland, March 24, 1933; and Florida, April 26, 1933.

Amendment XXI.

§ 1. Repeal of 18th amendment

The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed.

§ 2. Transportation of intoxicating liquors in violation of state law prohibited

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

§ 3. Ratification

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

History

Proposal and ratification. This amendment was proposed by the Seventy-second Congress on February 20, 1933, and was declared ratified on December 5, 1933. The states that ratified this amendment and the dates of ratification are: Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California, July 24, 1933; West Virginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, 1933; Colorado, September 26, 1933; Washington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November 27. 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah, December 5, 1933; Maine, December 6, 1933; and Montana, August 6, 1934.

ANNOTATIONS

Construction of statutes.

It is not necessary that liquor statute contain the words “import” or “importation” to come within the purview of this amendment. Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A.2d 271, 1954 Vt. LEXIS 105 (1954).

Effect on commerce.

This amendment confers upon states the power to forbid all importations that do not comply with the conditions that the state provides and thereby relieves the states of limitations of Commerce Clause on their powers over transportation or importation of intoxicating liquor. Ruppert v. Commissioner of Taxes, 117 Vt. 83, 85 A.2d 584, 1952 Vt. LEXIS 103 (1952).

Products of liquor manufacturer may not be marketed in Vermont unless manufacturer holds a valid certificate of approval from Liquor Control Board since this amendment has placed liquor in a category different from that of other articles of commerce. Ruppert v. Commissioner of Taxes, 117 Vt. 83, 85 A.2d 584, 1952 Vt. LEXIS 103 (1952).

Law Reviews —

For note relating to constitutionality of the Surface Transportation Assistance Act, see 11 Vt. L. Rev. 203 (1986).

Amendment XXII.

§ 1. Terms of office of President

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

§ 2. Time for ratification

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

History

Proposal and ratification. This amendment was proposed by the Eightieth Congress on March 24, 1947, and was declared ratified on March 1, 1951. The states that ratified this amendment and the dates of ratification are: Maine, March 31, 1947; Michigan, March 31, 1947; Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1, 1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3, 1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey, April 15, 1947; Vermont, April 15, 1947; Ohio, April 16, 1947; Wisconsin, April 16, 1947; Pennsylvania, April 29, 1947; Connecticut, May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, January 28, 1948; Mississippi, February 12, 1948; New York, March 9, 1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949; Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29, 1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyoming, February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17, 1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Utah, February 26, 1951; Nevada, February 26, 1951; Minnesota, February 27, 1951; North Carolina, February 28, 1951; South Carolina, March 13, 1951; Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4, 1951.

Amendment XXIII.

§ 1. Electors for District of Columbia

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

§ 2. Enforcement of article

The Congress shall have power to enforce this article by appropriate legislation.

History

Proposal and ratification. This amendment was proposed by the Eighty-sixth Congress on June 16, 1960, and was declared ratified on April 3, 1961. The states that ratified this amendment and the dates of ratification are: Hawaii, June 23, 1960; Massachusetts, August 22, 1960; New Jersey, December 19, 1960; New York, January 17, 1961; California, January 19, 1961; Oregon, January 27, 1961; Maryland, January 30, 1961; Idaho, January 31, 1961; Maine, January 31, 1961; Minnesota, January 31, 1961; New Mexico, February 1, 1961; Nevada, February 2, 1961; Montana, February 6, 1961; Colorado, February 8, 1961; Washington, February 9, 1961; West Virginia, February 9, 1961; Alaska, February 10, 1961; Wyoming, February 13, 1961; South Dakota, February 14, 1961; Delaware, February 20, 1961; Utah, February 21, 1961; Wisconsin, February 21, 1961; Pennsylvania, February 28, 1961; Indiana, March 3, 1961; North Dakota, March 3, 1961; Tennessee, March 6, 1961; Michigan, March 8, 1961; Connecticut, March 9, 1961; Arizona, March 10, 1961; Illinois, March 14, 1961; Nebraska, March 15, 1961; Vermont, March 15, 1961; Iowa, March 16, 1961; Missouri, March 20, 1961; Oklahoma, March 21, 1961; Rhode Island, March 22, 1961; Kansas, March 29, 1961; Ohio, March 29, 1961; and New Hampshire, March 30, 1961.

Amendment XXIV.

§ 1. Poll or other tax, abridgment of right to vote

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

§ 2. Enforcement of article

The Congress shall have power to enforce this article by appropriate legislation.

History

Proposal and ratification. This amendment was proposed by the Eighty-seventh Congress on August 27, 1962, and was declared ratified on February 4, 1964. The states that ratified this amendment and the dates of ratification are: Illinois, November 14, 1962; New Jersey, December 3, 1962; Oregon, January 25, 1963; Montana, January 28, 1963; West Virginia, February 1, 1963; New York, February 4, 1963; Maryland, February 6, 1963; California, February 7, 1963; Alaska, February 11, 1963; Rhode Island, February 14, 1963; Indiana, February 19, 1963; Utah, February 20, 1963; Michigan, February 20, 1963; Colorado, February 21, 1963; Ohio, February 27, 1963; Minnesota, February 27, 1963; New Mexico, March 5, 1963; Hawaii, March 6, 1963; North Dakota, March 7, 1963; Idaho, March 8, 1963; Washington, March 14, 1963; Vermont, March 15, 1963; Nevada, March 19, 1963; Connecticut, March 20, 1963; Tennessee, March 21, 1963; Pennsylvania, March 25, 1963; Wisconsin, March 26, 1963; Kansas, March 28, 1963; Massachusetts, March 28, 1963; Nebraska, April 4, 1963; Florida, April 18, 1963; Iowa, April 24, 1963; Delaware, May 1, 1963; Missouri, May 13, 1963; New Hampshire, June 12, 1963; Kentucky, June 27, 1963; Maine, January 16, 1964; and South Dakota, January 23, 1964.

Amendment XXV.

§ 1. Succession of Vice President

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

§ 2. Nomination of Vice President; confirmation

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

§ 3. Determination by President of inability to act; Vice President as Acting President

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

§ 4. Determination by Vice President and others as to President’s ability to act; Vice President as Acting President

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

History

Proposal and ratification. This amendment was proposed by the Eighty-ninth Congress on January 4, 1965, and was declared ratified on February 23, 1967. The states that ratified this amendment and the dates of ratification are: Nebraska, July 12, 1965; Wisconsin, July 13, 1965; Oklahoma, July 16, 1965; Massachusetts, August 9, 1965; Pennsylvania, August 18, 1965; Kentucky, September 15, 1965; Arizona, September 22, 1965; Michigan, October 5, 1965; Indiana, October 20, 1965; California, October 21, 1965; Arkansas, November 4, 1965; New Jersey, November 29, 1965; Delaware, December 7, 1965; Utah, January 17, 1966; West Virginia, January 20, 1966; Maine, January 24, 1966; Rhode Island, January 28, 1966; Colorado, February 3, 1966; New Mexico, February 3, 1966; Kansas, February 8, 1966; Vermont, February 10, 1966; Alaska, February 18, 1966; Idaho, March 2, 1966; Hawaii, March 3, 1966; Virginia, March 8, 1966; Mississippi, March 10, 1966; New York, March 14, 1966; Maryland, March 23, 1966; Missouri, March 30, 1966; New Hampshire, June 13, 1966; Louisiana, July 5, 1966; Tennessee, January 12, 1967; Wyoming, January 25, 1967; Iowa, January 26, 1967; Washington, January 26, 1967; Oregon, February 2, 1967; Minnesota, February 10, 1967; Nevada, February 10, 1967; Connecticut, February 14, 1967; Montana, February 15, 1967; South Dakota, March 6, 1967; Ohio, March 7, 1967; Alabama, March 14, 1967; North Carolina, March 22, 1967; Illinois, March 22, 1967; Texas, April 25, 1967; and Florida, May 25, 1967.

Amendment XXVI.

§ 1. Right to vote; citizens eighteen years of age or older

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

§ 2. Enforcement of article

The Congress shall have power to enforce this article by appropriate legislation.

History

Proposal and ratification. This amendment was proposed by the Ninety-second Congress on March 23, 1971, and was declared ratified on July 5, 1971. The states that ratified this amendment and the dates of ratification are: Connecticut, March 23, 1971; Delaware, March 23, 1971; Minnesota, March 23, 1971; Tennessee, March 23, 1971; Washington, March 23, 1971; Hawaii, March 24, 1971; Massachusetts, March 24, 1971; Idaho, March 30, 1971; Montana, March 31, 1971; Arkansas, April 1, 1971; Iowa, April 1, 1971; Nebraska, April 2, 1971; Kansas, April 7, 1971; Michigan, April 7, 1971; Indiana, April 8, 1971; Maine, April 9, 1971; Vermont, April 16, 1971; California, April 19, 1971; South Carolina, April 28, 1971; West Virginia, April 28, 1971; Pennsylvania, May 3, 1971; New Jersey, May 4, 1971; Texas, May 5, 1971; Maryland, May 6, 1971; New Hampshire, May 13, 1971; Arizona, May 17, 1971; Colorado, May 24, 1971; Louisiana, May 27, 1971; Rhode Island, May 27, 1971; New York, June 2, 1971; Oregon, June 5, 1971; Missouri, June 14, 1971; Wisconsin, June 18, 1971; Illinois, June 29, 1971; Alabama, June 30, 1971; Ohio, June 30, 1971; North Carolina, July 1, 1971; and Oklahoma, July 1, 1971.

Amendment XXVII. Compensation of members of Congress

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

History

Proposal and ratification. This amendment was proposed pursuant to a resolution passed by the first Congress of the United States, as its first session, on Sept. 25, 1789, and was declared ratified on May 19, 1992. The states that ratified this amendment and the dates of ratification are: Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; Delaware, January 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Ohio, May 6, 1873; Wyoming, March 3, 1978; Maine, April 27, 1983; Colorado, April 18, 1984; South Dakota, Feb. 21, 1985; New Hampshire, March 7, 1985; Arizona; April 3, 1985; Tennessee, May 3, 1985; Oklahoma, July 10, 1985; New Mexico, Feb. 14, 1986; Indiana, Feb. 24, 1986; Utah, February 26, 1986; Arkansas, March 5, 1987; Montana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, June 30, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Louisiana, July 6, 1988; Iowa, February 7, 1989; Idaho, March 23, 1989; Nevada, April 26, 1989; Alaska, May 5, 1989; Oregon, May 19, 1989; Minnesota, May 22, 1989; Texas, May 25, 1989, Kansas, April 4, 1990; Florida, May 31, 1990; North Dakota, March 25, 1991; Missouri, May 5, 1992, Alabama, May 5, 1992; Michigan, May 7, 1992; New Jersey, May 7, 1992; and Illinois, May 12, 1992.

History

Adoption. Congress, on February 21, 1787, called a convention of delegates to be appointed by the several states, to be held at Philadelphia on the second Monday of the next May. The convention met, and, on the 25th of May, elected George Washington President. It completed and agreed upon the Constitution, which, on September 17, 1787, was signed and, with a letter and resolution, submitted to Congress. The resolution declared that it was the opinion of the convention that the Constitution should be submitted to a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention ratifying it should notify Congress; also that, after ratification by nine states, Congress should fix a day for the appointment of electors by the ratifying states, a day on which the electors should meet to vote for President, and the time and place for commencing proceedings under the Constitution. The Constitution, with the letter and resolution of the convention, was, September 28, 1787, transmitted by Congress to the several legislatures. It was ratified by conventions in the several states on the following dates: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 26, 1788; and New York, July 26, 1788. Congress was notified of the action of these conventions, and, on September 13, 1788, setting forth that the Constitution had been ratified in the manner therein declared to be sufficient for its establishment, fixed New York as the place, and the first Wednesday, being the fourth day of March, 1789, as the time, for commencing proceedings under it. After the Constitution of the United States commenced in operation, March 4, 1789, it was ratified by the convention of North Carolina, November 21, 1789; and by that of Rhode Island, May 29, 1790. It was ratified by a convention of delegates of the people of Vermont, January 10, 1791; and, on March 4, 1791, by an act of Congress, approved February 18, 1791, the State of Vermont was admitted into the union as the fourteenth state.

Headings. The headings in brackets have been inserted by the editors and are not part of text of the Constitution.