Volume 153 — Vermont Reports

<bold>1. Public Utilities — Relocation of Facilities — Generally</bold> Governmental/proprietary distinction has no applicability in the area of utilities relocation law. <bold>2. Public Utilities — Relocation of Facilities — Costs</bold> In the absence of a statute or contract agreement to the contrary, a utility must pay the cost to relocate its facilities whenever the municipality reasonably requires it in the exercise of its police power to protect the health, safety or welfare of its citizens. <bold>3. Public Utilities — Relocation of Facilities — Costs</bold> In suit brought by utility to recover the cost of relocating its gas lines as required by city, where utility did not show that any contractual agreements or statutes required the city to pay for any or all of the relocation expenses, trial court correctly concluded that utility should bear the cost of relocating its facilities.

<bold>1. Administrative Law — Administrative Interpretation of Statutes</bold> <bold>— Particular Statutes</bold> Department of Social Welfare regulations that condition entitlement to welfare benefits on face-to-face interviews and verification of circumstances surrounding eligibility leave the determination of what shall constitute appropriate verification to the discretion of the agency. Food Stamp Manual § 273.2(d)-(f). <bold>2. Administrative Law — Discretionary Rulings — Limitations</bold> In the absence of a showing of an abuse of discretion resulting in prejudice to one of the parties, agencies may perform their discretionary duties without judicial interference.<page_number>Page 480</page_number> <bold>3. Administrative Law — Discretionary Rulings — Particular Cases</bold> Requirement that applicant for food stamps verify through third-party sources the composition of her household was not an abuse of discretion, where applicant refused to participate in a face-to-face interview to clarify application and information provided on application form raised question of number of persons in household. <bold>4. Administrative Law — Hearings — Judicially Noticeable Facts</bold> On review of denial of food stamp benefits, judicial notice taken of facts contained in prior application for food stamps was proper, even though made without notice to petitioner, under provisions of statute exempting Vermont Human Services Board from requirement that agencies give notice and opportunity to respond when judicial notice is taken. <cross_reference>3 V.S.A. § 816</cross_reference>(a)(1). <bold>5. Administrative Law — Judicial Review — Discretionary Rulings</bold> In reviewing denial of food stamp application, Vermont Human Services Board properly took judicial notice of questionable household composition information from earlier food stamp application and applicant's previous uncooperativeness. <bold>6. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> Due process challenge to Vermont Human Services Board's denial of food stamps and fuel assistance would not be heard in appeal to supreme court as issues were not raised below.

<bold>1. Criminal Law — Intent — Statutes</bold> The Legislature's silence as to the mens rea required for a particular offense requires judicial determination of the intent of the Legislature; creation of a statutory strict liability offense will not be assumed by supreme court. <bold>2. Homicide — Involuntary Manslaughter — Intent</bold> Involuntary manslaughter statute, silent as to mens rea requirement, implicitly contains element of mens rea; Legislature could not have intended to subject a person to a maximum penalty of 15 years without requiring the State to show that defendant bore some fault in causing the death of another. <cross_reference>13 V.S.A. § 2304</cross_reference>. <bold>3. Homicide — Involuntary Manslaughter — Intent</bold> Intent element applicable to involuntary manslaughter statute is the same for acts malum prohibitum and malum in se; classification of acts as malum prohibitum or malum in se is unnecessary. <cross_reference>13 V.S.A. § 2304</cross_reference>. <bold>4. Homicide — Involuntary Manslaughter — Intent</bold> The minimum standard of culpability under involuntary manslaughter statute is criminal negligence; defendant must have disregarded a risk of death or injury of such a nature and degree that his failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. <cross_reference>13 V.S.A. § 2304</cross_reference>. <bold>5. Indictment and Information — Sufficiency — Particular Cases</bold> Information adequately charged offense of involuntary manslaughter where it specifically alleged defendant caused the death of victim by committing the unlawful act of furnishing alcohol to a minor, and detailed affidavit of probable cause accompanying information reasonably indicated the illegal act giving rise to exact offense charged. <cross_reference>13 V.S.A. § 2304</cross_reference>. <bold>6. Indictment and Information — Sufficiency — Particular Cases</bold> Fundamental fairness required that an information and its accompanying affidavit of probable cause be scrutinized together in order to determine whether information adequately apprised defendant in involuntary manslaughter case of the cause and nature of the accusation against him.<page_number>Page 518</page_number> <bold>7. Indictment and Information — Probable Cause — Particular Cases</bold> Police had probable cause to arrest defendant for involuntary manslaughter; at the time of arrest police officers had knowledge of facts and circumstances sufficient to warrant a reasonable and prudent person to conclude defendant unlawfully furnished a minor with alcohol, resulting in the minor's death. <cross_reference>7 V.S.A. § 658</cross_reference>. <bold>8. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> Constitutional challenge to warrantless arrest of defendant at his place of business, raised in a motion to suppress, was not preserved for appeal where defendant had raised before the trial court only the lack of probable cause as basis for illegality of arrest. <bold>9. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> In involuntary manslaughter case, question of whether arrest was illegal because police failed to bring defendant before a judicial officer without unnecessary delay was not preserved for appeal; only argument made to trial court that arrest was illegal was based on absence of probable cause. <bold>10. Pleading — Motion To Suppress — Sufficiency</bold> In involuntary manslaughter case, suppression of defendant's statements to police as the product of an illegal arrest was properly denied, where bases for purported illegality were either without merit or not preserved for review. <bold>11. Constitutional Law — Miranda Warning — Generally</bold> In matters regarding invocation and waiver of <italic>Miranda</italic> rights, trial court rulings not clearly erroneous and supported by credible evidence will not be overturned, even though inconsistencies or substantial evidence to the contrary may exist. <bold>12. Constitutional Law — Right to Counsel — Invocation</bold> In involuntary manslaughter case, motion to suppress defendant's statements to police as taken in violation of defendant's right to counsel was properly denied; defendant at scene of arrest neither acknowledged nor replied to statement of third party that third party would contact a lawyer, defendant did not invoke his right to counsel, subsequent <italic>Miranda</italic> waiver was effective, and police did not circumvent defendant's right to counsel by removing him to police cruiser after third-party statement. <bold>13. Constitutional Law — Miranda Warning — Volunteered Statements</bold> In involuntary manslaughter case, motion to suppress defendant's statements to police as involuntarily made was properly denied; statement of police officer, made during "small talk" subsequent to valid <italic>Miranda</italic> waiver but prior to direct interrogation that "it's not like being a real criminal," under the totality of the circumstances did not overbear college-educated defendant's will.<page_number>Page 519</page_number>

<bold>1. Constitutional Law — Judicial Powers and Duties —</bold> <bold>Interpretation of Constitution</bold> The supreme court must act as the final arbiter among the branches of government on the issue of executive privilege. <bold>2. Constitutional Law — Executive Power — Executive Privilege</bold> Unlike most evidentiary privileges, the purpose of executive privilege is to protect the effectiveness of the overall governmental system and not to protect individual government officials; the privilege promotes frank expression and discussion among those upon whom rests the responsibility for making determinations that enable government to operate. <bold>3. Constitutional Law — Executive Power — Executive Privilege</bold> Executive privilege is recognized in Vermont; however, the privilege is qualified and not absolute. <bold>4. Constitutional Law — Executive Power — Executive Privilege</bold> Whether or not a claim of executive privilege will be honored is a question always contingent on a balancing of the interests of confidentiality against those of disclosure. <bold>5. Records — Inspection — Right-to-Know Law</bold> A person seeking disclosure under the Vermont Access to Public Records statute to documents concerning which an agency has made a prima facie case for executive privilege must first demonstrate why the need for the information outweights the interest in confidentiality before obtaining a right to in camera inspection by the court under the statute; common law executive privilege was incorporated into the statute with its established burdens. 1 V.S.A. §§ 317(b)(4), 319.<page_number>Page 629</page_number> <bold>6. Records — Inspection — Right-to-Know Law</bold> In camera inspection by the court of documents requested under the Vermont Access to Public Records statute can irrevocably sacrifice the interest sought to be protected by the exercise of executive privilege, even if the court ultimately decides that the interest in confidentiality outweights the need for disclosure. <cross_reference>1 V.S.A. § 319</cross_reference>. <bold>7. Records — Inspection — Right-to-Know Law</bold> Superior court order for in camera review of documents requested under the Vermont Access to Public Records statute, concerning which a claim of executive privilege was made, was remanded to allow plaintiff to meet its burden of showing necessity for the documents. 1 V.S.A. §§ 317(b)(4), 319. <bold>8. Records — Inspection — Right-to-Know Law</bold> In the absence of a demonstration that information sought under the Vermont Access to Public Records statute is necessary as evidence in a criminal or civil trial, a prima facie claim of executive privilege enjoys a rebuttable presumption over an asserted interest in disclosure based solely on the statute. 1 V.S.A. §§ 315-320. <bold>9. Records — Inspection — Right-to-Know Law</bold> Where in camera inspection of documents requested under the Vermont Access to Public Records statute might materially and irrevocably compromise the fundamental interests of the executive branch of government, the governor or agency may seek judicial review after the inspection order issues but before it is effected. <cross_reference>1 V.S.A. § 319</cross_reference>. <bold>10. Records — Inspection — Right-to-Know Law</bold> A state agency may seek judicial review of a court order for release of documents requested under the Vermont Access to Public Records statute before release is effected. <bold>11. Depositions and Discovery — Work Product — Particular Cases</bold> Attorney's work-product privilege did exist at common law prior to enactment of Access to Public Records statute and was thus incorporated into the statute; the dimensions of work-product privilege equal in scope and application the exemption from discovery in V.R.C.P. 26(b)(3) of an attorney's mental impressions, conclusions, opinions or legal theories concerning impending litigation. <bold>12. Administrative Law — Evidence — Exclusion</bold> Where an agency appears as a party in a contested administrative proceeding, the attorney's work-product doctrine should be applied as if the action were in a court. <bold>13. Records — Inspection — Right-to-Know Law</bold> Superior court order compelling the production of documents concerning which attorney work-product privilege had been claimed was reversed and remanded for consideration of the status of each document<page_number>Page 630</page_number> consistent with the holding that the work-product exemption is incorporated into Vermont Access to Public Records statute. <cross_reference>1 V.S.A. § 315</cross_reference> et seq. <bold>14. Depositions and Discovery — Work Product — Generally</bold> The work-product exemption from discovery is a narrow one which applies only to those documents normally privileged in the civil discovery context.