Volume 164 — Vermont Reports

<bold>1. Constitutional Law — Vermont Constitution — Construction and</bold> <bold>Application</bold> Where professional lobbyists facially challenged the constitutionality of Vermont's lobbying disclosure law, 2 V.S.A. §§ 261-268, which requires lobbyists to register with the Secretary of State and to report expenditures related to their efforts to influence legislation, the question was whether the law was not focused enough. <cross_reference>2 V.S.A. § 261</cross_reference>; Vt. Const. ch. I, art. 13 and 20; U.S. Const. amend. 1.<page_number>Page 81</page_number> <bold>2. Statutes — Constitutionality — Particular Cases</bold> Lobbying disclosure laws are not subject to the same strict scrutiny as laws that impinge on pure speech, and particularly where conduct and not merely speech is involved, the overbreadth of the statute must be real and substantial in the context of the statute as a whole before court will invalidate the statute. <bold>3. Statutes — Constitutionality — Power and Duty of Courts</bold> Where a professional lobbying group facially challenged <cross_reference>2 V.S.A. § 261</cross_reference>, contending that the lobbying disclosure laws are overbroad, the court refused to strike the Lobbying Act as overbroad on its face because lobbying disclosure laws are supported by compelling interests such as the government's interest in requiring disclosure of lobbyist information in order to protect the integrity of the governmental process. <cross_reference>2 V.S.A. § 261</cross_reference>; U.S. Const. amend. 1. <bold>4. Statutes — Constitutionality — Power and Duty of Courts</bold> In determining whether or not the Lobbying Act exceeds its "plainly legitimate sweep" by requiring disclosure of the costs of "background activity," which involves research, meetings, preparation of materials, and media involvement, court decided that the state's lobbyist disclosure law is a reasonable means of evaluating the lobbyist's influence on the political process; thus it is narrowly tailored to accomplish its purpose. <cross_reference>2 V.S.A. § 261</cross_reference>; U.S. Const. amend. 1. <bold>5. Statutes — Constitutionally — Particular Cases</bold> Without a factual record of specific enforcement measures used to prevent anyone from influencing legislators, court could not gauge the extent of the "chilling effect" resulting from the state's lobbyist disclosure law, and without a particlar burden or deterrent effect imposed by the law, a law cannot be declared unconstitutional on its face on the basis that it might be unconstitutionally enforced under speculative circumstances. 2 V.S.A. §§ 263-264; U.S. Const. amend. 1. <bold>6. Constitutional Law — Due Process — Vagueness</bold> The vagueness doctrine is based on the rationale that persons should not be "chilled" when exercising their constitutional rights by the fear of criminal sanctions, but the fear of prosecution must be based on reasonable interpretations of the statute in question. <cross_reference>2 V.S.A. § 261</cross_reference>; Vt. Const. ch. I, art. 13 and 20; U.S. Const. amend. 1. <bold>7. Constitutional Law — Due Process — Overbreadth</bold> Section 266, which bans soliciting or contributing to individuals' political campaigns, functions as a timing measure, banning contributions to individual members only, not to political parties, while the General Assembly is in session, and focuses on a narrow period during which legislators could be, or could appear to be, pressured, coerced or tempted into voting on the basis of cash contributions; therefore, as a narrowly drawn measure chosen to avoid a serious appearance of impropriety, this section is not overbroad. <cross_reference>2 V.S.A. § 266</cross_reference>.

<bold>1. Statutes — Generally — Construction</bold> The "injury to the person" in <cross_reference>13 V.S.A. § 1701</cross_reference>, the extortion statute, includes injury other than physical harm, and applies to a defendant, who allegedly delivered a letter to a female minor, in which he threatened to disclose a sexually explicit videotape of the defendant and the minor engaged in sexual acts to her parents and custodian unless she agreed to continue their relationship. <cross_reference>13 V.S.A. § 1701</cross_reference>. <bold>2. Statutes — Generally — Construction</bold> In construing <cross_reference>13 V.S.A. § 1701</cross_reference>, the court aims to effect legislative intent, and although penal statutes should be interpreted in a manner most favorable to the accused, they should not be interpreted so strictly as to defeat the legislative purpose in enacting the law; had the legislature intended "injury to the person" to<page_number>Page 92</page_number> mean only bodily injury it would have used the term bodily or physical injury. <cross_reference>13 V.S.A. § 1701</cross_reference>. <bold>3. Statutes — Generally — Construction</bold> In accordance with the purpose of the extortion statute enacted to prevent the use of fear to compel a victim to submit to the will of the extortionist, extortion, as defined in <cross_reference>13 V.S.A. § 1701</cross_reference>, includes injury other than physical harm. <cross_reference>13 V.S.A. § 1701</cross_reference>.

<bold>1. Labor — Termination of Employment — Grounds</bold> Performing sexual acts while at work violates any reasonable definition of acceptable employee behavior. <bold>2. Labor — Termination of Employment — Grounds</bold> While grievant claimed he had no notice that consensual relationships between employees could be cause for dismissal, he was not fired for fraternizing with a co-worker but was dismissed for having sex while at work, both at his place of employment and in a state vehicle. <bold>3. Labor — Termination of Employment — Grounds</bold> Having sex on the job is an activity employees should know is prohibited by employers absent explicit warnings and while the Department of Corrections did not have a written rule proscribing sexual acts while on duty, the State could fairly expect its employees to know such conduct was forbidden, and grievant testified that he knew it was misconduct for which he could be disciplined. <bold>4. Labor — Termination of Employment — Grounds</bold> Because grievant knew that having sex on the job was forbidden — although State had no written policy proscribing this behavior — he had fair notice that he risked dismissal for engaging in these acts. <bold>5. Labor — Termination of Employment — Particular Cases</bold> Grievant contended that, even if the State had just cause to dismiss him, the Labor Relations Board erred in failing to find that the State violated its employment agreement because it treated female coworker differently from grievant, although they had engaged in the same sexual acts; however, Board found that mitigating circumstances justified treating the cases differently since coworker contended that she was not a willing participant in the sex acts, her contention was supported by her therapist, and an independent psychiatrist<page_number>Page 146</page_number> concluded that diagnosis of coworker's mental condition was consistent with investigative report which had concluded that sexual acts were nonconsensual. <bold>6. Labor — Practice and Procedure — Evidence</bold> Labor Relations Board's interpretation of its rules to allow the introduction of third-party testimony recounting coworker's description of sexual acts performed with grievant was correct, and evidence allowed did not unfairly restrict grievant's rights where central allegation in case — that grievant participated in sexual misconduct — was established by the grievant's own admissions. <bold>7. Labor — Practice and Procedure — Discovery</bold> Although grievant asserted that the State's refusal to provide him with coworker's medical records hampered his defense at the pretermination hearing, grievant was given a full opportunity to conduct discovery concerning coworker's medical condition in the Labor Relations Board proceeding and he could point to no prejudice from failing to have this opportunity earlier in the process.

<bold>1. Constitutional Law — Due Process — Condemnations and Takings</bold> Whether a regulatory takings claim resulting from an Act 250 denial of a permit application for a development or subdivision is ripe for litigation must be determined by the two-part test set out in Williamson County Regional Planning Comm'n v. Hamilton Bank, <cross_reference>473 U.S. 172</cross_reference> (1985); the first part of the test determining ripeness for review requires plaintiff to have obtained a final decision regarding the application of the government regulations to plaintiff's property, and the second part requires plaintiff to have utilized state procedures for obtaining just compensation. Vt. Const. ch. I, art. 2. <bold>2. Constitutional Law — Judicial Powers and Duties — Ripeness</bold> To have a ripe takings claim, plaintiff must must have exhausted all administrative remedies, including variance procedures, and failure to do so results in a takings claim that is not ripe. Vt. Const. ch. I, art. 2. <bold>3. Constitutional Law — Judicial Powers and Duties — Ripeness</bold> The superior court is without jurisdiction to hear a takings claim that was filed before a definitive final decision was rendered determing allowable property uses, but once such a decision is rendered, the takings claim is no longer premature, and the court has jurisdiction to determine if the permitted uses are economically viable.

<bold>1. Offenses — Sexual Offenses — Statutes</bold> The obvious purpose of <cross_reference>33 V.S.A. § 4916</cross_reference>(g)'s concluding phrase, "and the name of the person about whom the report was made," which was added by the Legislature in 1990, was to prevent loss of the perpetrator's name when the abused child's name was expunged from the registry. <cross_reference>33 V.S.A. § 4916</cross_reference>(g). <bold>2. Minors — Crimes and Delinquency — Records</bold> Although petitioner argued that the Legislature intended to allow expungement of child perpetrators when they became adults, in the context of a statute whose main purpose is the prevention of child abuse, the more persuasive interpretation is that the names of perpetrators were to be maintained regardless of age. <cross_reference>33 V.S.A. § 4916</cross_reference>(g). <bold>3. Offenses — Sexual Offenses — Statutes</bold> That the sexual abuse registry statute was seemingly contradictory to other public policies of the state, evidenced in statutes which sought to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior, was not sufficient to overcome the legislature's intent to treat child sexual abuse as a special area of concern warranting different treatment. 33 V.S.A. §§ 4916(g), 5501(a)(2). <bold>4. Minors — Crimes and Delinquency — Records</bold> A person included in the sexual abuse registry has the right at any time to petition for expungement, <cross_reference>33 V.S.A. § 4916</cross_reference>(h), and is entitled to a fair hearing<page_number>Page 384</page_number> conducted under the preponderance standard; a higher standard at the investigatory stage is not necessary to meet due process concerns because of the availability of such a hearing at any time after inclusion in the registry. <cross_reference>33 V.S.A. § 4916</cross_reference>(h). <bold>5. Offenses — Sexual Offenses — Particular Cases</bold> Even if petitioner were correct in her assertion that the Human Services Board applied a lower standard of proof than preponderance of the evidence, the evidence in case was sufficient to show by a preponderance of the evidence that the incident of abuse occurred where the Board found that the police officer and investigator were experienced and unbiased, that their oral testimony and written notes showed that the child's allegations were specific and left little room for mistake or misinterpretation, that their written reports were prepared soon after the interview took place, and that their written reports were consistent. <bold>6. Minors — Crimes and Delinquency — Records</bold> Although the Human Services Board's decision to deny petition for expungement of petitioner's name from state registry of sex abusers was supported only by hearsay evidence, that evidence had sufficient indicia of reliability to support a finding by a preponderance of the evidence that the alleged abuse occurred where the sources of the hearsay evidence were disinterested persons, the hearsay was specific and detailed, and the two hearsay accounts were consistent. <bold>7. Offenses — Sexual Offenses — Statutes</bold> As 33 V.S.A. chapter 49 has legislative goals, functions, and procedures completely different from those under 33 V.S.A. chapter 55, a Department of Social and Rehabilitation Services' determination under chapter 49 that a sex abuse report has been substantiated, or a de novo affirmance of that determination by the Human Services Board, cannot be inconsistent with the judgment of a family court (sitting as a juvenile court); chapter 55 is concerned with the issue of delinquency whereas the issue in chapter 49 proceedings is substantiation of an abuse complaint. 33 V.S.A. chs. 49, 55. <bold>8. Offenses — Sexual Offenses — Statutes</bold> The broad, remedial purposes of the Child Abuse and Neglect Reporting Act would not be served by tying its very carefully crafted criteria for substantiating a report of abuse to the outcome of adult criminal or juvenile proceedings relating to the conduct of the person about whom the report was made. 33 V.S.A. chs. 49, 55.