Benning v. State

BENNING_V_STATE.93-043; 161 Vt. 472; 641 A.2d 757

[Opinion Filed 28-Jan-1994]

[Motion for Reargument Denied 17-Mar-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-043


 Joseph Benning, et al.                       Supreme Court

                                              On Appeal from
      v.                                      Caledonia Superior Court

 State of Vermont                             October Term, 1993


 Stephen B. Martin, J.

 Joseph C. Benning, Lyndonville, for plaintiffs-appellants

 Jeffrey L. Amestoy, Attorney General, and Scott A. Whitted, Assistant
   Attorney General, Montpelier, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiffs Joseph C. Benning, the Northeast Kingdom
 Chapter of Freedom of the Road, and the parent organization Freedom of the
 Road appeal from a decision of the Caledonia Superior Court dismissing
 plaintiffs' request for declaratory and injunctive relief from 23 V.S.A. {
 1256, the motorcycle headgear statute, and a subsequent denial of their
 motion for reconsideration.  We affirm.
      In 1989, plaintiff Benning was cited for a violation of { 1256 for
 operating a motorcycle without wearing approved headgear.  However, the
 Caledonia County State's Attorney dismissed the citation because he found
 the statute vague and was unable to establish the elements necessary to

 

 prosecute the crime.  Plaintiffs subsequently filed suit,(FN1) seeking to have 
 { 1256 declared unconstitutional and to have the State enjoined from further
 enforcement of the statute.  Plaintiffs make three arguments based solely on
 the state constitution:  (1) the statute is repugnant to the tenor, spirit
 and intent of the Vermont Constitution; (2) the statute is void for
 vagueness; and (3) the statute denies plaintiffs equal protection of the
 laws.  We address each contention in turn.
                                     I.
      Section 1256 was enacted in 1968, and states in full:
           No person may operate or ride upon a motorcycle upon a
           highway unless he wears upon his head protective
           headgear reflectorized in part and of a type approved by
           the commissioner.  The headgear shall be equipped with
           either a neck or chin strap.

 The Commissioner of Motor Vehicles is charged with administration of this
 statute, 23 V.S.A. { 1, including the duty to promulgate regulations
 thereunder.  Id. { 1001(a).
      Within a year of its enactment, the statute came under challenge in
 State v. Solomon, 128 Vt. 197, 260 A.2d 377 (1969).  This decision
 necessarily informs our current consideration of { 1256.  In Solomon, we
 upheld the validity of { 1256 against arguments that the statute exceeded
 the scope of the State's police power and violated the Due Process Clause of
 the Fourteenth Amendment to the United States Constitution.  This Court

 

 concluded then that { 1256 was "directly related to highway safety" because
 an unprotected motorcycle operator could be affected by roadway hazards,
 temporarily lose control and become a menace to other motorists. Id. at 200,
 260 A.2d  at 379.  The Court also concluded that "self-injury may be of such
 a nature to also invoke a general public concern."  Id. at 201, 260 A.2d  at
 380.  As a result, we held that { 1256 "bears a real and substantial
 relation to the public health and general welfare and it is a valid exercise
 of the police power."  Id. at 202, 260 A.2d  at 380.
      In this case, plaintiffs attempt to distinguish their attack on { 1256
 from Solomon on the grounds that Solomon was decided solely on federal
 constitutional grounds, whereas they challenge { 1256 on state
 constitutional grounds.(FN2)  Specifically, plaintiffs argue that { 1256
 violates Chapter I, Articles 1, 9, 11 and 18 of the Vermont Constitution.
 As we recognized in State v. Kirchoff, 156 Vt. 1, 4, 587 A.2d 988, 991
 (1991), "[t]he Vermont Constitution may afford greater protection to
 individual rights than do the provisions of the federal charter."
 Plaintiffs argue vigorously that this is a circumstance of greater
 protection.
      Plaintiffs base this argument almost entirely on Chapter I, Article 1
 of the Vermont Constitution, which provides:

 

         That all men are born equally free and independent, and
         have certain natural, inherent, and unalienable rights,
         amongst which are the enjoying and defending life and
         liberty, acquiring, possessing and protecting property,
         and pursuing and obtaining happiness and safety . . . .

 Plaintiffs argue that both safety and liberty are among the "natural,
 inherent, and unalienable rights" guaranteed by the Article.  As to safety,
 plaintiffs argue that the text gives individuals, not the government, the
 power to determine what is necessary for personal safety.  Plaintiffs claim
 that they have a liberty interest in operating a motorcycle without a
 helmet, and since the purpose behind the statute is to protect the safety of
 the motorcycle operator, it offends their right to determine their own
 safety needs.
      We have a number of tools in construing our constitution, including our
 own decisions, the wording of the text, historical analysis, construction of
 similar provisions in other state constitutions and sociological materials.
 See State v. DeLaBruere, 154 Vt. 237, 262-63, 577 A.2d 254, 268 (1990).
 Plaintiffs urge us to use many of these tools.
      We find sparse help for plaintiffs in the text of Article 1 and in our
 decisions construing this text.  The constitutions of the New England states
 have been described as "basically philosophic documents designed first and
 foremost to set a direction for civil society and to express and
 institutionalize a theory of republican government."  Elazar, The Principles
 and Traditions Underlying State Constitutions, 12 Publius: The Journal of
 Federalism 18 (1982), in State Constitutional Law:  Cases & Materials 30, 31
 (1988).  That approach is clearly evident in Article 1.  The article
 expresses fundamental, general principles that underlie more specific
 statements of rights and powers set forth elsewhere in the Constitution.
 See State v. Wood, 148 Vt. 479, 487, 536 A.2d 902, 907 (1987).  Thus, in

 

 State v. Cadigan, 73 Vt. 245, 252, 50 A. 1079, 1081 (1901), we described
 Articles 1, 4 & 7 as "the fundamental principles, not of our state only, but
 of Anglo-Saxon government itself, enlarging upon the axiom that when the
 facts are the same the law is the same, and inspired by the ideal of
 justice, that the law is no respecter of persons."
      Given the nature of Article 1, it is not surprising that we can
 discover no instance where this Court has struck down an act of the Vermont
 Legislature solely because of a violation of Article 1.(FN3) The main reason is
 found in State v. Carruth, 85 Vt. 271, 81 A. 922 (1911), in which the
 defendant claimed that Article 1 gave him the right to shoot a deer on his
 land out of season, despite a criminal statute to the contrary.  Concerning
 Article 1, this Court wrote: "Many things contained in the bill of rights
 contained in our State Constitutions 'are not, and from the very nature of
 the case cannot be, so certain and definite in character as to form rules
 for judicial decisions; and they are declared rather as guides to the
 legislative judgment than as marking an absolute limitation of power.'"  Id.
 at 273-74, 81 A.  at 923 (quoting Cooley, Constitutional Limitations 210).
      The specific words on which plaintiffs rely lack the specificity that
 would show the presence of concrete rights applicable to these
 circumstances.  Plaintiffs' right to pursue and obtain safety does not
 suggest the government is powerless to protect the safety of individuals.
 Indeed, our recent references to Article 1 suggest that the individual

 

 pursues safety through governmental action.  See State v. Record, 150 Vt.
 84, 87, 548 A.2d 422, 424 (1988).  The juxtaposition of safety and happiness
 is consistent with a general statement of principle rather than an
 enforceable right.  Cf. Welch v. Seery, 138 Vt. 126, 128, 411 A.2d 1351,
 1352 (1980) (Article 6 is "but a truism for a republican form of government
 . . . [for which the] remedy . . . is that of popular election").
      Plaintiffs also rely on their right of "enjoying and defending . . .
 liberty" as expressed in the Article.  The term "liberty" is, of course, a
 centerpiece of the Fourteenth Amendment on which Solomon relies.  We are
 willing to give a broad reading to the term "liberty," see Cadigan, 73 Vt.
 at 251, 50 A.  at 1081, but it is a vast expansion of the term to find within
 it a right to ride helmetless on public highways.  Thus, even if we were to
 interpret Article 1 as a specific, enforceable constraint on state
 regulatory action, the wording falls short of supporting plaintiffs' case.
      We must also acknowledge that we have often treated what protections we
 have found in Article 1 as coextensive with those of the Fourteenth
 Amendment to the United States Constitution.  See, e.g., Anchor Hocking
 Glass Corp. v. Barber, 118 Vt. 206, 219, 105 A.2d 271, 279-80 (1954); State
 v. Haskell, 84 Vt. 429, 441-42, 79 A. 852, 858 (1911).  For example, in
 Haskell, when defendant argued that a criminal statute was unconstitutional
 under the Fourteenth Amendment to the United States Constitution and
 Articles 1 and 7 of the Vermont Constitution, this Court analyzed the
 challenge with respect to federal law and added "[w]hat we have said as to
 the former is well an answer to the latter."  Haskell, 84 Vt. at 441-42, 79 A.  at 858.  The essential similarity in the purposes of the constitutional
 provisions can be explained by the analysis of Lincoln v. Smith, 27 Vt. 328,
 361 (1855).  There, the Court described Article 1 as "a recitation of some

 

 of the natural rights of men before entering into the social compact," id.
 at 340, but explained: "[W]hen men enter into the social compact, they give
 up a part of their natural rights, and consent that they shall be so far
 restrained in the enjoyment of them by the laws of society, as is necessary
 and expedient for the general advantage of the public."  Id. at 339.
      The decisions of other jurisdictions are equally unhelpful to
 plaintiffs.  Plaintiffs cite the single case that has found a motorcycle
 helmet law unconstitutional, specifically rejecting the Solomon reasoning.
 See State v. Betts, 252 N.E.2d 866, 871-72 (Ohio 1969).(FN4)  The vast majority
 of state courts have adhered to reasoning similar to that of Solomon.(FN5) 
 See, e.g., Picou v. Gillum, 874 F.2d 1519, 1521 (11th Cir. 1989) (construing
 Florida law); Kingery v. Chapple, 504 P.2d 831, 835 (Alaska 1972); State v.
 Beeman, 541 P.2d 409, 410-11 (Ariz. Ct. App. 1975); Penney v. City of N.
 Little Rock, 455 S.W.2d 132, 134 (Ark. 1970); Love v. Bell, 465 P.2d 118,
 122-23 (Colo. 1970); State v. Cotton, 516 P.2d 709, 711 (Haw. 1973); State
 v. Albertson, 470 P.2d 300, 303 (Idaho 1970); City of Wichita v. White, 469 P.2d 287, 291 (Kan. 1970); State v. Quinnam, 367 A.2d 1032, 1033 (Me. 1977);
 State v. Cushman, 451 S.W.2d 17, 19 (Mo. 1970); Robotham v. State, 488 N.W.2d 533, 540 (Neb. 1992).  Although these decisions, like Solomon, are
 based primarily on the United States Constitution, some also reject state

 

 constitutional attacks.  See, e.g., Robotham, 488 N.W.  at 542.  The United
 States Supreme Court has also rejected a due process attack on a helmet
 law, albeit by summary affirmance of a lower court decision.  See Simon v.
 Sargent, 409 U.S. 1020 (1972), aff'g 346 F. Supp. 277, 279 (D. Mass.).(FN6)
      At the center of plaintiffs' argument is the assertion that Vermont
 values personal liberty interests so highly that the analysis under the
 federal constitution or the constitutions of other states is simply
 inapplicable here.  In support of this contention, plaintiffs rely on
 political theorists, sociological materials and incidents in Vermont's
 history.  Without detailing this argument, we find it unpersuasive not
 because it overvalues Vermont's devotion to personal liberty and autonomy,
 but because it undervalues the commitment of other governments to those
 values.  The Vermont material is "only loosely connected to the issues
 before the Court."  DeLaBruere, 154 Vt. at 270, 577 A.2d  at 272.  It does
 not differentiate our concern for personal liberty from that prevailing
 elsewhere in any way that should influence this case.
      Certainly, if there was a heightened concern for personal liberty,
 there is no evidence of it in the text of the Constitution.  Many states
 have constitutional provisions very similar to Article 1.  Compare Vt.
 Const. ch. I, art. 1 with Cal. Const. art. 1, { 1 ("All people are by nature
 free and independent and have certain inalienable rights.  Among these are
 enjoying and defending life and liberty . . . and pursuing and obtaining
 safety, happiness and privacy."); Mass. Const. pt. 1, art. 1 ("All people
 are born free and equal and have certain natural, essential and unalienable

 

 rights; among which may be reckoned the right of enjoying and defending
 their lives and liberties . . . [and] that of seeking and obtaining their
 safety and happiness."); Nev. Const. art. 1, { 1 ("All men are by Nature
 free and equal and have certain inalienable rights among which are those of
 enjoying and defending life and liberty . . . and obtaining safety and
 happiness[.]"); Va. Const. art. 1, { 1 ("That all men are by nature equally
 free and independent and have certain inherent rights, of which, when they
 enter into a state of society, they cannot, by any compact, deprive or
 divest their posterity; namely, the enjoyment of life and liberty, . . . and
 pursuing and obtaining happiness and safety.").  Each of the constitutional
 provisions we have cited is in effect in a state with a motorcycle helmet
 law similar to { 1256.
      For the above reasons, we are not convinced that Article 1 offers
 plaintiffs any special protections that are applicable to this case.  We
 have also examined Articles 9, 11 and 18 on which plaintiffs place secondary
 reliance.  None of these provisions helps plaintiffs' position.
      As a result, we reject the notion that this case can be resolved on the
 basis of a broad right to be let alone without government interference.  We
 accept the federal analysis of such a claim in the context of a public
 safety restriction applicable to motorists using public roads.  We agree
 with Justice Powell, recently sitting by designation with the Court of
 Appeals for the Eleventh Circuit, who stated:
         [T]here is no broad legal or constitutional "right to be
         let alone" by government.  In the complex society in
         which we live, the action and nonaction of citizens are
         subject to countless local, state, and federal laws and
         regulations.  Bare invocation of the right to be let
         alone is an appealing rhetorical device, but it seldom
         advances legal inquiry, as the "right" -- to the extent
         it exists -- has no meaning outside its application to
         specific activities.  The [federal] Constitution does
         protect citizens from government interference in many

 

         areas -- speech, religion, the security of the home.
         But the unconstrained right asserted by the appellant
         has no discernable bounds, and bears little resemblance
         to the important but limited privacy rights recognized
         by our highest Court.

 Picou, 874 F.2d  at 1521; see also Buhl v. Hannigan, 20 Cal. Rptr. 3d 740,
 748 (Cal. Ct. App. 1993) ("[I]t would be a stretch indeed to find the right
 to ride helmetless on a public highway comparable to the enumerated personal
 rights or implicit in the concept of ordered liberty."); Bisenius v. Karns,
 165 N.W.2d 377, 384 (Wisc. 1969) ("There is no place any such right to be
 let alone would be less assertable than on a modern highway with cars,
 trucks, busses and cycles whizzing by at sixty or seventy miles an hour.").
      We are left then with the familiar standard for evaluating police power
 regulations -- essentially, that expressed in Solomon.  Plaintiffs urge us
 to overrule Solomon because it was based on an analysis of the safety risk
 to other users of the roadway that is incredible.  In support of their
 position, they offered evidence from motorcycle operators that the
 possibility of an operator losing control of a motorcycle and becoming a
 menace to others is remote.  On the other hand, these operators assert that
 helmets make a motorcycle operator dangerous.  Plaintiffs also emphasize
 that even supporters of helmet laws agree that their purpose is to protect
 the motorcycle operator, not other highway users.
      We are not willing to abandon the primary rationale of Solomon because
 of plaintiffs' evidence.  The statute is entitled to a presumption of
 constitutionality.  See In re Montpelier & Barre R.R., 135 Vt. 102, 103, 369 A.2d 1379, 1380 (1977).  Plaintiffs are not entitled to have the courts act
 as a super-legislature and retry legislative judgments based on evidence
 presented to the court.  See State v. Giant of St. Albans, Inc., 128 Vt.
 539, 544, 268 A.2d 739, 742 (1970); see also Paris Adult Theatre I v.

 

 Slaton, 413 U.S. 49, 64 (1973) ("'We do not sit as a super-legislature to
 determine the wisdom, need, and propriety of laws that touch economic
 problems, business affairs, or social conditions.'") (quoting Griswold v.
 Connecticut, 381 U.S. 479, 482 (1965)).  Thus, the question before us is
 whether the link between safety for highway users and the helmet law is
 rational, not whether we agree that the statute actually leads to safer
 highways.  See Buhl, 20 Cal. Rptr. 3d  at 744-45.  The Solomon reasoning has
 been widely adopted in the many courts that have considered the
 constitutionality of motorcycle helmet laws.  See, e.g., Picou, 874 F.2d  at
 1519; Buhl, 20 Cal. Rptr. 3d  at 749.  We still believe it supports the
 constitutionality of { 1256.
      There are at least two additional reasons why we conclude { 1256 is
 constitutional.  The first is referenced in Solomon. Although plaintiffs
 argue that the only person affected by the failure to wear a helmet is the
 operator of the motorcycle, the impact of that decision would be felt well
 beyond that individual.  Such a decision imposes great costs on the public.
 As Professor Laurence Tribe has commented, ours is "a society unwilling to
 abandon bleeding bodies on the highway, [and] the motorcyclist or driver who
 endangers himself plainly imposes costs on others."  L. Tribe, American
 Constitutional Law { 15-12, at 1372 (2d ed. 1988).  This concern has been
 echoed in a number of opinions upholding motorcycle helmet laws.  See, e.g.,
 Picou, 874 F.2d  at 1522 (quoting Tribe); Simon, 346 F. Supp.  at 279 (citing
 public interest in minimizing resources directly involved with treating and
 caring for motorcyclists injured as result of riding without helmets);
 Robotham, 488 N.W.2d  at 541 (citing rationale of "minimization of public
 expenditures for the care and welfare of seriously injured motorcyclists").
 This rationale is particularly apparent as the nation as a whole, and this

 

 state in particular, debate reform of a health care system that has become
 too costly although many do not have access to it.  Whether in taxes or
 insurance rates, our costs are linked to the actions of others and are
 driven up when others fail to take preventive steps that would minimize
 health care consumption.  We see no constitutional barrier to legislation
 that requires preventive measures to minimize health care costs that are
 inevitably imposed on society.
      A second rationale supports this type of a safety requirement on a
 public highway.  Our decisions show that in numerous circumstances, the
 liability for injuries that occur on our public roads may be imposed on the
 state, or other governmental units, and their employees.  See, e.g., Hudson
 v. Town of E. Montpelier, No. 91-341 (Vt. Nov. 29, 1993); Peters v. State,
 No. 93-004 (Vt. Nov. 19, 1993).  It is rational for the state to act to
 minimize the extent of the injuries for which it or other governmental units
 may be financially responsible.  The burden placed on plaintiffs who receive
 the benefit of the liability system is reasonable.
                                     II.
      Plaintiffs next argue that { 1256 is void for vagueness.  A criminal
 statute must "define a criminal offense with sufficient certainty so as to
 inform a person of ordinary intelligence of conduct which is proscribed, and
 such that arbitrary and discriminatory enforcement is not encouraged."
 State v. Cantrell, 151 Vt. 130, 133, 558 A.2d 639, 641 (1989).  Lack of
 statutory clarity offends notions of due process for "no man shall be held
 criminally responsible for conduct which he could not reasonably understand
 to be proscribed."  State v. Dragon, 133 Vt. 620, 621, 349 A.2d 720, 721
 (1975) (discussing holding of United States v. Harriss, 347 U.S. 612, 617
 (1954)).  The test is less strict, however, when, as here, the statute does

 

 not threaten to inhibit the exercise of constitutionally protected rights.
 See Rogers v. Watson, 156 Vt. 483, 491, 594 A.2d 409, 414 (1991).
 Plaintiffs attack the validity of { 1256 on both prongs of the Cantrell
 vagueness test.
      We have previously stated that "[v]agueness challenges to statutes not
 involving First Amendment freedoms must be examined in light of the facts."
 State v. Roy, 140 Vt. 219, 229, 436 A.2d 1090, 1095 (1981); see also
 Cantrell, 151 Vt. at 133, 558 A.2d  at 641 (party whose conduct is clearly
 proscribed cannot complain about how statute will be applied to others).
 Given the procedural posture of this case, however, it is impossible to
 evaluate plaintiffs' challenges in a factual setting.  Thus, we address only
 the facial validity of the statute, and not the validity of the statute as
 applied.
      We find plaintiffs' attack unavailing.  It is difficult to see how the
 statute could be more specific.  It clearly proscribes the failure to wear
 an approved helmet.  Plaintiffs' attack is really on the method of
 administration by the Vermont Commissioner of Motor Vehicles.  Specifically,
 plaintiffs argue that motorcyclists do not have fair warning because "it is
 virtually impossible for the motorcyclist to find out what headgear is
 'approved by the commissioner.'"  This in turn, plaintiff argues, makes it
 impossible for police to know what is or is not an approved helmet, leading
 to arbitrary and discriminatory enforcement.  In support of this latter
 contention, plaintiffs offered the testimony of the deputy sheriff, sheriff
 and state's attorney for Caledonia County, all of whom suggested that
 enforcement of { 1256 was difficult, if not impossible, due to the vagueness
 of the statute.  Additionally, plaintiffs produced testimony from defense
 attorneys who were similarly confounded by the statute.

 

      In essence, plaintiffs have turned a disagreement over how the statute
 should be implemented by the commissioner into a void-for-vagueness
 challenge.  In another regulatory context, we have held that "it is
 important that defendants had the opportunity to clarify their
 responsibilities and did not use it."  Rogers, 156 Vt. at 491, 594 A.2d  at
 414.  We are very reluctant to strike down a safety regime on a vagueness
 rationale with no showing that affected parties on request cannot obtain
 guidance on how to comply.  We believe this deficiency is fatal to a facial
 challenge to the statute and its administration.
      In any event, we find that the Commissioner of Motor Vehicles has been
 sufficiently clear about what headgear is acceptable.  By regulation, the
 Commissioner has provided that a helmet is deemed approved by the
 Commissioner if it (1) meets the standards set out by the Motorcycle,
 Scooter, Allied Trades Association; the American Standards Association Inc.
 Z90.1; or the United States Department of Transportation Federal Motor
 Vehicle Safety Standards (FMVSS) 218 (49 C.F.R. { 571.218), and (2) and an
 "approval certificate" has been issued for it by the American Association of
 Motor Vehicle Administrators.  See Vermont Agency of Transportation,
 Motorcycle Protection Headgear Approval Regulations { 4  (1987).  Contrary
 to the plaintiffs' position, we construe this regulation to mean that a
 helmet is approved by the Commissioner if approved by one of the standard-
 setting organizations pursuant to its regulations.  Thus, the dispute here
 goes to whether operators and law enforcement personnel can determine which
 helmets have been approved.
      The easiest method is labelling.  Each set of standards provides for
 the labelling of an approved helmet.  See id., Part A, { 12.1 (Motorcycle,
 Scooter, Allied Trades Association labelling); Part B, { 8 (American

 

 Standards Association); Part C, { S5.6 (FMVSS).  For example, helmets that
 have been approved under the FMVSS standard bear the widely recognized
 United States Department of Transportation (DOT) symbol.  The "steel pot"
 infantry helmet, used as the main example by plaintiffs, lacks the labelling
 that shows approval.
      If labelling does not provide a certain result, motorcyclists may
 consult the American Association of Motor Vehicle Administrator's list,
 which is maintained by the Commissioner.  The statement accompanying the
 regulations provides that a certificate of approval for each approved helmet
 is filed with the Commissioner.  The fact that the Commissioner of Motor
 Vehicles does not maintain a specific state list of approved helmets also
 does not render the statute or the method of administration infirm.
      Plaintiff also claims that the statute is impermissibly vague and
 enforced discriminatorily because Vermont State Police have been instructed
 to look only for the DOT symbol on helmets, and not taught to be concerned
 with labelling by either of the other two associations.  This allegation
 goes to the actual enforcement of { 1256 and is outside the scope of
 plaintiffs' facial assault.  We will not consider it.
                                    III.
      Finally, plaintiffs argue that { 1256 deprives them of the "equal
 protection of the laws"(FN7) guaranteed by Chapter I, Article 7 of the Vermont
 Constitution.  This article of the constitution provides:  "That government
 is, or ought to be, instituted for the common benefit, protection, and
 security of the people, nation, or community, and not for the particular
 emolument of advantage of any single man, family, or set of men . . . ."

 

 Plaintiff makes three distinct arguments:  (1) motorcyclists are unfairly
 singled out for treatment different from all other highway users; (2) the
 statute requires a safety device, the helmet, that lessens some dangers,
 but increases others; and (3) the statute undermines its public safety
 purpose by requiring reflectorization without warning of the potential
 dangers of adhesive application to the helmet.
      "[U]nless a 'fundamental right or suspect class is involved,' a statute
 comports with Article 7 if it is reasonably related to a legitimate public
 purpose."  State v. George, 157 Vt. 580, 588, 602 A.2d 953, 957 (1991)
 (quoting Choquette v. Perrault, 153 Vt. 45, 52, 569 A.2d 455, 458 (1989)).
 There is no fundamental right here.  Therefore, we return to our rational
 basis analysis.  To prevail, one "must show that he was treated differently
 as a member of one class from treatment of members of another class
 similarly situated."  Id. at 585, 602 A.2d  at 956.
      These challenges do not require extensive analysis.  The requirement
 that motorcyclists don protective headgear before taking to the public
 highways is simply a recognition that motorcyclists do not enjoy the
 physical protection furnished by the body of a car or truck.  We conclude
 that "[i]t is not difficult to discern a rational basis for the
 legislature's distinction between motorcyclists and . . . automobile
 drivers, whose vehicles afford them substantially more protection than does
 a motorcycle." Simon, 346 F. Supp.  at 279.  Similarly, the Legislature can
 apply the helmet requirement to motorcycles and not to mopeds.  A statute
 need not regulate the whole of a field to pass constitutional muster.  See
 LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980); see also Commonwealth
 v. Guest, 425 N.E.2d 779, 780 (Mass. App. Ct. 1981) (court will not
 invalidate statute merely because legislature has not addressed entire

 

 problem in defining classification).  There is a rational basis for the
 distinction between motorcyclists and moped riders since the latter travel
 on average at a lower rate of speed and are forbidden from riding on state
 highways.  See Commonwealth v. Kautz, 491 A.2d 864, 867 (Pa. Super. Ct.
 1985) (upholding helmet law on federal equal protection grounds); State v.
 Acker, 485 P.2d 1038, 1039 (Utah 1971) (upholding law requiring helmets to
 be worn on roadways where the minimum posted speed is above thirty-five
 miles per hour, reasoning that "harm from collisions and other mishaps
 increases directly as the square of speed").
      We have already considered plaintiffs' claim that the statute is flawed
 because it fails to deal with the dangers of helmet usage.  This argument is
 for the Legislature, not this Court.
      Finally, plaintiffs claim that { 1256 undermines its public safety
 purpose by requiring reflectorization without warning of the potential
 dangers of adhesive application to the helmet.  Based on expert testimony,
 the trial court found that reflective adhesive tape cannot adversely affect
 the structural integrity of a motorcycle helmet.  Despite the court's
 additional finding that certain materials (FN8) should not be used on helmets,
 the court's determination that reflectorization does not impair a helmet's
 structural integrity is not clearly erroneous and will not be overturned on
 appeal.  See V.R.C.P. 52(a)(2).
      In summary, we find no reason to overrule Solomon.  As a result, we
 reiterate our conclusion that { 1256 "in no way violates any of the

 

 provisions of our state and federal constitutions."  Solomon, 128 Vt. at
 202, 260 A.2d  at 380.
      Affirmed.

                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice



------------------------------------------------------------------------------
                              Footnotes


FN1.      Plaintiffs Benning and the Northeast Kingdom Chapter originally
 filed suit against Jeffrey Amestoy in his capacity as Attorney General of
 the State of Vermont.  Pursuant to a November 1991 stipulation, the State of
 Vermont was substituted as defendant in lieu of the Attorney General, and
 the parent organization of Freedom of the Road was added as a party
 plaintiff.
     Defendant has not argued that this challenge to a criminal statute is
 improper or that any of the plaintiffs lack standing to bring this action.
 Therefore, we have not considered these questions.


FN2.      In their complaint, plaintiffs contended that { 1256 violated both
 federal and state constitutional provisions.  However, on appeal, plaintiffs
 have briefed only the state constitutional issues.  While this court need
 not address matters not adequately briefed, see Rowe v. Brown, 157 Vt. 373,
 379, 599 A.2d 333, 337 (1991), our treatment of the state constitutional
 issues necessarily implicates the federal constitution.  Although the state
 constitution may afford greater individual rights than its federal
 counterpart, State v. Kirchoff, 156 Vt. 1, 4, 587 A.2d 988, 991 (1991), it
 may not derogate any rights guaranteed under the latter.  In re E.T.C., 141
 Vt. 375, 378, 449 A.2d 937, 938 (1982).  As a result, a conclusion of
 constitutionality under Vermont constitutional provisions necessarily
 implies a similar conclusion under comparable provisions of the federal
 constitution.

FN3.    The closest we have come is to hold that the liberty interest
 protected by Article 1 is sufficiently important that involuntary mental
 health treatment orders deny due process of law if of indefinite duration.
 See In re G.K., 147 Vt. 174, 178, 514 A.2d 1031, 1033 (1986); see also G.T.
 v. Stone, ___ Vt. ___, ___, 622 A.2d 491, 494-95 (1992) (Article 1 requires
 hearing before revocation of conditional discharge from state mental
 institution).  The nature of the liberty interest in G.K. makes that
 precedent unhelpful to plaintiffs in this case.

FN4.      In the late 1960s and early 1970s, a few courts did overrule
 motorcycle helmet laws; however, these decisions were in turn overruled.
 See Picou v. Gillum, 874 F.2d 1519, 1520 & n.1 (collecting cases); see,
 e.g., People of City of Adrian v. Poucher, 247 N.W.2d 798, 799 (Mich. 1976),
 overruling American Motorcycle Ass'n v. Davids, 158 N.W.2d 72 (Mich. 1968).

FN5.      We do note that some states have chosen to revise their mandatory
 helmet laws to require protective headgear only for minors after upholding
 the constitutionality of the mandatory law.  See, e.g., Alaska Stat. {
 28.35.245 (1989).  We do not believe that such changes in any way undercut
 the rationale of these decisions.

FN6.    Unlike denial of certiorari, United States Supreme Court summary
 affirmance decisions are entitled to full precedential effect as to the
 judgment itself.  See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975); see
 also Mandel v. Bradley, 432 U.S. 173, 176 (1977).

FN7.    Plaintiffs' wording comes from the Fourteenth Amendment to the
 United States Constitution and not Article 7.  Although the provisions have
 some similarity of purpose, they are not identical.

FN8.      The court found that the following should not be used on
 motorcycle helmets:  thermo-plastic adhesives, such as Duco Cement or hot
 melt; solvent-based adhesives; and thermo-setting adhesives, such as epoxy
 resins or superglues.