State v. Curley-Egan

Annotate this Case

State v. Curley-Egan (2005-492); 180 Vt. 305; 910 A.2d 200

2006 VT 95

[Filed 01-Sep-2006]

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.

2006 VT 95

No. 2005-492

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

James Curley-Egan March Term, 2006

Edward J. Cashman, J.

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for
Defendant-Appellee.

Jeffrey J. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, for Amicus
Curiae The University of Vermont and State Agricultural College.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. SKOGLUND, J. This case requires us to determine whether 16
V.S.A. § 2283, the statute empowering the trustees of the University of
Vermont and State Agricultural College (UVM) to create a police force, is a
valid, constitutional delegation of police power. The district court
concluded that it was not and granted defendant's motion to suppress
evidence of a roadside stop made by a UVM police officer as well as
defendant's motions to dismiss the Driving Under the Influence charge and
civil suspension proceeding that resulted from the stop. We hold that §
2283 is a proper delegation of police power and reverse the decision of the
district court.

¶ 2. The statute empowers the UVM Board of Trustees to "establish a
department of police services and authorize the appointment thereto of
police officers and a director of the department who shall be a police
officer." 16 V.S.A. § 2283(a). UVM police officers "shall have all law
enforcement powers provided by section 1935 of Title 24." Id. That
statute empowers municipal police officers. 24 V.S.A. § 1935. All police
officers must swear an oath, id., complete law enforcement officer training
in conformity with chapter 151 of Title 20, id. § 2283(b), and UVM officers
must be employed in good standing by the university. Id. § 2283(c).
Finally, the statute establishes a complaint procedure:

Upon written complaint of misconduct by one or more persons
concerning any police officer appointed under this section, the
director of the department shall cause an investigation to be
conducted in a manner consistent with the policies and procedures
established by the board of trustees or its duly authorized
representative for such purposes. The complainant may appeal the
final action of the department to the president of the University
of Vermont, who shall convene an advisory commission consisting of
three persons, no more than one of whom has a direct or indirect
university affiliation. The advisory commission shall provide
advice and counsel to the president in assuring appropriate final
disposition of the complaint.

Id. § 2283(d).

¶ 3. The facts underlying the charges are not in dispute. At
approximately 1:15 a.m. on May 7, 2005, a UVM police officer was driving
north on South Prospect Street in Burlington and saw a vehicle driving in
the southbound lane with only one headlight. The officer turned around and
followed the vehicle onto Cliff Street and stopped the vehicle after it
turned left onto Summit Street. All of these streets lie outside UVM's
property boundaries.

¶ 4. The officer found defendant behind the wheel. The officer
noticed that defendant's eyes were watery and bloodshot and that his speech
was slurred. The officer also observed an alcohol container behind the
passenger seat. Defendant had difficulty exiting the vehicle and stood
with a slight sway. He also showed signs of intoxication while performing
field sobriety tests. After refusing a preliminary breath test, defendant
was arrested. Defendant identified himself with a Massachusetts driver's
license and gave a current address of "410 Wilkes Hall, UVM."

¶ 5. Defendant was charged with a DUI violation under 23 V.S.A. §
1201(a)(2), and the Commissioner of Motor Vehicles suspended his license
under 23 V.S.A. § 1205. Defendant moved to dismiss the case or, in the
alternative, to suppress all evidence stemming from the stop, arguing that
the operation of the UVM police department is unconstitutional. He
reasoned that the department is a private entity not exclusively governed
by the people or their legal representatives as required for valid police
authority under Chapter I, Article 5 of the Vermont Constitution.

¶ 6. The district court agreed and granted defendant's motion.
The court began its legal analysis by observing that "[t]he only state
supervision [of UVM police officers] arises from the initial training and
certification." The court focused on "the private status of the
supervisors" of the UVM police department, namely, the UVM Board of
Trustees, stressing that "[n]one of the Board of Trustees . . . must answer
to an electorate made up of all those subject to the police jurisdiction."
It then reasoned that although the Legislature could properly delegate to
UVM the authority to create a police force to serve the campus community,
it is a "much different situation" when UVM police jurisdiction extends
"beyond the real property boundaries of the University to encompass private
citizens not otherwise connected to the University or to its educational
functions." The court also was concerned that a citizen would have no
remedy for UVM police misconduct other than under 16 V.S.A. § 2283(d),
which establishes only internal complaint and appeal procedures.

¶ 7. As a result of the above analysis, the district court
interpreted Article 5's requirement that the people, "by their legal
representatives, have the sole, inherent, and exclusive right of governing
and regulating the internal police," as requiring direct oversight of the
UVM police force by elected officials. Vt. Const. ch. I, art. 5. Thus,
the court concluded, by giving the UVM police jurisdiction to arrest a
person unaffiliated with UVM on a city street outside UVM's property, §
2283 creates a police force lacking "accountability to the legal
representatives of this state" in violation of Chapter 1, Article 5 of the
Vermont Constitution.

¶ 8. The State appealed, and UVM was permitted to appear as amicus
curiae. The State and UVM argue that the court erred by characterizing UVM
as a private entity and by interpreting Chapter I, Article 5 as requiring
control by elected officials. In their view, UVM is a sufficiently public
institution, and the UVM charter vests the Legislature with sufficient
authority over UVM to satisfy Chapter I, Article 5. In response, defendant
reiterates the core argument he made before the district court, which also
formed the heart of the court's reasoning: because UVM is not a sovereign
entity it is not a proper delegee of police power, and, therefore, § 2283
delegates police power beyond the control of the people and their legal
representatives, in violation of Chapter I, Article 5. Defendant also
posits that if UVM functions as a public entity, it does so only when
pursuing its core educational purpose, which does not include operating a
police force. Finally, defendant asserts that § 2283 is invalid because it
allocates statewide jurisdiction to the UVM police department. We reject
defendant's arguments and agree with the State and UVM that the Legislature
properly delegated to UVM the authority to create and operate its police
department. Accordingly, we reverse.

¶ 9. Before assessing the propriety of § 2283, we review the
contours of the police power as articulated in our past decisions. The
police power has long been understood to encompass "the general power of
the legislative branch to enact laws for the common good of all the
people." State v. Theriault, 70 Vt. 617, 625, 41 A. 1030, 1033 (1898).
The "proper function" of the police power is to balance "the possession and
enjoyment by the individual of all his rights" with "such reasonable
regulations and restraints as are essential to the preservation of the
health, safety, and welfare of the community." State v. Morse, 84 Vt. 387,
393, 80 A. 189, 191 (1911). Thus, the police power is the practical
manifestation of each individual's agreement, as part of the social
compact, to subject his rights to the common good when a conflict arises.

¶ 10. It follows that the police power "is not a grant derived from
or under a written constitution"; rather, it is "inherent" in state
government. In re Guerra, 94 Vt. 1, 8, 110 A. 224, 227 (1920) ( "It is an
attribute of sovereignty, or rather it is sovereignty itself."); see also
Mut. Loan Co. v. Martell, 222 U.S. 225, 233 (1911) ("In a sense, the police
power is but another name for the power of government."). The police power
is so inextricably bound to state sovereignty that it is "beyond the power
of a state to divest itself of its right and duty in respect of the full
exercise of this power," including by delegating police power to a
nonsovereign entity. Sabre v. Rutland R.R., 86 Vt. 347, 364, 85 A. 693,
700 (1913).

¶ 11. Our Constitution recognizes that "the people of this state by
their legal representatives, have the sole, inherent, and exclusive right
of governing and regulating the internal police of the same." Vt. Const.,
ch. I, art. 5. Article 5 thus expresses a "general distribution of powers"
to the Legislature, Sabre, 86 Vt. at 365, 85 A. at 700, authorizing the
Legislature "to pass measures for the general welfare of the people" and
making the Legislature "itself the judge of the necessity or expediency of
the means adopted," Guerra, 94 Vt. at 8, 110 A. at 227. The Legislature
also possesses the authority to delegate the police power to other state or
municipal instrumentalities. See, e.g., Elliott v. Vt. State Fish & Game
Comm'n, 117 Vt. 61, 68, 84 A.2d 588, 592-93 (1951) (recognizing that
Legislature can validly delegate police power to state fish and game
commission); Carty's Adm'r v. Vill. of Winooski, 78 Vt. 104, 108, 62 A. 45,
46 (1905) (upholding delegation to towns and incorporated villages of
authority to construct and maintain jails).

¶ 12. The police power is not, however, "unlimited, and the validity
of any mandate promulgated under it is for judicial determination." State
v. Quattropani, 99 Vt. 360, 363, 133 A. 352, 353 (1926). In reviewing the
Legislature's exercise of the police power, we presume that the legislative
act in question is valid unless it bears no "just relation" to the purposes
underlying the police power (FN1) or amounts to a "plain and palpable
invasion of constitutional rights." Beecham v. Leahy, 130 Vt. 164, 172,
287 A.2d 836, 841 (1972). If we conclude that the act suffers from either
infirmity then we must invalidate the act. Id. Further, we assume the act
was within the Legislature's power absent "clear and irrefragable evidence"
to the contrary. Glidden v. Conley, 2003 VT 12, ¶ 11, 175 Vt. 111, 820 A.2d 197.

II.

¶ 13. With these principles in mind, we turn to the key question in
this case: Is UVM a sufficiently public entity such that § 2283 was a
constitutional delegation of police power by the Legislature? As defendant
argues, the Legislature cannot delegate police power to a private entity;
allowing it to do so would run afoul of this Court's longtime recognition
that it is "beyond the power of the state to divest itself" of its right
and duty to exercise the police power. Sabre, 86 Vt. at 364, 85 A. at 700.
In light of UVM's charter and prior decisions addressing UVM's
public-private status, however, we conclude that UVM is a sufficiently
public institution to properly receive the delegation of police power via §
2283.

¶ 14. We begin with UVM's charter, which was initially granted by
the Legislature in 1791 and has been amended several times, most recently
in 1977. 16 V.S.A. App. pt. I ch. 1 at 2-3. In the current version, the
Legislature made explicit that UVM "shall be recognized and utilized as an
instrumentality of the state for providing public higher education." Id. §
1. The charter entrusts the Board of Trustees with "the entire management
and control" of UVM and requires that a majority of the twenty-five-member
Board be at least indirectly accountable to the electorate: three members
are appointed by the Governor with the consent of the senate, nine members
are elected by the Legislature, and one slot is filled by the Governor, ex
officio. Id. § 2. It also provides for legislative oversight, requiring
UVM to make annual reports to the Legislature and authorizing the
Legislature to "annually appoint a board of visitors, who may annually
examine the affairs of" UVM. Id. § 8. Finally, the charter may be amended
by the Legislature "from time to time . . . to provide for the more perfect
and effective accomplishment of its objects." Id. § 16. Thus, the
Legislature, via the UVM charter, has made clear in a number of ways the
close connection between UVM and the State.

¶ 15. Recognizing that connection, we have observed that "[t]he
University is a creation of the Legislature" and that "the officials of the
University are 'state-connected officials' . . . [whose] actions constitute
'governmental actions.' " Animal Legal Def. Fund, Inc. v. Institutional
Animal Care & Use Comm. of the Univ. of Vt., 159 Vt. 133, 137-38, 616 A.2d 224, 226 (1992) (quoting Sprague v. Univ. of Vt., 661 F. Supp. 1132, 1138
(D. Vt. 1987)). As a result, we held in Animal Legal Defense Fund that the
Legislature, by virtue of the above-described charter provisions, had
sufficient authority over UVM and its Institutional Animal Care and Use
Committee (IACUC) to render both entities public bodies subject to
Vermont's Open Meeting Law, 1 V.S.A. §§ 310-314, and Public Records Act, 1
V.S.A. §§ 315-320. Animal Legal Def. Fund, Inc., 159 Vt. at 138-140, 616 A.2d at 226-27. As to the IACUC, (FN2) we noted that its authority flows
"in significant part" from the Board of Trustees because the committee's
members are appointed by the university's chief executive officer, who in
turn answers to the Board of Trustees. Id. at 138, 616 A.2d at 227.
Because its reports on UVM's animal research practices could affect the
school's animal research policies and continued receipt of federal funds,
we concluded that the IACUC is "a committee of the University of Vermont
that aids in the conduct of the people's business" subject to the Open
Meeting Law and Public Records Act. Id. at 139-40, 616 A.2d at 227.

¶ 16. We have also previously characterized the conduct of UVM
officials as governmental action. Molesworth v. Univ. of Vt., 147 Vt. 4,
6, 508 A.2d 722, 723 (1986). In Molesworth, we observed that UVM's
residency determinations are reviewable under the Vermont Rules of Civil
Procedure which provide for judicial review of governmental actions.
V.R.C.P. 75; see Sprague v. Univ. of Vt., 661 F. Supp. 1132, 1136 (D. Vt.
1987) (noting that Molesworth "clearly identified internal action by UVM as
governmental action").

¶ 17. Additionally, Vermont's federal district court analyzed the
public status of UVM in Sprague, holding that UVM was not a state agency
within the meaning of the Vermont Administrative Procedures Act but was
subject to Vermont's Open Meeting Law. 661 F. Supp. at 1137-38. In
determining that UVM was not subject to the VAPA, the court relied upon the
fact that UVM, while holding "some state privileges, . . . also operates
more autonomously than the state administrative agencies and departments."
Id. at 1136. Observing that UVM "does not cater to the public at large" or
"make rules of general applicability," the court held that the Legislature
did not intend UVM "to be subject to the types of procedures that govern
state administrative agencies." Id. at 1137. (FN3)

¶ 18. En route to that conclusion, however, the court emphasized
the governmental character of UVM. With respect to the charter, the court
noted that "[t]he use of the word 'instrumentality' demonstrates that the
legislature intended UVM to be closely connected to the state." Id. at
1134-35. After examining UVM's financial structure, the composition of its
Board of Trustees, and other characteristics, the court concluded that UVM,
while not an agency for VAPA purposes, "is indeed an instrumentality and
agent of the state." Id. at 1137. The court also observed that the
Trustees' "final control over all internal operations of the University . .
. derives from their statutory authority" so that the actions of UVM
officials "implicate the Board and its governmental authority." Id. at
1139.

¶ 19. Collectively, these judicial assessments of UVM's position on
the public-private spectrum demonstrate that it is an instrumentality of
the State whose officials wield governmental authority. In enacting 16
V.S.A. § 2283, the Legislature properly delegated its police power to a
state instrumentality. Thus, we perceive no "plain and palpable invasion
of constitutional rights," resulting from the passage of § 2283 or the
existence and operation of UVM's police department. Beecham, 130 Vt. at
172, 287 A.2d at 841.

¶ 20. Based on the foregoing, we reject the cornerstone of the
reasoning employed by the district court and defendant: the claim that the
UVM police department is not controlled solely and exclusively by the
people through their legal representatives as required by our Constitution
because the UVM Board of Trustees, which, under § 2283, controls the police
force, contains public and private appointees. To emphasize this point,
defendant analogizes § 2283 to a delegation of similar authority to a
hypothetical board consisting of the IBM board of directors and the Town of
Essex's selectboard.

¶ 21. This reasoning fails, however, by focusing too narrowly on
the relationship between UVM's police officers and the Board of Trustees as
their supervisor. The proper relationship to consider for constitutional
purposes is that between the people and their representatives in the
Legislature on one hand and UVM, including its police force, on the other.
As discussed above, UVM is a creation of the Legislature and remains
subject to the Legislature's control. The UVM charter explicitly
recognizes the Legislature's broad power to amend it. 16 V.S.A. App. pt.
I. ch. 1 § 16. Thus, the Legislature-the representatives of the
people-possesses the power to alter UVM and its subdivisions, including its
police department, by virtue of its express authority to amend the document
that created and defines the institution. In this way, UVM stands in stark
contrast to a private entity, like IBM in defendant's hypothetical, to
which the Legislature could not properly allocate general police power.
Therefore, we reject the reasoning of defendant and the trial court and
hold that § 2283 did not delegate police power to a private entity beyond
the control of the people and their legal representatives.

¶ 22. Nor are we persuaded that § 2283 places police power beyond
the control of the people because, as defendant argues, the statute's
complaint procedure lacks sufficient oversight by elected officials. Under
the statute, when faced with a written misconduct complaint, the director
of the UVM police department must conduct an investigation consistent with
policies and procedures established by the UVM Board of Trustees. §
2283(d). The complainant may appeal to UVM's president, who must convene
an advisory committee consisting of three people, "no more than one of whom
has a direct or indirect university affiliation." Id. Defendant and the
district court relied on the fact that this process involves little
oversight by elected officials as further evidence that § 2283 is
unconstitutional.

¶ 23. This argument also suffers from an overly narrow focus.
Stepping back and widening the view, it is clear that when UVM acts
pursuant to statutory authority, its conduct is governmental action
reviewable under Rule 75 of the Vermont Rules of Civil Procedure. See
Molesworth, 147 Vt. at 6, 508 A.2d at 723 (recognizing that UVM's residency
determinations under 16 V.S.A. § 2282 are subject to Rule 75 review); see
also Sprague, 661 F. Supp. at 1136 (noting that Molesworth "clearly
identified internal action by UVM as governmental action"). Thus, the
complaint procedure remains transparent and subject to oversight by the
judiciary, a public governmental institution. In addition, § 2283 does not
alter UVM's exposure under 42 U.S.C. § 1983 for misconduct by its police
officers. Thus, the view espoused by the district court and defendant-that
the complaint mechanism renders the UVM police department unanswerable to
the people-is unfounded.

¶ 24. Defendant also argues that § 2283 is invalid because UVM is a
state instrumentality only to the extent its activities implicate "public
education issues." In support of this claim, defendant points to the fact
that in Animal Legal Defense Fund, we declined to hold that the Open
Meeting Law covers all UVM committees. First, this limitation does not
help defendant's argument because it simply recognizes the uncontroversial
principle that we do not adjudicate the status of parties not involved in
the case before us. Further, contrary to defendant's claim, that
limitation of our holding did not signal an intent to narrowly circumscribe
the kinds of UVM entities that might qualify as state instrumentalities.
Rather, we suggested that any UVM body that "aids in the conduct of the
people's business" would so qualify. Id.

¶ 25. By ensuring a safe learning environment, a basic precondition
of a successful educational institution, the UVM police department fulfills
a role at least as closely related to the educational mission as the role
of the IACUC in Animal Legal Defense Fund. See id. (discussing IACUC's
authority to make reports and influence university policy regarding animal
research). Therefore, the creation and operation of its police force
implicate and promote UVM's educational mission such that UVM is properly
viewed as a state instrumentality in this context.

¶ 26. Finally, defendant and the trial court question the
legitimacy of the Legislature's delegation of statewide, as opposed to
geographically limited, jurisdiction to UVM's police force. Officers
appointed by the Board of Trustees "shall have all law enforcement powers
provided by section 1935 of Title 24." 16 V.S.A. § 2283(a). Section 1935
of Title 24 provides that "[t]he powers granted to police officers under
this section may be exercised statewide." Thus, 16 V.S.A. § 2283(a)
confers statewide authority on UVM's police officers.

¶ 27. The Legislature did not exceed its constitutional authority in
so doing. As noted above, we presume a statute is constitutional absent
"clear and irrefragable evidence" to the contrary. Glidden, 2003 VT 12, ¶
11. Here, UVM's status as a state instrumentality enabled the Legislature
to delegate police power to UVM validly under Article 5. Because UVM's
public status made it a proper recipient of the Legislature's delegation of
police power, the Legislature was free to allocate statewide jurisdiction
to UVM's police force. (FN4)

¶ 28. In conclusion, we hold that the Legislature properly
delegated its police power to UVM when it passed 16 V.S.A. § 2283 and
thereby authorized UVM to create a university police department. UVM is a
sufficiently public and state-connected entity to be viewed as a state
instrumentality for purposes of receiving this delegation of the
Legislature's police power. Further, despite UVM's considerable autonomy
in fulfilling its mission as an educational institution, the Legislature
retains sufficient authority, as recognized in UVM's charter, over the
institution, and, in turn, the police department, so that the police power
delegated by § 2283 is not beyond the control of the people and their legal
representatives. Thus, § 2283 comports with Chapter I, Article 5 of the
Vermont Constitution, and the trial court erred in concluding otherwise.
Reversed and remanded.

FOR THE COURT:

_______________________________________
Associate Justice

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

FN1. Defendant does not argue that § 2283 bears no just relation to the
purposes of the police power.

FN2. The IACUC was created to oversee the university's research practices
involving animals and the conditions of animals within the institution. 7
U.S.C. § 2143(b)(1). In order to receive federal funding, the chief
executive of any research institution that uses animals for research must
appoint such a committee. 42 U.S.C. § 289d(b)(1).

FN3. This Court has not decided whether UVM is a state agency under the
VAPA. See Huddleston v. Univ. of Vt., 168 Vt. 249, 252 n.1, 719 A.2d 415,
418 n.1 (1998) (noting that the court in Sprague "thoroughly examined"
whether UVM is a state agency under VAPA and stating that "our holding here
makes it unnecessary to reach those broader questions").

FN4. We note that several states have chosen to confer broad territorial
jurisdiction on university police. See, e.g., 110 Ill. Comp. Stat. Ann.
305/7(a) (West 2006) (conferring jurisdiction on University of Illinois
police in counties containing university or any of its branches or
property); Minn. Stat. Ann. § 137.12 (West 2006) (conferring jurisdiction
"throughout the state of Minnesota"); N.J. Stat. Ann. § 18A:6-4.5 (West
2006) (conferring jurisdiction "anywhere in the State of New Jersey"); Tex.
Educ. Code Ann. § 51.203 (Vernon 2006) (conferring jurisdiction in "all
counties" in which university property is located). The fact that other
states have chosen to more closely limit the territorial authority of their
university police forces in no way alters our conclusions or analysis in
this case. See, e.g., Fla. Stat. Ann. § 1012.97(2) (West 2006) (limiting
jurisdiction to "property or facilities . . . under the guidance,
supervision, regulation, or control of the state university" and "off
campus when hot pursuit originates on any such property or facilities");
Ind. Code Ann. § 20-12-3.5-2(b) (West 2006) (limiting jurisdiction to "real
property owned or occupied by their institutions, including the streets
passing through and adjacent thereto").

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