Benning v. State

Decision Date28 January 1994
Docket NumberNo. 93-043,93-043
Citation641 A.2d 757,161 Vt. 472
PartiesJoseph BENNING, et al. v. STATE of Vermont.
CourtVermont Supreme Court

Joseph C. Benning, Lyndonville, for plaintiffs-appellants.

Jeffrey L. Amestoy, Atty. Gen., and Scott A. Whitted, Asst. Atty. Gen., Montpelier, for defendant-appellee.


DOOLEY, Justice.

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, 1 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.


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. 2 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 and 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. 3 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 found 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 of 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 respecting the former is as 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, 21 Ohio Misc. 175, 252 N.E.2d 866, 871-72 (1969). 4 The vast majority of state courts have adhered to...

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