Doe v. Salmon, 39-77

• Decision Date: 12 September 1977
• Docket Number: No. 39-77,39-77
• Court: Vermont Supreme Court
• Parties: , 3 Media L. Rep. 1743 John DOE et al. v. Thomas P. SALMON et al.

Page 512

378 A.2d 512

135 Vt. 443, 3 Media L. Rep. 1743

John DOE et al. v. Thomas P. SALMON et al.

No. 39-77.

Supreme Court of Vermont.

Sept. 12, 1977.

Thomas J. Kenney, Burlington, for plaintiffs.

M. Jerome Diamond, Atty. Gen., and Louis P. Peck, Chief Asst. Atty. Gen., Montpelier, for defendants.

Clarke A. Gravel and Brooke Pearson, of Gravel, Shea & Wright, Burlington, for defendant-intervenor McClure Newspapers, Inc.

Paul D. Sheehey, Burlington, for defendant-intervenor Mt. Mansfield Television, Inc.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

This is an appeal from a judgment of the Franklin Superior Court enjoining the former Governor of this State and other named public officials from disclosing to the general public and news media any information relating to certain full pardons granted prior to July 1, 1976. The action was instituted as a class action by the chairman of the Vermont Parole Board and an unnamed pardon recipient.

The facts are not disputed, having been the subject of a stipulation entered into by all parties, and may be summarized as follows. The defendant public officials are custodians of the records of pardons granted by Governor Salmon. The pardons were issued and information related thereto was recorded prior to July 1, 1976. In a formal opinion (Op.Atty.Gen. 77-76), the Attorney General advised the defendant Governor that the pardon records were public in nature and presumably available for review by the public, subject only to limited discretionary power in the Governor to withhold the records in the interests of public policy based upon individual cases. The Governor would exercise that discretion in some cases on behalf of some of the plaintiffs. The intervenor members of the news media claim the right to know, publish, disseminate and/or disclose to the general public the names of all persons pardoned, the dates of those pardons, and the offenses and penalties to which those pardons relate. The plaintiff class includes individuals who applied for pardons conditioned upon confidentiality, who provided information prior to July 1, 1976, who would be adversely affected in their economic, social, and familial relationships by the public disclosure of such pardons, and who are employees of the State.

Upon these facts, the trial court concluded and adjudged that although the public, including the news media, has the right to inspect and publish information contained in public records, that right must be based upon an interest which is founded upon more than mere curiosity and which is not detrimental to the public good. Further, the release of such information requires an exercise of judgment and discretion by the pardoning authority based upon reasonable procedures or rules and regulations established to insure that the dissemination of the information is not detrimental to the public good and is not done solely out of curiosity. Concluding that such a determination had not been made, the trial court issued an injunction to continue in force and effect until that requirement had been met. The original defendants and the intervenors appeal from the judgment.

The appellants contend that the judgment is not supportable in fact or in law. We agree and dismiss. While the individual considerations advanced by the plaintiffs in their desire for anonymity are understandable, our decision is limited by the agreed statement of facts and the structure of controlling statutory law and judicial decisions in force and effect at the time the pardons were granted. However sympathetic we might be to the defendants' position, we must apply the law to the facts placed before us.

The critical question is whether the plaintiffs have demonstrated a legal right to relief as ordered by the judgment of the trial court. The power to pardon is a function of the State delegated to the Executive and conferred upon the Office of Governor. Vt. Const., ch. II, § 20. It is not a personal act of the individual holding that office, but it is an official declaration by the chief executive that a named person is relieved from the consequences of a specific crime or crimes. 59 Am.Jur.2d Pardon and Parole § 3; see Brown v. Tatro, 134 Vt. 248, 250, 356 A.2d 512 (1976). The exercise of the pardoning power is within the sole discretion of the Governor and is not judicially reviewable except as to questions of validity. It is an official act based upon public considerations as well as an act of grace. 59 Am.Jur.2d, supra, at § 12, citing Rich v. Chamberlain, 104 Mich. 436, 62 N.W. 584 (1895).

Since the granting of a pardon is an official act, we turn to chapter I, article 6 of our State constitution, which provides:

That all power being originally inherent in and co(n)sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.

This constitutional mandate is carried out by 3 V.S.A. § 52, which imposes a duty upon the Secretary of Civil and Military Affairs to keep a full and complete record of official acts of the Executive Department. This same officer is required to make copies of records in his office attested under his seal. 3 V.S.A. § 53. Being an official act, the granting of a pardon is by virtue of 3 V.S.A. § 52 a record required to be kept by law, and therefore, it is a public record. Clement v. Graham, 78 Vt. 290, 312-13, 63 A. 146 (1906). We have no way of knowing from the findings of fact what information is contained in these records. Since the granting of the pardon is the official act, the record is that which is recorded to effect the granting of the pardon.

The right of all citizens to inspect public records and documents made and preserved by their government when not detrimental to the public interest has been established by the common law. Matte v. City of Winooski, 129 Vt. 61, 63, 271 A.2d 830 (1970); Clement v. Graham,supra. There are limited exceptions to this doctrine which...