State v. Z.P.

• Citation: 287 A.3d 1017
• Decision Date: 14 October 2022
• Docket Number: 22-AP-027
• Parties: STATE of Vermont v. Z.P. & A.P. (Vermont Journalism Trust, Appellant)
• Court: United States State Supreme Court of Vermont

287 A.3d 1017

STATE of Vermont

v.Z.P. & A.P. (Vermont Journalism Trust, Appellant)

No. 22-AP-027

Supreme Court of Vermont.

June Term, 2022

October 14, 2022

Ronald A. Shems, Alexandra J. Spring (Law Clerk), and K. Heather Devine of Tarrant, Gillies & Shems, LLP, Montpelier, for Appellant.

Robert J. Kaplan of Kaplan and Kaplan, Burlington, for Appellees.

Thomas J. Donovan, Jr., Attorney General, and Eleanor L.P. Spottswood, Solicitor General, Montpelier, for Appellee State.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

WAPLES, J.

¶ 1. The issue in this appeal is whether the Vermont Journalism Trust (VJT) may access sealed records from a criminal division proceeding. The trial court denied VJT's request for access to records that were previously sealed on the ground that access was not permitted by statute and the court lacked discretion to override the statutory provision. We conclude that VJT lacks standing to appeal that order and dismiss the appeal.

¶ 2. The underlying procedural history is undisputed and complicated. Defendants A.P. and Z.P. were charged by the Franklin County State's Attorney's Office with multiple serious criminal offenses in April 2020. The State's Attorney's Office discovered a conflict of interest, and the Vermont Attorney General's Office (AGO) took over prosecuting the case. In December 2020, the AGO determined that there was insufficient evidence to support the charges and on December 30, 2020, dismissed all pending charges against defendants. In January 2021, defendants¹ moved to seal the criminal cases under 13 V.S.A. § 7603(a)(1)(B), which provides that "the court shall issue an order sealing the criminal history record" within sixty days after final disposition when "the charge is dismissed before trial without prejudice." If a party objects to sealing, the court must hold a hearing to determine if sealing "serves the interests of justice." Id. § 7603(b). The criminal division ordered the AGO to provide its position on the requests to seal. The AGO filed a notice on January 27, 2021, indicating that it did not object to the sealing requests. Consequently, on January 28, 2021, the criminal division issued an order sealing the underlying criminal dockets under 13 V.S.A. § 7603.² The orders indicated that they applied to "all court files and records, law enforcement records, fingerprints, and photographs applicable to the proceeding" and directed that "[a]ll agencies and officials in custody of such documents shall comply."

¶ 3. Unbeknownst to the criminal division at the time, also in January 2021, media outlets, including VJT, made public-records requests to the AGO under 1 V.S.A. § 316 seeking "all documents, communications, investigatory records and material" related to the AGO's investigation of defendants. In response to VJT's records request, the AGO indicated that it had the records and would provide them. VJT did not make a records request to the judiciary and the criminal division was not notified of the pending public-records requests to the AGO before it issued the sealing order.

¶ 4. On February 1, 2021, the AGO filed a motion in the criminal division to reconsider the sealing order, revealing the existence of two pending public-records requests and seeking to comply with the public-records requests by releasing the now-sealed records in its possession. The criminal division denied the motions on the basis that the records were already sealed pursuant to the statute and without objection, and there was no authority for the criminal division to reconsider that decision.

¶ 5. In May 2021, three months after the records were sealed, VJT filed motions in the criminal division for access to sealed records under Vermont Rule for Public Access to Court Records 9(c). VJT argued that a sealing order did not retroactively override a pending request for records to the executive branch. VJT further contended that the trial court had discretion to provide access to the sealed records. Defendants opposed the motion for access to the records.

¶ 6. VJT also filed suit against the AGO in the civil division, appealing the AGO's denial of its public-records request. Although the two tracks of litigation stemmed from the same underlying facts, they involved different sets of records and were controlled by separate law. The motion in the criminal division involved a request for access to case records and was controlled by the Vermont Rules for Public Access to Court Records. See In re VSP-TK / 1-16-18 Shooting, 2019 VT 47, ¶ 13, 210 Vt. 435, 217 A.3d 560 ("Requests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records. This holding is consistent with our longstanding caselaw, and the provisions of the [Public Records Act]."). In contrast, the civil suit concerned records held by the AGO regarding the criminal investigation and access to those records was controlled by the Public Records Act, 1 V.S.A. §§ 315 - 320. All parties filed for summary judgment in the civil suit. In assessing the arguments, the civil division recognized that VJT might have been entitled to the records from the AGO if the agency had complied with the request before consenting to sealing but indicated there was no evidence that the AGO intentionally attempted to manipulate the process related to the sealing. The civil division concluded that because the records were now sealed, they were exempt from production under the Public Records Act as records "that by law are designated confidential or by a similar term." 1 V.S.A. § 317(c)(1), (2). The civil division granted summary judgment against VJT in July 2021. VJT did not appeal.

¶ 7. The criminal division then held a hearing on the motions for access to sealed case records in December 2021.³ In January 2022, the criminal division denied VJT's requests in a written order. The court held that under 13 V.S.A. § 7603(a)(1)(B), the criminal division was required to seal the records, and now that the records were sealed, they were exempt from public access. See V.R.P.A.C.R. 6(b)(1) (providing that public does not have access to case records designated confidential). The criminal division concluded that it lacked discretion to provide access to the sealed records because a statute governed the right of public access. V.R.P.A.C.R. 9(d).

¶ 8. VJT appeals the criminal division's January 2022 orders denying VJT's motions for access to the sealed records. On appeal, VJT argues that it diligently pursued all available avenues to obtain the records before they were sealed and that it should not be prejudiced because of the AGO's action in consenting to sealing before releasing the records. VJT argues that the criminal division incorrectly concluded that it lacked discretion to reconsider its decision to seal because sealing is a civil matter, and the criminal division has inherent discretion to correct mistakes or to reconsider its decisions under Vermont Rule of Civil Procedure 60(b).

¶ 9. As a threshold matter, we address the State's assertion that the appeal should be dismissed because VJT lacks standing to appeal. "Standing is a jurisdictional prerequisite." In re Bruyette, 2022 VT 3, ¶ 6, ––– Vt. ––––, 274 A.3d 844 (quotation omitted). "Because standing is a necessary component of the court's subject-matter jurisdiction, it cannot be waived, and its absence can be raised at any time." Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235, 949 A.2d 420. "[S]tanding is a legal question that we review without deference." Paige v. State, 2018 VT 136, ¶ 10, 209 Vt. 379, 205 A.3d 526.

¶ 10. The State argues that VJT does not meet the standing requirements of the Rules for Public Access to Court Records, which control the procedures for requesting case records. Under Rule 9(c), any person may move for access to sealed records. V.R.P.A.C.R. 9(c). However, the rule in effect during the relevant period limited the category of entities entitled to appeal the denial of a request for access to sealed records to a "party or person required to be served under subparagraph (a)(2)(E)." V.R.P.A.C.R. 9(e) (2019) (amended 2022).

¶ 11. To determine whether VJT fits within the language of the rule, we look first to the plain language. See State v. Therrien, 2022 VT 35, ¶ 13, ––– Vt. ––––, 282 A.3d 1175 ("We generally construe procedural rules in the same manner as statutes and therefore begin with the rule's plain language."). We also consider the rule's purpose and how it relates to other rules on the same subject. Id.

¶ 12. The version of Rule 9(e) effective at the time VJT filed suit and when it filed its notice of appeal provided a right to appeal to three categories of individuals: (1) parties, (2) those required to be served, defined as "other persons or organizations who have standing in the specific case," V.R.P.A.C.R. 9(a)(2)(E), and (3) individuals who are the subject of the information in the case record. The class of individuals entitled to appeal under Vermont Rule for Public Access to Court Records 9 was amended effective April 11, 2022. The amended rule now provides: "A party; a person or entity filing or opposing a motion under this rule; or any person required to be served under subparagraph (a)(3)(E) in the superior court, may request permission to appeal to the Supreme Court from any superior court decision and order under this rule pursuant to V.R.A.P. 5.1." V.R.P.A.C.R. 9(e). As relevant here, amended Rule 9 allows an appeal by the proponent of a motion for access to records.

¶ 13. VJT asserts that the amended language regarding who can appeal was merely a clarification of existing law and therefore should apply retroactively. In general, there is a presumption that changes to statutes apply only prospectively and "the presumption may be rebutted when the Legislature enacts a clarification of a misapplied or misinterpreted statute, thereby revealing its true meaning." In re D.K., 2012 VT 23, ¶ 8, 191 Vt. 328, 47...