Kirk Wool v. Office of Professional Regulation ( 2020 )

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2020 VT 44
No. 2019-281
Kirk Wool Supreme Court
On Appeal from
v. Superior Court, Washington Unit,
Civil Division
Office of Professional Regulation January Term, 2020
Mary Miles Teachout, J.
Kirk Wool, Pro Se, Tutwiler, Mississippi, Plaintiff-Appellant.
Thomas J. Donovan, Jr., Attorney General, and David Groff, Assistant Attorney General,
Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. COHEN, J. Petitioner Kirk Wool appeals the superior court’s dismissal of his
petition for mandamus relief against the Office of Professional Regulation (OPR) for lack of
standing and for failure to state a claim upon which relief can be granted. Although we hold that
petitioner has standing, we affirm the court’s dismissal for failure to state a claim.
¶ 2. The Legislature has established a statutory scheme authorizing OPR and the Board
of Psychological Examiners to license, regulate, investigate, and discipline psychologists in the
state. See generally 3 V.S.A. §§ 121-37; 26 V.S.A. §§ 3001-18. In particular, the Board “shall
investigate all complaints and charges of unprofessional conduct against any licensee,” 26 V.S.A.
§ 3016a(c), and after giving the licensee an opportunity for hearing, “may take disciplinary action
against a licensee . . . found guilty of unprofessional conduct,” id. § 3016a(a). See also 3 V.S.A.
§ 123(a) (authorizing OPR to provide “administrative, secretarial, financial, investigatory,
inspection, and legal services” to Board).
¶ 3. Petitioner is an inmate in the custody of the Department of Corrections. In 2015,
he filed a disciplinary complaint against a psychologist, alleging that the psychologist had falsified
certain scores in a risk assessment and that these scores force him to “max out” his sentence and
serve fourteen additional years of incarceration. In 2016, while his complaint was under
investigation, petitioner wrote to OPR requesting copies of the records the psychologist filed to
defend against the complaint. Petitioner seeks the records to rebut the psychologist’s defense with
further evidence in support of the complaint. OPR replied that it was precluded by statute from
releasing the requested records to the public because the complaint was under investigation.
¶ 4. Petitioner then filed a pro se petition for a writ of mandamus and for extraordinary
relief in superior court, arguing that as the complainant in the disciplinary proceedings, he has a
due process right to the records under the U.S. and Vermont Constitutions. Finding that petitioner
lacked standing, was not entitled to mandamus or extraordinary relief, and failed to raise a
colorable constitutional claim, the superior court granted OPR’s motions to dismiss for lack of
subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. See
V.R.C.P. 12(b)(1), (6). Petitioner appealed to this Court.
¶ 5. In October 2019, while this appeal was pending, OPR closed its investigation of
the psychologist without filing disciplinary charges. Because the investigation has concluded, we
must first determine whether the appeal has become moot, thereby divesting us of subject-matter
jurisdiction.
I. Mootness
¶ 6. The Vermont Constitution “limits the authority of the courts to the determination
of actual, live controversies between adverse litigants.” In re Durkee, 2017 VT 49, ¶ 11, 205 Vt.
11, 171 A.3d 33 (quotation omitted). Accordingly, “[f]or this Court to have jurisdiction over an
appeal, the appeal must involve an actual controversy arising between adverse litigants who have
2
a legally cognizable interest in the outcome of the case.” Paige v. State, 2017 VT 54, ¶ 6, 205 Vt.
287, 171 A.3d 1011. “Even if a case originally presented an actual controversy in the trial court,
the case must remain live throughout the appellate process for us to examine the issues.” Houston
v. Town of Waitsfield, 2007 VT 135, ¶ 5, 183 Vt. 543, 944 A.2d 260. Thus, a case is moot if at
any point we can “no longer grant effective relief.” Id. (quotation omitted).
¶ 7. Although OPR has concluded its investigation, this appeal is not moot because
petitioner retains a legally cognizable interest in its outcome. Petitioner argues that as the
complainant in the disciplinary proceedings, he has a due process right to the records, with which
he can rebut the psychologist’s defense and prove the merit of his complaint. If we were to find
such a right on the merits, then OPR’s refusal to produce the records would be unlawful, and we
could order OPR to produce the records and reopen its investigation. That renewed investigation
could result in a finding of unprofessional conduct by, and disciplinary action against, the
psychologist. See 3 V.S.A. § 129a(a)(7), (d)(1) (providing that “[w]illfully making or filing false
reports or records in the practice of the profession” constitutes unprofessional conduct and
authorizing Board to take disciplinary action on that basis); 26 V.S.A. §§ 3016, 3016a(a) (same).
Because we could still grant effective relief to petitioner, we move on to consider the issues on
appeal.
II. Standard of Review
¶ 8. Motions to dismiss for lack of subject-matter jurisdiction and for failure to state a
claim under Vermont Rules of Civil Procedure 12(b)(1) and (6) may not be granted “unless it
appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to
relief.” Murray v. City of Burlington, 2012 VT 11, ¶ 2, 191 Vt. 597, 44 A.3d 162 (mem.)
(quotation omitted). “[W]e assume as true the nonmoving party’s factual allegations and accept
all reasonable inferences that may be drawn from those facts.” Id. Our review of dismissals under
Rules 12(b)(1) and (6) is plenary and non deferential. See Conley v. Crisafulli, 2010 VT 38, ¶ 3,
188 Vt. 11, 999 A.2d 677 (applying de novo review to Rule 12(b)(1) dismissal); Skaskiw v. Vt.
3
Agency of Agric., 2014 VT 133, ¶ 6, 198 Vt. 187, 112 A.3d 1277 (applying de novo review to
Rule 12(b)(6) dismissal).
III. Dismissal for Lack of Standing under Rule 12(b)(1)
¶ 9. We first review the superior court’s dismissal for lack of standing. OPR argues that
petitioner lacks constitutional standing to litigate issues related to the disciplinary proceedings
because he is not a party to those proceedings, which it maintains are intended for the protection
of the public generally. For support, OPR points to a statute governing professional regulation and
its agency regulations. See 26 V.S.A. § 3101(a) (providing that “[i]t is the policy of the State of
Vermont that regulation be imposed upon a profession or occupation solely for the purpose of
protecting the public”); Office of Professional Regulation Administrative Rules of Practice, Rule
1.1(J), Code of Vt. Rules 04 030 005, https://sos.vermont.gov/media/osal1nmq/administrative-
rules-of-practice.pdf [https://perma.cc/32SE-VTP4] (defining “party” in disciplinary hearing and
appeal as “the licensee and the State of Vermont”).
¶ 10. Like the mootness doctrine, standing is rooted in constitutional principles requiring
actual controversies between adverse litigants and is a jurisdictional prerequisite. See Brod v.
Agency of Nat. Res., 2007 VT 87, ¶ 8, 182 Vt. 234, 936 A.2d 1286 (holding that “Vermont courts
are vested with subject matter jurisdiction only over actual cases or controversies involving
litigants with adverse interests,” and that “[t]o have a case or controversy subject to
the jurisdiction of the court, the plaintiffs must have standing”). “In the absence of standing, any
judicial decision would be merely advisory, and Vermont courts are without constitutional
authority to issue advisory opinions.” Id. To satisfy constitutional standing, a plaintiff must allege
facts on the face of the complaint that show “(1) injury in fact, (2) causation, and (3)
redressability.” Severson v. City of Burlington, 2019 VT 41, ¶¶ 9-10, __ Vt. __, 215 A.3d 102
(quotation omitted). Specifically, the plaintiff “must have suffered a particular injury that is
attributable to the defendant and that can be redressed by a court of law.” Parker v. Town of
Milton, 169 Vt. 74, 77, 726 A.2d 477, 480 (1998). “The alleged injury must be an invasion of a
4
legally protected interest, not a generalized harm to the public.” Paige v. State, 2018 VT 136, ¶ 9,
209 Vt. 379, 205 A.3d 526 (quotation omitted).1
¶ 11. Although closely related, standing and the merits are separate inquiries, such that
the former does not depend on the latter. See Ariz. State Legislature v. Ariz. Indep. Redistricting
Comm’n, 135 S. Ct. 2652, 2663 (2015) (noting that “one must not confuse weakness on the merits
with absence of Article III standing” (quotation and alteration omitted)); ASARCO Inc. v. Kadish,
490 U.S. 605, 624 (1989) (observing that “although . . . standing often turns on the nature and
source of the claim asserted, it in no way depends on the merits of the claim” (quotation and
alteration omitted)). As noted, the plaintiff’s burden to satisfy standing is merely to “ ‘allege facts
sufficient to confer standing on the face of the complaint.’ ” Severson, 2019 VT 41, ¶ 9 (quoting
Parker, 169 Vt. at 76, 726 A.2d at 479); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992) (“At the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those
specific facts that are necessary to support the claim.” (quotation and alteration omitted)); 13A C.
Wright et al., Fed. Prac. & Proc. § 3531 (3d ed.) (observing that because focus of standing is on
party bringing claim and not claim itself, “standing is not defeated by failure to prevail on the
1
Along with these constitutional standing requirements, we have also adopted self-
imposed, prudential limitations on our exercise of jurisdiction under the standing doctrine. See,
e.g., Agency of Nat. Res. v. U.S. Fire Ins. Co., 173 Vt. 302, 306, 796 A.2d 476, 479 (2001) (“The
question of standing involves both constitutional limitations on jurisdiction and prudential
limitations on its exercise.” (quotation and alteration omitted)); Hinesburg Sand & Gravel Co. v.
State, 166 Vt. 337, 341, 693 A.2d 1045, 1048 (1997) (“Standing embodies a core constitutional
component and a prudential component of self-imposed judicial limits.”). These prudential limits
include “the general prohibition on a litigant’s raising another person’s legal rights, the rule against
adjudication of generalized grievances, and the requirement that a plaintiff’s complaint fall within
the zone of interests protected by the law invoked.” Hinesburg, 166 Vt. at 341, 693 A.2d at 1048
(quotation omitted). Although we have identified federal cases describing the zone-of-interest test
as a principle of general application and as nondiscretionary, see id. at 342, 693 A.2d at 1048, we
have not explained when Vermont courts must apply the test, nor have we applied the test in every
case where standing was at issue. See, e.g., Turner v. Shumlin, 2017 VT 2, ¶ 18, 204 Vt. 78, 163
A.3d 1173 (per curiam) (finding constitutional standing satisfied but not addressing zone-of-
interest test). Because OPR did not raise prudential standing in the superior court or in this Court,
we do not apply those principles in this case or explain their applicability in future cases—a matter
we leave for a future controversy where the issue is raised and adequately briefed.
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merits,” and that “[a] sufficient allegation of injury establishes standing to win a determination
whether the law affords redress for that injury”). The purpose of the standing doctrine is not to
weed out unmeritorious claims; it is to determine whether the “plaintiff’s stake in the outcome of
the controversy is sufficient ‘to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions.’ ” Turner v. Shumlin, 2017 VT 2, ¶ 10, 204 Vt. 78, 163 A.3d 1173 (per curiam) (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)).2
¶ 12. To deny constitutional standing in this case because the statutory scheme and
agency regulations do not confer on petitioner the right asserted would be to resolve the matter on
the merits and make the standing doctrine redundant. Although we go on to hold that petitioner
has no right to the requested records, he alleged the necessary facts to cross the constitutional
standing threshold. In his petition for mandamus and extraordinary relief, petitioner alleged that
the psychologist falsified his scores in a risk assessment, prompting him to file a disciplinary
complaint; that OPR denied him access to the records the psychologist filed to defend against the
complaint; and that OPR’s refusal to produce said records renders him unable to counter the
psychologist’s defense and prove the merit of his complaint. Petitioner alleges an invasion of a
legally protected interest in OPR’s violation of his due process right to the records and the resulting
inability to prove the merit of his complaint. Petitioner claims the due process right, not as a
member of the public, but in his capacity as a complainant in the statutory scheme established to
discipline psychologists. His position as a complainant is, on the face of the complaint, different
from that of a member of the public with no personal stake in the discipline of a particular
psychologist. Accordingly, petitioner satisfies the injury-in-fact requirement. Further, there is a
causal connection between the allegedly unlawful conduct and the alleged injury—here, between
OPR’s unwillingness to grant petitioner access to the records and the resulting inability to counter
2
Other tools, such as motions to dismiss for failure to state a claim under Rule 12(b)(6)
and for summary judgment under Rule 56, are available for the former purpose.
6
the psychologist’s defense and prove the merit of his complaint. Finally, as noted in the mootness
discussion, this Court can redress the alleged injury by ordering OPR to produce the records and
reopen its investigation, which could result in a finding of unprofessional conduct and disciplinary
action. See supra, ¶ 7.
¶ 13. We are further impelled to this result by our standard for reviewing a motion to
dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), in which “we assume as true
the nonmoving party’s factual allegations and accept all reasonable inferences that may be drawn
from those facts,” and which we deny “unless it appears beyond doubt that there exist no facts or
circumstances that would entitle the plaintiff to relief.” Murray, 2012 VT 11, ¶ 2 (quotation
omitted). Assuming as true the facts presented, and accepting all reasonable inferences that can
be drawn from them, with respect to the standing question, we cannot say beyond doubt that no
facts exist that would entitle petitioner to relief. The superior court erred in dismissing the petition
for lack of standing. Petitioner has standing to make his arguments before the courts and we
accordingly have jurisdiction to decide them on the merits.
¶ 14. OPR observes that we have denied complainants standing to challenge actions of
the regulatory bodies in the attorney-discipline context. In In re Faignant, the petitioner, an
attorney, filed a disciplinary complaint against another attorney on behalf of himself and his client.
2019 VT 29, __ Vt. __, 212 A.3d 623 (mem.). After Bar Counsel reviewed and dismissed the
complaint, the petitioner sought extraordinary relief, asking this Court to order Bar Counsel to
refer the complaint for investigation. We recalled our settled law establishing that the purposes of
the attorney-discipline process are to protect the public, to maintain public confidence in the bar,
and to deter other attorneys from engaging in misconduct. Id. ¶ 12 (citing In re Robinson, 2019
VT 8, ¶ 73, __Vt. __, 209 A.3d 570). We observed that the process does not provide “a means of
redress for one claiming to have been personally wronged by an attorney,” and held that the
petitioner and his client lacked standing because neither “suffered an ‘injury in fact’ from Bar
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Counsel’s screening decision through ‘the violation of [the client’s] constitutional right to trial free
of conflicts.’ ” Id. ¶¶ 12-13 (citation omitted).
¶ 15. Multiple factual and legal distinctions compel a different result here on the question
of standing. First, because different disciplinary schemes are at issue, our inability in Faignant to
identify a threat of injury to a “constitutional right to trial free of conflicts” in the attorney-
discipline rules does not constrain our ability to recognize a threat of injury to the legally protected
interest in the facts and statutory scheme before us here. Second, the Faignant petitioner was
seeking standing to insert himself into the disciplinary process by compelling the regulatory body
to act on the complaint. He was leveraging his position as the complainant to compel Bar Counsel
to refer the complaint for investigation. Here, petitioner seeks standing only to argue that, as the
complainant, he has a right to see certain documents filed in the proceedings. He does not ask
OPR to take any particular action on the complaint itself. Third, in Faignant we relied on settled
interpretations of this Court’s rules on attorney discipline, an area constitutionally committed to
the Court’s authority. See id. ¶ 12 (citing Robinson, 2019 VT 8, ¶ 73). There, we had already
established the purposes of attorney disciplinary actions. See Robinson, 2019 VT 8, ¶ 73 (citing
In re Neisner, 2010 VT 102, ¶ 24, 189 Vt. 145, 16 A.3d 587). And we had recognized that this
Court has “ ‘disciplinary authority concerning all judicial officers and attorneys at law in the
State,’ ” id. ¶ 21 (quoting Vt. Const. ch. II, § 30); that “this Court, not the Legislature, tasked the
[Professional Responsibility] Board with administering the [attorney] disciplinary program,” id.
¶ 23; and that “ ‘this Court retains inherent power to dispose of individual cases of lawyer
discipline,’ ” id. ¶ 21 (alteration omitted) (quoting In re Berk, 157 Vt. 524, 527, 602 A.2d 946, 948
(1991) (per curiam)). Here, in contrast, we have no settled law on the purposes of or rights in the
psychologist disciplinary statutes. Moreover, unlike the attorney-discipline process, this scheme
is a creature of the Legislature, such that to determine its purposes and rights, we must divine the
Legislature’s intent. See State v. Davis, 2020 VT 20, ¶ 47, __ Vt. __, __A.3d __ (noting that our
goal in statutory interpretation is to implement Legislature’s intent, which we do, not by reading
8
statutes in isolation, but by considering statutory scheme as a whole). It would be premature of us
to hold that a complainant in this statutory scheme has no rights—and therefore no standing—
without reaching the merits and determining the legislative intent behind the scheme.
¶ 16. For similar reasons, we reject OPR’s argument under Linda R.S. v. Richard D., 410
U.S. 614 (1973), that petitioner lacks standing because he is in the same position as a complainant
in a criminal prosecution. In Linda, the State of Texas had adopted a law criminalizing parents’
failure to support their children, and the courts construed the law to apply only to parents of
“legitimate” children. A mother alleged that she filed a complaint against her child’s father with
a district attorney, who refused to prosecute because the child was “illegitimate.” This
construction of the law, the mother argued, violated the Equal Protection Clause. Observing that
“a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another,” the U.S. Supreme Court held that “a citizen lacks standing to contest the policies of the
prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Id.
at 619.
¶ 17. Even if legislatures do not grant complainants any rights under criminal statutes or
in the criminal justice system, under the threshold standing inquiry, we cannot say that our
Legislature did not grant complainants in this intricate civil statutory scheme the narrow right to
obtain certain documents. Without reaching the merits and examining the statutory scheme as a
whole, we are not prepared to say, as OPR argues, that petitioner has no rights or interests at stake
in this disciplinary process. To illustrate the point, we note some evidence of the Legislature’s
concern with the interests of complainants in this disciplinary scheme in 3 V.S.A. § 129(d), which
provides:
A board shall notify parties, in writing, of their right to appeal final
decisions of the board. A board or the Director [of OPR] shall also
notify complainants in writing of the result of any disciplinary
investigation made with reference to a complaint brought by them
to the board or Director. When a disciplinary investigation results
in a stipulation filed with the board, the board or the Director shall
provide the complainant with a copy of the stipulation and notice of
9
the stipulation review scheduled before the board. The complainant
shall have the right to be heard at the stipulation review.
This statute alone refutes OPR’s argument that a complainant in this statutory scheme has no rights
and no interests in the outcome of these disciplinary proceedings. The Legislature clearly
considered some interests and granted some rights. Whether petitioner has the right he claims is a
matter to which we now turn in examining the superior court’s dismissal for failure to state a claim.
IV. Dismissal for Failure to State a Claim under Rule 12(b)(6)
¶ 18. We first clarify that the pro se petition for mandamus and extraordinary relief is
really a petition for review of governmental action under Vermont Rule of Civil Procedure 75.
“Although the formal writ of mandamus was abolished by V.R.C.P. 81(b), relief in the nature of
mandamus is still available under V.R.C.P. 75.” Garzo v. Stowe Bd. of Adjustment, 144 Vt. 298,
299-300, 476 A.2d 125, 126 (1984); see also Reporter’s Notes, V.R.C.P. 75 (“Rule 75(a) . . . does
not purport to say what determinations are reviewable, but provides a procedure applicable
whenever [superior] court review . . . is available as a matter of general law by proceedings in the
nature of certiorari, mandamus, or prohibition.”). “Mandamus is a command from the court to an
official, agency, or lower tribunal to perform a simple and definite ministerial duty imposed by
law.” Wool v. Menard, 2018 VT 23, ¶ 11, 207 Vt. 25, 185 A.3d 577 (quotation omitted). Three
requirements must be satisfied to grant mandamus relief:
(1) the petitioner must have a clear and certain right to the action
sought by the request for a writ; (2) the writ must be for the
enforcement of ministerial duties, but not for review of the
performance of official acts that involve the exercise of the official’s
judgment or discretion; and (3) there must be no other adequate
remedy at law.
Id. (quoting In re Fairchild, 159 Vt. 125, 130, 616 A.2d 228, 231 (1992)).
¶ 19. Here, petitioner argues that he has a clear and certain right to the records under the
due process provisions of the U.S. and Vermont Constitutions. Although unspecified in the pro se
petition and appellate briefs, we understand petitioner to raise procedural due process arguments
10
under the liberty prong of the Fourteenth Amendment’s Due Process Clause and under Chapter I,
Article 10 of the Vermont Constitution.
¶ 20. The Fourteenth Amendment to the U.S. Constitution protects persons against state
deprivations of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. “Courts examine procedural due process questions in two steps: the first asks whether there
exists a liberty . . . interest which has been interfered with by the State; the second examines
whether the procedures attendant upon that deprivation were constitutionally sufficient.” Conway
v. Gorczyk, 171 Vt. 374, 376, 765 A.2d 463, 465 (2000) (quotation omitted). “A liberty interest
may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it
may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (citations omitted).
¶ 21. Petitioner’s claim can only fall under the second category of liberty interests. The
issue petitioner presents is whether he has a liberty interest in the records as a complainant in this
state’s statutory scheme to discipline psychologists. If he has such a liberty interest, it is found in
the statutory scheme, not in a guarantee implicit in the word liberty. Accordingly, we seek to
determine whether petitioner has an expectation or interest created by the statutory scheme at
issue.3
¶ 22. Our goal in interpreting statutes is to divine and implement the Legislature’s intent.
State v. Berard, 2019 VT 65, ¶ 12, __ Vt. __, 220 A.3d 759. We examine the plain language of
the statute, and if this language is “clear and unambiguous, we enforce the statute according to its
terms.” State v. Blake, 2017 VT 68, ¶ 8, 205 Vt. 265, 174 A.3d 126 (quotation omitted). However,
we also look “to other relevant or related statutes for guidance, because a proper interpretation
3
The issue petitioner raises is not whether the State deprived him of liberty without due
process by forcing him to serve fourteen years of incarceration based on a falsified risk assessment.
We have no facts—or even allegations—regarding the process to administer the risk assessment,
how or why it leads to the additional years of incarceration, or whether there are procedures to
challenge the assessment. That issue is not before the Court, and we express no opinion on the
subject.
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must further the entire statutory scheme.” Id. (quotation omitted); see also Davis, 2020 VT 20,
¶ 47 (noting that when statute is one component of broader statutory scheme addressing same
subject matter, “we must consider the statutory scheme as a whole”); Lyons v. Chittenden Cent.
Supervisory Union, 2018 VT 26, ¶ 13, 207 Vt. 59, 185 A.3d 551 (“Our task is to ensure that a
statute’s enacting purpose is given effect, and we do so by examining and considering fairly, not
just isolated sentences or phrases, but the whole and every part of the statute, together with other
statutes standing in pari materia with it, as parts of a unified statutory system.” (quotation and
alterations omitted)).
¶ 23. The disciplinary scheme at issue here spans 3 V.S.A. §§ 121-37 and 26 V.S.A.
§§ 3001-18. We consider 26 V.S.A. §§ 3101-07 as well, because these sections also govern
regulation of professions in the state. No statute in the scheme explicitly provides the complainant
a right to the documents petitioner requests, nor does a statute grant the complainant party status
in the proceedings. This is itself evidence that the Legislature did not intend to grant petitioner the
right he claims. See Harris v. Sherman, 167 Vt. 613, 614, 708 A.2d 1348, 1350 (1998) (mem.)
(finding evidence of legislative intent in legislative silence). Other statutes in the scheme convince
us that the Legislature did not create an adversarial process between the complainant and the
licensee such that the former is entitled to review or rebut the latter’s submissions to OPR at the
investigation stage.
¶ 24. As OPR observes, the Legislature declared that “[i]t is the policy of the State of
Vermont that regulation be imposed upon a profession or occupation solely for the purpose of
protecting the public” and that “the form of regulation adopted by the State shall be the least
restrictive form of regulation necessary to protect the public interest.” 26 V.S.A. § 3101(a)-(b).
This statute indicates that in regulating professions in this statutory scheme, the Legislature was
concerned with the public interest generally, not with redressing a complainant’s personal
grievance against a licensee, which can be done through civil litigation in the courts.
12
¶ 25. Returning to 3 V.S.A. § 129(d), the Legislature charged the Board with notifying
“parties” to the disciplinary proceedings of “their right to appeal final decisions of the [B]oard.”
Immediately thereafter, the Legislature directed the Board or OPR to “also notify complainants in
writing of the result of any disciplinary investigation made with reference to a complaint brought
by them.” Id. The different treatment of “parties” and “complainants” in this statute indicates that
the Legislature did not intend to make complainants parties to the proceedings, undermining any
inference that complainants are entitled to review the documents filed by other parties.
¶ 26. The remainder of § 129(d) concerns investigations resulting in a stipulation. In
those cases, the statute grants complainants a right to obtain a copy of the stipulation, a right to
notice of the stipulation review scheduled before the Board, and a right to be heard at the stipulation
review. Id. The Legislature carved out a limited role for complainants in those cases, but it did
not include a right to obtain documents filed by the licensee during the investigation.
¶ 27. Because complainants are not parties to the proceedings, the Legislature not only
declined to grant them access to the records at issue, it prohibited OPR from disclosing the records
to them. Under 3 V.S.A. § 131, OPR must release certain information to the public: For all
complaints—whether disciplinary charges have been filed or not—OPR must release (1) the date
and nature of the complaint, excluding the identity of the licensee, and (2) “a summary of the
completed investigation.” Id. § 131(c)(1)(A)-(B). For complaints resulting in filing of disciplinary
charges, stipulations, or disciplinary action, OPR must in addition release:
(A) the name and business addresses of the licensee and
complainant;
(B) formal charges, provided that they have been served or a
reasonable effort to serve them has been made, and all subsequent
pleadings filed by the parties;
(C) the findings, conclusions, rulings, and orders of the board or
administrative law officer;
(D) the transcript of the hearing, if one has been made, and exhibits
admitted at the hearing;
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(E) stipulations filed with the board or administrative law officer;
and
(F) final disposition of the matter by the appellate officer or the
courts.
Id. § 131(c)(2)(A)-(F). The statute then proscribes OPR from releasing “any other information
regarding unprofessional conduct complaints, investigations, proceedings, and related records
except the information required to be released under this section.” Id. § 131(d). The statute makes
no exception for release of records to the complainant. Because disciplinary charges had not been
filed against the psychologist when petitioner requested the records at issue, OPR was prohibited
from releasing the records to petitioner, who was merely a member of the public. Only if OPR
had filed disciplinary charges would petitioner have a right to access the records, potentially as
“subsequent pleadings filed by the parties” or “exhibits admitted at the hearing.” See id.
§ 131(c)(2)(B), (D). This release, moreover, would not be pursuant to his status as the
complainant, but under his status as a member of the public.
¶ 28. Petitioner argues that he has a right to the records under 3 V.S.A. § 131(g), which
provides that “[n]othing in this section shall prohibit the disclosure of any information regarding
unprofessional conduct complaints, or investigations thereof, in response to an order from a court
of competent jurisdiction, or to State or federal law enforcement or regulatory agencies,” provided
the receiving agency complies with certain confidentiality requirements. This subsection provides
an exception to the confidentiality rules in § 131(c) and (d) for court orders and agency requests.
While § 131(g) authorizes OPR to release records pursuant to a court order, the provision does not
itself provide a right to disclosure. For a court to order release of the records, petitioner would
have to prove a right to the records under some other authority.
¶ 29. In sum, while the Legislature carved out a limited role for complainants in § 129(d),
it did not create an adversarial process between the complainant and the licensee entitling the
complainant to review the licensee’s submissions to OPR at the investigative stage of the
proceedings. The statutory scheme does not grant complainants a right to the documents petitioner
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requests; in fact, it prohibits such disclosure. Because the statutory scheme does not create an
expectation to or interest in the records, petitioner has no liberty interest in said records, and
accordingly no due process right to them under the Fourteenth Amendment.
¶ 30. The same result obtains under Article 10 of the Vermont Constitution. Article 10
provides in part that no person can be “justly deprived of liberty, except by the laws of the land.”
Vt. Const. ch I, art. 10. Although the phrase “ ‘laws of the land’ in Article 10 is synonymous with
the term ‘due process of law’ contained in the Fourteenth Amendment,” we have declined to adopt
the U.S. Supreme Court’s reliance on phrases like “liberty interest” to decide when the procedural
due process right attaches under the Vermont Constitution. Parker v. Gorczyk, 170 Vt. 263, 272-
73, 744 A.2d 410, 416-17 (1999). Instead, we seek to determine “the point along the continuum
of claimed interests at which due process protections are warranted.” Id. at 273, 744 A.2d at 417.
This entails “a fact-sensitive examination of the particular circumstances involved, including
consideration of the nature and significance of the interest at stake, the potential impact of any
decision resulting in a deprivation of that interest, and the role that procedural protections might
play in such a decision.” Id.; see also Conway, 171 Vt. at 377-78, 765 A.2d at 466 (discussing and
applying Parker test).
¶ 31. We first emphasize the narrowness of the interest petitioner raises—a
complainant’s interest in obtaining records filed by the psychologist at the investigation stage of
the proceedings. The significance of this interest is greatly limited by the fact that complainants
can supply all the evidence of misconduct in their possession when they file the complaint.
Further, if the investigation leads to disciplinary charges or results in a stipulation, the complainant
receives a host of information and procedural protections, including access to the pleadings filed
by the parties, access to the transcript of disciplinary hearings and any exhibits admitted therein, a
right to obtain a copy of a stipulation, a right to notice of the stipulation review, and a right to be
heard at the stipulation review. See 3 V.S.A. §§ 129(d), 131(c)(2)(A)-(F). The potential impact
of OPR’s decision depriving petitioner of the records is even more limited. Any legal claim a
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complainant has against a psychologist can be litigated in a court of law, where the complainant is
afforded the full panoply of procedural rights available in civil litigation, including the rules of
discovery. There is little risk that denying complainants access to the records at issue will result
in unaddressed injuries. Given the limited interest at issue, the procedural protections
complainants already enjoy in the disciplinary proceedings, and the availability of alternative
proceedings to redress complainants’ grievances against psychologists, we conclude that petitioner
does not have a right to the records under Article 10.
¶ 32. Because petitioner does not have a right to the records under either the Fourteenth
Amendment or Article 10, he fails to satisfy the clear-and-certain-right requirement to obtain
mandamus relief. Because it appears beyond doubt that no facts or circumstances exist that entitle
petitioner to relief, the superior court did not err in dismissing the petition under Rule 12(b)(6).
Affirmed.
FOR THE COURT:
Associate Justice
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