The Vermont Supreme Court has ruled that records related to dismissed sexual assault and kidnapping charges against an ex-St. Albans police officer will be kept under wraps.
The Vermont Journalism Trust, the parent organization of VTDigger, was seeking records that had been sealed in the case of Zachary Pigeon in April 2020, who was then a St. Albans police officer, related to charges against him concerning alleged off-duty conduct.
After the news organization appealed the matter to the high court, oral arguments in June addressed the relative complexity of laws and rules governing court documents compared with other public records.
A unanimous, 11-page decision released Friday, authored by Justice Nancy Waples, found that the Vermont Journalism Trust lacked the standing to appeal, and dismissed the case.
The decision affirms a lower court ruling by Judge Howard E. Van Benthuysen.
Waples acknowledged that VTDigger “participated” in the case and that the lower court had labeled the Vermont Journalism Trust as an “intervenor” in the proceeding. But “in all other ways,” she wrote, the trust was not treated as a party, and made no effort to achieve such status by attempting to file as an intervenor.
“To be sure, VJT would like access to the sealed records, but it has no personal interest at stake in the criminal proceeding,” Waples wrote.
According to the decision, the trust had asserted it would have been “futile” to try to intervene, since there was no criminal proceeding after the state prosecutor dismissed the charges, and state laws on sealing such documents dictate that a defendant and prosecutor “shall be the only parties in the matter.”
But the assertion that there was no proceeding in which to intervene because the criminal proceedings had been closed, Waples wrote, “is belied by the fact that the criminal division received and responded to VJT’s motion for access to the sealed records.”
Ron Shems, the attorney representing the news organization, contended in oral arguments earlier this year that the dismissal of a major prosecution shouldn’t be hidden on procedural grounds.
He reiterated that Friday. “It’s unfortunate that the court closed the courthouse doors rather than taking the opportunity to better coordinate the public records act with public access to court records,” said Shems, of the Montpelier firm Tarrant, Gillies & Shems.
The Vermont Attorney General’s Office, in a statement Friday, termed the decision “consistent with the State’s arguments on appeal that the Vermont Journalism Trust did not follow the correct procedural steps pursuant to the Judiciary’s access to records rule in bringing its appeal.”
Pigeon and his father, Allen Pigeon, were arrested and facing criminal charges for allegedly breaking into a family member’s home and assaulting a woman. The younger Pigeon was later charged with sexual assault against the same woman from when she was a child years earlier.
The Attorney General’s Office, which was handling the prosecution, then announced in a New Year’s Eve press release in 2020 that it was dropping the charges because it “cannot meet the elements of the charged crimes beyond a reasonable doubt at this time.”
VTDigger sent a letter to the Attorney General’s Office shortly after the charges were dismissed, seeking documents related to the investigation and the decision to drop the cases.
The Attorney General’s Office indicated it would cost $182 to produce the documents. But after the news organization mailed a check, the office said the records had been sealed by order of the court.
The documents the news organizations had been seeking then became off limits. Public records requests filed separately by VTDigger and VPR, now Vermont Public, were removed from an online index kept by the Attorney General’s Office that tracks the requests.
The Attorney General’s Office, in a later court filing, stated that its criminal division was not aware of the news outlets’ pending records requests, filed in the civil division.
During the oral arguments in the case, the Pigeon name was not mentioned and the written briefs from attorneys have been sealed. The case title also did not name them, only using the initials “A.P.” and “Z.P.”
Their attorney, Robert Kaplan, could not be reached Friday for comment.
