Present: Allen, C.J., Bigson, Dooley, Morse and Johnson, JJ.
Opinion Filed January 28, 1994

1. Constitutional Law -- Vermont Constitution -- Generally

The Vermont Constitution may afford greater protection to individual rights than do the provisions of the federal charter.

2. Constitutional Law -- Vermont Constitution -- Construction and Application

Article 1 of the Vermont Constitution expresses fundamental, general principles that underlie more specific statements of rights and powers set forth elsewhere in the Constitution. Vt. Const. ch. I, art 1.

3. Constitutional Law -- Vermont Constitution -- Construction and Application

There is no heightened concern for personal liberty embedded inn the Vermont Constitution that would render motorcycle helmet law unconstitutional. Be. Const. ch. I, art.1; 23 V.S.A. Section 1256.

4. Statutes -- Constitutionality -- Presumption of Construction in Favor of Constitutionality

Motorcycle helmet law is entitled to presumption of constitutionality. 23 V.S.A. Section 1256.

5. Statutes -- Constitutionality -- Presumption or Construction in Favor of Constitutionality

Link between safety for highway users and motorcycle helmet law is rational, since it minimizes the extent of injuries for which government or individuals are financially responsible. 23 V.S.A. Section 1256.

6. Constitutional Law -- Due Process -- Statutory Vagueness

A criminal statute must define a criminal offense with sufficient certainty so as to inform a person of ordinary intelligence of conduct which is proscribed, and such that arbitrary and discriminatory enforcement is not encouraged.

7. Constitutional Law -- Due Process -- Statutory Vagueness

Motorcycle helmet law is not void for vagueness, since statute clearly proscribes failure to wear a helmet and "approved helmet" standards were sufficiently defined or ascertainable. 23 V.S.A. Section 1256.

8. Constitutional law -- Vermont Constitution -- Equal Protection

Unless a fundamental right or suspect class is involved, a statute does not offend equal protection if it reasonably relates to a legitimate public purpose. Vt. Const. ch. I, art 7.

9. Constitutional Law -- Vermont Constitution -- Equal Protection

In equal protection challenge to motorcycle helmet law, there is rational basis between motorcyclists and automobile drivers, whose vehicles afford them substantially more protection than does a motorcycle; there is also rational basis for distinction between motorcyclists and moped riders, since the latter travel at a lower rate of speed and are forbidden from riding on state highways. Vt. Const. ch. I art. 7; 23 V.S.A. Section 1256.

10. Appeal and Error -- Findings -- Erroneous Findings

Trial court's determination that reflectorization does not impair a helmet structural integrity is not clearly erroneous and will not be overturned on appeal. V.S.C.P. 52(a)(2).

Appeal from dismissal of request for declaratory and injunctive relief from motorcycle helmet law. Caledonia Superior Court, Martin, J. presiding. Affirmed.

Joseph C. Benning, Lindonville, for Plaintiffs-Appellants.

Jeffrey L. Amestoy, Attorney General, and Scott A. Whitted, Assistant Attorney General, Montpelier, for Defendant-Appellee.

Dooley, J. 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. Section 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 Section 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, (fn1) seeking to have Section 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. Section 1, including the duty to promulgate regulations thereunder. Id. Section 1001(a).

Within a year of its enactment, the statute came under challenge in State v. Solomon, 128 Vt. 197, 260 A.2d377 (1969). This decision necessarily inform our current consideration of Section 1256. In Solomon, we upheld the validity of Section 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 Section 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 the "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 Section 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.

[1] In this case, plaintiffs attempt to distinguish their attack on Section 1256 from Solomon on the grounds that Solomon was decided solely on federal constitutional grounds. (fn2) Specifically, plaintiffs argue that Section 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 inalienable 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, constitution 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.

[2] 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 the 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 and 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 Br. 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 respected 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. (fn3) The main reason is found in State v. Corruth, 86 Vt. 271, 81 A. 992 (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 riles 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 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 the general statement of principle rather than an enforceable right. Of 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 helmets on public highways. Thus, even if we were to interpret Article 1 as a specific, enforceable constraint on state regulation 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 previsions can be explained by the analysis of Lincoln v. Smith, 27 Bt. 328, 361 (1855). There, the Court described Article 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, 252 N.E.2d 866, 871-88 (Ohio 1969). (fn4) The vast majority of state courts have adhered to reasoning similar to that of Solomon. (fn5) See, e.g., Picou v. Gillum, 374 F.2d 1519, 1521 (11th Cir. 1980) (construing Florida law); Kingery v. Chapple, 504 P.2d 831, 835 (Alaska 1972); State v. Beeman, 541 P.2d 409, 410-11 (Ariz. Ct. App 1975); Penny v. City of N. Little Rock, 455 S.W.2d 132, 134 (Ark. 1970); Love v. Belt, 465 P.2d 112, 122-23 (Colo. 1970); State v. Cotton, 516 P.2d 709, 711 (Haw. 1973); State v. Albertson, 470 P.2d 287, 291 (Kan. 1970); State v. Quinnam, 367 A.2d 1032, 1033 (Me. 1977); State v. Cushman, 451 S.W.2d 17, 19 (Mo. 1970); Robotham v. State, 488 N.W.2d 533, 540 (Neb. 1992). Although these decisions, like Solomon, are based primarily on the United States Constitution, some also reject state constitutional attacks. See, e.g., Robothan, 488 N.W.2d at 542. The United States Supreme Court has also rejected a due process attach on a helmet law, albeit by summary affirmance of a lower court decision. See Simon v. Safgent, 409 U.S. 1020 (1972), aff'g 346 F. Supp. 277, 279 (D. Mass.). (fn6)

At the center of plaintiff's argument is the assertion that Vermont values personal liberty interests so highly that the analysis under the federal constitution or the constitutions of other states is simply inapplicable here. In support of this contention, plaintiffs rely on political theorists, sociological materials and incidents in Vermont's history. Without detailing this argument, we find it unpersuasive not because it overvalues Vermont's devotion to personal liberty and autonomy, but because it undervalues the commitment of other governments to those values. The Vermont material is "only loosely connected to the issues before the Court." DeLaBruere, 154 Vt. at 270, 577 A.2d at 272. I does not differentiate our concern for personal liberty from that prevailing elsewhere in any way that should influence this case.

[3] Certainly, if there was a heightened concern for personal liberty, there is no evidence of it in the text of the Constitution. Many states have constitutional provisions very similar to Article 1. Compare Vt. Const. ch. I, art. 1 with Cal. Const. art 1, Section 1 ("All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty . . . and pursuing and obtaining safety, happiness, and privacy."); Mass. Const. pt. 1, art. 1 ("All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties . . . [and] that of seeking and obtaining their safety and happiness."); Nev. Const. art 1, Section 1 ("All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty . . . and obtaining safety and happiness[.]"); Ba. Const. art. 1, Section 1 ("That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, . . . and pursuing and obtaining happiness and safety.". Each of the constitutional provisions we have cited is in effect in a state with a motorcycle helmet law similar to Section 1256.

For the above reasons, we are not convinced that Article 1 offers plaintiffs any special protections that are applicable to this case. We have also examined Articles 9, 11 and 18 on which plaintiffs place secondary reliance. None of these provisions helps plaintiffs' position.

As a result, we reject the notion that this case can be resolved on the basis of a broad right to be let alone without government interference. we accept the federal analysis of such a claim in the context of a public safety restriction applicable to motorists using public roads. We agree with Justice Powell, recently sitting by designation with the Court of Appeals for the Eleventh Circuit, who stated:

[T]here is no broad legal or constitutional "right to be let alone" by government. In the complex society in which we live, the action and nonaction of citizens are subject to countless local, state, and federal laws and regulations. bare invocation of a right to be let alone is an appealing rhetorical device, but it seldom advances legal inquiry, as the "right" -- to the extent that it exists -- has no meaning outside its application to specific activities. The [federal] Constitution does protect citizens from government interference in many areas -- speech, religion, the security of the home. but the unconstrained right asserted by appellant has no discernible bounds, and bears little resemblance to the important but limited privacy rights recognized by our highest Court.

Picou, 874 F.2d at 1521; see also Buhl v. Hannigan, 20 Cal. Rptr. 3d 740, 748 (Ct. App. 1993) ("[I]t would be a stretch indeed to find the right to ride helmet less on a public highway comparable to the enumerated personal rights or implicit in the concept of ordered liberty."); Bisenius v. Karns, 165 N.W.2d 377, 384 (Wis. 1969) ("There is no place where any such right to be let alone would be less assertable than on a modern highway with cars, trucks, busses and cycles whizzing by a sixty or seventy miles an hour.").

We are left then with the familiar standard for evaluating police power regulations -- essentially, that expressed in Solomon. Plaintiffs urge us to overrule Solomon because it was based on an analysis of the safety risk to other users of the roadway that is incredible. In support of their position, they offered evidence from motorcycle operators that the possibility of an operator losing control of a motorcycle and becoming a menace to others is remote. On the other hand, these operators assert that helmets make a motorcycle operator dangerous. Plaintiffs also emphasize that even supporters of helmet laws agree that their purpose is to protect the motorcycle operator, not other highway users.

[4] We are not willing to abandon the primary rationale of Solomon because of plai