Date: 12-27-2015

Case Style: State Of Vermont v. Anthony Gotavaskas / State v. Grant S. Bercik

Case Number: 2014-284, 2014-285 & 2014-286

Judge: Harold Eaton

Court: Vermont Supreme Court

Plaintiff's Attorney: Matthew F. Valerio, Joshua O’Hara

Defendant's Attorney: David W. Gartenstein

Description: The State appeals the Windham Superior Court, Criminal Division’s
decisions to seal certain portions of competency reports prepared in connection with court
ordered competency evaluations of Anthony Gotavaskas and Grant S. Bercik, defendants in two
separate criminal cases. For the reasons stated herein, we reverse and remand.
The facts of the respective underlying cases are as follows:

During the summer of 2013, defendant Gotavaskas was charged with burglary of
an occupied dwelling in one docket and providing false information and operation without the
owner’s consent in a second docket. At his arraignment on September 10, 2013, Gotavaskas
raised the issue of his competency and the trial court ordered a competency evaluation pursuant
to 13 V.S.A. § 4814.
¶ 4. A competency evaluation was conducted by Dr. Paul Cotton, who issued a report
dated September 24, 2013 concluding that Gotavaskas was competent to stand trial. Following
the evaluation, a competency hearing was held on October 17, 2013, during which the State
offered the competency evaluation into evidence, contending that the entire report should be
admitted under 13 V.S.A. § 4816(e), which requires admission of the relevant portion of a
competency report. Although Gotavaskas did not contest the competency finding, he objected to
the admission of the entire report and offered a redacted version excluding portions he claimed
were not relevant. The State disagreed, contending that because Dr. Cotton relied upon all of the
information in the report as a basis for his opinion, the entire report should be admitted for its
relevancy on the issue of Gotavaskas’ competency.
¶ 5. The court redacted the competency report to include only information regarding
the evaluator’s impressions of Gotavaskas and specific findings as to competence. The court
admitted the non-redacted portions of the report and excluded the redacted ones, finding the
portions it chose to redact to be “less relevant” to a finding of competency than the non-redacted
portions. The State made a timely objection to the trial court’s redaction.
¶ 6. In January 2014, Gotavaskas again raised the competency issue, leading the State
to seek another evaluation by Dr. Cotton. In a second report by Dr. Cotton, dated February 14,
2014, he found Gotavaskas to be incompetent.
¶ 7. A second competency hearing was held on March 28, 2014, at which the parties
stipulated to a finding of incompetency. Again the parties disagreed about what portions of the
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report should be received into evidence; the State sought admission of the entire report, while
Gotavaskas only agreed that certain portions should be admitted. The court received the report
under seal but deferred ruling on the admission of the report pending its decision on what
portions should be admitted, entering a finding of incompetency. After the finding of
incompetence, the parties stipulated that Gotavaskas was a person in need of treatment and he
was committed to the care of the Commissioner of Mental Health on an order of
nonhospitalization (ONH).
¶ 8. Although the finding of incompetency had been made and ONH had issued, the
court considered the arguments over the still unresolved admission of the competency reports,
issuing a written decision on July 3, 2014.
¶ 9. In September 2013, defendant Bercik was charged with simple assault. He was
arraigned and pled not guilty. Several months after arraignment, Bercik filed a motion for
competency and sanity evaluations, which the court granted.
¶ 10. A competency evaluation was conducted by Dr. Jonathan Weker, who issued a
report dated January 8, 2014 concluding that Bercik was incompetent to stand trial.
¶ 11. A competency hearing was held on February 21, 2014, at which time the State
sought a finding of incompetency and the admission of the entirety of Dr. Weker’s report.
Although Bercik agreed that there should be a lack of competency finding, he opposed the
admittance of the entire report, requesting that the court temporarily seal the report. The court
made a finding of incompetency and received Dr. Weker’s report under seal, deferring ruling on
the admission of the report pending further briefing by the parties. Although not admitted in
evidence, the court based its finding of incompetence upon the conclusions contained in Dr.
Weker’s report.
¶ 12. Bercik, who had previously been on an ONH, remained on an ONH following the
determination of incompetency.
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¶ 13. On April 14, 2014 defendants Gotavaskas and Bercik moved for the court to
redact their competency evaluations to include only the portions relevant to a finding of
competency or incompetency, pursuant to 13 V.S.A. § 4816(e) and the Rules for Public Access
to Court Records (P.A.C.R.) 6(b)(19). By similar entry orders dated July 3, 2014, the court
granted defendants’ motions to redact certain portions of the competency evaluations. In
deciding to redact portions of each report, the court balanced the privacy interests of the
defendants in not having “less relevant” information disclosed with the public’s interest in
knowing how the court reached its decisions.
¶ 14. Section 4816(e) of Title 13 dictates that “[t]he relevant portions of a psychiatrist’s
report shall be admitted into evidence as an exhibit on the issue of the person’s mental
competency to stand trial.” 13 V.S.A. § 4816(e). The admission of material into evidence
customarily carries with it public access to those records, and there is an express policy within
the PACR that the public shall have access to court records unless an exception applies. Vt. R.
Pub. Acc. Ct. Rec. § 6(a) (“The public shall have access to all case records, in accordance with
the provisions of this rule.”). One such exception is contained in P.A.C.R. 6(b)(19), excepting
from public disclosure “[a]n evaluation by a mental health professional to determine competency
to stand trial . . . if not admitted into evidence.” Id. § 6(b)(19). Additionally, under P.A.C.R.
7(a) a court may, after a finding of good cause specific to the case before the court and
exceptional circumstances, “seal from public access a record to which the public otherwise has
access or may redact information from a record to which the public has access.” Id. § 7(a).
¶ 15. Recognizing the public access that would be afforded to the defendants’ private
information if the competency reports were admitted in their entirety, the court’s decisions,
issued after the incompetency determinations had been made, limited the admission of the
reports to unredacted portions. No findings were made as to the portions excluded by the court,
which made no case-specific basis for the decision to exclude them. The court discussed the
5
P.A.C.R. and recognized the defendants’ privacy interests, finding it appropriate to balance the
defendants’ interests with those of the public:
Typically, the evaluator’s impressions of the defendant and specific findings as to competence will be relevant enough to the determination that they cannot be redacted or sealed. However, personal history, past diagnoses, medical and substance abuse history, and observations regarding criminal responsibility, for example, may not be closely related enough to competency to require release to the public.
The court then redacted certain portions of the reports without indicating what was being
redacted in these specific cases or why.
¶ 16. This Court has long recognized the public’s interest in access to information upon
which judicial decisions are made, an access necessary for the maintenance of public confidence
in the judiciary. State v. Koch, 169 Vt. 109, 117, 730 A.2d 577, 583 (1999). This presumption
of public access is deep-rooted and so strong that it applies even to pretrial criminal proceedings.
State v. Tallman, 148 Vt. 465, 475, 537 A.2d 422, 428 (1989). Such a presumption is especially
critical, however, at the junction of our criminal and mental health statutes, where both the
mental health of the defendant and public safety concerns are to be considered. By requiring the
admission of relevant portions of a competency evaluation, which are thus made available to the
public through P.A.C.R. 6(b)(19) unless sealed under P.A.C.R. 7, § 4816(e) is consistent with
this long-standing policy.
¶ 17. Narrowly viewed, the cases before the Court involve evidentiary rulings
concerning undisputed findings of incompetency. No outside entity has raised an issue of public
access. Thus, the initial issue is whether there is a justiciable controversy before this Court and,
if so, whether the State has standing to raise it.
¶ 18. Although no person or member of the public sought to intervene to represent the
public’s right of access to the competency evaluations, this is not to say that the public did not
have an interest in seeing that justice was done in the determination of these defendants’
6
competency. For the judicial system to function properly, it is essential that the basis for court
rulings not be cloaked, because this prevents the public from knowing how and why decisions
have been reached. In this respect, it may fall upon the prosecutor to represent the public’s right
of access to the decision making process, which might otherwise go unrepresented, especially in
cases such as these where the media or the general public may be unaware of the competency
issues. An evidentiary ruling in a competency hearing which excludes certain information
contained in the competency report will have a collateral impact on the public’s ability to access
the documents supporting the competency ruling, and will do so without meaningful notice to the
public.
¶ 19. While we ordinarily would expect members of the public to assert and advocate
for their own interests in matters impacting public access, a member of the public would lack
standing to intervene regarding an evidentiary ruling at a competency hearing. Because the
public lacks meaningful notice and an opportunity to be heard on the evidentiary ruling, and
because that ruling will impact public access to the evidentiary records, there is a public interest
at stake. It is in the public interest that the public has access to information upon which
competency decisions are made, as reflected in the legislative decision requiring disclosure of
relevant information in the competency statute. Koch, 169 Vt. at 117, 730 A.2d at 583; Tallman,
148 Vt. at 475, 537 A.2d at 428. Because the prosecutor is involved in the competency
proceeding and is the only party in a position to object to the court’s ruling on behalf of the
public on evidentiary matters which will collaterally impact public access, we conclude that,
under the circumstances presented here, the State had standing to assert public access concerns.
To hold otherwise would create a proceeding in which the only party with the meaningful ability
to object would be the defendant. We can envision a similar circumstance when, in the course of
a proceeding, on a motion by a party or on the court’s own motion, the court invokes P.A.C.R. 7
to seal records which would otherwise be available to the public. In such a case, as distinguished
7
from a direct public records request from a member of the public, the prosecutor would again be
the only one in a position to raise an objection or appeal on behalf of the public interest.
¶ 20. Although the State may have standing to address the right of public access, an
actual case or controversy must still exist for these cases to properly be before this Court.
Absent a case or controversy, the appeals are moot.
¶ 21. Here, the findings of incompetency were based on documents received under seal,
and those documents remain under seal as a consequence of the court’s order. Further,
defendants have been found incompetent and therefore have yet to stand trial on the pending
criminal charges. Each defendant’s competency remains subject to further evaluation and
consideration by the criminal division. Under these circumstances, the appeals are not moot.
¶ 22. Even if the appeals were moot, we have recognized exceptions to the case or
controversy doctrine in cases that are capable of repetition yet likely to evade review, as well as
in cases where negative collateral consequences, such as the stigma of mental health
commitment, are likely to result from the action being reviewed. See In re P.S., 167 Vt. 63, 67,
702 A.2d 98, 101 (1997) (citing State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633 (1984))
(finding that negative collateral consequences can apply in mental health commitment cases
because “[t]he legal disabilities radiating from the label of mentally incompetent are myriad”).
We address these exceptions as an alternative, in the event the cases were, in fact, moot.
¶ 23. To fall within the mootness exception for situations capable of repetition yet
evading review, a plaintiff must satisfy a two-prong test. First, “the challenged action must be in
its duration too short to be fully litigated prior to its cessation or expiration.” Price v. Town of
Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26 (citing Tallman, 148 Vt. at 469, 537 A.2d at
424). Second, “there must be a reasonable expectation that the same complaining party will be
subjected to the same action again.” Price, 2011 VT 48, ¶ 24; Paige v. State, 2013 VT 105, ¶ 10,
195 Vt. 302, 88 A.3d 1182. Competency is a fluid concept which may exist at one time during
8
the prosecution of a case and not at another such that a finding of incompetency does not
eliminate a future finding of competency or vice versa. See State v. Lockwood, 160 Vt. 547,
555-56, 632 A.2d 655, 660 (1993) (“Once a defendant has been found competent, the trial court
must be alert to changed circumstances that would indicate the need for a new determination of
competency”).
¶ 24. The negative collateral consequences exception to the mootness doctrine “is
limited to situations where proceeding to a decision in an otherwise dead case is ‘justified by a
sufficient prospect that the decision will have an impact on the parties.’ ” Paige, 2013 VT 105,
¶ 12 (quoting In re Collette, 2008 VT 136, ¶ 16, 185 Vt. 210, 969 A.2d 101). While the stigma
attached to a finding of incompetency may be less than that which attaches to an order of
involuntary commitment, it is, nonetheless, a finding which leads to further proceedings under
Vermont’s mental health laws.
¶ 25. In In re S.N., we declined to invoke an asserted public interest exception to the
case or controversy doctrine. 2007 VT 47, ¶ 9, 181 Vt. 641, 928 A.2d 510 (mem.). In that case,
S.N. had been ordered to submit to an emergency mental health examination and had requested a
probable cause hearing. Id. ¶ 2. The court found no probable cause to determine him to be a
person in need of treatment and had ordered him discharged from the State Hospital. Id. ¶ 4. By
the time of the appeal, S.N. had been released from the State Hospital and had returned to New
York. Id. We found the hypothetical possibility that S.N. would return to Vermont insufficient
to invoke the public interest exception. Id. ¶ 7.
¶ 26. Unlike in S.N., defendants have been the subject of criminal charges that have not
been prosecuted to conclusion due to findings of incompetency. In addition, both defendants
have had further or ongoing involvement with our mental health laws through ONHs already in
place prior to those criminal charges or directly resulting from the instant criminal charges,
making these stronger cases for the adoption of a public interest exception than was presented in
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S.N. Although there is a recognized public interest here, we decline to adopt further exceptions
to the mootness doctrine.
¶ 27. In considering the two recognized exceptions, we find that the cases at hand
present situations capable of evading review. It was defendants’ objections to the admission of
the competency reports in their entirety which triggered the controversy leading to these appeals.
The State has objected on two separate occasions to orders which resulted in only portions of
competency evaluations being admitted into evidence, despite broad statutory language dictating
admission of relevant portions of the reports. Yet despite the lack of formal admission of any
portion of the competency reports, orders of non-competency issued based upon documents
received under seal. Under these circumstances, to consider these appeals moot by virtue of the
incompetency rulings would leave the State with no remedy in any case where, as here, the State
did not object to the ultimate conclusion as to competency, and would allow the trial court to
create a process and a procedure by which its actions could not be reviewed. Thus, we are
satisfied that both prongs of the “evading review” exception to the mootness doctrine are met if
we otherwise considered the issue to be moot. Consequently, we need not address whether the
“negative collateral consequences” exception might also apply in this instance.
¶ 28. Turning to the court’s rulings regarding admission of the competency reports, we
start with the statutory language of 13 V.S.A. § 4816(e) in effect at the time of these orders,
which read as follows:
(e) The relevant portion of a psychiatrist’s report shall be admitted into evidence as an exhibit on the issue of the person’s mental competency to stand trial and the opinion therein shall be conclusive on the issue if agreed to by the parties and if found by the Court to be relevant and probative on the issue.
¶ 29. The substance of this appeal turns on consideration of the term “relevant.” The
State argues that “relevance” in § 4816 is determined by reference to V.R.E. 401, while
10
defendants assert that a narrower construction of “relevant” should apply given the privacy
interests which pertain to assessments of this nature.
¶ 30. In State v. Whitney, 2005 VT 102, ¶ 4, 178 Vt. 435, 885 A.2d 1200, this Court
held that the defendant was not entitled to have a competency report sealed where the trial court
relied on it in finding the defendant to be competent, but the report was never formally offered
into evidence. We found the lack of formal admission an unconvincing technical argument and
further found the public had access to the report. Id. ¶ 8.
¶ 31. The language of the statute requires that the relevant portion of a competency
evaluation shall be admitted into evidence. The statute does not create hierarchies of relevance
or provide the trial court with discretion to exclude relevant portions of competency reports.
P.A.C.R. 6(b)(19) follows the statute in that a competency evaluation is exempted from public
disclosure “if not admitted into evidence.” Consistent with Whitney, neither the statute nor the
P.A.C.R. allow the court to rely upon a competency report in the determination of competency
but not admit at least the relevant portions of the report.
¶ 32. Also consistent with Whitney, relevant portions of a competency report otherwise
accessible by the public might be redacted in a case where the necessary showing of “good
cause” and “exceptional circumstances” has been made on a case-specific basis under P.A.C.R.
7(a). No findings approaching that which would be necessary to redact portions of any report
under P.A.C.R. 7(a) were made in either of defendants’ cases.
¶ 33. While, by its language, the statute contemplates that some portions of a
competency report might not be relevant, and thus not required to be admitted, it does not
suggest that any other application of “relevance” should be used in considering what portions of
a competency report are relevant for competency purposes other than that which is set forth in
V.R.E. 401, the test for relevancy in Vermont courts. Whatever standard the trial court used
11
here, it did not apply a V.R.E. 401 analysis to its decision on what portions of the reports to
admit and what portions to exclude. It should have done so.
¶ 34. Because the court did not apply the relevancy considerations required by V.R.E.
401, it is necessary to remand these cases so that the proper findings may be made. Consistent
with 13 V.S.A. § 4816(d), relevant portions of the competency reports shall be admitted. Those
portions of the reports are accessible to the public unless the necessary case-specific findings
sufficient to justify redaction under P.A.C.R. 7(a) are made.

Outcome: The State appeals the Windham Superior Court, Criminal Division’s
decisions to seal certain portions of competency reports prepared in connection with court ordered competency evaluations of Anthony Gotavaskas and Grant S. Bercik, defendants in two separate criminal cases. For the reasons stated herein, we reverse and remand. The facts of the respective underlying cases are as follows:
During the summer of 2013, defendant Gotavaskas was charged with burglary of
an occupied dwelling in one docket and providing false information and operation without the owner’s consent in a second docket. At his arraignment on September 10, 2013, Gotavaskas raised the issue of his competency and the trial court ordered a competency evaluation pursuant to 13 V.S.A. § 4814. A competency evaluation was conducted by Dr. Paul Cotton, who issued a report dated September 24, 2013 concluding that Gotavaskas was competent to stand trial. Following
the evaluation, a competency hearing was held on October 17, 2013, during which the State offered the competency evaluation into evidence, contending that the entire report should be admitted under 13 V.S.A. § 4816(e), which requires admission of the relevant portion of a competency report. Although Gotavaskas did not contest the competency finding, he objected to the admission of the entire report and offered a redacted version excluding portions he claimed were not relevant. The State disagreed, contending that because Dr. Cotton relied upon all of the
information in the report as a basis for his opinion, the entire report should be admitted for its relevancy on the issue of Gotavaskas’ competency.
¶ 5. The court redacted the competency report to include only information regarding
the evaluator’s impressions of Gotavaskas and specific findings as to competence. The court admitted the non-redacted portions of the report and excluded the redacted ones, finding the portions it chose to redact to be “less relevant” to a finding of competency than the non-redacted portions. The State made a timely objection to the trial court’s redaction. In January 2014, Gotavaskas again raised the competency issue, leading the State to seek another evaluation by Dr. Cotton. In a second report by Dr. Cotton, dated February 14, 2014, he found Gotavaskas to be incompetent. A second competency hearing was held on March 28, 2014, at which the parties stipulated to a finding of incompetency. Again the parties disagreed about what portions of the
3
report should be received into evidence; the State sought admission of the entire report, while
Gotavaskas only agreed that certain portions should be admitted. The court received the report
under seal but deferred ruling on the admission of the report pending its decision on what
portions should be admitted, entering a finding of incompetency. After the finding of
incompetence, the parties stipulated that Gotavaskas was a person in need of treatment and he
was committed to the care of the Commissioner of Mental Health on an order of
nonhospitalization (ONH).
¶ 8. Although the finding of incompetency had been made and ONH had issued, the
court considered the arguments over the still unresolved admission of the competency reports,
issuing a written decision on July 3, 2014.
¶ 9. In September 2013, defendant Bercik was charged with simple assault. He was
arraigned and pled not guilty. Several months after arraignment, Bercik filed a motion for
competency and sanity evaluations, which the court granted.
¶ 10. A competency evaluation was conducted by Dr. Jonathan Weker, who issued a
report dated January 8, 2014 concluding that Bercik was incompetent to stand trial.
¶ 11. A competency hearing was held on February 21, 2014, at which time the State
sought a finding of incompetency and the admission of the entirety of Dr. Weker’s report.
Although Bercik agreed that there should be a lack of competency finding, he opposed the
admittance of the entire report, requesting that the court temporarily seal the report. The court
made a finding of incompetency and received Dr. Weker’s report under seal, deferring ruling on
the admission of the report pending further briefing by the parties. Although not admitted in
evidence, the court based its finding of incompetence upon the conclusions contained in Dr.
Weker’s report.
¶ 12. Bercik, who had previously been on an ONH, remained on an ONH following the
determination of incompetency.
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¶ 13. On April 14, 2014 defendants Gotavaskas and Bercik moved for the court to
redact their competency evaluations to include only the portions relevant to a finding of
competency or incompetency, pursuant to 13 V.S.A. § 4816(e) and the Rules for Public Access
to Court Records (P.A.C.R.) 6(b)(19). By similar entry orders dated July 3, 2014, the court
granted defendants’ motions to redact certain portions of the competency evaluations. In
deciding to redact portions of each report, the court balanced the privacy interests of the
defendants in not having “less relevant” information disclosed with the public’s interest in
knowing how the court reached its decisions.
¶ 14. Section 4816(e) of Title 13 dictates that “[t]he relevant portions of a psychiatrist’s
report shall be admitted into evidence as an exhibit on the issue of the person’s mental
competency to stand trial.” 13 V.S.A. § 4816(e). The admission of material into evidence
customarily carries with it public access to those records, and there is an express policy within
the PACR that the public shall have access to court records unless an exception applies. Vt. R.
Pub. Acc. Ct. Rec. § 6(a) (“The public shall have access to all case records, in accordance with
the provisions of this rule.”). One such exception is contained in P.A.C.R. 6(b)(19), excepting
from public disclosure “[a]n evaluation by a mental health professional to determine competency
to stand trial . . . if not admitted into evidence.” Id. § 6(b)(19). Additionally, under P.A.C.R.
7(a) a court may, after a finding of good cause specific to the case before the court and
exceptional circumstances, “seal from public access a record to which the public otherwise has
access or may redact information from a record to which the public has access.” Id. § 7(a).
¶ 15. Recognizing the public access that would be afforded to the defendants’ private
information if the competency reports were admitted in their entirety, the court’s decisions,
issued after the incompetency determinations had been made, limited the admission of the
reports to unredacted portions. No findings were made as to the portions excluded by the court,
which made no case-specific basis for the decision to exclude them. The court discussed the
5
P.A.C.R. and recognized the defendants’ privacy interests, finding it appropriate to balance the
defendants’ interests with those of the public:
Typically, the evaluator’s impressions of the defendant and specific findings as to competence will be relevant enough to the determination that they cannot be redacted or sealed. However, personal history, past diagnoses, medical and substance abuse history, and observations regarding criminal responsibility, for example, may not be closely related enough to competency to require release to the public.
The court then redacted certain portions of the reports without indicating what was being
redacted in these specific cases or why.
¶ 16. This Court has long recognized the public’s interest in access to information upon
which judicial decisions are made, an access necessary for the maintenance of public confidence
in the judiciary. State v. Koch, 169 Vt. 109, 117, 730 A.2d 577, 583 (1999). This presumption
of public access is deep-rooted and so strong that it applies even to pretrial criminal proceedings.
State v. Tallman, 148 Vt. 465, 475, 537 A.2d 422, 428 (1989). Such a presumption is especially
critical, however, at the junction of our criminal and mental health statutes, where both the
mental health of the defendant and public safety concerns are to be considered. By requiring the
admission of relevant portions of a competency evaluation, which are thus made available to the
public through P.A.C.R. 6(b)(19) unless sealed under P.A.C.R. 7, § 4816(e) is consistent with
this long-standing policy.
¶ 17. Narrowly viewed, the cases before the Court involve evidentiary rulings
concerning undisputed findings of incompetency. No outside entity has raised an issue of public
access. Thus, the initial issue is whether there is a justiciable controversy before this Court and,
if so, whether the State has standing to raise it.
¶ 18. Although no person or member of the public sought to intervene to represent the
public’s right of access to the competency evaluations, this is not to say that the public did not
have an interest in seeing that justice was done in the determination of these defendants’
6
competency. For the judicial system to function properly, it is essential that the basis for court
rulings not be cloaked, because this prevents the public from knowing how and why decisions
have been reached. In this respect, it may fall upon the prosecutor to represent the public’s right
of access to the decision making process, which might otherwise go unrepresented, especially in
cases such as these where the media or the general public may be unaware of the competency
issues. An evidentiary ruling in a competency hearing which excludes certain information
contained in the competency report will have a collateral impact on the public’s ability to access
the documents supporting the competency ruling, and will do so without meaningful notice to the
public.
¶ 19. While we ordinarily would expect members of the public to assert and advocate
for their own interests in matters impacting public access, a member of the public would lack
standing to intervene regarding an evidentiary ruling at a competency hearing. Because the
public lacks meaningful notice and an opportunity to be heard on the evidentiary ruling, and
because that ruling will impact public access to the evidentiary records, there is a public interest
at stake. It is in the public interest that the public has access to information upon which
competency decisions are made, as reflected in the legislative decision requiring disclosure of
relevant information in the competency statute. Koch, 169 Vt. at 117, 730 A.2d at 583; Tallman,
148 Vt. at 475, 537 A.2d at 428. Because the prosecutor is involved in the competency
proceeding and is the only party in a position to object to the court’s ruling on behalf of the
public on evidentiary matters which will collaterally impact public access, we conclude that,
under the circumstances presented here, the State had standing to assert public access concerns.
To hold otherwise would create a proceeding in which the only party with the meaningful ability
to object would be the defendant. We can envision a similar circumstance when, in the course of
a proceeding, on a motion by a party or on the court’s own motion, the court invokes P.A.C.R. 7
to seal records which would otherwise be available to the public. In such a case, as distinguished
7
from a direct public records request from a member of the public, the prosecutor would again be
the only one in a position to raise an objection or appeal on behalf of the public interest.
¶ 20. Although the State may have standing to address the right of public access, an
actual case or controversy must still exist for these cases to properly be before this Court.
Absent a case or controversy, the appeals are moot.
¶ 21. Here, the findings of incompetency were based on documents received under seal,
and those documents remain under seal as a consequence of the court’s order. Further,
defendants have been found incompetent and therefore have yet to stand trial on the pending
criminal charges. Each defendant’s competency remains subject to further evaluation and
consideration by the criminal division. Under these circumstances, the appeals are not moot.
¶ 22. Even if the appeals were moot, we have recognized exceptions to the case or
controversy doctrine in cases that are capable of repetition yet likely to evade review, as well as
in cases where negative collateral consequences, such as the stigma of mental health
commitment, are likely to result from the action being reviewed. See In re P.S., 167 Vt. 63, 67,
702 A.2d 98, 101 (1997) (citing State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633 (1984))
(finding that negative collateral consequences can apply in mental health commitment cases
because “[t]he legal disabilities radiating from the label of mentally incompetent are myriad”).
We address these exceptions as an alternative, in the event the cases were, in fact, moot.
¶ 23. To fall within the mootness exception for situations capable of repetition yet
evading review, a plaintiff must satisfy a two-prong test. First, “the challenged action must be in
its duration too short to be fully litigated prior to its cessation or expiration.” Price v. Town of
Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26 (citing Tallman, 148 Vt. at 469, 537 A.2d at
424). Second, “there must be a reasonable expectation that the same complaining party will be
subjected to the same action again.” Price, 2011 VT 48, ¶ 24; Paige v. State, 2013 VT 105, ¶ 10,
195 Vt. 302, 88 A.3d 1182. Competency is a fluid concept which may exist at one time during
8
the prosecution of a case and not at another such that a finding of incompetency does not
eliminate a future finding of competency or vice versa. See State v. Lockwood, 160 Vt. 547,
555-56, 632 A.2d 655, 660 (1993) (“Once a defendant has been found competent, the trial court
must be alert to changed circumstances that would indicate the need for a new determination of
competency”).
¶ 24. The negative collateral consequences exception to the mootness doctrine “is
limited to situations where proceeding to a decision in an otherwise dead case is ‘justified by a
sufficient prospect that the decision will have an impact on the parties.’ ” Paige, 2013 VT 105,
¶ 12 (quoting In re Collette, 2008 VT 136, ¶ 16, 185 Vt. 210, 969 A.2d 101). While the stigma
attached to a finding of incompetency may be less than that which attaches to an order of
involuntary commitment, it is, nonetheless, a finding which leads to further proceedings under
Vermont’s mental health laws.
¶ 25. In In re S.N., we declined to invoke an asserted public interest exception to the
case or controversy doctrine. 2007 VT 47, ¶ 9, 181 Vt. 641, 928 A.2d 510 (mem.). In that case,
S.N. had been ordered to submit to an emergency mental health examination and had requested a
probable cause hearing. Id. ¶ 2. The court found no probable cause to determine him to be a
person in need of treatment and had ordered him discharged from the State Hospital. Id. ¶ 4. By
the time of the appeal, S.N. had been released from the State Hospital and had returned to New
York. Id. We found the hypothetical possibility that S.N. would return to Vermont insufficient
to invoke the public interest exception. Id. ¶ 7.
¶ 26. Unlike in S.N., defendants have been the subject of criminal charges that have not
been prosecuted to conclusion due to findings of incompetency. In addition, both defendants
have had further or ongoing involvement with our mental health laws through ONHs already in
place prior to those criminal charges or directly resulting from the instant criminal charges,
making these stronger cases for the adoption of a public interest exception than was presented in
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S.N. Although there is a recognized public interest here, we decline to adopt further exceptions
to the mootness doctrine.
¶ 27. In considering the two recognized exceptions, we find that the cases at hand
present situations capable of evading review. It was defendants’ objections to the admission of
the competency reports in their entirety which triggered the controversy leading to these appeals.
The State has objected on two separate occasions to orders which resulted in only portions of
competency evaluations being admitted into evidence, despite broad statutory language dictating
admission of relevant portions of the reports. Yet despite the lack of formal admission of any
portion of the competency reports, orders of non-competency issued based upon documents
received under seal. Under these circumstances, to consider these appeals moot by virtue of the
incompetency rulings would leave the State with no remedy in any case where, as here, the State
did not object to the ultimate conclusion as to competency, and would allow the trial court to
create a process and a procedure by which its actions could not be reviewed. Thus, we are
satisfied that both prongs of the “evading review” exception to the mootness doctrine are met if
we otherwise considered the issue to be moot. Consequently, we need not address whether the
“negative collateral consequences” exception might also apply in this instance.
¶ 28. Turning to the court’s rulings regarding admission of the competency reports, we
start with the statutory language of 13 V.S.A. § 4816(e) in effect at the time of these orders,
which read as follows:
(e) The relevant portion of a psychiatrist’s report shall be admitted into evidence as an exhibit on the issue of the person’s mental competency to stand trial and the opinion therein shall be conclusive on the issue if agreed to by the parties and if found by the Court to be relevant and probative on the issue.
¶ 29. The substance of this appeal turns on consideration of the term “relevant.” The
State argues that “relevance” in § 4816 is determined by reference to V.R.E. 401, while
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defendants assert that a narrower construction of “relevant” should apply given the privacy
interests which pertain to assessments of this nature.
¶ 30. In State v. Whitney, 2005 VT 102, ¶ 4, 178 Vt. 435, 885 A.2d 1200, this Court
held that the defendant was not entitled to have a competency report sealed where the trial court
relied on it in finding the defendant to be competent, but the report was never formally offered
into evidence. We found the lack of formal admission an unconvincing technical argument and
further found the public had access to the report. Id. ¶ 8.
¶ 31. The language of the statute requires that the relevant portion of a competency
evaluation shall be admitted into evidence. The statute does not create hierarchies of relevance
or provide the trial court with discretion to exclude relevant portions of competency reports.
P.A.C.R. 6(b)(19) follows the statute in that a competency evaluation is exempted from public
disclosure “if not admitted into evidence.” Consistent with Whitney, neither the statute nor the
P.A.C.R. allow the court to rely upon a competency report in the determination of competency
but not admit at least the relevant portions of the report.
¶ 32. Also consistent with Whitney, relevant portions of a competency report otherwise
accessible by the public might be redacted in a case where the necessary showing of “good
cause” and “exceptional circumstances” has been made on a case-specific basis under P.A.C.R.
7(a). No findings approaching that which would be necessary to redact portions of any report
under P.A.C.R. 7(a) were made in either of defendants’ cases.
¶ 33. While, by its language, the statute contemplates that some portions of a
competency report might not be relevant, and thus not required to be admitted, it does not
suggest that any other application of “relevance” should be used in considering what portions of
a competency report are relevant for competency purposes other than that which is set forth in
V.R.E. 401, the test for relevancy in Vermont courts. Whatever standard the trial court used
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here, it did not apply a V.R.E. 401 analysis to its decision on what portions of the reports to
admit and what portions to exclude. It should have done so.
¶ 34. Because the court did not apply the relevancy considerations required by V.R.E.
401, it is necessary to remand these cases so that the proper findings may be made. Consistent
with 13 V.S.A. § 4816(d), relevant portions of the competency reports shall be admitted. Those
portions of the reports are accessible to the public unless the necessary case-specific findings
sufficient to justify redaction under P.A.C.R. 7(a) are made.

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