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Daims v. Town of Brattleboro

Supreme Court of Vermont

April 29, 2016

Kurt Daims & Craig Newbert
Town of Brattleboro

On Appeal from Superior Court, Windham Unit, Civil Division John P. Wesley, J.

Paul S. Gillies of Tarrant, Gillies & Richardson, Montpelier, for Plaintiffs-Appellants.

Robert M. Fisher and Michael McGillion (On the Brief) of Fisher & Fisher Law Offices, P.C., Brattleboro, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Kupersmith, Supr. J. (Ret.), Specially Assigned


¶ 1. Plaintiffs, residents of defendant Town of Brattleboro, appeal the superior court's order granting the Town summary judgment with respect to plaintiffs' lawsuit claiming that the town selectboard unlawfully interfered with an election on their petitions to amend the town charter. We affirm.

¶ 2. Prior to the March 3, 2015 town meeting, plaintiffs submitted three separate petitions to amend the town charter, pursuant to 17 V.S.A. § 2645. Among other things, the petitions sought to: (1) allow residents sixteen and older to vote at town meetings; (2) allow voters to seek a referendum on articles authorizing the Town to spend more than $2 million; (3) limit the terms of town meeting representatives;[1] (4) hold the elections of town representatives and town officials in November rather than March; (5) require employers within the Town to provide two hours paid leave for employees to vote at town meetings; and (6) have the town grand juror enforce the minimum wage and function as a district attorney for the Town. As required by § 2645(a)(3) and (5), the selectboard held two public hearings on the petitions.

¶ 3. On February 17, 2015, following a second hearing that was held on January 29, 2015, the selectboard met and resolved to endorse an "information sheet" regarding the petitions and to distribute the information sheet to media outlets in the Brattleboro area. The information sheet was then emailed to town meeting representatives, the media, selectboard members, town staff, and a few other persons who requested it. Among other things, the information sheet stated that: (1) setting term limits would be "anti-democratic" in that it would "ban Brattleboro residents from [t]own meeting[s] because they had attended six years in a row"; (2) moving elections from March to November "would damage the link between . . . important parts of government and leave Brattleboro out of step with the rest of Vermont"; (3) requiring employers to provide paid leave for employees to attend town meetings "would mandate Brattleboro employers to pay employees to attend town meetings in other towns and states" and would impact "Brattleboro residents [who] already face very steep property taxes"; (4) giving powers to the town grand juror, which "is essentially obsolete in this modern era, " is unnecessary "because enforcement of laws and ordinances is handled by other elected officials and clear structures"; and (5) "setting separate rules for voter review of budget items over $2 million is confusing and arbitrary." On March 3, 2015, town voters defeated the three petitions.

¶ 4. Shortly after the election, plaintiffs, acting pro se, filed a complaint alleging that the selectboard had interfered with the constitutional mandate that elections be free and without corruption, in violation of Chapter I, Article 8 and Chapter II, Section 55 of the Vermont Constitution, and also had interfered with the division of powers established in the town charter. The complaint asked the superior court to nullify the vote on the petitions, order a new election, rule that the selectboard acted beyond its authority in violation of the town charter in promulgating the information sheet, find that the information sheet was partisan and erroneous, and instruct town officials to refrain from issuing any future statements opposing petitioned articles.

¶ 5. The Town filed a motion for summary judgment, along with a statement of undisputed material facts. Plaintiffs accepted the Town's statement of undisputed facts and filed a cross-motion for summary judgment, arguing that the Town's information sheet was unauthorized and inconsistent with the purpose and letter of § 2645. In a July 28, 2015 decision, the superior court granted the Town's motion for summary judgment, ruling that: (1) nothing in § 2645 or any other law prevented the selectboard from issuing an information sheet concerning the voter-initiated petitions to amend the town charter; (2) although the information sheet expressed the selectboard's opinion on the petitions, it did not rise to the level of the selectboard interposing itself in the election process and interfering with the voters' right to decide the issues presented by the petitions; (3) plaintiffs provided no support for their contention that the selectboard revised the proposed amendments to the town charter; (4) plaintiffs failed to demonstrate that the information sheet was erroneous; and (5) even if the information sheet contained errors, there was nothing to suggest that the selectboard acted willfully to deceive voters.

¶ 6. On appeal, plaintiffs, now represented by counsel, do not claim any constitutional violations, but rather argue only that the information sheet disseminated by the selectboard was unauthorized by, and inconsistent with the purpose and letter of, § 2645. Under § 2645(a), a municipality may propose to the Legislature an amendment to its charter by majority vote of town voters based on either a proposal put forth by the municipal legislative body itself or by a petition of five percent of the municipality's voters. The legislative body must hold at least two public hearings before a vote on proposed charter amendments, the first of which must be held at least thirty days before the vote. 17 V.S.A. § 2645(3). The legislative body may revise its own proposals following comments at the public hearings, but may not revise voter-initiated petitions. Id. § 2645(4)-(5).

¶ 7. According to plaintiffs, the Legislature intended § 2645 to mean that once a voter- initiated petition is submitted to the selectboard, the selectboard is authorized to do only what it is required to do under the statute-provide notice, hold hearings, add articles to the warning, order an election, and refrain from altering the petition in any way. Plaintiffs rely on § 2645(5), which requires, with respect to voter-initiated petitions, that the municipal legislative body hold a second public hearing no later than ten days after the first hearing, and that voter-initiated petitions be submitted to the voters at the next election "in the form in which they were filed." Id. § 2645(5) ("The legislative body shall not have the authority to revise proposals to amend the charter made by petition."). In plaintiffs' view, these obligations reflect the commitment of the Legislature to protect petitions from interference by the municipal legislative body even when the legislative body finds them unacceptable. In essence, plaintiffs argue that any action taken by the selectboard beyond that set forth in the statute with respect to a voter-initiated petition to amend the charter-including taking a position on the petition-is beyond the selectboard's authority.

¶ 8. Plaintiffs read too much into the statute. As indicated above, § 2645 sets forth procedural requirements with respect to proposals to amend town charters put forth by either municipal legislative bodies or five percent of town voters. Nothing in the statute presumes to resolve the "tension" between town voters and town elected officials by precluding the selectboard from commenting on voter-initiated petitions to amend town charters.

¶ 9. Plaintiffs argue, however, that because municipalities have only those powers explicitly granted by the Legislature, the selectboard is authorized to do only what the statute obligates it to do and thus cannot comment on voter-initiated petitions absent explicit authorization to do so in § 2645 or the town charter. In so arguing, plaintiffs cite the longstanding legal principle, known as Dillon's Rule, that municipalities " 'owe their origin to, and derive their powers and rights wholly from, the legislature.' " City of Montpelier v. Barnett, 2012 VT 32, ¶ 20, 191 Vt. 441, 49 A.3d 120 (quoting City of Clinton v. Cedar Rapids & Mo. River R.R. Co., 24 Iowa 455, 475 (1868)); see also E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 461, 175 A. 35, 42-43 (1934) ("The general rule is ...

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