Pease v. Windsor Development Review Board
35 A.3d 1019
Vt.2011Background
- Plaintiff, a Windsor property owner, challenged a DRB subdivision decision and sought Public Records Act (PRA) records.
- Public records were produced through the DRB clerk (Town Zoning Administrator) and/or DRB members, with some records exempt as nonexempt items later made available.
- Town sought a protective order to limit plaintiff’s pro se discovery and direct contact with DRB members; Environmental Division stayed discovery pending a conference and referenced the PRA procedure in superior court.
- Plaintiff filed suits in Windsor Superior Court alleging PRA compliance, free speech retaliation, and due process concerns related to DRB proceedings and the protective order.
- Trial court granted cross-motions for summary judgment, holding PRA responses were proper, and that litigation immunity shielded the defendants from free speech claims.
- Appeal affirmed, with reliance on remand to DRB and subsequent open meetings to cure alleged violations; MAPA-related due process issues were deemed remedied by remand and appeals to the Environmental Division.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did DRB’s PRA responses satisfy the statute? | DRB responded via clerk; clerk not custodian. | Clerk qualifies as custodian; records produced. | Yes; DRB complied with PRA. |
| Does litigation immunity bar the free speech claim based on filing the protective order? | Immunity does not apply or is unconstitutional as applied. | Litigation immunity protects filing acts; no constitutional violation shown. | Yes; litigation immunity applies. |
| Were alleged free speech violations cured by later open meetings or Environmental Division remand? | Violations persisted; ongoing suppression of speech. | Remand and subsequent open meetings cured any harm. | Cured; no ongoing unconstitutional effect. |
| Did MAPA due process concerns require a different remedy beyond remand? | Zoning Administrator’s participation violated due process. | Remand to Environmental Division provided exclusive remedy and cured due process concerns. | Remand sufficed; claims addressed. |
Key Cases Cited
- Eckert v. LVNV Funding LLC, 647 F. Supp. 2d 1096 (E.D. Mo. 2009) (litigation immunity for judicial process participants)
- Ley v. Doll, 150 Vt. 383 (1988) (trial courts have broad discretion regarding discovery matters)
- Berlickij v. Town of Castleton, 248 F. Supp. 2d 335 (D. Vt. 2003) (open meetings cure alleged open meetings act violations)