201 A.3d 969
Vt.2018Background
- South Burlington School Board voted in Feb. 2017 to discontinue the high-school athletic name "Rebels" after concerns about racist connotations and impacts on students.
- A group of district voters filed a petition (signed by >5% of voters) requesting a district-wide vote to reinstate the "Rebels" name; the Board declined to include the petitioned article on the ballot.
- Petitioners sued under V.R.C.P. 75 seeking mandamus and a declaratory judgment, arguing the Board violated their constitutional right to "instruct" (Vt. Const. ch. I, art. 20) and that statutes governing warned articles (17 V.S.A. §§ 2642–2643) should be used to effectuate that right.
- The trial court denied the Board’s motion to dismiss (treated as summary judgment) and concluded petitioners had alleged facts entitling them to mandamus to force the Board to warn the article.
- The Supreme Court granted interlocutory review and reversed: neither the statutory scheme nor Article 20 compelled the Board to include a nonbinding, advisory petition concerning a matter that is within the Board’s authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 17 V.S.A. §§ 2642–2643 required the Board to warn a petitioned, nonbinding advisory article on the school-team name | Petitioners: the statutes effectuate the constitutional right to instruct and thus require inclusion of petitioned advisory questions if >5% sign | Board: statutes require warning only for matters that are proper "business to be transacted" by voters; discretionary when subject is outside voters’ authority | Held: Statute does not compel warning of advisory items outside voters’ authority; Board had no statutory duty to include the petition (may do so voluntarily) |
| Whether Article 20 of the Vermont Constitution (right to "instruct") creates a collective, self-executing right to a district-wide advisory vote compelling the Board to act | Petitioners: Article 20 secures a collective right to instruct public officials and thus a forum (district-wide vote) must be available where no town meeting exists | Board: Article 20 does not create such a collective right; it does not override statutory limits on town/district voting authority | Held: Article 20 does not provide an enforceable collective right to compel a district-wide advisory vote; at most it secures an individual right to petition/instruct, which petitioners did not show was violated |
| Whether mandamus was an appropriate remedy | Petitioners: mandamus is proper because the right to instruct and the statutory mechanism make the Board’s duty clear | Board: mandamus requires a clear legal duty; no clear duty exists here because petitioned question was advisory and beyond voters’ power to bind | Held: Mandamus not available because petitioners failed to show a certain, clear legal right to the performance requested |
Key Cases Cited
- Royalton Taxpayers’ Protective Ass’n v. Wassmansdorf, 260 A.2d 203 (Vt. 1969) (statute requires warning petition only when voters have authority to grant or refuse; courts deny mandamus for "useless, frivolous or unlawful" matters)
- Whiteman v. Brown, 264 A.2d 793 (Vt. 1970) (petitioned articles must involve business appropriate for town/district meeting; board may refuse items within board’s exclusive authority)
- Pominville v. Addison Cent. Supervisory Union–Middlebury Union High Sch. Dist. #3, 575 A.2d 196 (Vt. 1990) (board properly refused to warn alternate budget article where statutory budget-review scheme provided exclusive process)
- Clift v. City of South Burlington, 917 A.2d 483 (Vt. 2007) (advisory petition to warn legislative advocacy matter not compelled; towns retain discretion to refuse advisory articles)
- Kirchner v. Giebink, 552 A.2d 372 (Vt. 1988) (selectboard need not warn petition that would be "useless" because voters lack power to undo legally binding board action)