In Re Town Highway No. 20

VT (Petition Georgia Highway re Town No. Town John Rhodes) Georgia John Rhodes v. Town of Highway Georgia In re Unnamed Town Town [45 54] A.3d Nos. & 10-100 10-338 Reiber, C.J., Dooley, Johnson, Skoglund Burgess, Present: JJ.

Opinion Filed March Cahill, F. Joseph Brown, Cahill, Jr. Michael S. Gawne Miller, P.C., Gawne & Albans, St. Petitioner-Appellee Plaintiff-Appellee/Cross-Appellant. McNeil, Coyle Leddy A. and Kevin &

Joseph Famham J. Sheahan, and Defendant- Respondent-Appellant Burlington, Appellant/Cross-Appellee. Rhodes, Town Skoglund, a resident of the J. John selectboard, to body, his local Georgia, petitioned governing that bordered his surrounding several issues two roads

clarify existence and use began land. this case as suit over the While roads, it over time into a test of constitutional grew of two ancient fifteen about abuse of After almost guarantees saga power. court, the two side to federal years litigation, including trips Georgia. the Town of judgment against trial court entered to access his land over town request court found that Rhodes’s maliciously frustrated repeatedly roads had been .Town of a in an the value ongoing attempt protect selectboard I, Article 7 of the Chapter a violation neighbor’s property, Constitution, Benefits The court Vermont Common Clause. monetary and awarded self-executing concluded that Article was violation. In this consolidated for the constitutional the trial court Georgia the Town of seeks to overturn appeal, below, liability judgment decision. As we affirm the explained proceed- and remand for further damage but reverse the award ings. actions, both separate involving stems from two appeal This — from a resulting and both as noted parties

the same three Because existence and use of two ancient roads. dispute over the linked, one. The appeals we review both as they inextricably are history is procedural facts are uncontested. The underlying largely the case. understanding essential to a full quite lengthy but roads at the heart of this conflict traverse country 3. The two road, The first Town Georgia, the woods and fields of Vermont. (TH #20), officially by Georgia #20 laid out Highway along in runs for 600 feet selectboard 1813. One section farm and divides his southeastern border of Rhodes’s 320-acre The second (neighbors). the Bechards neighbors, farm from his Road) (Unnamed border Rhodes’s southwestern along road runs with TH #20 and 2500 feet and intersects approximately house. vicinity neighbors’ another road in the portion to discontinue a 4. In the selectboard voted time, At around the same TH #20 that bordered Rhodes’s farm. near its inter- under the Unnamed Road a culvert was installed section with TH #20. The culvert possible made it for Rhodes and neighbors to access land they owned individually via the Unnamed — Road it was otherwise traffic. impassible vehicle It also allowed the Town to access a gravel pit owned neighbors. 1994, current neighbors’ father owned neighbors’ property. Father asked the Town to remove the justifi- culvert. Without providing cation, selectboard, whose chair at the time was father’s son (current brother), neighbors’ removed, ordered the culvert an act that prevented Rhodes from driving any vehicles along Unnamed Road or accessing his adjoining land. In5. Rhodes sent a formal application to the selectboard (1)

requesting that it: determine the location of TH #20 where it (2) farm; bordered his reconsider its 1971 decision to discontinue (8) that portion #20; of TH him give permission pay improvements to TH #20 to make passable for vehicles (4) year-round; and order neighbors to remove the fenced gate they had erected in the middle of TH #20 and the farm equipment and personal other property they stored in the TH #20 right-of-way. In addition to seeking lands, access to his request Rhodes’s was motivated in part by an in interest subdi- viding upper portion of his property, which require would improved vehicle access TH along #20 and Road, the Unnamed though his in plans that regard remain unclear to day. this Neighbors, apparently also planning farm, a subdivision of their Rhodes, opposed claiming his farm did not abut TH #20. The selectboard denied all of requests Rhodes’s in April 1997 and granted neighbors permission to store property the TH #20 right-of-way because it “does not present a problem.” Rhodes appealed this decision to the superior court.

¶ 6. In his petition to the superior court Rhodes claimed that the selectboard had erred determining the limits of TH #20 and improperly concluded TH #20 had been discon- tinued and reclassified in 1971. He also argued that selectboard’s decision had “denied access as a matter of [him] law to his property” and “improperly . . . grant[ed] adjacent owner, property [neighbors], right to continue to use a portion of way to store personal ... in a property manner which obstructs and interferes with use of the Town #20 Highway [Rhodes] to require [neighbors] refus[ed] to remove the fence and barbed wire gate [they] erected.” Neighbors intervened cross-claimed, requesting, among things, other that the court their declaratory judgment prescrip- make a to a regarding “pent” running tive over a road on Rhodes’s property easement to the Road. roughly parallel Unnamed days July The case was five and January heard over He presented alleged 2001. Rhodes his claim of discrimination. selectboard in an and “arbitrary capricious had acted refusing his TH and to denying right improve manner” to #20 to from the require neighbors personal property remove their differently and that had him right-of-way, the selectboard treated on similarly from other in the Town situated property owners right and class 4 roads. that the Town had the agreed trails He #20, argued regulation to his use of TH but that “such regulate not be him in a than place position should inconsistent or different any owner member of the and that property public,” other decision to him access deny grant neighbors selectboard’s and was “an personal storage to continue to use TH #20 for governmental power uneven fundamen- application [that was] tally unfair.” J.) ruled in In re (Joseph, 8. The trial court Rhodes’s favor. (Vt. #20, No. Highway Georgia, Super. Town Town S173-97Fc 2002) Town The court Highway

Ct. June [hereinafter #20]. the road discontinuing found that the selectboard’s 1971 decision and legal neighbors’ was flawed and thus had no force dismissed It of adverse and easement. possession prescriptive cross-claim also that TH abutted farm. The court determined #20 Rhodes’s landown- policy further found that the “has a permitting Town ers class 4 so improve Highways expense to Town their own access to their and that they gain property” can vehicular property requests the 1990’s ‘less than a dozen’ owners made “[i]n at their Town for to class 4 permission improve highways only request own . . . is the landowner whose expense. [Rhodes] denied.” The noted that improvements make such court issue. found safety additionally TH #20 was a It improve need TH #20 placed hay had an old baler neighbors culvert right-of-way prevent replacing large Rhodes from in the and had fencing the Town removed in 1994 built The court found that the Town had right-of-way. specifically to the culvert in to hinder Rhodes’s access removed the order subdividing of his him from upper property prevent section it. developing conclusions, Beyond these ruled: findings the court of Georgia Town Selectboard acted in violation of United States Vermont Constitutions when it: a) denied to make in request improvements [Rhodes’s] the TH #20 right-of-way expense at his own and

b) when it refused to require [neighbors] to remove their from TH personal property right-of-way. #20 of this support ruling, the court noted that its making decision the selectboard was specifically concerned with how development further of TH #20 affect neighbors’ would “privacy enjoyment” of their property. The court found that selectboard that neighbors knew wanted to prevent develop- ment of Rhodes’s property and that the selectboard members were “sympathetic to [neighbors’] concern.” The court further concluded that the Town permission had denied to Rhodes “be- cause does not want him to develop his in a [upper] parcel way bring would number of large new homes and cause an bias, increase traffic near [neighbors’] residence.” This the court concluded, constituted “unconstitutional discrimination” because simply Town cannot deny “[t]he Mr. Rhodes the to right improve and use a if public highway they to other give right property owners in similar circumstances.” Finally, the court concluded that through this behavior the

selectboard had violated Article 7 of the by Vermont Constitution showing “favoritism” to a “single person, family, or set of persons” 7.)1 I, in the community. ch. (Quoting Vt. Const. art. The court then directed the selectboard to improve allow Rhodes to TH #20 “under the same terms and conditions given to other owners of property abutting TH #20” and “to order that [neighbors] remove all personal of their from TH property right-of-way.” #20 Article states: is, government be, ought That or instituted for the common benefit, protection, nation, security people, community, of the particular any person, advantage single and not for the emolument or family, persons, only community; part or set of who are a of that indubitable, unalienable, community hath an and indefeasible be,

right, government, to reform or alter in such manner as shall community, judged public most conducive to the weal. Const, I, Vt. ch. art. 7. appealed, challenging The Town and without neighbors the trial upheld factual This Court findings.

trial court’s relevant TH and the as to the location and status of #20 rulings court’s easement. In re Town No. neighbors’ Highway denial of claimed 834 A.2d 17 Town 2003 VT 175 Vt. Georgia, (mem.) to the constitutional regard Rhodes With [hereinafter I]. violation, this stated: Court contention is that it did not unconstitu-

The Town’s sole [Rhodes], trial discriminate as the court tionally against that the found. we affirm the trial court’s decision Once however, TH #20 disputed portion highway, with this Court’s willingness comply Town asserts its order, including the trial court’s fully accept decision and #20, TH and maintain allowing improve [Rhodes] remove all of their ordering [neighbors] personal we way. from the TH #20 Because property of TH #20 as a the trial court’s classification uphold willing superior and the Town is abide highway, order, court’s we do not reach the constitutional issue. ¶ Id. #20, litigation leading Highway to Town During embroiled in another over neighbors dispute

Rhodes and became and an additional the existence and location of the Unnamed Road road, an over which had claimed “pent” neighbors road roads for to their easement. desired to use these access Neighbors Both to have the selectboard declare gravel pit. parties sought although properly public highway, Road to be a laid out Unnamed sought its terminus. they differing Neighbors had views of road, with to the which Rhodes regard “pent” similar declaration requests. parties In the selectboard denied the disputed. intervened, court, claiming to the and the Town appealed superior highway. neither of the roads was a town J.) (Van concluded that the Benthuysen, 13. In the court and can be located with “lawfully Road was created Unnamed not a town road. In but the road was certainty,” “pent” reasonable Nos. Georgia, Town S312-01Fc Highway re Unnamed Town 2004) (Vt. Feb. Unnamed Super. & Ct. [hereinafter S381-01Fc Road, surveys based on the locating Road Unnamed /]. evidence, crossed court ruled that the road into submitted of [neigh- about 200 feet short Rhodes’s but property “end[ed] that, The court property.” concluded because the bors’] Unnamed being surveyed Road was in 1814 when it was first noted in the records, Town surveyor and the “measuring already location, existing particular road at a road,” out a setting new Unnamed Road must have been legally opened before when a certificate became a opening requirement. The court road, hand, ruled that the “pent” on the other any which “lacks certification, time, ratification or at any by the Selectboard Georgia,” “does not exist as a public highway.” Neither party appealed this decision. — cases, 14. In response to these two in 2006 two-and-a-half

years after this Court’s decision in I nearly Rhodes two years after the trial court’s decision in Unnamed I Road selectboard voted to classify TH #20 as a class 4 classify road and the Unnamed Road a legal act, as “trail.” By this the selectboard effectively prohibited the use of motor vehicles on the Unnamed Road, per policy town regarding the use of legal trails. It likewise noted that it would perform no maintenance on TH #20. Rhodes appealed the decision on the Unnamed Road to superior court under Vermont Rule of Civil Procedure 75.

¶ 15. In this 2006 Rule 75 complaint, Rhodes requested that the court declare the selectboard’s classification of the Unnamed Road to be incorrect and in violation of the 2004 decision in Unnamed I, Road sought to reclassify the road as a class 4 highway. Alternatively, if the court found that the classification decision was proper, Rhodes asked for condemnation under 19 V.S.A. chapter 5. on Ruling dismiss, the Town’s motion to the trial court (Crawford, J.), in June concluded that the classification decision was proper and did not violate the 2004 trial court decision. (Vt. Rhodes v. Town Georgia, No. 55-06Fc Super. Ct. 8, 2006) June [hereinafter Unnamed Road Though the court II]. granted the motion in part, further determined that an evidentiary hearing was required on the issue of necessity and damages to the extent recoverable under the law. It also granted Rhodes leave to amend his complaint to “state these claims more clearly.”

¶ Meanwhile, 16. Rhodes apparently frustrated at the slow pace of the Town’s in actions his approving request to TH improve —#20 filed civil claim in in federal court under § claiming U.S.C. discrimination based on the selectboard’s actions. The Town moved for summary in March judgment motion, that Rhodes’s In its on the the federal court noted ruling the set of facts which formed precisely claims arose “out of same lawsuits,” and that “this action was prior the basis of his [state] filed, in with those part, compliance at least to seek [the Town’s] on The court thus dismissed the claims judgments.” state court proved judicata holding essentially res Rhodes had grounds, in in his first action state court his claims of discrimination remedies are “allege[] prove[] that he failed to state that at suit was filed the We note time this inadequate.” Road as yet classify selectboard had not decided Unnamed a trail. Rhodes still had not Throughout litigation, this exhaustive #20, Town TH nor had improve

received from the permission farm and fences implements been told to remove their neighbors the court Apparently deciding acknowledge from the roadway. I, order, Rhodes the Town May nearly years three after from the TH property ordered to remove their finally neighbors Rhodes for a construction estimate right-of-way #20 asked to TH #20. He submitted proposed improvements for his but the selectboard did not act on his July estimate Instead, month, adopted next the selectboard submission. for the use and of town regulations improvement new set of asking Rhodes filed a motion highways. September #20 that Highway trial court to enforce its order Town him permission improvements directed the Town to to make grant him damages in TH #20. He also asked the court to award failure to follow the order. because of the Town’s II, the court in Road Rhodes permitted by 18. As Unnamed classification of the complaint challenging filed an amended of the He claimed that the Town’s classification Unnamed Road. motor a trail which “shall not be used Road as Unnamed Road established use of the Unnamed ignored long vehicles” practical and others and had “the effect of substan- by Rhodes prop- access to almost 220 acres of tially restricting [Rhodes’s] was “a continuation of He claimed that the classification erty.” through Town of its Georgia of conduct pattern and to the advantage [neighbors] since 1994 to the [selectboard] had therefore alleged He that the Town detriment of [Rhodes].” and the States and Vermont § violated United U.S.C. it “acted under color of law and established because Constitutions from other differently that treated of conduct pattern [Rhodes] property owners similarly situated.” Specifically he claimed that the Town had used “its regulatory and statutory authority deny or restrict , access and use [his] . . . property [his] delaying consideration manner, of his in requests timely taking an inordinate amount of time to consider his requests, and imposing] limits or conditions on his requests which it did not impose on other property owners similarly situated to Rhodes [Rhodes].” thus sought declaration that the decision to classify the Un- named Road as trail was improper, an order it be road, reclassified as a class and unspecified damages. The Town had the case removed to federal court.

¶ 19. As part of this now-federal litigation, parties entered mediation involving upgrades to TH #20. It was ultimately agreed that Rhodes would submit plans for improvement of TH #20 for review. Rhodes hired a licensed engineer, who prepared plans which complied with the Town’s new regulations. His application to improve TH #20 was filed in August 2008. This second application was denied in September 2008. The selectboard claimed that Rhodes had failed to show such improvement was necessary. Town recommended that Rhodes limit his improve- ment of TH #20 to meet the Town’s “Recommended Driveway Construction Guidelines.” time, 20. Around this the Town moved for summary judgment

in federal court on Rhodes’s amended complaint in Unnamed II, Road arguing that he had failed to allege sufficient facts to establish that the Town had violated either his procedural or substantive process due rights under the Fourteenth Amendment § 1988. In November the federal court granted the Town’smotion and dismissed Rhodes’s claims. The court explained proper forum litigate “[t]he the legality of Selectboard’s classification decision is the [state and held court]” that it would not disturb the state court’s 2006 ruling. The trial that, court reiterated as with previous case, federal appropriate path for Rhodes seek post-judgment relief for the Town’s noncompliance prior with state in judgments the state court, and it remanded the case.

¶ 21. decision, J.) Following this the superior (Joseph, court held in hearings May 2009 on Rhodes’s motion to enforce the original #20, decision Town Highway wherein the court had found

a violation of Rhodes’s constitutional rights. It simultaneously took testimony the trial phase Unnamed Road II on issues of order on an opinion The court issued necessity damages. unchallenged In its 14, 2010, of both cases. January disposing instances of fact, multiple listed the trial court findings (1) found: Rhodes. The court against discrimination selectboard’s road to make permission other landowners granted the Town had evi- any “without right-of-way the TH #20 along improvements improvements,” for those plans designs specific dence (2) cost”; agree pay “that the landowners requiring only improvement plans revised rejected had Rhodes’s the selectboard (3) faith; #20, bad engineer, drawn up for TH improvement conform his that Rhodes suggestion selectboard’s by the Town’s was not authorized driveway to the standards plans (4) deny decision [to Town’s latest improvement policy; “[t]he new a continuation simply TH improving #20] for request Rhodes’s from attempt prevent to [Rhodes] of the Town’s determined to the value protect his land in order access to improving (5) made the Town years for over two property”; [neighbors’] property their personal remove neighbors minimal efforts to have (6) decisions Road TH #20 Unnamed right-of-way; from the continuing a clear selectboard “demonstrate by the town property for one preference to show a effort [selectboard] (7) [Rhodes]”; owner, owner, another property over [neighbors], and at chair, between 1997 position held that the selectboard who that the selectboard when he testified was not credible least on Rhodes when of its decision not consider the effect did (8) trail; the classification Road as classified the Unnamed motor vehicle property by to his denied Rhodes “access decision of the road,” example “another representing the unnamed over preference and its against [Rhodes] discrimination [selectboard’s] found additionally The court interests.” [neighbors’] property for of his portion access to a that, Rhodes’s decreased as a result of it intersects Road from where by the Unnamed serviced property in value #20, property a diminution he had suffered with TH of 50% a cost increase $830,000, that he faced to equivalent the Town’s given TH #20 improvements his proposed — permis- him in continuing delay granting illegitimate sion. that,

¶22. in trial court concluded findings Based on these #20, TH requests upgrade repeated Rhodes’s denying to discrimi- power government used the had Town selectboard “the and that years, than ten for more nate Rhodes against Town’s decisions with regard to land have all been [Rhodes’s] guided by one motive: to favor the of his property rights neighbors.” It further found that the Town’s decisions regarding the Unnamed Road were of a “part pattern consistent of discrimi- natory conduct that has lasted for more than twelve years.” court cited back to specifically the selectboard’s 1994 removal of the culvert at neighbors’ request as of the being part same desire prevent Rhodes from gaining vehicle access to his land. The court concluded: “The real reason for the Town’s decision [to classify the Unnamed Road a was to Mr. deny Rhodes trail] access to his property order to benefit [neighbors].”

¶ 23. The court thus ruled that the Town had violated Rhodes’s constitutional under Article 7 and ordered the Town to approve Rhodes’s most application recent to improve TH #20 within thirty days or show why cause the Town should not be held in contempt. Additionally, it ordered the Town pay Rhodes $830,000 in damages from the resulting change in value to his property and fees, attorney’s the cost of bringing $5000 enforcement action. The court denied Rhodes’s request puni- tive damages. decision, The Town appeals this and Rhodes cross- appeals.

¶24. decision, Six months after the court’s in June Town moved to reconsider the court’s 2004 ruling Unnamed Road I declaring and, Unnamed Road to be a public highway alternatively, requested leave appeal the 2004 decision to this Court. Because the trial court failed to set forth its order on a “separate document” as required by Vermont Rule of Civil Pro- 58(a), cedure the Town argued was free to move for reconsid- eration more than years six later. The Town also asked for relief under Rule 60. The court denied these requests, and the Town appealed. We consolidated the for appeals purposes of review.

I. ¶ 25. After such a recitation lengthy of the facts and procedural history, it is useful to restate the central issues before the Court. The questions presented are whether the Common Benefits Clause of the Vermont provides Constitution a self-executing action, private right and whether are for available the violation, tort,” or “constitutional in the presented. circumstances The Town’s characterization of the case as involving simply a over dispute road improvements municipal road-classification 248 decisions about roads these fundamental issues. While

ignores availability it is the of the constitu- genesis, were the conflict’s at the heart of this case. remedy tional lies is the fundamental charter 26. The Vermont Constitution It is and is in our scheme. preeminent governmental of our state will the of the state and expression sovereign people the of the simultaneously limited while upon government powers confers such, As governed. the basic freedoms of protecting law, and the legislative judge-made constitution stands above “for the entire as their rights speak people contained therein (1900). Burke, v. supreme law.” Davis U.S. Named the seminal case of Bivens v. Six Unknown Narcotics, Supreme Court Agents Federal Bureau U.S. authority recognize have the inherent held that federal courts constitution. for violations of the federal private damage — (1971). Bivens, along this with 403 U.S. 395-97 Since Court of state courts that have considered the issue great majority to infer a recognized corresponding authority private have provisions. cause of action under various state constitutional See 234-35, (1995); Gerhart, 658 A.2d 163 Vt. Shields Humble, Damages Action generally Implied see S. Cause of Constitutions, 75 A.L.R.5th Violation Provisions State (2000). under federal wrongs may certain find redress While law, rights value in the recognize independent we the inherent and in consti enshrined our own constitution. protections “[0]ur charter. ... It is an is not a mere reflection of the federal tution fundamental law.” State v. authority, and Vermont’s independent (1982); 430, 448-49, see Vt. Badger, Vt. I, ought within this state to find (“Every person Const. ch. art. laws, injuries for all a certain recourse remedy, by having or charac may person, property which one receive wrongs .”). . ter ..

¶28. Thus, within our rights enumerated Constitution a cause of action than the authority supporting no less provide precedent, or in this set out in our statutes Court’s rights are found to be self- rights those constitutional presuming which to Indeed, individuals of a means executing. deprive “[t]o the will of the negate would vindicate their constitutional constitution, nor the and neither this Court ratifying people

249 Shields, 223, Legislature power has the to do so.” 163 at 658 Vt. at A.2d

¶ 29. In whether a constitutional is determining provision courts have looked to standard self-executing, adopted by in Davis v. Burke: “A Supreme provision U.S. Court constitutional may by be if it self-executing supplies said be a sufficient rule may means which be . . right given enjoyed protected, of . self-executing merely and it it indicates principles, when laying may without rules means of principles down which those (1900) 399, given (quotation be force law.” 179 U.S. 403 omitted). Shields, upon explaining We this definition in expanded “a self-executing provision only should do more than express detail, general principles; may including describe the enjoyment 224, the means for its protection.” 163 Vt. at 658 A.2d at 928. We thus consider question whether the clause in Id.; a directive to the legislature further action.” “contain[s] see Convention Ctr. Comm. Bd. Elections & Referendum Ethics, (D.C. 1979) (concluding A.2d that because constitutional at city clause issue its terms expressly required legislation, Next, counsel to enact it could not be self-executing). we review the legislative history determine the intended effect Shields, of the at provision. Finally, Vt. 658 A.2d at 928. we must ensure any decision “for or against self- . . . execution with the rights scheme of established harmonize[s] a whole.” Id. In undertaking in the as constitution analysis this we look to the history text and of the provision constitutional question. See id. We also seek to determine whether acknowl edgement of a cause of action would lead to absurd or results redundancy or, instead, create a if such cause action in our constitutional structure. See id. important case, A.2d at 928-29. these criteria in Applying this we conclude the trial court be properly self-executing. found Article State, 30. In Baker v. analysis we undertook an extensive context, examining of Article its text and historical in laying out constitutionality the framework for judging government (1999). action. 170 Vt. espouses While Article 7 truism, a democratic it also on sets forth clear restriction government behavior. It provides: is, be, government ought

That or instituted for the benefit, common protection, security people, nation, emolu- community, particular not for of any family, or set advantage single person, ment or of that only community; a and who are of that persons, part indubitable, unalienable, and community the hath alter in such right, government, to reform or indefeasible be, judged most community, manner as shall that the weal. public conducive to I, Baker, began analysis art. we our this

Vt. ch. 7. Const. unequivocal “the affirmative mandate by recognizing and language 208, at 744 A.2d at 874. The second of the first section.” 170 Vt. the but oppressed, not the denial of “prohibits section upon or advantages rather the conferral of emoluments language that left “little doubt as privileged.” Id. We found this it was not nature” of Article and we noted that obligatory n.7, Id. at 208 744 “merely hortatory aspirational or effect.” express that “do Though at 874 we observed the words A.2d n.7. we nature of the recognized explicit right broad principles,” against “the they specific proscription governmental conferred: men,’ not or but also only favoritism toward groups ‘set[s] ” ‘family’ ‘single or man.’ Id. at any particular toward (alteration its core the Common original). A.2d at 875 “[A]t afforded government a vision of that expressed Benefits Clause and no protection provided its benefit and every Vermonter 208-09, at advantage.” Id. at A.2d 875. particular Vermonter self-executing Article 7 is we determining 31. In whether Shields, I, Chapter which held that Article take from guidance Constitution,2 persons equally all are born providing of our “[t]hat inherent, natural, and free and have certain independent, and 224-25, 658 self-executing. 163 Vt. at rights,” unalienable under right a action recognizing A.2d at We reasoned allowing an consequences,” that Article “would lead absurd happiness.” and obtain right pursue individual sue “to that Article Conversely, Id. A.2d at we concluded at provides: persons equally free and part are born 1 in “That all Article relevant natural, inherent, rights, amongst independent, certain and unalienable and have defending liberty, acquiring, possessing and enjoying and which life are safety obtaining protecting property, pursuing happiness and ...” Vt. I, ch. art. 1. Const. — forth specific set free speech right,3 the people “[t]hat

have a speech” to freedom found provision be self-executing. Id. at 930. The protection set forth in Article explained, we is “a fundamental characteristic government”; democratic the “right of the to make people And, themselves heard.” Id. although of the Article language did not identify any means for protecting right, only stating restrained,” the freedom of expression “ought not to be we “expresse[d] found that it more than general principles alone.” Id. Indeed, legislative absence directive supported our conclusion that the provision was Id. self-executing.

1132.Article 7 expresses similarly fundamental right: that the government is created to benefit all of people and that preferential treatment for “any person, single family, set of persons” is prohibited. I, Vt. Const. ch. art. 7. Though presented as a of government restriction and not a grant of privileges, 7 guarantees Article right the the people government of to a that does any not favor one person family over another. Government is not for the chosen few. It constitutionally acts only when it and protects benefits all people equally. right That is as clear as the of right speech free set out Article 13. It is “so certain and definite judicial character as to form rules for decision.” State Carruth, 271, (1911). 273-74, 922, 85 Vt. 81 A. 923 ¶ 33. Although Article 7 a provide does not private treatment, for discriminatory a similar no impedi omission was ment our holding to that Article 13 was self-executing. “The lack of a specific remedy itself should not defeat the contention a constitutional provision . . . law self-executing. provide will [T]he a remedy Shields, for any right legal to amenable enforcement.” 225, 929; 163 at 126, Vt. 658 A.2d at cf. v. Seery, Welch 138 Vt. 128, 1351, (1980) I, 411 A.2d (recognizing Chapter — Article 6 of Vermont Constitution officers of government are to people accountable the “is but a of republican truism a form government” of and “provides private right thus no of action”). 13, As was the case with Article it would make little require sense Article 7 to action in legislative prohibit order to provides: people right speech, This section the “That have a to freedom of and sentiments, publishing writing concerning govern of and their the transactions of ment, press ought and therefore the of freedom the not be restrained.” Vt. I, Const. ch. art. 13. Shields, actions. 163 Vt. exclusionary government biased and See 930; Comm., at 658 A.2d at cf. Convention Ctr. Referendum self-executing at at not because (holding clause issue as are body adopt “shall such acts legislative clause stated this one necessary carry the of Amendment within purpose out (180) date of days and of the effective this eighty hundred Amendment”). of we 7 within the context Finally, examine Article 7 suggests,

the as a As the of Article history Constitution whole. central community of the welfare of the protection establishing democracy. vision of American egalitarian exercising authority inequitably of its concept government a particular a for the emolument of without rational basis or of complementing was anathema to that end. In group (Article (Article 13), 11), private speech personal privacy free (Article (Article 8), 2), fair judicial fair elections property (Article 4), benefits Article 7 ensures that “the process of state are for the common benefit protections conferred are for the who are community advantage persons Baker, at 744 A.2d at only community.” of that 170 Vt. part omitted). (internal that “the aim of the quotation marks Given favoritism to protect Common Benefit Clause state from of compact and to remind citizens of the sense that lies individuals In re One government,” Property heart of constitutional A.2d City 152 Vt. Burlington, Church Street (1989), goal this same cause action to ensure recognizing contrary; Quite no to our constitutional scheme. does violence challenge perceived affording right partiality citizens the vigorous protection for commu governmental entity ensures A nity compact government. private that is the heart injury no to the framework of under Article 7 does action Accordingly, in our we conclude laid out Constitution. protections self-executing. that Article 7 is however, is self-executing, Article 7 is Concluding that that the only and “means step analysis the first our

merely legislative further action contained therein do need rights Shields, 227-28, A.2d at 930. We 163 Vt. at 658 operative.” become remedy are appropriate if monetary damages next must decide at As at 658 A.2d violation. Id. for the constitutional monetary a imply may appropriate “it be recognized, Shields damages remedy enforce constitutional where the rights Leg islature has fashioned no other remedial scheme.” Id. As adequate observed, however, Shields also have been cautious in “[w]e a creating private damage remedy Legislature even where the has provided no Id. remedy.” alternative civil at at 933. A.2d Thus, Legislature the provided remedy, although “[w]here has not be may as effective for the as plaintiff money we damages, will defer ordinarily statutory to the remedy and refuse to 234-35, supplement it.” Id. at 658 A.2d at 934. The ultimate whether, question is famously as Justice Harlan observed Bivens, “compensatory ‘necessary" relief ‘appropriate’ the (Harlan, vindication J., interest asserted.” 403 U.S. at of added).4 concurring) (emphasis ¶ 36. whether Determining a constitutional tort merits monetary relief, therefore, necessarily compels inquiry careful precise into the nature of the injury alleged the adequacy existing remedies to redress it. The question highly is thus — contextual, where, here, particularly as right question equal treatment under may the law be raised in many so See, Sabo, (Conn. circumstances. e.g., Binette v. 1998) (deciding whether damages to allow for state constitutional tort “must be determined on a case-by-case basis” utilizing a analysis,” “multifactor including “the nature of the purported conduct,” unconstitutional harm,” “the nature and other factors); N.C., (N.C. 1992) Corum Univ. 413 S.E.2d (recognizing validity of damage award for of plaintiff’s violation state right constitutional to free speech while acknowledging are our protected by “[v]arious Declaration Rights require may greater or rectify lesser relief to such the violation of rights, depending upon violated and the facts case”). particular The caution that we raised in is accord Shields magnified in the ingly context of recognizing a tort under remedy the broad mandate of Article 7. Bivens, Supreme availability Since U.S. Court has limited the Chilicky, present.

when alternative remedies are See Schweiker v. 487 U.S. (1988). longer allege 428-29 It no sufficient under federal law statutory complete available or administrative do mechanisms not afford as (“When provide. aas Bivens action id. design would See of a program suggests provided Congress Government has what it considers , adequate remedial mechanisms for constitutional violations ... we have not remedies.”). created additional Bivens therefore, conclude, it is not sufficient for 37. that We show plaintiff simply a these circumstances seeking the interest adequate that or she lacks a to vindicate remedy he Rather, it necessary appropriate that is and asserted. we conclude monetary to obtain requirements to establish additional stringent understanding our of Combining relief for a violation of Article 7. discussed, of Article with purpose previously the and language of poten a tort necessary recognizing the care constitutional that must tially application, identify we three core elements broad a constitutional-tort claim based on viola comprise any potential First, course, must the plaintiff tion of Article 7. a show denial so, must doing plaintiff of a the show common benefit. compared to others disparate arbitrary treatment when Second, the the must show that denial similarly plaintiff situated. Finally, individual or particular group. favors another directly just” any we defer “reasonable and basis because must a judgment by governmental a supporting discretionary at a decisionmaker, Baker, plaintiff at A.2d Vt. was irrational only wholly must that the decision demonstrate not by personal that motives arbitrary, but also it was actuated such as position, the defendant’s official unrelated to duties will, vindictiveness, gain. ill or financial showing of an requiring 38. final factor This — necessary to bar routine unjustified motive entirely personal body change a its forcing political suits merely aimed judicial but decision, polities, through not through representative Article 7 not designed A constitutional tort action under action. govern branch of discretionary another review decisions body when a acts governmental ment harms caused but in violation of Article wholly arbitrary unjustified in a manner discrimi showing a that the by requiring end is served This irrational, plaintiff only not but natory treatment of harm solely plaintiff an actual desire to motivated such as self-enrichment or unjustified motives personal other enrichment of others. that the standard This additional echoes requirement equal in so-called “class-of-one” routinely apply

federal courts Olech, 528 U.S. Village cases. In Willowbrook protection (2000) curiam), that Supreme recognized Court (per the U.S. condition on imposing municipality a landowner could sue landowners, other required not permit had land-use Equal violation Protection Although Clause. the landowner did allege part “suspect that she was of a class” or denied a right, high fundamental court held she could sue as a one” by “class of that she “been showing intentionally had treated from differently similarly others situated there is no rational basis for the difference in 564. In treatment.” Id. at its per opinion, curiam the Court noted the landowner had alleged requirement that the municipality’s permit was “irrational and wholly arbitrary” and motivated what by the circuit court had characterized as “ill will” and a effort “spiteful ‘get’ to [the for wholly any landowner] reasons unrelated to legitimate state (citation omitted). objective.” 563, Id. at 564 In a concurring opinion, “ Breyer Justice observed that this factor” of “added ” action,’ animus,’ ‘vindictive ‘illegitimate or ‘ill will’ was both necessary “sufficient to any minimize concern about trans- forming run-of-the-mill zoning cases into cases of constitutional at right.” J., Id. 566 (Breyer, concurring).

¶ Many lower courts have applied Breyer’s since Justice view in requiring a showing such that cases local officials acted — unjustified with personal animus, ill-will, motives such as or financial gain See, wholly unrelated to their official duties. e.g., Nevel 673, (7th 2002) v. Vill. Schaumburg, 297 F.3d 681 Cir. of (property owners suing under equal class-of-one protection theory denial of permit town’s vinyl siding install on historic home must show that they were intentionally differently treated from similarly others for no situated rational reason and that cause of the differential treatment totally was “a illegitimate animus” defendant) plaintiff omitted); toward the (quotation DDA Moab, PGC, Ltd. v. Family P’ship City No. 2:04CV00392 2006 of (D. 1409124, 2006) 19, WL at *9 May Utah (developer claiming that denial city’s permit of violated must equal protection show sought it of city “deliberately protection deprive equal of the laws for of a personal reasons nature” and based on a Builders, “totally illegitimate animus toward” developer); Lakeside Franklin, Inc. Planning v. Bd. Town No. CIV.A 00-12170- of 31655250, (D. 2002) (unsuc GAO, 21, 2002 WL at *4 Mass. Mar. cessful applicants for subdivision permit claiming equal denial protection must show that local “deliberately sought board deprive equal them of the laws for of a protection reasons nature”); Cicero, or personal v. improper Lema Town No. 1631893, (N.D. 2001) 01C0042, 18, 2001 WL at Ill. *5 Dec. 256

(landowner for denial in violation of seeking damages permit unequal “solely must show that treatment was equal protection him or “was a effort to spiteful ‘get’ motivated vindictiveness” any objective”); for reasons state wholly legitimate unrelated 258315, Cnty. Comm’n, v. No. 2006 WL Merry Livingston Road 2006) (subdivision (Mich. Apr. applicant *4 Ct. App. one’ claim must “asserting equal protection ‘class of show vindictively, ‘illegitimate defendant acted and that it exhibited ”); Valley, animus’ and ‘ill will’ Assocs. v. Town Pleasant Bower (N.Y. 2004) N.E.2d (housing developer claiming must permit equal protection town’s denial of subdivision violated motive”); City, Patterson v. Am. Fork prove “impermissible ¶¶ 33-34, P.3d (noting proving that burden of UT one requiring intent under Olech an onerous discriminatory animus”); grounded personal of “intentional discrimination proof (7th 2004) F.3d Duperrault, see also Bell v. Cir. (Posner, J., out a concurring) (observing to make class-of-one must that the equal protection “plaintiff present case evidence protec him of the deliberately sought deprive equal defendant tion of the of a nature unrelated to personal laws reasons “animus,” position,” “larceny,” duties of defendant’s such as omitted)); (quotation “a find a Esmail scapegoat” desire to (7th 1995) Macrane, 176, equal Cir. (permitting 53 F.3d 179 unjust license based on denial of and protection liquor suit alleged “the to have unequal because treatment prosecution a the see mayor”); of solely campaign been result vindictive Araiza, in Irrationality W. and Animus generally Class-of-One (2007) Cases, 493, (noting 498 Equal Ecology L.Q. Protection 34 to that the that since “lower courts have continued insist Olech ill the government will on the of plaintiff part show some defendant”). these to whether mon standards determine applying here, we not write a blank relief should be afforded do on

etary recall, of however, the precedents slate. It is important turn interest particular courts on the necessarily this other in asserted and the remedies otherwise available those cases. Thus, “injury in that the for which precise itself we found Shields interest property is the loss of the wants plaintiff] [the 236, A.2d at in care home license.” 163 family day her Vt. “exactly injury concluded this was 935. We giving to avoid provided by Legislature remedies seek deci- applicants opportunity or licensees an contest adverse sions,” remedy which plaintiff failed to Id. Accord- pursue. ingly, persuaded we were that the remedies to the available plaintiff “inadequate” alleged, noting were vindicate the harm further allowing monetary pre- relief the circumstances sented could actually discourage pursuing licensees from their remedy administrative “eviscerate” the thereby statutory scheme. Id. at 658 A.2d at 936.

¶42. part relied in Kelley Development, Shields on Property (Conn. Lebanon, 1993), v. Inc. Town 627 A.2d 909 a Connecticut Supreme Court decision denying to a real compensatory damages developer estate his civil suit against board municipal that had rejected his subdivision application. Kelley court adequate concluded that alternative remedies were available to the plaintiff the form of judicial appeal, tort action for intentional interference, or some form 923; Id. at see equitable relief. also Rockhouse Mountain Prop. Conway, Owners Ass’n v. Town (N.H. 1986) A.2d 1388-89 (denying damage remedy for town’s alleged equal-protection violation in refusing lay out village adequate available); roads where alternative relief was Provens v. Cnty. Stark Bd. Mental & Developmen Retardation Disabilities, (Ohio 1992) tal N.E.2d (denying state employee’s claim for constitutional damages “where other statu tory provisions and administrative procedures provide meaningful remedies”); Cal., see generally Katzberg Regents v. Univ. (Cal. 2002) P.3d 345 nn.9 & 10 (listing jurisdictions awarding and denying such damages). courts, 43. Other in variety of factual settings, have reached opposite conclusion, holding that monetary damages may be Sabo,

awarded for state constitutional violations. In Binette v. example, the same Connecticut court that decided held that Kelley a damage remedy was available under state constitution’s clause, search-and-seizure finding equally no effective no policy 698-99; reasons withhold such a remedy. 710 A.2d at (Md. Ctr., see also Widgeon E. Hosp. Shore 1984) (recognizing private cause of action for damages under due process search-and-seizure clauses of Declaration of Maryland State, (N.Y. 1996) Brown v. 674 Rights); N.E.2d 1139 (holding recognition that of action under private for equal protection and of consti- provisions search-and-seizure state was “appropriate tution to ensure the full realization of the state”); Edelstein, they generally Donoghue see G. & J. Life After Brown: The Tort Actions New Future State Constitutional of (1998) York, 447, (listing twenty 42 N.Y.L. Sch. L. Rev. n.2 Puerto as for state permitting money damages states and Rico torts). constitutional bar, findings to the case at the trial court’s Returning — no that the essential unchallenged which are leave doubt Indeed, although

elements of a constitutional tort were satisfied. as one understandably the trial court characterized violation that equal findings its indicate sounding protection, discrimination Rhodes against might selectboard’s relentless a process. be characterized as fundamental violation of due equally (1954) (observing that Bolling Sharpe, See U.S. protection process, stemming “the and due both concepts equal fairness, mutually from our American ideal of are not exclusive” unjustifiable as may be so to be violative and that “discrimination Albans, LLC, Properties due In re process”); JLD St. ¶87, 6, (reaffirming settled principle VT Vt. A.3d 641 trial is a basic impartial “a fair before decisionmaker omitted)); v. Town requirement of due Parker process” (quotation (1998) Milton, 74, 80, (noting 169 Vt. 481-82 they proce claimed “were denied plaintiffs simultaneously proceeding the administrative process dural due because decisionmaker” and that were denied by “they conducted biased were they the law because treated differ equal protection under situated”). ently similarly from others in this of the constitutional violation case essence impartial fair and repeated provide was the selectboard’s failure Rhodes decisionmaking, against result of a relentless bias recall trial court’s most salient neighbors. favoritism toward To that the finding specifically in this found regard, “‘[U]nnamed Town Board clear demonstrate^] decisions Select [R]oad’ preference” show for continuing effort Board to Select example over and were neighbors prime Rhodes against Mr. pervasive ongoing selectboard’s “discrimination interests,” effect preference [neighbors’] Rhodes and its to his property which was to Rhodes reasonable access deny question thus no the selectboard many There is years. pro in violation of due against discriminated Rhodes invidiously cess and Article 7.

¶ whether, 46. The closer question notwithstanding these bias, findings of blatant discrimination and Rhodes had a the without an adequate injury damages redress award for in Bearing constitutional violation. mind the extraordinary alleged, factual circumstances and the harm we have presented no difficulty a need for this case. recognizing monetary relief harm to Rhodes consisted of the selectboard’s intentional abuse of office over course of than a through more decade decisions concerning prevented, the Unnamed Road TH #20 that obstructed, delayed his property. efforts access his These decisions, found, the court discriminatory as were and motivated self-interest, by and therefore violated Rhodes’s to due process protection. and equal

¶ Injunctive 47. relief the form of belated order requiring the selectboard to reverse its and reclassify decision from Unnamed Road a trail to a class 4 does highway not begin to compensate Rhodes for any emotional and economic injury Indeed, caused by these actions. it very corruption was the of the classification process span itself over the than a more dozen years that Brown, caused the harm in the first place. See (holding N.E.2d at 1141 damages award constitutional short”). tort necessary was injunctive where remedies fall “all Nor an alternative statutory remedy available the form of damages. condemnation Having ultimately recognized the Un named Road as town highway, selectboard’s decision to downgrade its status to a trail did not have as we elsewhere —held constitute a “taking” entitling abutting landowners to ¶ compensation. Dorset, 49, 13, See Ketchum v. Town 2011 VT (mem.) 190 Vt. 22 A.3d 500 (reaffirming “downgrad rule ing Berlin, a road taking”); does involve a Perrin Town 306, 307, (1980) 138 Vt. (holding A.2d that down grading highway of town to a trail “does not involve the acquisi tion of property rights from the owners” so that “no abutting involved”). Furthermore, damages possibility are while the judicial may decision, ultimately review overturn biased see JLD Props., not cure the harm personal VT does this, inflicted in exceptional involving an case such as a lengthy pattern obstruction, delay, of invidious and discriminatory decisionmaking. Accordingly, we conclude that an award of com- proper necessary case is in this damages pensatory harm alleged.5 vindicate the Nevertheless, not satisfied we are tethered to carefully court here were the trial

awarded expert appraisal, upon Based proved. actually alleged harm difference between harm measured the the trial court as a denominated Road with the Unnamed the property value of $900,000, or development,” that would “allow 4 highway class or trail, development,” which “limits [its] value as a and its note, $830,000. award of We damage in a $70,000, resulting had no that Rhodes also found however, the trial court market the property. develop current plans was not actual harm Therefore, that the we conclude value, and anguish but the in development loss speculative the reasonable gain efforts to from of resulting years inconvenience selectboard, to a biased by frustrated property to the access by caused improvements for road additional costs any with gether must be the case conclude that we delay. Accordingly, the to recalcu proceedings court for additional to the trial remanded to In addition Rhodes. by suffered damages actually the late also recon may on remand the trial court damages, recalculating 4 as a class Road the Unnamed reclassify the to request sider to decision that the Town’s findings earlier its upon road based sound, improp trail, procedurally while road as a classify the Bivens, at 404-05 403 U.S. motivated. See maliciously erly inva relief against (Harlan, J., (noting equitable concurring) of recognition interests long preceded sions of constitutional damages). monetary to on opinion dissenting to the response a brief Finally, whether, in a given Deciding inis order. damages

the issue of to adequate is damages from civil case, apart of relief some form 5 injunctive is remedy relief invariably inadequate conclude that This is not e.g., violation. resulting See, or due from an process the harm equal protection 1977) (Ala. Ala., (granting Jiffy 761 City Hueytown Chek Co. 342 So. 2d v. of of concluding violated state had equal license after municipality liquor plaintiff Dep’t Transp. Repair & Aero-Auto-Aqua Serv. clause); Herrick’s of protection 1988) (“When (Alaska that an Facilities, court finds Pub. 754 P.2d 1111, enforcing regulations in a which violates agency equal its way administrative activity.”). offending enjoin the it should constitution], the state [under protection legal context in which facts and case turns on As each noted, particular arises. difficult,

remedy constitutional violation is disagreement However, hold, suggests, we do not as the dissent surprising. must be when an damages remedy afforded alternative does Post, not “completely” 94. We compensate injury. recognize, rather, the law an supports damages civil when alternative does not meaningfully compensate injury. See Bush v. (1983) Lucas, (rejecting U.S. award civil-damage where claims were substan- plaintiffs’ governed by comprehensive procedural tive and statutory providing scheme rem- “meaningful edies”); 58 P.3d at Katzberg, (holding availability of “[t]he meaningful alternative remedies” counseled against recognition of tort). Bivens, notes, constitutional Supreme as the dissent Court found that civil damages compensate were appropriate intangible harm occasioned Fourth Amendment violation at issue. See U.S. 395-96. Similar considerations Brown, militated favor civil in cases such as damages (search-and-seizure N.E.2d at 1141 equal protection viola- tions), Corum, violation), 413 S.E.2d at 290-91 (free-speech (search-and-seizure Binette, violation), 710 A.2d at 700-01 among others.

¶ 51. The same Although conclusion follows here. the dissent asserts that the injury essence was the Town’s decision to trail, classify the Road sought damages Unnamed as a Rhodes compensate him for the Town’s violation of the Common Benefits Clause, and trial court found that he had such established violation showing pattern discriminatory a “consistent con duct Subject, course, that has lasted more than years.” twelve proof actual injury, award civil for the mental or emotional from resulting distress such misconduct is clearly relief, necessary to provide meaningful presents no particular 247, (1978) or novelty. See 435 difficulty Carey Piphus, v. U.S. 263 (discerning difficulty” “no “that mental and particular showing actually by emotional distress was caused the denial of procedural itself’); Smithtown, due process Walz v. Town 46 F.3d of 1995) (2d 169-70 compensatory damage Cir. award for (upholding from by due-process emotional distress suffered town’s plaintiffs in refusing permit violation to issue unless street-excavation town). plaintiffs conveyed part their land to The dissent incorrect, therefore, injunctive adequate that relief is asserting in these circumstances.

262

II. holding, of our we potential scope of the cognizant While its limita- emphasize important that it is understand equally recog- militating against of the concerns principal tions. One tort in these circumstances nition of a constitutional on those citizens who potential “chilling” effect conscientious on their time and resources to serve local contribute valuable recall, however, It is Kelley, 627 A.2d at 923-24. well boards. liability for already subject that are these same individuals § 42 v. violations of federal law under U.S.C. See Hafer (1991) be held Melo, may officials (government 502 U.S. 25-28 § actions upon for under 1983 based personally liable authority); Dep’t within their official Monell Soc. undertaken (1978) Servs., (holding municipality that a “can U.S. declaratory, or monetary, § 1983 for directly be sued under relief’). injunctive noted, recognized has Supreme 53. As the U.S. Court action bring alleging owner a civil property may treating protection process by

local due equal officials violated situated for differently similarly owner from others property and motivated wholly arbitrary that were irrational reasons Olech, unrelated to their official duties. by personal reasons cases have since addressed claims U.S. at 565. Innumerable — that brought plaintiff here local land-use similar to those will, ill arbitrary and irrational actuated decisions were motivations gain, unjustified personal for financial or other desire owner’s federal constitutional property therefore violated Although the law or equal process. due protection See, successful, far unique. e.g., such claims are from always Nevel, judgment village for (upholding summary 297 F.3d at 681 denial of village’s § 1983 claim that where owner’s property vinyl punish” was “to homeowner permit siding to install building animus”); v. Vill. illegitimate Forseth “totally failed to establish 2000) (7th landowners Sussex, (holding Cir. 199 F.3d § claim 1983 discrimination alleged grounds had sufficient bordered president, property whose they alleged where that board landowners, gain” final “for plat approval personal denied landowners); Ltd. WL P’ship, at DDA expense Family town on **1, summary (granting judgment denial city’s claimed that developer § action residential where

263 developer’s of subdivision was result of from permit “animosity” but prior developer “proving activities failed to adduce evidence Lema, totally illegitimate developer); animus toward” 2001 WL **2, at 5 that (holding property allegations owner’s that city application denied business license “because of his political and his opposing affiliation activities” board were suffi- president action). cient of to allegation § “animus” 1983 support ¶ 54. Incrementally expanding exposure local officials or municipality misconduct under the Vermont Constitution not, therefore, represent does a dramatic expansion potential liability a compelling or basis for nonrecognition a state Indeed, constitutional tort.6 even under the very liberal standards of notice-pleading, state and federal courts have routinely granted upheld or dismissals of equal protection class-of-one claims where simply the facts failed to requisite See, show the intent. malicious Builders, e.g., Lakeside 2002 WL *4 (dismissing § developer’s city 1983 claim that in failing discriminated to waive subdivision requirements where developer plead failed to facts showing action was “for of a personal reasons improper nature”); Merry, 2006 WL at *4 (upholding dismissal of landowner’s suit claiming discrimination in county’s denial of permit subdivision where to allege landowner failed that defendant “acted vindictively will”); Assocs., or with ill Bower 814 N.E.2d at 419 (upholding § dismissal of claiming 1983 action that denial of permit subdivision equal violated protection complaint where failed requisite showing motivation”); make “the of improper Patterson, 2003 UT dismissal (upholding of residential § developer’s 1983 action alleging denial development permits equal protection violated where fell “short of complaint providing any explanation of specific [alleged] the source of this malevolence”). It equally important recognize that selectboards agencies

and other local authority exercise considerable boards, influence in the lives local citizens. Service on such noted, statutory remedy § As other courts have under federal 42 U.S.C. generally impediment judicial damages remedy” recognition no “creates of a constitution, civil under state as the statute is limited to violations of law, protect may federal the state constitution broader than those interests Binette, Widgeon, n.18; under the federal constitution. 710 A.2d at see also persuasive § (holding A.2d at existence under 1983 “is not constitution). claim on basis” defeat based state admirable, with certain necessarily properly carries however being duty not the least legal responsibilities, ethical and appear all who before them. When fairly deal with impartially against to discriminate responsibility flagrantly abused reasons, no neighbors policy we discern purely personal one’s agencies from local and officials liability reason withhold — — to them accountable.7 contrary reason on the hold every objection by A some is the reluc expressed 56. related a constitu every potential tance to transform local decision into 924; Rockhouse, at A.2d 503 A.2d Kelley, tional tort. See First, we objection expressly The to this is twofold. response 1389. where invidious holding specific limit our to the circumstance by process equal violates due discrimination a selectboard alternative adequate, in finds no protection injury and results noted, earlier the question or relief. As injunctive compensatory of a must made available for the violation whether be facts necessarily by specific determined constitutional if most it arises. In not cases legal many context in which — equitable, 7 other remedies treatment under Article improper suffice, rendering further statutory, may or otherwise well We are not unlikely or to succeed. litigation unnecessary either therefore, will result in a flood of that our decision persuaded, liability. or litigation a Second, for stating have established standards 57. we as a buffer under Article 7 that will stand

constitutional-tort claim egregious in all the most of cases. against liability but severely faith a actual malice or bad showing requirement doing it serves holding. our so scope limits doctrine otherwise immunity function of the qualified equivalent in discretionary acts they perform local officials “when available to generally against officials Although are maintained the individual Bivens actions immune from responsible alleged the United States is for the misconduct because Bivens, (Harlan, J., many suit, concurring), in a cases where at 410 see U.S. against upheld “it is the State or damage remedy under constitutional law state Morris, (Ind. v. not individual officers.” Cantrell agency, 849 N.E.2d its Brown, 2006); see, (holding there no reason e.g., at 1142 that there was 674 N.E.2d by its officers or torts not held “liable constitutional the state could be Here, statute, by employment”). Rhodes employees acting in their the course of 901(a) § required 24 V.S.A. Town for the acts of its officers. to sue the brought against any against such (requiring officers “shall be suit town town”). faith” good within the course their scope employment. (2001) Morway Trombly, 173 Vt. omitted). (quotation time, At complete the same we do so far as to allow go

immunity these circumstances. the Town Although invokes doctrine of municipal immunity completely absolve itself from liability, we logic policy discern no purpose recognizing tort our rights constitutional derived from fundamental charter of simultaneously while the Town granting immunity because was performing “governmental” function. id. at 789 A.2d at See 968 (noting Vermont’s continued reliance on the “arbitrary gov- ernmental-proprietary distinction” for im- determining municipal omitted)). munity Corum, (quotation As the court confronting issue, related explained: “It would be a gesture indeed fanciful on say the one hand that citizens have constitutional individual civil rights protected are from encroachment actions State, on while the other hand saying individuals whose constitutional have been violated the State cannot sue because of the doctrine of sovereign immunity.” 413 S.E.2d at Here, the Town selectboard was performing governmental a function, but in a doing so manner that discriminated invidiously against Rhodes in 7, violation of due process and Article there can be no immunity for such conduct.

¶ 59. recognized Another avenue of redress for claims of treatment unequal by local is officials the ballot box. A political well response may remedy be an appropriate the perception Welch, unfairness local decisionmakers. Vt. at 411 See 138 I, A.2d 1352 that (holding Article 6 of the Chapter Vermont provides private Constitution no action right of and that “[t]he election”).8 remedy contemplated by it is that of popular Unlike 6, however, Article Article 7 self-executing is and creates a specific right; it is more than a republican government. mere “truism” of Moreover, Id. election a the is a majority decided voters particularly ill-suited vehicle to the visited a wrongs upon or a single person minority. The ballot box is an adequate not remedy in the violation case. thus sound this We discern no 8 provides: power consequently being originally 6 Article “That all in and inherent people, therefore, government, legislative derived from the all officers of whether executive, servants; times, way, legal or them are trustees and and at all in a I, accountable to them.” Vt. ch. art. Const. 6. 266 constitutional violation for the deny monetary

basis to in this case. alleged proved

III. that arguments 60. Town advances a number of additional The First, it the trial court lacked asserts unpersuasive. we find II Road subject-matter jurisdiction hearing because Unnamed procedures administrative employ the court did not 2006 7. the chapter Specifically, under Title required by statute trial failed three commis- appoint Town claims that the court the necessity inquire “to into the convenience sioners out, the in which has been laid highway, and manner proposed that altered, § 19 741. The Town contends resurveyed.” or V.S.A. it, and without Rhodes mandatory, process this administrative remedies, thus, the trial failed to exhaust his administrative disagree. not the matter. We court could hear statutory this structure is applicability law, v. Hodgdon, we review de novo. Benson question of which (mem.). 11, 10, 992 1053 Rhodes’s 187 Vt. A.2d VT the request no court to the trial court 2006 made petition out, altered, in which road had been laid any rule on the manner Rather, he § asked resurveyed. or See V.S.A. classify court whether the Town’s decision determine noted, recently by its own Road a trail was valid. As we Unnamed § 741 under appointment terms the commissioners court issue before trial concerns triggered when the ¶¶ Ketchum, (noting 11-12 of a road. 2011 VT reclassification reclassification).9 in 741 no includes longer § that “altered” Charleston, decision, 597 A.2d 321 Vt. In an Hansen Town earlier (1991), jurisdiction review a road commissioner’s court had we held the trial highway report involving class class 3 the reclassification of a in a case 310(b), provides § highway. regard which in this on V.S.A. Hansen relied required by necessity of highways may maintained to extent “Class be town, town, public of the good and the convenience of the inhabitants highways procedures laying may using as for out be the same reclassified meeting in this title.” In Town Calais standards set forth section (2002) (mem.), however, Commissioners, County 173 Vt. A.2d Road 310(b) trails. As we § involve the classification of it clear that does not we made 310(b)] procedure § for explained, “[ajlthough language references [of refer laying highways, appellees’ argument is it was intended to out trails, Legislature laying despite defined a trail procedure the fact that the out §in Id. at highway for trails 302.” as not and there are no standards

¶ 62. The Town next contends the trial court should have rejected Rhodes’s constitutional claims under the doctrine of res judicata because the federal court already had ruled on them. the doctrine judicata, Under of res or more claim specifically preclusion, “a final judgment previous litigation bars subsequent cause(s) litigation matter, if the parties, subject of action in both matters are the substantially same or identical.” Faulkner v. ¶ Ass’n, 123, 8, Caledonia Fair Cnty. 2004 VT 178 Vt.

103. Whether preclusion applies to the facts at hand a question of law reviewed de novo. Id. 5. The government conduct at issue before the federal court in 2008 was the Town’s decision to classify the Unnamed Road as a trail. The federal court noted already had dealt previous with Rhodes’s claims discrimination in 2007 and had dismissed that judicata suit on res grounds because the claims arose out of “prior scuffles” which had been litigated state court. It limited the scope ruling its 2008 appeal decision, Rhodes’s of the Town’s classification which the state trial court had already considered. supra, See 18 (relating court). Town’s decision to remove case to federal In granting summary Rhodes, judgment against the court held that Rhodes had failed to show that state remedies constitutionally were inadequate and refused to jurisdiction “retain over remaining state law issues.” The court again reminded the parties that “to the extent this action has been brought due to [the Town’s] non-compliance with prior state court judgments, the appropriate path post-judgment seek relief in [Rhodes] the state court.” reject 63. We also the Town’s contention that Rhodes’s

federal due process § claims under 1983 and his claims for identical,” thus, under our Constitution “virtually are Rhodes should have raised his claim for damages under Article 7 court, not, before the federal and because he did precluded he is doing from so now.10 preclusion applies only Claim where there judgment Faulkner, was a final on the relevant issue. 2004 VT added). (emphasis rejected argument, A.2d observing: “Properly at 1270 We understood, 310(b) language option § the reclassification refers to the reclassify highway higher gain a class 4 to a classification to state financial aid.” Id. That was clearly not the case here. recognizes precise analog among Town itself that Article 7 “finds no rights provided by Thus, the Town’s reliance on Stevens v. the U.S. Constitution.” Steams, recognized “preclusive wherein we effect” of a federal court’s earlier ¶ Here, 11. the federal court the state specifically exempted law from its and remanded the case on those issues. ruling claims fact, decision, expressly precluded In in the federal court its judicata they Rhodes’s federal claims on res because had grounds short, claim based already proven been in state court. Rhodes’s remanded from the on the 2002 order and the state law claims federal federal court rest on decisions the state court. The us. court did not decide the issues that are now before simply ¶ trial erred in Finally, the Town contends that court TH #20 approval upgrade that it must Rhodes to ruling grant because the Town violated Article 7. We see no need to address agreed as the Town to argument directly long ago Town’s /, TH #20. In Rhodes we approve application upgrade Rhodes’s to that the we affirm the trial court’s decision explained “[o]nce of TH #20 is a . . . the Town asserts disputed portion highway, fully its with this decision and willingness comply Court’s order, accept including allowing the trial court’s [Rhodes] and maintain TH #20.” 2003 17. We find no improve VT order that the Town follow on its through error the trial court’s Rhodes’s or show cause repeated promise approve application continued failure to why contempt it should not be held for its comply.

IV. had a cause of action Having determined Rhodes damages, under Article 7 and deserved a measure of we turn concerning damages. the amount of his He cross-appeal Rhodes’s First, he that the Town is liable for argues makes two claims. — $4,907.96 his second spent engineering preparing he on fees TH #20 permission improve and most recent application Second, the Town’s 2007 road ordinance. to meet the standards of trial court erred in his claim for denying he claims selectboard given finding the court’s punitive damages acted in bad faith and with malice. that he is due the additional costs of his 66. Rhodes contends from the selectboard’s work because resulted

engineering with no permission process conduct in out the drawing bad-faith not his The trial court did approving requests. intention of immunity defense, misplaced. agents’ qualified ruling government 2003 VT on 1126, 175 Vt. 833 A.2d 835. address this request. Having earlier determined to remand the matter to the trial court to reconsider generally the issue of relief, damages and equitable we also direct the court to address question of the additional costs. engineering ¶ 67. As to Rhodes’s claim for punitive damages, he suggests such are appropriate where the author highest malice, ity the Town acted with arguing that the Town should be treated like any other corporate entity. We their disagree. By nature, very punitive damages are meant to reward the injured, but to punish and deter the wrongdoer. Monahan v. ¶ 110, 55, Mortg. Corp., 298; GMAC 2005 VT 179 Vt. Concerts, accord City Inc., Newport Fact 453 U.S. 266-67 of (1981). held, As we have an support award of punitive damages for a defendant’s intentionally conduct, wrongful a plaintiff must show that the defendant acted with actual malice: the defendant’s wrongdoing has been deliberate, intentional and has the character of outrage frequently associated with crime. Monahan, 2005 VT 55. Regardless of whether the Town’s standard, however, actions meet this that, we hold absent a clear legislative directive to the contrary, municipalities are immune from punitive damage awards.

¶ 68. In denying Rhodes’s initial motion for punitive damages, the trial court cited the U.S. Supreme Court decision City of Newport There, v. Fact Concerts. the high court considered the propriety of an award punitive damages against a in a city § federal 1983 suit where the city council had acted unlawfully voiding a contract. 453 U.S. at 252-53. The Court vacated the award because history the and policy § behind 1983 suits did not “support a exposing municipality punitive damages for the bad-faith actions of its officials.”Id. at 271. While the development §of 1983 actions and the award of damages under that law are distinct from the action we herein recognize under Article policy rationale for limiting punitive damages is persuasive. — ¶ 69. The twin aims behind punitive damages punishment and deterrence would not be met if they were levied a against municipal corporation for the malicious and of its wrongful acts officers. Rather than exclusively targeting wrongdoers, such an award punish would all of the taxpayers. town’s id. at See (“[A]n punitive award of damages against a municipality ‘punishes’ only taxpayers, who took no in the part commission of the the amount over and above are assessed damages tort. These many As other injured party”). necessary compensate is benefited public “while the recognized, courts have malicious, reckless a willful or damages against of such exaction itself is public when the the benefit does not follow wrongdoer, which it is able agents acts of its over for the penalized The Law of McQuillin, E. but little direct control.” 18 exercise 2003). (3d 53.18.10, The same at 316 ed. § Municipal Corporations while damages, for compensatory the award of cannot be said for their is to make purpose they upon taxpayers, also fall whole, or deter. punish not to injured party unmet is likewise punitive damages The deterrent aim of no direct Facing a against municipality. such allowing damages As wanting. individual officials hardship, financial detérrence of municipal deterring vehicle for proper punishment, with Newport, U.S. City elections. See through public officials is (“[T]he against that are available damages compensatory at 269 wrong- to vote the public themselves induce the may municipality office”). imposition little in the gain There is doers out of potential and much municipality damages against punitive hardship. misdirected should be corporation municipal 71. Rhodes’s claim that a damages is assessing punitive corporation like a private

treated on the shareholders unavailing. impact punitive from different corporation significantly held publicly id. at See municipal corporation. of a impact upon taxpayers municipal officers of distinction between (noting long-held 261-62 regard with private corporation and officers of corporation brief, willingly risk In shareholders damages). efficacy punitive for the sake of in a investing public corporation when their wealth to pay and are not bound return on that investment a municipality’s taxpay- A capacity. financial company’s beyond and have a less contrast, gamble ers, equivalent in make no such liability. cap on their reliable and that precedent in line with our 72. This result is 53.18.10, § McQuillin, supra, 18 E. jurisdictions. See

many of other majority jurisdictions” “overwhelming in (observing at 314 “firmly municipality damages against punitive on prohibition authorized). this decision of An older otherwise established” unless finality. the same quite if not with similarly, concluded Court Albans, (1897), A. we Village Willett v. St. 69 Vt. considered whether a could be liable for the municipal corporation negligent construction and maintenance of its sewer when system a sewer main a polluted village broken brook. The defendant an award of appealed punitive damages liability, based on this this Court reversed. we whether Although speculated punitive damages might against be available under municipalities doctrine of respondeat superior approve when town officers of a act, malicious we did not directly query. answer that Id. at Instead, A. at 75. we observed that the only village’s negligence did not constitute the type generally conduct that warrants punitive Id. we damages. Today, question. answer this Because the punishment twin aims of and deterrence are not served when punitive damages are levied a for the acts of against population its officials, elected cannot municipal corporations be held liable for punitive damages.

V. Lastly, we consider the concerning Town’s claims the trial court’s 2004 decision on the status legal of the Unnamed Road. Central to the issue is whether the appeal timely. Town’s We conclude that it is not. The trial court issued its written decision in I in February Unnamed Road concluding Road Unnamed was town or The court re- public highway. manded the matter to the Town proceed- for further classification ings “not inconsistent with this decision and Order.” The docket entries indicate that the case officially disposed by “opinion later, and order” on years More than six and after “2/13/2004.” Road, additional proceedings concerning numerous the Unnamed Town filed motion in the trial court to court’s reconsider the and, 2004 decision alternatively, judgment for relief from under 60(b). Rule of Vermont Civil Procedure The trial court ruled the untimely. motion appeal, argues On the Town that its motion for court, reconsideration was timely because the failed comply with the dictates of Rule 58 and Rule which respec- tively require that for a to be effective it must be set judgment separate forth on a document and entered into the civil docket. ¶ 74. clarify Rule 58 was amended 2002 to effective, to be must be set forth in a judgment, separate only provided document and is then “effective when entered as 272 79(a).” 58. Rule 79 the court clerk to requires

Rule V.R.C.P. entries for each order or maintain a civil docket and make 79(a)(2). separate other actions. The judgment, among V.R.C.P. about, in brought part, by- document in Rule 58 was requirement Goshen, this In Baker v. Town two cases before Court. of of an was at issue after the trial court made its appeal timeliness bench, from that orally entry decision from the and the docket 145, 148, 730 A.2d day said “CASE CLOSED.” 169 Vt. (1999) later, a written decision . Four months the court issued of which upon parties’ request. appeal, question one of the On — subsequent date of decision the docket or the written entry — appeal. “entry judgment” purposes decision 4(a) days to be filed “within 30 (requiring appeal See V.R.A.P. ruled that Rule 58 entry judgment”). the date of the We order, a written required approve sign judgment the court to and, order, entry entry without an the docket was not an such appeal period. and did not commence the of the judgment running Baker, this upon logic 169 Vt. at 596. We built order a motion Hayes, holding entry granting Powers v. summary judgment entry judgment did not constitute an a proposed when the had filed prevailing party subsequently order, had not to the judgment responded proposal and the court 639, 640, A.2d thirty days ruling. within of its 170 Vt. (2000) (mem.). Powers, remarked that Rule 58 “specifically we after the court renders a decision in order to requires action judgment.” reduce that decision to a Id. to harmonize again 75. In Rule 58 was amended that, made clear in a case

with the federal rule. amendment reason, but, has such a document is for whatever required where entry been created within 150 of the clerk’s of the days docket, on the becomes effective automati judgment judgment 58(b). day “designed The 150 to ensure cally. “cap” See V.R.C.R (or bring forever to parties given appeal that the will not be motion) fails forth a judgment when a court to set post-judgment 58(a).” in violation of separate or order on a document V.R.C.R — Amendment, 4 (quotation Reporter’s Notes V.R.A.P. Amendment, omitted); Reporter’s concern that an ambiguous date of the entry judgment precluded a party from in a appealing timely manner instant appeal requested was well beyond our new 150-day cap. Finally, there was no conflict between the date when the trial court disposed of the through case its order and the date reflected on the docket sheet. Cf. Burton v. Jeremiah Beach Parker ¶55, 14, Restoration & Mgmt. Corp., 583, Constr. 2010 VT 188 Vt. (mem.) 6 A.3d 38 that (holding though trial court findings issued and conclusions and docket entry reflected “case on closed” same date, judgment no entered because court still addressing attor- motion); ney’s fees Hoeker v. Dep’t Servs., Soc. & Rehab. 620, 620-21, 495, (2000) (mem.) Vt. 765 A.2d (ruling that docket entry listing “case closed” at same time trial court issued “entry regarding motion” not sufficient to trigger thirty day appeals period when trial court issued written decision three later). months The Town’s motion for reconsideration untimely before the trial court. Its appeal of the 2004 decision is untimely for the same reasons.

¶ 77. The Town claims alternatively that the trial court should granted 60(b). have its motion for relief under Rule Rule 60(b) provides for relief from a judgment final “upon such terms 60(b). just.” as are V.R.C.P. The Town specifically requested relief (5) (6), under which, clauses respectively, permit the trial court to relieve a party from final judgment when “it is no longer equitable the judgment should have prospective application” “any other reason justifying relief from the operation 60(b). the judgment.” V.R.C.P. Under either of these clauses a motion “shall be 60(b). filed within a reasonable time.” V.R.C.P. Such a motion subject “is not to appellate review unless it clearly and affirmatively appears on the record that trial [the court’s] discretion was withheld or abused.” Adamson v. Dodge, 174 Vt. 311, 326, (2002) omitted). 816 A.2d (quotation Further more, interests of finality require previous relief from a judgment “should be granted only in extraordinary circum Thus, stances.” Id. at 816 A.2d at 468. it “is not intended to function as a substitute Tetreault, for a timely appeal.” Tetreault v. 448, 451, (1987). 148 Vt. 535 A.2d 60(b) 78. The trial motion, court denied the Town’s Rule “More than 6 stating: years have since passed opinion [the 2004] obligation pursue Town cannot circumvent its and order. The by asking Court’s 2004 decision appeal Superior from with the court below judgment agree relief from now.” We See, within a time. motion was not filed reasonable the Town’s Callahan, 94, 11, 2008 VT 184 Vt. e.g., Callahan (mem.) motion filed seven after (dismissing years Rule 60 (2000) A.2d 885 Riehle v. 171 Vt. judgment); Tudhope, (mem.) (five Martin, 651, 578 A.2d 110 Martin v. 154 Vt. years); (1990) (mem.) (two years). note, furthermore, the Town has failed to 79. We a result will be visited on it as any cognizable hardship

show that 60(b)(6) “a catch-all general of the trial court’s decision. Rule court “designed give provision,” as such justice.” the ends of to see that the rule serves flexibility Notes, is used for Reporter’s Basically, provision V.R.C.P. Merrill, 157 injustice.” In re Vt. prevention hardship “the (1991). said, 150, 153, are neces 596 A.2d That “there Richwagen, is available.” sarily Richwagen limits on when relief (1989). 1, 4, 419, 421 568 A.2d Vt. ¶ that it will suffer as “hardship” 80. The the Town asserts $830,000 I awarded damages a result of Road is Unnamed remanded case for reconsideration by the trial court. We have .the award, however, any damages ultimately and damage of the principally compensates trial court on remand awarded constitutional and not for rights Rhodes for the violation of his insofar as that except the classification of the Unnamed Road To the pernicious decision was of the Town’s discrimination. part from its owner hardship that the Town claims the stems extent fails. Road this also right-of-way, interest in the Unnamed ship trial court’s denial of the Town’s Rule There was no error 60(b) motion. circumstances unique 81. In we underscore the closing, The trial necessarily scope. limit its support

both this decision deliberate, decades-long describe a unchallenged findings court’s malicious and conduct the Town so discriminatory course of to due Rhodes his fundamental self-serving deny as to treatment under the Vermont Constitution. equal process misconduct, exacting and clear of the proof egregious Absent such relief, officials have no towns and local necessary elements in the normal myriad decisions made cause for concern about the in a such authority. Failing recognize exercise of case this, however, constitutional principles as would undermine the all consistently Vermonters hold dear. Vermont has sustained small by affirming reinforcing its essence as one town big decision those fundamental values define it. This affirms values. Thejudgment liability against Georgia the Town affirmed. reversed, damage

The award is and the matter is remanded for on the issue consistent views proceedings damages with the further expressed herein. Dooley, J., dissenting. case, are concurring this we Const, Clause, asked decide whether the Common Benefits Vt. I, ch. art. self-executing and under the facts presented bring entitles Rhodes to a claim money damages. majority answers questions both affirmatively, concluding that selectboard’s actions unconstitutionally against discriminated Rhodes and for a I damages remands award. wholly concur Article 7 is a self-executing provision and that a plaintiff dispa- rately treated aby government official motivated ill by personal may will monetary recover damages for violation of Article 7 under certain circumstances. find- Considering unchallenged ings case, in this it is uncontroverted that selectboard members discriminated Rhodes in against preference for his neighbors. Nonetheless, I that a action disagree is appropriate because in this case there was an relief alternative avenue of available to Therefore, Rhodes to cure the constitutional violation. I dissent majority’s from the remand decision to this case for assessment of damages. Gerhart, 83. In Shields v. this first recognized Court

availability of a damages. state constitutional tort action for money (1995). Vt. forth a two-step process We set action, determining availability for the of such first inquiring provision whether the constitutional and self-executing second “whether as a monetary damages remedy are available for violation.” Id. at 658 A.2d at 927. We cautioned against creating remedy such a where private damages there existed alternate means for relief “even where the has Legislature no alternative civil at 933. provided remedy.” Id. 658 A.2d at Despite cautionary the reiteration of and majority’s principle this pronounced its commitment to in “a careful engaging inquiry” ¶¶ 35-36, facts, ante, followed this fundamental it has not the available when are not holding of Shields money damages 234-35, 163 Vt. at remedy. adequate there is another in the form was available Here, such an alternative 934. injunctive relief.

¶ lengthy complicated, case is history of this Though the court awarded at the outset that to important emphasize it is for the Rhodes compensate reason to solely for one damages as a trail. Road classify Unnamed selectboard’s decision remedies, awry by majority goes decision alternative analyzing actions with all of the selectboard’s for looking for remedy on “the Thus, damages its Rhodes. it bases respect course of more office over the intentional abuse of selectboard’s Road the Unnamed concerning decisions through a decade than obstructed, delayed [Rhodes’s] TH #20 that prevented, Ante, 46. I do not believe property.” to access his efforts Highway related to Town favoritism longtime the selectboard’s #20) (TH damages appropriate are determine whether #20 should Road. But see to the Unnamed respect action with wrongful for ante, provide failure to repeated “selectboard’s (emphasizing the selectboard’s It is instead decisionmaking”). impartial fair and the Unnamed classify singular decision relatively recent at issue.11 as a trail that is Road could be such classification focus on whether 85. I thus fashion, that this is and conclude in an alternative

remedied recognized give must be damages of case type “[w]here Shields, 658 A.2d at atVt. remedy.” some plaintiff of Bivens Six in Shields reasoning reflected the principle This for be awarded Named may Agents damages Unknown cannot be remedied those violations when constitutional violations (1971) (Harlan, J., 388, 410 403 U.S. other means. See concurring).

¶86. a circumstance Shields of such illustration free to be an individual’s breached a state official where complaint sought generally relief in his majority claims that Rhodes 11 While the ante, context, ¶ 51, phrase court’s order of the trial damages, read in when were majority plainly delineates cited quote a trail. The full classify Road as the Unnamed decision selectboard’s road, two unnamed classification of the the Town’s ‘When one considers reads: pattern part First, of a consistent decision is the Town’s factors stand out. years.” than twelve discriminatory has lasted for more conduct that from unreasonable search or seizure. 163 atVt. 658 A.2d at Fisheries, Dep’t Moresi v. & 933 (citing 567 So. 2d of Wildlife (La. 1990)). case, In that type deprivation constitutional to be protected against unreasonable searches could be undone or remedied through any other means and a monetary Id. Bivens pre- therefore appropriate. award was sented a similar factual scenario where the petitioner alleged agents federal under subjected color law him to an unconsti- tutional concurrence, search and seizure. 403 U.S. at 389. In his Justice Harlan explained that the issue was whether there was “power to authorize damages judicial as a remedy for vindication of a federal constitutional right.” Id. at 401-02 (Harlan, J., concurring). He reasoned that such a remedy necessary for someone like Bivens because “it apparent that some form of damages only is the possible remedy for someone Bivens’ alleged position. It will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by injunctive relief from any court.” Id. at 409-10. securing Here, Rhodes asserted no lasting damage from the trail classification that could not be remedied a decree reversing that decision. He no alleges damage to his land or his economic interest. While he plans at some point land, this develop he has no concrete plan fact, to do so. In Rhodes’s amended complaint sought declaration undoing the selectboard’s classification and monetary damages Thus, Rhodes, the alternative.” “[i]n Bivens, contrast to there is means for him to “obviate the harm injunctive relief.” Id. at 410. securing ¶ 88. The main case cited by the majority support of damages further illustrates this State, distinction. In Brown v. 674 N.E.2d (N.Y. 1996), a group of plaintiffs nonwhite sued police officers alleging state constitutional violations for stopping and interrogat- ing them without cause and based solely on their race. The New York Court of Appeals held that the plaintiffs could bring cause of action to recover damages against state for violations of the equal protection and search and seizure clauses of the state Id. 1138-39. Brown emphasized constitution. were damages remedies, available when other including injunctive or declaratory relief, Brown, Id. at 1141. In were inadequate. the court explained injunction that no or declaration could correct the invasion that and, therefore, the plaintiffs already experienced, had were the “appropriate remedy for the invasion of inter- personal Id. in liberty.” ests contrast, action recognize monetary courts decline to could address the asserted violation remedy

where an alternative Shields, particular right. of the constitutional See plaintiffs private rule that a (noting general Vt. at 658 A.2d at 934 recognized will not be damage action under the constitution common-law “where the has an administrative or plaintiff or the sought benefit or license governmental to obtain the like”); also or the see Sunburst Sch. employment restoration ¶ Texaco, 183, 64, Inc., 165 P.3d 1079 No. 2 v. 2007 MT Dist. company action oil against there was no (concluding to clean and healthful right violation of state constitutional adequate remedy); common law an provided environment where (N.C. 1992) 276, N.C., (holding v. 413 S.E.2d 289 Corum Univ. of constitutional brought that direct claim be to vindicate state may adequate remedy”). “in the absence of an state ¶ to seek redress remedy ability 90. An alternative includes Cal., v. 58 judicial Katzberg Regents decree. Univ. through of of 2002) (Cal. 339, damages that no action for (concluding P.3d 356 sought remedy could have to plaintiff was available where seeking interest liberty of his due alleged process violation relief). injunctive Supreme or As the U.S. Court declaratory Malesko, 61, in v. 534 U.S. recognized Corp. Correctional Services (2001), been as the “injunctive long recognized 74 relief has entities from unconstitution- preventing acting means for proper remedy a case in which an alternative example As an of ally.” available, Inc. v. Kelley Property Development, discussed Shields (Conn. Lebanon, 909, 1993), in which a A.2d 919-24 Town 627 of the town had violated his state constitu- developer alleged application. in his subdivision process rights denying tional due appropriate no action was private damage The court held that relief, available avenues of because the had other developer wrongful an claim to undo the town’s bringing equitable including and, this in majority principle at 923. The identifies conduct. Id. recog- action is fact, damage where no private cites such cases an injury ongoing policy resulted from nized because Ante, injunction. an that could be cured administrative decision Ass’n v. Town Prop. 42 Rockhouse Mountain Owners (citing of 1986) (N.H. damage (denying 1388-89 503 A.2d Conway, refusing violation alleged equal-protection for town’s was avail- alternative relief adequate out roads where lay village ante, Jiffy Co. able)); (citing City Hueytown 47 n.5 Chek (Ala. 1977) Ala., 342 So. 2d 761 (affirming equitable use of violation); response equal protection relief Herrick’s Aero- Facilities, Auto-Aqua Repair Serv. v. Pub. Dep’t Transp. & (Alaska 1988) P.2d (denying action for because injunctive relief was available and could violation equal Nonetheless, protection by plaintiffs)). majority asserted fails acknowledge case similarity judicial this where decree can cure the selectboard’s unconstitutional action classify- ing the a Unnamed Road as trail. blush, 91. At first it might law not appear our does have preference equitable remedy over legal remedy and, therefore,

damages generally can one that there argue should be no such preference providing remedy for Vermont Indeed, constitutional violation. the general “[e]q- maxim is that uity will afford relief adequate, where there is a plain, complete remedy Poitras, 153, 155, at law.” Gerety v. 126 Vt. (1966). limited, A.2d however, This maxim very because “the legal remedy ‘must be competent very afford relief on the subject matter in question, convenient, equally be beneficial equitable remedy effective’ as the which would otherwise be C.B., 378, 381, (1986) available.” In re 147 Vt. 518 A.2d (quoting Danville, 161, 165-66, Poulin v. Town 128 Vt. (1969)). The remedy at must “‘practical law be as efficient to the of justice ends its prompt administration as ” remedy Poulin, the in equity.’ 166, 128 Vt. at A.2d 260 at 211 Swanton, 424, Hall v. (quoting 381, Vill. 113 Vt. 35 A.2d of (1944)). here, Also relevant of “one the of primary functions to equity is afford complete relief while avoiding multiplicity of litigation.” C.B., 147 Vt. at 518 A.2d at 369.

¶ 92. As Professor Douglas Laycock noted in his seminal work on the of availability equitable prevent remedies: that “[r]emedies harm are better for altogether plaintiffs.” Laycock, D. The Death Irreparable Rule, (1990). the Injury 103 Harv. L. Rev. of this making point, he quoted Pomeroy’s treatise Equity Juris- “ prudence: remedy ‘a prevents which a threatened in wrong is its essential nature better than a which remedy permits the wrong ” done, be and then for Id. attempts pay (quoting it.’ 3 J. (1st 1887)). Pomeroy, Equity Jurisprudence § at 389 ed. Laycock Professor concluded that courts have the analyzed ad- equacy such damage preference remedies that the has become reversed: “our if preference specific law embodies a for relief it.” at examining wants Id. 691. He noted from decisions plaintiff is only that “find . . . when there some damages adequate courts Id. deny particular identifiable reason to relief in a case.” specific a remedy preferable damages A that an is holding equitable entirely general in this case is consistent with our law. remedy ¶ I preference 93. I am that the lack of recognize arguing law legal gener remedies in our remedies equitable between enforcing are ally required preference should become a when we I implementing Vermont constitutional without an statute. unique believe that nature constitutional enforcement that we a as a last resort.12 Our requires damage remedy leave Shields, cases, precedent own the Bivens line of and the from states support principle. decisions other this injunctive majority acknowledges remedy 94. The ante, n.5, but it is inad- “invariably inadequate,” says not “it does cure harm equate personal this case because not this, a involving lengthy in an case such exceptional inflicted as obstruction, and discriminatory of invidious pattern delay, ¶47. This assumes that decisionmaking.” falsely Id. statement necessarily will when the alternative constitutional result damages Indeed, does not under remedy completely compensate injury. standard, an adequate there will never be alterna- majority’s tive. than the remedy generous That the alternative is less

damages negate from a constitutional tort does not available mean action is automatically damages alternative and As wholly explained viable. The two not be we congruent. need Shields, from Supreme since Bivens the has retreated U.S. Court recognize remedy damages its initial stance and does not remedies, where are civil even if those do there other available underlying policy respect for this is our with One source of law choice State, creating damage remedy statutory rights. In Dalmer v. violation (2002), 157, 167-68, apply § Vt. we held that we would 874A (Second) question create a civil of the of Torts to whether Restatement remedy That for violations the Juvenile Procedures Act. section only remedy proper provides if the a “civil tort for violation of a statute is persons by requiring ‘protects proscribing certain conduct’ and statute a class of legislation purpose appropriate in of the ‘the furtherance ” 167-68, Dalmer, provision.' 174 Vt. needed of the to assure the effectiveness (Second) (1979)). Similarly, § (quoting 874A 1224 Restatement of Torts 811 A.2d at necessary question damages remedy the a to ensure the here is whether civil of Article 7. effectiveness

281 Shields, fully plaintiff for harm compensate the the suffered. 163 228-30, (“It 931-32; Kelley, Vt. at 658 A.2d at see 627 A.2d at 921 is no sufficient under that longer allege federal law available or statutory administrative mechanisms do not afford as a as a action complete provide”). Following Bivens would cases, these most courts that not agree damages are awarded to an individual to compensate the fullest extent but possible, a provide deterrent effect and to that ensure there is some relief available for the constitutional violation.

¶ if majority’s 96. Even adequacy new standard were the law, I do not believe it would require any than an greater remedy — injunction in this not allege case. Rhodes did or and the prove superior court did not find that the selectboard’s decision classifying Unnamed Road as a trail caused him any physical or damage. emotional His sole complaint selectboard’s decision harmed his property by restricting interest trial, his access his At property.13 theory Rhodes’s was that the classification decreased the value of his because he no property longer had road part access to of his land and therefore could not develop part. He damages, a sought comparable based on approach, sales in the amount of the difference in the property’s value with and without road access. holds, majority 97. As the the trial damages court’s award

based on theory Rhodes’s was inappropriate because the court treated the Town’s action as a taking, giving Rhodes an amount equal to loss of value of his land prohibition caused on vehicular access. We held in Whitcomb v. Town Springfield, 395, 397, (1963), Vt. that the of a downgrading town road to trail not taking does involve more land from and, abutting therefore, landowners cannot be the cause takings Dorset, damages. See also Ketchum Town 2011 VT (mem.) Whitcomb). 190 Vt. 22 A.3d 500 (reaffirming We added Berlin, 306, 307, Perrin v. Town Vt. A.2d (1980), that the loss town maintenance that resulted from the downgrade landowner, trail “is not a in the but request damages compensating Given Rhodes’s was limited him interest, damage property perplexing majority to his it is therefore would conclude that Rhodes is “an entitled to award of civil for the mental or Ante, resulting emotional distress from” the Town’s misconduct. 51. Rhodes did plead, of, present Consequently, evidence emotional harm. trial court regarding injury. finding made no mental and, thus, cannot be the by held in common all the citizens” right abutting superior landowner. compensation basis for the I these therefore holdings. court ran afoul of damage to damages, if entitled majority with the that Rhodes were agree the court cannot be affirmed. by superior the measure used ¶ for difference any damages If Rhodes has entitlement 98. of land, temporary deprivation it be the in the value of would of period [discriminatory “for the time development potential proj- of the actually delayed development land decision] use (9th 526 F.3d City Pacifica, ect.” N. v. LLC Pacifica 2008); v. 665 N.E.2d Orangetown Magee, see also Town Cir. (N.Y. 1996). is that will key requirement damages A 1068-69 “actual discriminatory if action caused only be appropriate plaintiff N. at 487. Since development. Pacifica, 526 F.3d delay” his property the area of develop had no concrete plans Road, and, delay, no there was actual by reachable Unnamed Further, it no therefore, no makes damages. he is entitled to potential for loss of when damages development sense to award injunction stop will loss.

¶ be may that Rhodes majority suggests alternatively 99. The damages emotional distress types damages entitled to two damages the Town selectboard because of his treatment upgrading the cost of between representing difference are and the cost measured damages Unnamed Road the time selectboard upgrade when the paid Rhodes would have damage I not these it as a trail. would hold classified elements are recoverable.

¶ above, that he plaintiff sought proved never 100. As stated sought never damages and any specifically suffered emotional ¶ Ante, No damages and inconvenience.” “anguish damages Hobby, v. Farrar 506 U.S. proof injury.” are without of “actual due (1992). economic, or emotional may physical, include This any without violation of constitutional injury, but the mere Memphis damages. warrant injury is insufficient to proximate (1986). Stachura, If 477 U.S. 307-08 Dist. v. Cmty. Sch. distress, he on emotional based plaintiff damages to recover Carey was caused.” injury actually prove must “such (1978) distress emotional (discussing Piphus, 435 U.S. violation). based on a claim of due damages process He never did so here.14 reason, 101. For this I am at a will loss to understand what majority.

occur the remand ordered The Town appealed the award and the damages prevailed amount on the majority amount issue. The acknowledges there must be “proof Ante, and, thus, actual injury.” There was no such proof, Thus, Rhodes has waived claim of emotional any damages. distress the trial court must award no damages unless the testimony reopened to allow Rhodes to an element of he prove damages It sought. never would be a manifest injustice to the Town to Rhodes, allow who never appealed and lost on his measure damages theory, a opportunity prove new he did Co., claim. See Havill v. Soapstone 17, 10, Woodstock VT (mem.) 181 Vt. 6A.2d (explaining issues not raised in original appeal are beyond scope therefore, of remand on remand, no new evidence should be taken on an element previously sought). — ¶ 102. damage The second element the differential cost the upgrading road should not be light recoverable in of the court’s superior finding that Rhodes no specific plans has development. Rhodes is not entitled to the difference the cost of road improvements between the cost at time the the selectboard’s classification decision and the cost he today. Because has never had specific plans the develop property, he never expended Further, would have the lesser any plans amount. the road in develop the future are speculative, and costs developing the road will presumably be covered proceeds from selling developed lots.

¶ 103. If the court superior injunction had issued an against classification the Unnamed Road as a trail in this case over, been would have and Rhodes developed could have his property injunction if he desired. Because the issuance complete alternative I damages, would reverse the award, trial compensatory damages and remand court injunction. issue an In all respects, majority other I concur in the decision. repeat my point liability 14 1 earlier based on reclassification of

Unnamed Road not on the interactions between Rhodes and the selectboard concerning subjects. TH #20 or other joins Reiber 104. I am to state Justice authorized Chief opinion. concurring dissenting in this 2012 VT Sons, Inc., Salvage, R. E. Brown Rathe Inc. v. Brown & Robert Stephanie A. Brown [46 891] A.3d 10-356 No. Reiber, C.J., Johnson, Burgess, Dooley, Skoglund and JJ. Present:

Opinion March Filed marks see Notes 4 for Appellate Notes to Rule (referencing Reporter’s V.R.C.P. 58 amendment). of 2006 “further discussion” Thus, may while the trial court’s final decision order,” date-of- separate “judgment not have included judgment ambiguity that we sought to avoid Rule 58 amending in 2002 was not at issue in simply this case. Nor is there a serious

Case Details

Case Name: In Re Town Highway No. 20

Court Name: Supreme Court of Vermont

Date Published: Mar 23, 2012

Citation: 45 A.3d 54

Docket Number: 10-100 & 10-338

Court Abbreviation: Vt.