Robert A. Skiff, Jr. et al. v. South Burlington School District
No. 2018-054
Supreme Court of Vermont
December 14, 2018
2018 VT 117
Robert A. Mello, J.
On Appeal from Superior Court, Chittenden Unit, Civil Division. June Term, 2018. PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
NOTICE: This opinion is subject to motions for reargument under
Paul S. Gillies of Tarrant, Gillies & Richardson, Montpelier, for Plaintiffs-Appellees.
Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendant-Appellant.
Garrett A. Baxter, Montpelier, for Amicus Curiae Vermont League of Cities and Towns.
Richard T. Cassidy of Rich Cassidy Law, South Burlington, for Amicus Curiae Vermont School Boards Association.
¶ 2. The facts, when viewed in the light most favorable to residents, are as follows.1 Students in South Burlington attended Burlington High School until the 1960s when South Burlington opened its own high school. The new high school adopted the name “Rebels” for its sports teams after it was used during a game that South Burlington played against Burlington, where students formerly attended school. Although the name did not originate from a connection to the Civil War, over the years, individual students at times waved the Confederate flag at high-school football games. The practice was banned by school officials, but some individuals continued to use the name “Rebels” to express racist attitudes and beliefs at the school.
¶ 3. In 2015, there was a request that the District cease using the name “Rebels” because of the associated racist bigotry and intolerance. The request was included as an action item on the school-board agenda and the school board engaged in a discussion regarding the topic. Some board members expressed their view that the moniker was not meant to be racist, but to symbolize those who are critical thinkers and do not necessarily follow the mainstream. After consideration, the board reached a consensus to keep the name, but asked the superintendent to suggest ways to rebrand the name to express a positive connotation and not be misunderstood as an endorsement of the Confederacy or slavery. The superintendent presented five recommendations in a January 2017 memorandum, but the Board took no action at that time.
¶ 4. At the school board‘s meeting on February 1, 2017, the superintendent reported that he was recommending that the “Rebel identifier” be retired. He explained that the recommendation was based on, among other things, shared stories from
¶ 5. Soon thereafter, a group of District voters signed a petition requesting a district-wide vote on whether to retain the “Rebels” name. The ballot question read: “Should the name of all South Burlington School District sports teams be the ‘South Burlington Rebels’ and should the South Burlington City Council and South Burlington School Board be required to make official, retain, and maintain this name for all South Burlington School District sports teams?” The petition was signed by more than five percent of the District‘s voters and presented to the school board. On May 10, 2017, the school board considered the petition and declined to include the question on the ballot for a vote.
¶ 6. Residents filed an appeal in the Chittenden Superior Court Civil Division under
¶ 7. The court determined that the purpose of Article 20 was to “assure that the people will have the opportunity to play a central role in determining what is in their own best interests, that their elected representatives will know what their constituents expect of them, and that the Legislature will be available to redress grievances.” The court recounted historical practices of sending instructions to representatives, both nationally and in the state. The court noted that in Vermont at the municipal level voters gathered on town meeting day to instruct their representatives. The court interpreted this Court‘s prior case law on Article 20 as holding that a school board can constitutionally refuse to warn an advisory article if the article “does not at all relate to school district business or any matter falling within school district authority.” The court construed the right to instruct as a collective, rather than individual, right based on the fact that the right to instruct was paired with the right to assemble and concluded that the sole means to effectuate this collective right in a location without a formal town meeting was through a district-wide vote. The court did not consider whether Article 20 is self-executing because it concluded that several statutes, including
¶ 8. The trial court then granted the District‘s motion for interlocutory appeal and stayed the trial court proceedings pending this appeal.
¶ 9. “On appeal, this Court reviews a motion for summary judgment de novo, employing the same standard as applied
¶ 10. Residents are seeking relief in the nature of mandamus, which is a command from a court requiring an official to perform a specific act. Wool v. Menard, 2018 VT 23, ¶ 11, 207 Vt. 25, 185 A.3d 577. Mandamus is available only when “the right sought to be enforced is certain and clear.” Royalton Taxpayers’ Protective Ass‘n v. Wassmansdorf, 128 Vt. 153, 159, 260 A.2d 203, 207 (1969). The party seeking such relief must demonstrate that it “has a clear, legal right to the performance of the particular duty at the hands of the [official], and that the law affords no other adequate remedy.” Id.
¶ 11. We conclude that the District did not have a duty imposed by law to include the petitioned article in a district-wide vote. See Bargman v. Brewer, 142 Vt. 367, 369-70, 454 A.2d 1253, 1255 (1983) (explaining that mandamus is to enforce “a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist” (quotation omitted)). Because the article involved nonbinding, advisory questions outside of the electorate‘s authority to grant or refuse at town meeting, the District was not required to present the article to voters under
I. Statute
¶ 12. Residents do not assert a violation of
¶ 13. In a subchapter in Title 17 entitled “Town Meetings and Local Elections in General,” there are statutory provisions regarding the warning and notice required in advance of town meeting. The statute states that the warning for an election must, in separate articles, “specifically indicate the business to be transacted” and “shall also contain any article or articles requested by a petition signed by at least five percent of the voters of the municipality.”
¶ 14. This Court has on several occasions considered the circumstances in which the statute obligates a town to put petitioned articles to a district-wide vote. In sum, those cases, described in more detail below, hold that a municipality (or a school board) has discretion to refuse to include a petitioned article in a town-meeting vote if the subject matter of the article concerns a matter outside of the voters’ authority.
¶ 15. We begin with Royalton Taxpayers’ Protective Association v. Wassmansdorf, 128 Vt. 153, 260 A.2d 203 (1969), in which the petitioners filed suit seeking an order directing the town selectboard to warn a special town meeting under a prior version of
clerk, which the article impliedly admits was done.” Id. at 159, 260 A.2d at 206-07. This Court held that the intent of the statute was not to compel a special meeting for a vote that would be for a “useless, frivolous or unlawful purpose.” Id. at 160, 260 A.2d at 207. Therefore, we concluded that the statute required a vote on a petition “when the purpose stated in such petition set forth a clear right which was within the province of the town meeting to grant or refuse through its vote.” Id. Because “the resulting votes [from the petitioned special meeting] would be nugatory, unavailing and void of any determination of right,” we denied the request for mandamus relief.
¶ 16. In Whiteman v. Brown, 128 Vt. 384, 264 A.2d 793 (1970), voters presented a petition to the school district, seeking to hold a special meeting to hold a vote on whether to retain an auditor. This Court explained that the statutory “duty to warn relates to ‘business to be transacted’ ” and therefore if an article does not present proper business for a town meeting the statute does not compel its inclusion. Id. at 387, 264 A.2d at 795 (quoting statute in effect at that time). Because the authority to employ auditors was a matter within the district‘s, rather than the voters‘, control, this Court denied the voters’ request for mandamus.
¶ 17. In Pominville v. Addison Central Supervisory Union-Middlebury Union High School District #3, 154 Vt. 299, 575 A.2d 196 (1990), residents petitioned the school district to include an article proposing a lower budget than the one proposed by the board. The board declined to include the article on the warning for the town-meeting vote. Residents then filed suit seeking to compel the inclusion of the article. This Court concluded that the board properly refused to include the article because there was an existing process for rejecting and revising the school budget and that including the alternate proposal for voters’ consideration would mean the review process in the statute would be “ignored and the will of the Legislature defeated.” Id. at 302, 575 A.2d at 197.
¶ 18. More recently, in Clift v. City of South Burlington, 2007 VT 3, this Court reiterated the discretionary authority granted to towns and districts regarding petitioned articles under the statute. In that case, city voters sought an order requiring the city to include an advisory article urging the city council to ask state legislators to enact legislation concerning parental notification prior to abortion for minors. The city declined to include the article and the voters appealed. We cited Wassmansdorf and its progeny for the proposition that the statute compels municipalities to present an article to voters “only when ‘the purpose stated in such petition set[s] forth a clear right which [i]s within the province of the town meeting to grant or refuse through its vote.’ ” Id. ¶ 6 (quoting Wassmansdorf, 128 Vt. at 160, 260 A.2d at 207). We concluded that the petition sought in Clift was indistinguishable from these other cases because neither the city‘s voters nor the city council was obligated to advise the Legislature on pending legislation. Id. ¶ 7. We emphasized that “[a]llowing the City discretion to warn advisory articles, such as the one presented by petitioners, furthers the Council‘s ability to balance the efficient transaction of city business with the provision of a local forum for discussing state and national issues.” Id.
¶ 19. Taken together, these cases demonstrate that the statutory duty of the board to warn items concerning the “business to be transacted,”
¶ 20. Residents argue that the issue they sought to put to voters is consistent with Wassmansdorf because the advisory vote would inform the school board and thus would not be “useless, frivolous or unlawful.” 128 Vt. at 160, 260 A.2d at 207. They contend that the reason the advisory petition in Clift was not required to be put to voters was because it was unrelated to town business, not because the result of the advisory vote would have had no binding effect. Accepting this argument, the trial court distinguished Wassmansdorf and the cases following it, explaining residents “are not seeking to have the voters take an action that, under the law, can only be taken by someone else. To the contrary, [residents] seek only an opportunity for the voters to instruct their own School Board to do something that the School Board clearly has the authority to do, namely, change the name of its sports teams back to the ‘Rebels.’ ”
¶ 21. This is too broad a reading of the word “useless” used in Wassmansdorf. The case explains that the town had no duty to hold a special meeting where the results would be “useless, frivolous or unlawful” and further elaborates that a town cannot be compelled through mandamus to include petition items that would produce results that are “nugatory, unavailing and void of any determination of right.” 128 Vt. at 160, 260 A.2d at 207. This latter language clarifies that “useless” as used in the case means something that would have no binding effect. In other words, officials cannot be compelled to include items for a town vote where the result of the vote is not legally binding because it is beyond the authority of the voters to decide at town meeting.
¶ 22. This interpretation is consistent with the construction of the statutory language “the business to be transacted,”
¶ 23. To suggest that “usefulness” is the touchstone of the legal test, and that an
prior cases in which the petitions could have similarly been viewed as giving useful information about a topic to elected town officials. This point is well illustrated by Kirchner v. Giebink, 150 Vt. 172, 552 A.2d 372 (1988), in which the plaintiffs submitted a petition for a town vote on whether to nullify the selectboard‘s decisions regarding the town sewer system. Like residents’ claim in this case, the petition could have provided information to the selectboard on how the town voters felt about the town sewer project, but this Court held that the selectboard acted within its authority in declining to include the petitioned item for a vote. Relying on Wassmansdorf, this Court explained that the town selectboard did not have a duty to call a meeting on the plaintiffs’ petition because the result of any vote would have no effect. “If the [selectboard] had the power to make the agreement, then it is legally binding and the voters could not undo it. Thus, the meeting would be useless under Wassmansdorf.” Id. at 178, 552 A.2d at 376. This illustrates that “useless” as used in Wassmansdorf means without legal effect.
¶ 24. Here, the item—the name of the District‘s sports teams—that residents sought to include in a district-wide vote is not a matter within voters’ authority to decide at a district-wide meeting. The powers of the electorate are delineated by statute and include discrete items, including voting for the annual salaries for school-board members and authorizing the amount of money to be expended.
outside of the voters’ authority to decide and its result would have had no binding effect, the District was not required by statute to include it in a district-wide vote, but could have elected to do so if it wished.
II. Constitutional Right to Instruct
¶ 25. The Vermont Constitution includes a “Right to assemble, instruct and petition,” which provides “That the people have a right to assemble together to consult for their common good—to instruct their Representatives—and to apply to the Legislature for redress of grievances, by
¶ 26. In Clift v. City of South Burlington, the voters argued that even if the Town was not required by statute to include their advisory petitioned article, “the City‘s action in refusing to warn the advisory article was a violation of petitioners’ right to assemble under Chapter I, Article
20 of the Vermont Constitution.” 2007 VT 3, ¶ 9. This Court summarily rejected the voters’ argument that “a town-meeting vote on a petitioned advisory article is a constitutional right.” Id.
¶ 27. Nonetheless, residents in this case attempt to distinguish Clift and assert that the right to instruct in Article 20 includes the right to have a district-wide vote on petitioned, nonbinding articles related to town business.6 Residents assert that Article 20 guarantees access to elected officials and that because some towns do not have a traditional town meeting at which residents can discuss “other business,” there must be an opportunity to instruct officials through inclusion of nonbinding articles in a district-wide vote. Residents invite us to look at various historical sources to reach this conclusion. See Chittenden Town Sch. Dist. v. Dep‘t of Educ., 169 Vt. 310, 320, 738 A.2d 539, 547 (1999) (explaining that in construing state constitutional provisions, this Court relies on several sources of information: “examination of the text, historical analysis, sibling state constructions of similar provisions, and analysis of economic and sociological materials“).
¶ 28. We need not delve deeply into the contours of the right to instruct in Article 20 to conclude that it does not entitle residents to mandamus relief in this case. To the extent that an enforceable right exists under Article 20, it is an individual right and not a collective one. This is evident from the language of the Vermont Constitution and our prior cases. Article 20 is part of
with the same language “That the people have a right to,” as providing individual rights. See State v. Rheaume, 2005 VT 106, ¶ 8, 179 Vt. 39, 889 A.2d 711 (considering whether law enforcement violated defendant‘s individual right to be free from unreasonable intrusions under Article 11); Shields v. Gerhart, 163 Vt. 219, 227, 658 A.2d 924, 930 (1995) (concluding that Article 13 “sets forth a single, specific right of the people to make themselves heard, a fundamental characteristic of democratic government“). Finally, to the extent our prior cases have construed rights embodied in Article 20, this Court has viewed the rights provided therein as individual ones. See, e.g., In re Devenport, 129 Vt. 546, 559-60, 283 A.2d 452, 458-59 (1971) (holding that school board‘s decision to fire teacher because she was involved in assisting students in drafting petition to seek permission to walk out violated her individual right to petition government guaranteed by
¶ 29. Residents have not alleged that the District has denied them individually the right to instruct their school-board members. Indeed, the facts construed in a light most favorable to residents demonstrate that residents individually had many opportunities to instruct individual board members and the District as a whole on their opinion about the “Rebels” name. Residents also have not shown how the relief that they are seeking—inclusion of their advisory article in a district-wide vote—will effectuate their individual right. Therefore, even assuming that Article 20‘s right to “instruct” is self-executing, we conclude that it does not entitle residents to the mandamus relief they are seeking.
¶ 30. Residents’ desire to inform their school board on matters the school board is vested with deciding does not equate to a right to a district-wide, advisory vote on the issue. The Vermont Constitution creates a representative, not a direct, democracy. See
Reversed and remanded for entry of judgment for defendant.
FOR THE COURT:
Associate Justice