Vermont has consistently sustained its essence as one big small town by affirming and reinforcing the fundamental values that define it. This decision affirms those values. The questions presented are whether the Common Benefits Clause of the Vermont Constitution provides a self-executing private right of action, and whether damages are available for the violation, or “constitutional tort,” in the circumstances presented. We conclude Article 7 is self-executing and that damages are available unless other remedies are adequate, under a three-part test.
John Rhodes, a resident of the Town of Georgia, petitioned his local governing body, the selectboard, to clarify several issues surrounding two roads that bordered his land. The court found that Rhodes’s request to access his land over town roads had been repeatedly and maliciously frustrated by the Town selectboard in an ongoing attempt to protect the value of a neighbor’s property, a violation of Chapter I, Article 7 of the Vermont Constitution, the Common Benefits Clause. The court concluded that Article 7 was self-executing and awarded monetary damages for the constitutional violation. We affirm the judgment of liability but reverse the damage award and remand for further proceedings.
Article 7 sets forth a clear restriction on government behavior. It provides:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.
Vt. Const. ch. I, art. 7. In complementing the rights of free speech (Article 13), personal privacy (Article 11), private property (Article 2), fair elections (Article 8), and fair judicial process (Article 4), Article 7 ensures that the benefits and protections conferred by the state are for the common benefit of the community and are not for the advantage of persons who are a part only of that community. Affording citizens the right to challenge perceived partiality by a governmental entity ensures vigorous protection for the community compact that is the heart of government. Accordingly, we conclude that Article 7 is self-executing.
However, it is not sufficient for a plaintiff seeking damages simply to show that he or she lacks a remedy adequate to vindicate the interest asserted. Rather, we conclude that it is necessary and appropriate to establish stringent additional requirements to obtain monetary relief for a violation of Article 7. Three core elements comprise any potential constitutional-tort claim based on a violation of Article 7.
- First, a plaintiff must show the denial of a common benefit. In doing so, the plaintiff must show disparate and arbitrary treatment when compared to others similarly situated.
- Second, the plaintiff must show that the denial directly favors another particular individual or group.
- Third, a plaintiff must demonstrate not only that that the decision was wholly irrational and arbitrary, but also that it was actuated by personal motives unrelated to the duties of the defendant’s official position, such as ill will, vindictiveness, or financial gain.
Rhodes's proof met this test. The trial court found that all the Town’s decsisions had “one motive: to favor the property rights of his neighbors.” The trial court’s unchallenged findings describe a deliberate, decades-long course of discriminatory conduct by the Town so malicious and self-serving as to deny Rhodes his fundamental rights to due process and equal treatment under the Vermont Constitution. The essence of the constitutional violation in this case was the selectboard’s repeated failure to provide fair and impartial decisionmaking, the result of a relentless bias against Rhodes and favoritism toward neighbors.
The closer question is whether, notwithstanding these findings of blatant discrimination and bias, Rhodes had a remedy adequate to redress the injury without an award of damages for the constitutional violation. Damages are an available remedy in this case because injunctive relief requiring reclassification of the Unnamed Road from a trail to a class 4 highway does not begin to compensate Rhodes for any emotional and economic injury caused by these actions. The possibility of judicial review may ultimately overturn a biased decision, but does not cure the personal harm inflicted in an exceptional case such as this, involving a lengthy pattern of invidious delay, obstruction, and discriminatory decisionmaking. Accordingly, we conclude that an award of compensatory damages in this case is necessary and proper to vindicate the harm alleged.
However the damages awarded by the trial court here were not carefully tethered to the harm actually alleged and proved. The trial court measured the harm by the difference between the value of the property with the Unnamed Road denominated as a class 4 highway that would “allow for development,” and its value as a trail, which “limits [its] development,”. Because Rhodes had no current plans to develop or market the property, we conclude that the actual harm was not the speculative loss in development value was speculative. Instead damages on this record should be limited the anguish and inconvenience resulting from years of efforts to gain reasonable access to the property frustrated by a biased selectboard, together with any additional costs for road improvements caused by the delay.
The judgment of liability against the Town of Georgia is affirmed. The damage award is reversed, and the matter is remanded for further proceedings on the issue of damages consistent with the views express herein.
Dooley, J., joined by Chief Justice Reiber, wholly concur that Article 7 is a self-executing provision, that a plaintiff disparately treated by a government official motivated by personal ill will may recover monetary damages for a violation of Article 7 under certain circumstances, and that in this case selectboard members discriminated against Rhodes in preference for his neighbors; but dissent from the majority’s decision to remand this case for an assessment of damages. A damages action is not appropriate in this case because there was an alternative avenue of relief available to cure the constitutional violation. If the superior court had issued an injunction against the classification of the Unnamed Road as a trail in 2010, this case would have been over, and Rhodes could have developed his property if he desired. Rhodes did not plead, or present evidence of, emotional harm and not is entitled to a remand for damages.
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