SCOVT affirms Rule 12(b)(6) dismissal of a challenge, under the Education Clause and Common Benefits Clause of the Vermont Constitution, to statutes that allow school districts to refuse to permit children to attend an out-of-district public school or an independent school at the state’s expense.

Vitalev. Bellows Falls Union High School, 2023 VT 15 

EATON, J. Plaintiffs are three sets of parents of schoolchildren who reside in school districts which maintain a public school for at least some grades and do not provide the opportunity for children to attend the public or independent school of their parents’ choice for all grades at the state’s expense. They raise a facial constitutional challenge to Vermont statutes that allow school districts to choose whether to maintain a public school, permit children to attend an out-of-district public school or an independent school at the state’s expense, or some combination of both. The civil division dismissed parents’ complaint for failure to state a claim upon which relief could be granted. We affirm.

 

Plaintiffs seek total school choice for parents at the state’s expense for all elementary and high school education. They claim that they are being denied school choice merely because they live in a district that has a public school, resulting in an inability to tuition their children at the state’s expense to the schools of their choice while parents living in districts that do not have a public school have school choice through tuitioning. Parents assert that their lack of school choice, while parents in tuitioning districts have school choice, violates the Education and Common Benefits Clauses of the Vermont Constitution. See Vt. Const. ch. II, § 68; id. ch. I, art. 7.

 

Under the Education Clause and Common Benefits Clause of the Vermont Constitution, “the state must ensure substantial equality of educational opportunity throughout Vermont.” Brigham v. State (Brigham I), 166 Vt. 246(1997) (per curiam). at 268. However, the Education Clause “states in general terms the state’s responsibility to provide for education, but is silent on the means to carry it out.” 166 Vt. at 264. School choice is permitted but not required by the Education Clause; there is no entitlement to school tuitioning at the state’s expense derived from the Education Clause itself. “[T]here is no constitutional right to be reimbursed by a public school district to attend a school chosen by a parent.” Mason v. Thetford Sch. Bd., 142 Vt. 495, 499(1983)

 

Differences in the availability of school choice alone do not constitute a substantial inequality of educational opportunity. Parents must show that school choice results in substantially different educational opportunities. To state a claim for a Common Benefits Clause violation under Baker,, it is insufficient to assert that there is a law that results in some people having a benefit and others not, accompanied by the legal conclusion that this difference in treatment violates the Vermont Constitution. A complaint must demonstrate, on its face, that the challenged law excluding some part of the community from a government benefit does not bear a reasonable and just relation to a governmental purpose.

 

Parents’ failure to allege facts to connect school choice with better educational opportunities is fatal to their claim.  A statement that the statutes are “inherently unequal” and “patently unfair” does not suffice. We are not required to accept conclusory allegations as true. The complaint does not explain how the statute is unreasonable or unjust or unfair in light of the government’s stated purpose to provide quality education while adapting to local needs and desires.

 

 What parents have alleged here is not enough to state a claim for a violation of the Education Clause or Common Benefits Clause of the Vermont Constitution.

 

Affirmed.

How cited

SCOVT affirms grant of summary judgment dismissing constitutional claims, denial of new trial and verdict that Plaintiff had not proven the accident caused any injuries. No common benefit interest in criminal prosecution of third party.

Cheryl J. Brown v. State of Vermont, 2018 VT 1 [filed1/12/2018]

EATON, J. Cheryl Brown appeals from a jury verdict finding the State responsible for a motor vehicle accident, but also finding Brown had not proven any resulting injuries and thus was not entitled to any damages. Brown alleges several errors in pre-trial and trial rulings, as well as in the failure to grant her a new trial. We affirm

Before trial, the court granted the State’s motion for partial summary judgment, dismissing Brown’s constitutional claims. The Court dismissed the due process and equal protection claims under the United States Constitution on the basis that Brown had only sued the State, and not Denis personally, and that the State was not a “person” for claims arising under 42 U.S.C. § 1983.

Because Brown’s suit was against the State, and because, under 42 U.S.C. § 1983, a state is not a “person,” as is required to maintain the claim, summary judgment for the State was proper on her equal protection and due process claims.

The court further ruled that Brown lacked standing to assert any claim based on the State’s failure to prosecute Denis. The court also dismissed the Common Benefits Clause claim because Brown lacked any cognizable interest in the prosecution or discipline of Denis and because her ability to file suit against the State as a result of the accident showed her due process rights were not impeded.

The Common Benefits Clause of the Vermont Constitution and the federal Equal Protection Clause differ markedly in language, historical origin, purpose, and development. The purpose of the Common Benefits Clause is to ensure that protections conferred by the State are for “the common benefit of the community” and not just a part of the community. Any potential constitutional tort claim based on a violation of Article 7.3 “must show the denial of a common benefit” due to “disparate and arbitrary treatment when compared to others similarly situated.” Id.

There is no deprivation of a common benefit because Brown has no legally cognizable interest in the prosecution of Denis, or any criminal or disciplinary consequences that may ensue. Summary judgment for the State was proper on Brown’s Common Benefits claim.

Common Benefits Clause is enforceable by private right of action for damages.

In re Town Highway No. 20 Town of Georgia, 2012 VT 17 ( Skoglund, J.) (Dooley, J., joined by Chief Justice Reiber, concurring and dissenting).

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.

Mandatory retirement age constitutional

Badgley and Whitney v. Walton and Sleeper, Commissioners (2008-385) (02-Jul-2010) 2010 VT 68 (Dooley, J.)(Johnson, J., dissenting)
Plaintiffs appeal the Superior Court’s dismissal of their claim that the mandatory retirement of public safety officers violates the Common Benefits Clause of Chapter I, Article 7 of the Vermont Constitution. We decide that the mandatory retirement line currently drawn by the Legislature bears a reasonable and just relation to a legitimate state interest, and for that reason, we find no violation of the Common Benefits Clause of Chapter I, Article 7 of the Vermont Constitution. Affirmed.

The Common Benefits Clause of the Vermont Constitution provides, in pertinent part, “[t]hat 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.” Vt. Const. ch. I, art. 7. In Baker, 170 Vt. at 202-11, 744 A.2d at 869-77, we explained the relevant inquiry as follows:

We must ultimately ascertain whether the omission of a part of the community from the benefit, protection and security of the challenged law bears a reasonable and just relation to the governmental purpose. [F]actors to be considered in this determination may include: (1) the significance of the benefits and protections of the challenged law; (2) whether the omission of members of the community from the benefits and protections of the challenged law promotes the government’s stated goals; and (3) whether the classification is significantly underinclusive or overinclusive.
Id. at 212-14, 744 A.2d at 878-79. We accord deference to “legislation having any reasonable relation to a legitimate public purpose.” Id. at 204, 744 A.2d at 871-72.

Plaintiffs’ main arguments involve the third factor: whether the classification is overinclusive or underinclusive. Based on testimony of defendants’ witness, the trial court found that, because of the interdependent nature of police work, even a low percentage of police with unacceptable performance abilities significantly impairs the Department’s ability to perform its mission. If one member of a team cannot perform as required, the entire team cannot perform as required. Given the trial court’s findings and conclusions and the evidence on which they rest, we cannot conclude, that the mandatory retirement law is so overinclusive that it violates the Common Benefits Clause as a matter of law.

In reaching this conclusion, we specifically reject the dissent’s argument that when “substantial evidence from qualified experts is adduced against [the law], . . . the [State] has the burden of meeting it fairly and refuting it.” The dissent’s rule would nullify legislative fact-finding whenever the Court finds that the challenger’s expert witness is more persuasive than that put forward by the State. It would mean that no deference would be given to the Legislature’s policy choice, nor to the Legislature’s own analysis of the factual circumstances that necessarily occurred during the enactment process. \The dissent would wrongly strike down a Vermont statute based solely on the testimony of an expert witness.

Johnson, J., dissenting: This is the 21st century. This is the United States of America. This is Vermont. Nobody should lose their job because they have a birthday and because of no other reason. The mandatory retirement of fit, experienced, and capable state police officers, solely because of their age, is plainly unconstitutional under settled precedent of this Court. The law violates the guiding principle of the Common Benefits Clause to safeguard the rights and liberties of all Vermonters. Today’s decision makes our Common Benefits jurisprudence, not rigorous and principled as it ought to be, but merely idiosyncratic.