SCOVT affirms dismissal of defamation and emotional distress claims, holding an alleged false report to police was absolutely privileged, and that trial court correctly ruled the anti-SLAPP statute applies, but remands for evaluation of plaintiff’s constitutional challenge that attorney fee award under anti-SLAPP statute deprives him of his right to a remedy under Article 4, to a jury trial under Article 12, and impermissibly burdens his attempt to exercise his rights to free speech and petition the court)

 Talandar v.  Manchester-Murphy, 2024 VT 86 [12/20/2024]

CARROLL, J.   Plaintiff Draxxion Talandar appeals from a civil division order granting judgment on the pleadings to defendant Elizabeth Manchester-Murphy and awarding her attorney’s fees under Vermont’s anti-SLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041.  In his complaint, plaintiff raised claims of defamation and intentional infliction of emotional distress (IIED), alleging that defendant maliciously made a false report of sexual and physical assault to the police that resulted in plaintiff being criminally charged, arrested, and held without bail for almost two years before his ultimate acquittal.  On appeal, plaintiff argues that the trial court erred in: (1) concluding that his claims were barred by a common-law absolute privilege for witness communications preliminary to a proposed judicial proceeding and therefore entering judgment on the pleadings; and (2) granting defendant’s special motion to strike his complaint under § 1041(a).  We agree that defendant’s police report was absolutely privileged and thus affirm the trial court’s grant of judgment on the pleadings.  While we conclude that plaintiff’s challenges to the court’s interpretation of 12 V.S.A. § 1041 are without merit, we remand for the court to consider plaintiff’s unaddressed constitutional challenges to that statute.

***

Finally, plaintiff contends that applying the  anti-SLAPP statute applies to his suit  unconstitutionally deprives him of his right to a remedy under Article 4 and to a jury trial under Article 12, and the compulsory fee award impermissibly burdens his attempt to exercise his rights to free speech and petition the court.  See Vt. Const. ch. I, arts. 4, 12. The trial court failed to meaningfully engage these arguments when plaintiff raised them below, instead observing that the anti-SLAPP statute already represented a legislative balancing of the conflicting constitutional rights at issue.  This does not answer plaintiff’s argument, and we decline to address these contentions for the first time on appeal, and therefore remand to the trial court for the purpose of considering plaintiff’s constitutional challenges to the anti-SLAPP statute. 

 

The trial court’s entry of judgment on the pleadings is affirmed.  Its ruling on defendant’s special motion to strike is affirmed in part but remanded for evaluation of plaintiff’s constitutional challenges to the anti-SLAPP statute.

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 murder conviction, holding warrantless ping search for cell phone location did not under exigent circumstances violate Article 11 of the Vermont Constitution.

State v. Murphy, 2023 VT 8 


CARROLL, J. Defendant appeals from his conviction for second-degree murder following a jury trial. He argues that the trial court erred by: (1) denying his motion for judgment of acquittal; (2) denying his motion to suppress evidence obtained as a result of a warrantless “ping” of his cell phone; (3) failing to sua sponte give a limiting instruction on evidence of flight; and (4) denying his motion for new trial. We conclude that defendant was not entitled to a judgment of acquittal. We further hold that, while defendant had a legitimate privacy interest in his realtime cell site location information under Article 11 of the Vermont Constitution, the warrantless ping was justified by exigent circumstances, and defendant’s motion to suppress was therefore properly denied. We reject defendant’s remaining arguments as well. We therefore affirm.


Neither the U.S. Supreme Court nor this Court has yet addressed whether individuals have a legitimate privacy interest in their real-time cell site location information (CSLI). We decide this case under Chapter I, Article 11 of the Vermont Constitution, which provides that “the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.”


Cellphone providers do not routinely collect the information that the police sought here. Real time CSLI is not a passive location record but data generated by an affirmative action—a ‘ping’— taken by the cell-service provider at the behest of a law enforcement officer. We agree that individuals do not reasonably expect that by using their phone, they will be sharing their real-time location information with police. They do not expect their cellphone to act as “a hidden tracking device that can be activated by law enforcement at any moment." We hold that individuals have a reasonable expectation of privacy in their real-time CSLI and that the acquisition of this information by police is a search that requires a warrant unless an exception to the warrant requirement applies.


Exigent circumstances may justify an exception to the warrant requirement if the facts, as they appeared at the time, would lead a reasonable, experienced officer to believe that there was an urgent need to take action. Police requested the ping on the day after the murder after, among other things, searching unsuccessfully for defendant at his known locations and interviewing an eyewitness who identified defendant as having probably shot the victim. Given the violent offense and an ongoing danger posed to the police and the public by a fleeing, armed, suspect accused of murdering a stranger on the street we conclude that the totality of the circumstances in this case shows that exigent circumstances justified the warrantless ping. We therefore affirm the trial court’s denial of defendant’s motion to suppress.

How cited

SCOVT reverses summary judgment, rejects Restatement (Third) of Property, and holds deeded right of way for “ingress and egress” does not allow access to install underground utilities.

Gladchun v. Eramo, 2023 VT 5


CARROLL, J. Jeffrey and Alyssa Gladchun appeal a decision granting summary judgment to neighboring landowners, Michael and Diane Eramo, and the Eramos' lessee, New Cingular Wireless, PCS, d/b/a AT&T (AT&T). The civil division concluded that a deed granting a right-of-way for "ingress and egress" to the Eramos was unambiguous and did not limit AT&T from installing utility lines under the right-of-way to service a planned communications tower. We agree that the deed is unambiguous as to the right-of-way. However, we disagree that it expresses more than the plain, ordinary meaning of "ingress and egress," which does not include installing underground utilities. Accordingly, we reverse and remand.

In March 2021, the Eramos granted AT&T an option to lease a portion of Lot 10 to construct a 195-foot-high communications tower. Lot 10 is benefitted by a thirty-foot right-of-way that is the only access to Lot 10. The right-of-way is described in the deed as “for the purpose of ingress and egress to and from the conveyed premises.”

On summary judgment the only question was whether the deed's express terms permitted underground utility lines. The trial court cited VTRE Investments, LLC v. MontChilly, Inc. for the proposition that "[w]here the intent is clearly to create a right of ingress and egress, but the language of the deed is general, 'the dominant estate "is entitled to a convenient, reasonable, and accessible way.'" 2020 VT 77, ¶ 23 (quoting Patch v. Baird, 140 Vt. 60, 66 (1981). 

Using this framework, the court relied on a comment to § 4.10 of the Restatement (Third) of Property to determine installation of underground utilities was a reasonable use of the right-of-way because normal advances in technology can permissibly increase "the manner, frequency, and intensity" of uses over time, citing previous cases of this Court for that proposition.

On appeal, the Gladchuns' primary argument is that the deed term unambiguously limits the use to the plain meaning of "ingress and egress," which does not include installing underground utilities. We agree conclude that the term is unambiguous, and the plain meaning of "ingress and egress" does not permit AT&T's current proposal.

The plain meaning of the words ingress and egress convey a right for defendants to enter and leave Lot 10 using the right-of-way. Nothing we can discern in the definitions of either word individually, or in combination, denote a right to install underground utilities. Where a deed unambiguously limits and defines a right-of-way, as here, our inquiry ends, and we enforce the deed as written. Accordingly, we need not consider what constitutes a "convenient, reasonable, and accessible way", nor do we need to consider what uses may constitute an overburden of the easement.

Defendants counter that this Court should adopt comment d to § 4.10 of the Restatement (Third) of Property (2000), which states that:

O, the owner of Blackacre, granted an easement to Able, the owner of Whiteacre, for `ingress and egress' from Whiteacre to the public street abutting Blackacre. The deed did not specify whether utility lines could be placed in the easement. Unless the facts or circumstances suggest that the parties intended otherwise, it would be proper to define the purpose of the easement generally to include access for anything that could conveniently be transported through the easement corridor and that would normally be used in connection with property situated like Whiteacre, including utility services.

We do not follow the Restatements if there "is a strong rationale to the contrary." Langlois v. Town of Proctor.  2014 Vt 130, ¶ 34,There are strong policy rationales to the contrary here.

First, the comment runs contrary to our long-standing rule for interpreting deeds in Vermont, which is to enforce the intent of the original parties, using whenever possible the plain, ordinary, and popular meaning of the language contained in the document.

Second, the Vermont Constitution vigorously protects private-property ownership, and the present character of the state is indicative of this feature. See, e.g., Vt. Const. ch. I, art. 1 ("That all persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety . . . .");[1] Since its founding, the people of the state have expressed a robust commitment to private-property ownership. See generally State v. Kirchoff, 156 Vt. 1, 14-19 (1991) (Springer, Dist. J. (Ret.), Specially Assigned,concurring) (explaining centrality of property rights in early Vermont and noting that "[p]rotection of citizens' rights to security in their land was a key motivating force in creating the Vermont Constitution"). This Court's long-standing rules of deed interpretation reflect this commitment.

In short, the comment has little relevance to Vermont given Vermont's unique character and history. While a policy may exist in other jurisdictions favoring the implication of a right to install utility lines where an otherwise unambiguous express easement is silent on the issue, it does not fit well in Vermont.

Because the civil division did not rule on defendants' alternative argument that Lot 10 is benefitted by an easement by necessity, we remand to the civil division to resolve that question.

Reversed.

How cited


 SCOVT note: Many states have constitutional provisions very similar to Article 1. Compare Vt. Const. ch. I, art. 1 with Cal. Const. art. 1, § 1 ("All people are by nature free and independent and have certain inalienable rights. Among these are enjoying and defending life and liberty . . . and pursuing and obtaining safety, happiness and privacy."); Mass. Const. pt. 1, art. 1 ("All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties . . . [and] that of seeking and obtaining their safety and happiness."); Nev. Const. art. 1, § 1 ("All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty . . . and obtaining safety and happiness[.]"); Va. Const. art. 1, § 1 ("That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, . . . and pursuing and obtaining happiness and safety.").

The Court has said that although "the text [of Article 1] includes the right to possess and protect property,” that right is listed among other "natural, inherent, and unalienable rights" merely to flesh out “philosophical truisms.” Shields v. Gerhart, 163 Vt. 219, 234-35 (1995) (holding Article 1 is not self-executing.)

The law of easements by necessity is summarized in a case recognizing an implied easement by necessity for water and sewer lines where development the residential property was is impossible without access to utilities:

It is well settled in Vermont and elsewhere, however, that an implied easement by necessity may arise by operation of law where it is essential to the "reasonable enjoyment of [the] land," Berge v. State, 2006 VT 116, ¶ 12, 181 Vt. 1, 915 A.2d 189, and that this principle incorporates access to essential utilities. See McElroy v. McLeay, 71 Vt. 396, 398-99, 45 A. 898, 899 (1899) (recognizing implied easement for access to public sewer line as "within the rule that everything . . . that is essential to the beneficial use and enjoyment of the property designated in the grant is . . . to be considered as passing by the grant"); see also Brown v. Miller, 140 Idaho 439, 95 P.3d 57, 61 (2004) (holding that easement by necessity "reasonably includes utilities"); Smith v. Heissinger, 319 Ill.App.3d 150, 253 Ill.Dec. 543, 745 N.E.2d 666, 671-72 (2001) (rejecting assertion that easement by necessity is limited to ingress and egress, and holding that it may exist for access to power, telephone, water, and sewer lines); Morrell v. Rice, 622 A.2d 1156, 1160 (Me.1993) ("An easement created by necessity can include not only the right of entry and egress, but also the right to make use of the easement for installation of utilities, essential for most uses to which property may reasonably be put in these times."); Huggins v. Wright, 774 So.2d 408, 412 (Miss.2000) (affirming grant of "easement of necessity . . . for ingress/egress and for utilities"); see generally 1 Restatement (Third) of Prop.: Servitudes § 2.15 cmt. d (2000) (observing that "increasing dependence" on access to utilities for reasonable enjoyment of property supports recognition of easement by necessity).

Regan v. Pomerleau. 2014 VT 99 ¶ 34.

.

SCOVT declines to overrule 200-year-old precedent and holds that the voter- citizenship requirement of Chapter II, § 42 of the Vermont Constitution does not apply to municipal elections.

 Ferry  v. City of Montpelier, 2023 VT 4 [filed 1/20/2023]

EATON, J. In this declaratory-judgment action, we are asked to consider whether a statute allowing noncitizens to vote in City of Montpelier elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution. We conclude that the statute allowing noncitizens to vote in local Montpelier elections does not violate Chapter II, § 42 because that constitutional provision does not apply to local elections. We accordingly affirm the trial court’s grant of the City’s motion to dismiss.

Chapter II, § 42 of the Vermont Constitution provides: Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:

Because § 42 is an older constitutional provision with a complicated history, our analysis of the text requires historical analysis. When we look to the plain text of a constitutional provision, we often simultaneously rely “on historical context to illuminate [its] meaning.” State v. Misch, 2021 VT 10, ¶ 12, 214 Vt. 309, 256 A.3d 519 (per curiam) 

From this history, we know that “voter” in § 42 is synonymous with “freeman,” and since 1828, at the latest, citizenship has been required to exercise the “privileges of a freeman in this State.” The operative question then becomes: what does it mean to have the “privileges of a freeman” under § 42? ¶ 33. Our precedents answer this question.

Marsh and Woodcock demonstrate that a “freeman” is an individual with the ability to vote in statewide elections in Vermont. State v. Marsh, N. Chip. 17 (1789); Woodcock v. Bolster, 35 Vt. 632 (1863) Therefore, under § 42, to exercise the “privileges of a freeman in this State” is to vote in statewide elections. These cases dictate that § 42 does not apply to municipal elections.

Plaintiffs assert that this conclusion is incorrect. First, they argue that the plain text of § 42 clearly applies to voters in all Vermont elections. Second,they argue Woodcock and Marsh , “outmoded” and should not be applied because of changes over time. 

Principles of stare decisis are a necessary lens through which to evaluate these arguments. “[T]his Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.” State v. Carrolton, 2011 VT 131, ¶ 15; see Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14 (recognizing that changes in social and economic circumstances over time may require deviation from precedent). 

Plaintiffs’ arguments do not convince us that Woodcock and surrounding precedents were wrongly decided then or that changed circumstances since those decisions require us to reach a different conclusion now.

Plaintiffs claim was properly dismissed on the merits because our precedents demonstrate that § 42 does not apply to municipal elections and we decline to overrule or abrogate those precedents in this case. 

Affirmed.

 How cited

SCOVT NOTES: 

 

1) NONCITIZEN VOTING

Noncitizen voting is not a novel idea. The right to vote is not an incident of U. S. citizenship, but is a matter of state law.  Historically, other states have permitted foreigners to vote:

The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 88 US. 162 (1875)  It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution. The State might provide that persons of foreign birth could vote without being naturalized.

Pope v. Williams, 193 US 621, 632-33 (1904) (citing Minor v. Happersett for its statement that under certain circumstance's the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, Missouri and Texas permit voting by persons of foreign birth before naturalization.)

2) STARE DECISIS and CONSTITUTIONAL INTERPRETATION

This case -- involving a test of an ancient interpretation the Vermont Constitution -- recites a standard requiring “plain justification" supported by evolving community experience, to overrule the precedent. 

The cases cited by the Ferry Court for this standard did not involve a constitutional issue. State v. Carrolton, 2011 VT 131, ¶ 15; Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14.  They are in a line of authority that says “mere disagreement” is not grounds to overrule recent precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem); see also Haupt v. Triggs , 2022 VT 61.

Just months ago the Court overruled a constititional interpretation simply because it was “decided incorrectly.” State v. Downing, 2020 VT 101 ¶ 22 (overruling a case that misinterpreted a bail statute expressed in terms identical to the Constitution). The Ferry Court holds the challenged precedent was correctly decided, thus leaving the requirement of “plain justification” in constitutional cases mere dictum.

Downing is consistent with decisions of the U. S. Supreme Court that the rule of stare decisis is relaxed in constitutional cases, because judicial action is the only recourse short of constitutional amendment. E.g. Smith v. Allwright, 321 U.S. 649, 665 (1944). But cf. Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands "special justification")

Indeed, some recent Vermont Supreme Court cases involving statutory interpretation do not follow the O’Connor caution. Instead, the Court has said it will overrule prior case law when it  determines the  earlier decision is "simply wrong." In re SD, 2022 VT 44 (overruling a 2007 case and holding the statutes grant no right for the State to appeal the dismissal of a delinquency petition). This simply-wrong standard traces back to a comment of Justice Jackson that there is “no reason why [the Court] should be consciously wrong today because [it] was unconsciously wrong yesterday."  Massachusetts v. United States, 333 U.S. 611, 639-40, (1948) (Jackson, J., dissenting).

It appears that "plain justification" is not necessarily required to overrule even a statutory interpretation, and that  Ferry is better viewed as an independent interpretation of the Constitution, rather than as an application of stare decisis to decide the constitutional question.