SCOVT affirms dismissal of constitutional and common law tort claims under the six-year statute of limitations where suit was filed more than six years after defendant's construction of improvements that periodically directed stormwater toward plaintiff’s land, holding that none of the claims are for recovery of land subject to the fifteen-year statute and that the continuing tort doctrine, which Vermont has not adopted, would in any event not apply since no "tortious act" occurred within the general six-year limitations period.

 

Nesti v. Agency of Transportation, 2023 VT 1 

 

CARROLL, J. Landowner Frances Nesti appeals two civil-division orders resolving multiple claims in favor of the Vermont Agency of Transportation (VTrans) on grounds of statute of limitations. We affirm.

 In 2006, VTrans rebuilt Route 7 in South Burlington and Shelburne. The project included constructing a new, enclosed stormwater-drainage-management system that directed stormwater downhill from the road in a westerly direction toward Lake Champlain. Nesti’s property lies west of Route 7 and abuts the lake.  Nesti filed suit on December 31, 2018, pleaded takings, trespass, and private-nuisance claims, seeking damages and injunctive relief arising from stormwater runoff that began forming in a ravine sometime after the completion of the project.

 

The court found on motion under Rule 12(b)(6 ) that Nesti was on notice that her claims accrued before December 31, 2012 (a conclusion Nesti does not challenge on appeal, except to claim continuing accrual). This  was the cutoff date for her December 31, 2018, complaint under 12 V.S.A. § 501, if it applies.

 

The court permitted Nesti’s trespass and nuisance claims to proceed to summary judgment on the question of whether they were continuing torts.  However, on summary judgment, the court determined that the lack of any tortious conduct within the limitations period would take the case out of the doctrine’s operation. The court entered judgment for VTrans on all claims. 

 

On appeal Nesti makes essentially four arguments: (1) her takings (inverse condemnation) claim  is not time-barred because it is subject to the fifteen-year limitations period for bringing claims to recover lands under 12 V.S.A. § 501; (2) to the extent the takings claim is time-barred under 12 V.S.A. § 511, it violates the federal and Vermont Constitutions; (3) her trespass and nuisance claims are also subject to 12 V.S.A. § 501; and (4) if § 501 does not apply to the tort claims, they are not time-barred under the continuing-tort doctrine

 

(1)

An inverse condemnation claim is not an action for the recovery of land

Nesti argues that her takings claim is subject to the fifteen-year statute of limitations for bringing actions to recover lands under 12 V.S.A. § 501,  not the general six-year statute of limitations for civil actions under 12 V.S.A. § 511.

12  V.S.A § 501 provides

[A]n action for the recovery of lands, or the possession thereof, shall not be maintained, unless commenced within 15 years after the cause of action first accrues to the plaintiff or those under whom he or she claims.

Nesti argues, in effect, that because VTrans could obtain a prescriptive easement or adversely possess her property only  after the fifteen-year limitations period, her takings claim cannot be cut off at six years under § 511 because that would be tantamount to granting the State a property interest without just compensation nine years before it could make out a prima facie claim of adverse possession  for such an interest.  We disagree. 

Adverse possession and takings claims are distinct causes of action and subject to different limitations periods because each is a product of contrasting public policy choices.  The fifteen-year state, 12 V.S.A. § 501, does not apply to inverse condemnation claims under Vt. Const. ch. I, art. See Dep’t of Forests, Parks & Recreation v. Town of Ludlow Zoning Bd., 2004 VT 104, ¶ 6.

(2)

 Constitutional arguments raised below but not addressed by the trial court will not be considered on appeal.

Nesti next argues that barring her takings claim under § 511 violates the federal and Vermont Constitutions. However the civil division did not actually address this argument in either its summary-judgment order or on the State’s motion to dismiss.  Nesti did  not assign error to the civil division’s failure to address her constitutional arguments This  results in waiver in this Court. See State v. Nash, 2019 VT 73, ¶ 18, 211 Vt. 160, 221 A.3d 386 (holding that issues not challenged for plain error on appeal are waived without review); see also V.R.A.P. 28(a)(3) (requiring appellants to provide, among other things, “specific claims of error”). Accordingly, we do not address the merits of this argument.

(3)

 Trespass and nuisance claims are not actions for the recovery of lands.

Nesti next argues that her tort claims are  “an action for the recovery of lands, or the possession thereof” under  12 V.S.A. § 501, not governed by  12 V.S.A. § 511.

 

a) Trespass

 Liability for trespass arises when one intentionally enters or causes a thing to enter the land of another. Thus, one who causes water to enter the land of another is liable for trespass.

 

 We have held that trespass claims are subject to the six-year statute of limitations provided by 12 V.S.A. § 511. Jadallah v. Town of Fairfax, 2018 VT 34, ¶ 16, 207 Vt. 413, 186 A.3d 1111 (holding that appellant’s claims, including trespass, “are all civil” rendering them subject to “the six-year period under § 511”); Wheeler v. Town of St. Johnsbury, 87 Vt. 46, 51-52, 87 A. 349, 351-52 (1913) (same).

 

Nesti is correct that she has fifteen years to bring an action to recover lands under § 501, but she is incorrect that she has fifteen years—or more—to bring a trespass action from the date on which the trespass cause of action accrues. The aggrieved party has the full six-year period to file a trespass claim, and the full fifteen years to recover lands under § 501. It is simply not true that affirming the civil division will mean “trimming” nine years off the fifteen years permitted by statute to recover lands.; instead, she failed to file her trespass  complaint within the six years the Legislature provided for such actions.

 

b) nuisance

Private nuisance is “a substantial and unreasonable interference with a person’s interest in the use and enjoyment of land.” A claimant has six years to bring a nuisance cause of action following the causes of action’s accrual. Alpstetten, 137 Vt. at 512-13, 408 A.2d at 646 14 (“The appellant alleged a tortious act resulting in an interference with the use and enjoyment of his property. Accordingly, the six[-]year statute of limitations is applicable.”)

 

(4) No continuing tort

Nesti’s final argument is that her trespass and nuisance claims are timely under the continuing-tort doctrine, and she asks this Court to apply the doctrine for the first time.  Nesti argues that she suffers a continuing harm with “each rush of water creating a fresh harm for which a new [cause of action] should accrue.”

 

The continuing tort doctrine requires “at least two elements: a continuing wrong, and some action contributing to the wrong that occurred within the limitations period.” Gettis v. Green Mountain Economic Development Corp., 2005 VT 117¶ 25. The contributing action cannot be “simply the continuing ill effects of prior tortious acts,” Id. ¶ 28.

 

VTrans has made no material change to the system since 2006.  Nesti has not alleged that VTrans committed a tortious act after the 2006 reconstruction. Without at least one such act occurring within the six-year limitations period, we are unpersuaded by Nesti’s argument because, even if we adopted the doctrine, it would not apply in this case. Accordingly, Nesti’s tort claims are time-barred.

 

Affirmed.

How cited

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SCOVT NOTE:  This case is puzzling because it seems to determine the applicable statute by reference to the legal theory (nuisance, trespass, inverse condemnation) rather that the nature of the harm or relief requested.  That is, an action for trespass or ejectment that seeks return of possession could be potentially be treated differently under the 15-year statute than one that sought only damages. (In this case the  trial court dismissed Nesti's ejectment causes of action for failing to state a claim, and Nesti did not appeal that determination.) The holding that an inverse condemnation claim is not governed by the 15-year statute can only be explained by defining an inverse condemnation claim as one seeking only damages for an unconstitutional taking.

Neither Jadallah nor Wheeler, cited by the Court, held that § 511 applies to “trespass claims.” Section 511 is the general civil statute of limitations that applies “unless as otherwise provided." -- when no other statute is applicable. Jadallah merely held that § 511 governed in that case because “appellant has not presented any reason to this Court that any statute of limitations other than the six-year period under § 511 is applicable.” 2018 VT 34, ¶ 16.

The Wheeler Court expressly did not decide if the six-year statute applied. It reversed a dismissal on the pleadings based on the six- year statute because the allegations supported a continuous accrual theory, invoked equity jurisdiction based on a  continuous trespass; and in event the six -year statute did not bar claims for injury within the most recent six-year period. The Court remanded the case in language that seems to support, rather than reject, a "continuing tort" theory that looks at when the harm, not the tortious act, occurred:

As to the statute of limitations, the demurrer is too large, for it goes to the whole bill, whereas, if good at all, which we do not decide, it is good only for what lies back of the statutory period, for the case is one of continuous injury without fresh violence, and of constantly accruing damages, the statute can cut off only back of six years from suit brought.

Wheeler v. Town of St. Johnsbury, 87 Vt. 46, (1913) (emphasis added) (citing precedent elsewhere establishes that a wrongful continuous flowing of land by means of a dam is a continuing injury, and affords a constantly accruing cause of action) 

Plaintiff Nesti's reply brief alerted the Court to no avail that Wheeler did not hold the six-year statue applies to trespass claims but instead supported the continuing trespass theory: 

VTrans' also relies on Wheeler v. Town of St. Johnsbury 87 Vt. 46, 51-52 (1913) as support for the imposition of a six-year statute of limitations to trespass claims. Wheeler does not support VTrans. Rather Wheeler stands for the opposite position and supports Appellant. In Wheeler this Court explained that where there was a continuous trespass (say the continued diversion of water) that gives rise to constantly accruing causes of action, dismissal under a six-year statute isn't warranted (though damages may be limited). Id. at 349. Thus the Wheeler Court reversed a denial of claims on the basis of a six-year statute of limitations claim when there was a constant trespass. 

A puzzling case indeed.  A case well-briefed, but the briefs were unread.

 

SCOVT holds that a direct private right of action for damages based on violations of Article 11 (Search and Seizure ) is available against the State, but only if the violation is flagrant.

Gregory W. Zullo v. State of Vermont, 2019 VT 1 [filed January 4, 2019] How cited

EATON, J. In this civil rights action against the State of Vermont, plaintiff seeks declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff’s vehicle violated Article 11’s constraints against governmental searches and seizures  We agree that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State, but reverse and remand to give the parties an opportunity to address the elements of a direct action under Article 11 as established in this opinion

At issue in this appeal is: (1) whether Article 11 provides a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff’s vehicle violated plaintiff’s rights under Article 11, thereby entitling him to seek such relief.

In September 2014, plaintiff filed suit against the State, alleging four counts of violations of Article 11 of the Vermont Constitution: (1) an unlawful traffic stop without reasonable suspicion of any traffic violation; (2) an unlawful exit order without reasonable suspicion of danger or the commission of a crime; (3) an unlawful seizure of his car without probable cause; and (4) an unlawful search of his car without probable cause. He sought a  declaration that Trooper Hatch’s actions were illegal, an award of damages for the violations of his rights, and an award of costs.

II. The Vermont Tort Claims Act and Sovereign Immunity. We first address the State’s argument that no private right of action may be implied directly under Article 11 because the State has not waived its sovereign immunity to any such action either under the VTCA or any other legislation. Given the VTCA’s silence as to constitutional torts and the absence of any comparable private analog, we conclude that the Act’s statutory waiver of sovereign immunity against certain civil tort claims does not apply here. However in light of the reasoning in our prior caselaw discussed, we conclude that the common law doctrine of sovereign immunity is not an absolute jurisdictional bar to Vermont courts considering constitutional tort actions.

III. Implied Private Right of Action Directly Under Article 11 We must first consider whether the constitutional provision at issue is self-executing in the sense that it is specific enough to support an action against the state or state officials absent implementing legislation. Shields v. Gerhart, 163 Vt. 222, 237, 658 A.2d 924, 927 (1995).  If that hurdle is cleared, we must then “determine whether monetary damages are available as a remedy for a violation” because of the absence of any viable alternative remedy. Id. Article 11 unequivocally sets forth a single specific right of the people to be free from unwarranted searches and seizures of their persons, possessions, and property, that provision is manifestly self-executing. none of the alternatives to a compensatory remedy proffered by the State can substitute as a viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most particularly in a case like this where plaintiff was not charged with a crime. However, we conclude that, in the absence of any applicable legislation addressing constitutional torts, restrictions akin to qualified immunity are appropriate and necessary in civil actions seeking damages for violations of Article 11:  a plaintiff seeking damages against the State directly under Article 11 based on a law enforcement officer’s alleged violation of that  constitutional provision must show that: (1) the officer violated Article 11; (2) there is no meaningful alternative remedy in the context of that particular case; and (3) the officer either knew or should have known that the officer was violating clearly established law or the officer acted in bad faith.

In sum, we conclude that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating, or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment.

The superior court’s dismissal of plaintiff’s count 4 in its March 10, 2015 decision and its grant of summary judgment to the State in its May 10, 2017 decision are reversed; the matter is remanded for further proceedings consistent with this opinion.

SCOVT NOTE Re: Vermont constitutional torts, sovereign and qualified immunity. 

The following clauses of the Vermont Constitution are self-executing:

Prohibition of slavery, Article 1: See Slavery: In Re Vermont Constitution Of 1777, As Regards Its Adoption, And Its Declaration Forbidding Slavery; And The Subsequent Existence Of Slavery Within The Territory Of The Sovereign State ,Vt. Reports, Volume 9. [An Address Delivered By Chief Justice Watson Before The Vermont Bar Association At Its Annual Meeting Held At Montpelier on January 4, 1921]

Inverse condemnation--takings,  Article 2: See  Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219 (2000); Nesti v. Agency of Transportation, 2023 VT 1

Due process, Article 4: See  Nelson v. Town of Johnsbury Selectboard, 2015 VT 5, ¶ 52, 198 Vt. 277, 300, 115 A.3d 423, 438 (2015).

Common benefits, Article 7:  See Baker v. State,  170 Vt. 194, 744 A.2d 864 (1999); In re Town Highway No. 20, 2012 VT 17, ¶ 34, 191 Vt. 231, 252, 45 A.3d 54, 67 (2012.)

Search and Seizure, Article 11.  Zullo v. State 2019 VT 1

Free speech, Article 13:  See Shields v. Gerhart, 163 Vt. 219, 227, 658 A.2d 924, 930 (1995). Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶¶ 30-31, 190 Vt. 639, 646, 35 A.3d 1019, 1028–29 (2011).

The following clauses are not self executing:

Happiness and safety, Article 1: Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 928 (1995) (Article 1 does not establish an enforceable property right; happiness and safety clause merely expresses fundamental principles); accord Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1199 (1995); Benning v. State, 641 A.2d 757 (1994).

Officers Servants of the People, Article 6:Welch v. Seer., 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980) (Article 6 is but a truism of a republican form of government, and provides no private right of action.); accord  Rutland Herald v. Vermont State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91 (2012).

This issue of whether sovereign immunity bars a constitutional tort claim against the government was first addressed in In re Town Highway No. 20, 2012 VT 17. There the Court determined that the Common Benefits Clause in Article 7 of the Vermont Constitution provides a self-executing private right of action, and that litigants may recover monetary relief for such a claim. This case involved a selectboard's repeated and relentless bias against the plaintiffs, which the Court held invidiously discriminated in violation of due process and Article 7.

The Court rejected a defense of complete immunity because it is inconsistent to recognize a constitutional tort while simultaneously granting immunity . Id. ¶ 58 (Citing Corum v. Univ. of N.C., 330 N.C. 761, 785, 413 S.E.2d 276, 291(1992). ("It would indeed be a fanciful gesture to say on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity.") ).

The Court, however, required a showing of actual malice or bad faith to recover monetary relief in any constitutional-tort claim based on a violation of Article 7. The Court announced a plaintiff must demonstrate that the decision was “actuated by personal motives unrelated to the duties of the defendant's official position, such as ill will, vindictiveness, or financial gain” - - that "the discriminatory treatment was motivated solely by an actual desire to harm the plaintiff or by other unjustified personal motives such as self-enrichment or the enrichment of others.” Id. ¶¶ 37-38.

Later in the opinion the Court said this requirement of a showing of actual malice or bad faith “serves the equivalent function of the qualified immunity doctrine" otherwise available to local officials when they perform discretionary acts in good faith within the course and scope of their employment. Id., ¶ 57 (Citing Morway v. Trombly, 173 Vt. 266, 272, 789 A.2d 965, 970 (2001) (quotation omitted)).

Qualified official immunity protects government officers, employees and agents "(1) acting during their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts." Levinsky v. Diamond, 151 Vt. 178, 185, 559 A.2d 1073, 1077 (1989), overruled on other grounds, Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990). Good faith in this context has an objective test: "Good faith exists where an official's acts did not violate clearly established rights of which the official reasonably should have known." Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991) In Zullo v. State 2019 VT 1 the Court borrowed from the malice or bad faith standard of In re Town Highway No. 20, and the law of qualified official immunity, but the Court modified Town Highway to place the burden on plaintiff seeking money damages against the State for a search or seizure violation under Article 11 to show that a law enforcement officer acting within the scope of the officer's duties either acted in bad faith ("which may take the form of discriminatory animus") or knew or should have known that the officer was violating clearly established law.   Id. ¶ ¶ 54, 84. 

In adopting this "limiting principle" the Zullo Court rejected the view of the trial court that that there is no need for a heightened standard of proof to secure damages under Article 11 because Article 11 provides its own standard—the unreasonable exercise of authority by a state actor.

The Court also noted but rejected the view of other State courts that have held qualified immunity does not apply to suits against the State. Clea v. Mayor and City Council of Balt., 541 A.2d 1303, 1314 (Md. 1988) ("To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purposes of the constitutional provisions."); Dorwart, 2002 MT 240, ¶¶ 68-69 (holding that qualified immunity is not applicable to claims alleging violation of rights guaranteed by state constitution because it would be inconsistent with constitutional requirement that courts afford remedy for claims recognized by law). 

Finally, the  Court rejected argument that there is a meaningful distinction, for immunity purposes, between suit against the State and suits against state actors.  Qualified immunity protects state actors from liability for all but the most flagrant and patently unjustified violations of Article 1

Even though officers have such personal qualified immunity, the Court was persuaded that "a rule that exposes the State to a potential civil damages suit following every roadside stop, or whenever a motion to suppress is granted, could inhibit law enforcement officers from taking some effective and constitutionally permissible actions in pursuit of public safety. Id., ¶ 52. 

At bottom the limiting principle was necessary because "of our need to be cautious when judicially recognizing potential damage liability to be imposed on another branch of government. Id., ¶ 53 ( citing D. Dobbs et al., The Law of Torts § 334, at 331 (2d ed. 2011) (retaining limited immunity prevents judicial branch from intruding upon functions of legislative and executive branches through adjudication of tort suits)). The common law ability to award damages for constitutional violations:

requires policy decisions by the court, and it should be aware of them and face them candidly.... The court is not required to provide the civil remedy, and yet judicial tradition gives it the authority to do this under appropriate circumstances. The court has discretion and it must be careful to exercise that discretion cautiously and soundly.

Restatement § 874A cmt. d, at 303 (emphasis added).

In sum, the Zullo Court held that a direct private right of action for damages is available against the State but only for the most flagrant and patently unjustified violations of Article 11. See id, ¶84

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.

SCOVT affirms summary judgment dismissing claims, including takings claims against municipality arising from sewage backups that were “intermittent, limited, and transient.”

Lorman v. City of Rutland, 2018 VT 64 [filed 6/29/2018]

REIBER, C.J. Plaintiffs sought relief from the City of Rutland after suffering sewage backups in their homes. The trial court granted summary judgment to the City, concluding that plaintiffs failed to adequately support their negligence, nuisance, trespass, and constitutional takings claims. Plaintiffs appeal, arguing that they produced sufficient evidence to survive summary judgment. We affirm the court’s decision

Plaintiffs suggest that a taking has occurred, citing Winn v. Vill. of Rutland, 52 Vt. 481, 494-95  (1880) (stating that village authorities had no “right to make the lands of the plaintiff a place of deposit for the sewage of the village, creating there a cesspool and nuisance, and endangering the lives of the plaintiff and his family, without first making compensation therefor,” and “[s]uch use of the plaintiff’s lands amounts to a taking of his land within the purview of the constitutional requirement that compensation shall be made”)

The City is not immune from takings claims. For a property loss to be compensable as a taking, the government must “intend[] to invade a protected property interest or the asserted invasion [must be] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” Ondovchik Family 21 Ltd. P’ship, 2010 VT 35, ¶ 16

Although temporary, repeated incursions can sometimes rise to the level of a taking, the incursions must “amount to the taking of an easement. When the intrusion is limited and transient in nature and occurs for legitimate governmental reasons, it does not amount to a taking. Ondovchik, 2010 VT 35, ¶ 18 To the extent that we suggested otherwise in Winn v. Vill. of Rutland, 52 Vt. 481, 491-93 (1880), that suggestion is no longer good law

The undisputed facts here show that the sewage backups on plaintiffs’ property have been intermittent, limited, and transient. The Gallaghers have had one backup since 2007 and the Lormans have had two. The Dalys have had five backups between 1983 and 2014 with the closest backups occurring four years apart. While no backup is insignificant, the backups occurred intermittently over a long period of time, and we conclude that this does not suffice to show a taking under the law. Based on the undisputed facts, the City was entitled to summary judgment on this claim.

How cited

Vt. Constitution, Chapter I, Article 4 is a self-executing clause that protects against deprivation of property rights without due process.

Nelson v. Town of St. Johnsbury, 2015 VT 5 [Filed January 16, 2015]

DOOLEY, J. Plaintiff, the former town manager of St. Johnsbury, appeals from a trial court decision granting partial summary judgment to defendants, the Town of St. Johnsbury and its individual selectboard members, on his claims of violation of Chapter I, Article 4 of the Vermont Constitution. We reverse and remand.

Plaintiff sought a preliminary injunction reinstating him as town manager; compensatory and punitive damages; and attorney's fees and costs. After a hearing, the trial court refused to grant a preliminary injunction. On summary judgment the court held that plaintiff has no legal interest in his employment because his employment was at will; the selectboard members are entitled to qualified immunity for their alleged violation of the Civil Rights Act, 42 U.S.C. § 1983; plaintiff has no private right of action for a violation of Chapter I, Article 4 of the Vermont Constitution; and plaintiff failed to satisfy all the required elements of promissory estoppel. This appeal followed.

Chapter I, Article 4 of the Vermont Constitution provides:

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws.

Vt. Const., ch. I, art. 4.

We have considered Article 4 the equivalent to the federal Due Process Clause. It does not create substantive rights; it merely provides access to the courts. Where a substantive right—e.g., a property interest—already exists, conferred by statute or common law, Article 4 can protect a plaintiff against deprivation of that right without due process.

Plaintiff claims that when the selectboard allegedly deprived him of his employment without due process, that deprivation offended the guarantees of Article 4. The Town contends that Article 4 does not provide a private right of action. The trial court agreed with the Town and granted its motion for summary judgment. We disagree with the trial court and reverse the grant of summary judgment to the Town.

The question of whether a private right of action can be based on a provision of the Vermont Constitution may be bifurcated into two questions. The first is whether the constitutional provision is self-executing—that is, whether a plaintiff can bring an action for a violation of the provision without implementing legislation. The second is whether the remedy that a plaintiff seeks, typically damages, exists for the violation.

A Vermont constitutional provision is self-executing "if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, . . . and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given force of law.” That is, "a self-executing provision should do more than express only general principles; it may describe the right in detail, including the means for its enjoyment and protection.” We have concluded that Article 7, and Article 13 are self executed because each "expresses a ... fundamental right" and that right is "so certain and definite in character as to form rules for judicial decisions."

Article 4 is about access to the judicial branch to enforce the law. We recognize that we are dealing with a very broad concept, stated in language from an earlier century. To say that the language is too vague and general to enforce ignores the immense body of law that has developed and applied the principles of due process. We find Article 4 no more broad or general than Article 7, which we held as self-executing.

We therefore hold that Chapter I, Article 4, of the Vermont Constitution is self-executing and that plaintiff properly invoked the Article in his complaint.

We stress that we have not addressed the remedy plaintiff might receive if he proves a violation of the provision. We have almost no precedents in which Article 4, rather than the Fourteenth Amendment to the United States Constitution, is the primary basis for decision and none in which the party invoking Article 4 is seeking relief within or because of an administrative process. The trial court will have to address how it meets the claims and facts before it. We reverse the trial court's grant of summary judgment to the Town and hold that plaintiff is entitled to due process under Chapter I, Article 4 of the Vermont Constitution.

We remand to the trial court to decide if the selectboard furnished plaintiff with adequate notice and hearing upon termination.

Public records / Constitutional law. Internal police investigations are not public records as relating to “the management and direction of a law enforcement agency.” Accountability Clause of Vermont Constitution, Chapter I, Article 6, is not self-executing.

Rutland Herald v. Vermont State Police, 2012 VT 24 (Skoglund, J.) (Dooley, J., concurring in part and dissenting in part.)

This case concerns public access to records of a criminal investigation of possession of child pornography by employees of the Criminal Justice Training Council at the Vermont Police Academy.  The Herald appeals from a trial court decision granting summary judgment to the State denying disclosure of the records under the Access to Public Records Act (PRA), 1 V.S.A. §§ 315-320.  The court concluded that the records sought by the Herald, which included inquest records, were exempt from disclosure as “records dealing with the detection and investigation of crime” under § 317(c)(5).   The Herald has not challenged this threshold determination, and we accept the trial court’s characterization of these records. The Herald asserts that disclosure is appropriate because the investigation is complete, and the public interest favors disclosure.  The Herald also argues  that the records at issue must be disclosed because they “relat[e] to [the] management and direction of a law enforcement agency”  within the exception to the criminal record exemption, 1 V.S.A. § 317(c)(5).  Finally the Herald asserts that the Vermont Constitution, particularly Chapter I, Article 6, mandates disclosure. We reject these arguments and affirm.

The statute is broadly worded and it provides a categorical exemption for certain records irrespective of their specific content. The statute exempts “records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation.”  1 V.S.A. § 317(c)(5) (emphases added).  Investigation records are “maintained” or kept on individuals on an ongoing basis, after active “detection and investigation” is complete.   The words “maintained” and “compiled” suggest that the Legislature anticipated keeping investigatory records exempt after an active investigation had ended.    Had the Legislature intended the exemption to exist only during an ongoing investigation, it could have been much more specific.  The PRA  contains other exemptions with specific temporal limitations. Other state courts have  determined that, in the absence of specific temporal language, there is no temporal limitation on an exemption of disclosure of records related to the detection or investigation of crime.  Because § 317(c)(5) provides a record-based, rather than content-based, limitation, it is not appropriate to read a temporal limit or a balancing test into the statute.  

Section 317(c)(5) contains an exception that makes public “records relating to management and direction of a law enforcement agency.”  According to the Herald, any investigation into illegal activity by law enforcement individuals, by definition, falls within this proviso.  The Herald’s interpretation finds no support in the plain language of the statute or in its legislative history. The statute draws no distinction between those records that deal with a criminal investigation of a police officer, and those involving a criminal investigation of other citizens. Indeed the Legislature has specifically exempted “records of the office of internal investigation of the department of public safety” from public view.  1 V.S.A. § 317(c)(18); see also id. § 317(c)(1) (exempting from disclosure “records which by law are designated confidential”); 20 V.S.A. § 1923(d) (stating that records of the office of internal investigation shall be confidential with exceptions not relevant here). Classifying the records here as falling within the management proviso would obviate the language that specifically addresses and exempts records dealing with the detection and investigation of crime.  It would swallow the exemption.   Nothing in the legislative history shows that the management proviso was intended to make public actual investigation files such as those at issue here.  As the trial court found, the records here were directly related to a specific investigation; they were not related to policy, employment practices, or other activities that would fall within a common sense understanding of the term “management and direction of a law enforcement agency.”

Chapter I, Article 6, of the Vermont Constitution states, “[t]hat all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”   The provision was originally present in the Vermont Constitution of 1777, ch. I, art. 5, having there been lifted nearly verbatim from the Pennsylvania Constitution of 1776.  Pa. Const. of 1776, Declaration of Rights, cl. IV.  The framers of the Pennsylvania Constitution drew their inspiration, in turn, from the Virginia Constitution of 1776, drafted by George Mason, which provided “[t]hat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  Va. Const. of 1776, Bill of Rights, § 2.  We have explained that Article 6 cannot normally be the basis for judicially enforceable rights.  “Article 6 is but a truism of a republican form of government, and provides no private right of action. “   Welch v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980). Article 6 does not provide the specificity necessary to create legal entitlements with definite character, and is not self-executing.  To say that Article 6 is not self-executing is to say that the Legislature may select the means and details of executing the broad principles articulated in Article 6.   To the extent that § 317(c)(5) exempts from disclosure the records in this case, the Legislature has determined that the principle embodied in Article 6 does not mandate disclosure.  We will not second-guess that determination.

Dooely, J., dissents from the majority decision with respect to the inquest records, but concurs with with the majority decision that 1 V.S.A. § 317(c)(5) exempts from public access executive branch records dealing with the detection and investigation of crime, even if the criminal investigation is complete, and also with the majority decision that  the statute, so construed, does not violate Article 6 of Chapter I of the Vermont Constitution.  Justice Dooley also agrees that the proviso in § 317(c)(5) for “records relating to management and direction of a law enforcement agency” does not apply here, although for reasons different from the majority.  The Legislature may have wanted transparency if the investigation of crime involves investigating the actions of a law enforcement agency or its employees.  Thus, Justice Dooley does not agree with the majority’s conclusion that the Herald’s position would “swallow the exemption.”  The proviso is needed because the wording of § 317(c)(5) threatens to make opaque all records of the agency—even those that do not involve investigation of particular cases but instead with the overall management and direction of the agency.  Since the records the Herald seeks do not relate to the management and direction of the VSP, the proviso does not apply.

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.