Municipal Law Year in Review Christian S. Chorba, Esq. Monaghan - - PowerPoint PPT Presentation

Municipal Law Year in Review

Christian S. Chorba, Esq. Monaghan Safar Ducham PLLC Verm ont Bar Association 20 19 Annual Meeting

Toensing v. Attorney Gen. of Verm ont

20 19 VT 30 October Term , 20 18 , issued 4 / 26 / 19

• 1 V.S.A. § 319 (d)(1): “Except as provided in subdivision (2) of this

subsection, the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this section in which the com plainant has substantially prevailed.”

• Plaintiff brings three argum ents: (1) language of statute,

(2) legislative history, and (3) public policy.

Toensing v. Attorney Gen. of Verm ont

20 19 VT 30 October Term , 20 18 , issued 4 / 26 / 19

• Language of statute does not support awarding legal fees to self-represented

attorneys.

• Black’s Law Dictionary says “attorney’s fee” is “charge for services” and

“attorney” is “one who is designated to transact business for another.”

• Although 1 V.S.A. § 315(a) says “the provisions of this chapter shall be

liberally construed,” this does not m ean ignoring plain m eaning of language.

• Use of word “shall” rather than “m ay” in statute does not affect analysis.
• Lack of specific exem ption for self-represented attorneys also does not

affect analysis.

Toensing v. Attorney Gen. of Verm ont

20 19 VT 30 October Term , 20 18 , issued 4 / 26 / 19

• Legislative history
• Com m ents by governor’s counsel and state archivist do not support

plaintiff’s position.

• Public policy argum ent
• Virtually all federal and state courts have rejected these argum ents.
• U.S. Suprem e Court and Sixth Circuit indicate awarding attorney’s fees is for

ensuring effective representation and intended as relief, not reward.

• Verm ont Suprem e Court has routinely considered opinions of other federal

and state courts when interpreting Verm ont’s Public Records Act.

Severson v. City of Burlington

20 19 VT 4 1 February Term , 20 19, issued 6/ 7/ 19

• 1 V.S.A. § 314(c):

“Following an acknowledgm ent or denial of a violation and, if applicable, following expiration of the 14-calendar-day cure period for public bodies acknowledging a violation, the Attorney General or any person aggrieved by a violation of the provisions of this subchapter m ay bring an action in the Civil Division of the Superior Court in the county in which the violation has taken place for appropriate injunctive relief or for a declaratory judgm ent.”

• Black’s Law Dictionary defines “Aggrieved” as “(Of a person or entity) having

legal rights that are adversely affected; having been harm ed by an infringem ent

• f legal rights.”

Severson v. City of Burlington

20 19 VT 4 1 February Term , 20 19, issued 6/ 7/ 19

• Purpose of Open Meeting Law:

“[T]he Legislature intended the Law to protect the public’s rights to keep public officials accountable by granting m em bers of the public the right not only to hear, but also to be heard. . . . [T]he Law not

• nly requires that m eetings subject to the Law be open to the public,

but requires that m em bers of the public be given a reasonable

• pportunity to express their views on m atters considered by the

public body during a public m eeting.”

Severson v. City of Burlington

20 19 VT 4 1 February Term , 20 19, issued 6/ 7/ 19

• As m em ber of public body at issue, Plaintiff qualifies as “any person

aggrieved” entitled to seek enforcem ent of the Open Meeting Law: “Those who govern have every bit as m uch of an interest in open and transparent public m eetings as those who are governed. To do their job properly, officers of the governm ent need to hear from m em bers

• f the public on m atters being considered by a public body. Public

m eetings provide the opportunity for m em bers of the public to give their input on such m atters. Without the sharing of opinions and concerns, public bodies would be less able to fully and com petently serve the public and construct beneficial decisions for the people.”

Severson v. City of Burlington

20 19 VT 4 1 February Term , 20 19, issued 6/ 7/ 19

• However, dism issal affirm ed because Plaintiff’s allegations were of

speculative injuries arising from potential exclusion of unknown m em bers of public:

• Com plaint provided no evidence that m em ber of public was actually

deprived access to m eeting or was deterred from attending m eeting.

• Any inference that som eone m ust have been excluded because there

was great public interest but such low public attendance is not reasonable based on record.

Long v. City of Burlington

20 18 VT 10 3 April Term , 20 18 , issued 9/ 21/ 18

• 1 V.S.A. § 317(c) contains “trade secret” exem ption to Verm ont Public Records Act:

“The following public records are exem pt from public inspection and copying: . . . (9) Trade secrets, m eaning confidential business records or inform ation, including any form ulae, plan, pattern, process, tool, m echanism , com pound, procedure, production data, or com pilation of inform ation which is not patented, which a com m ercial concern m akes efforts that are reasonable under the circum stances to keep secret, and which gives its user or owner an

• pportunity to obtain business advantage over com petitors who do not know it
• r use it, except that the disclosures required by 18 V.S.A. § 4 632 are not

exem pt under this subdivision.”

Long v. City of Burlington

20 18 VT 10 3 April Term , 20 18 , issued 9/ 21/ 18

• Exem ption should be construed strictly against custodian of records with

doubts resolved in favor of disclosure.

• Burden of establishing exem ption is on agency seeking to prevent disclosure.
• Springfield Term inal Ry. v. Agency of Transp., 174 Vt. 341, 8 16 A.2d 448 (20 0 2):
• Trade secret exem ption is not lim ited to intellectual property.
• “[D]isclosure of inform ation the Governm ent has secured from voluntary

sources on a confidential basis will both jeopardize its continuing ability to secure such data on a cooperative basis.”

• Voluntary subm ission of financial inform ation does not waive protection.

Long v. City of Burlington

20 18 VT 10 3 April Term , 20 18 , issued 9/ 21/ 18

• Here, inform ation is protected from disclosure because:
• Inform ation is covered by exem ption; and
• Burlington Town Center has m ade reasonable efforts to keep

inform ation secret (and actually, there is no requirem ent that entity m ust enter into nondisclosure agreem ent with governm ent agency before disclosing trade secret inform ation to invoke trade secret exem ption.

• Verm ont Suprem e Court did not reach issue of whether inform ation was

even a public record.

William s v. Town of N. Hero

20 18 VT 114 Septem ber Term , 20 18 , issued 10 / 19 / 18

• Departm ent of Taxes Division of Property Valuation and Review’s Rule 8 4-1 provides for

im position of “appropriate sanctions” for enforcem ent purposes. However, it is silent on when and what sanctions m ay be appropriate.

• Verm ont Suprem e Court looks to V.R.C.P. 37, which provides for variety of potential

sanctions, including contem pt sanctions.

• V.R.C.P. 37 does not perm it sanctions when party has com plied with order com pelling

discovery, which is what happened here. Town had com plied with order com pelling discovery by taking final look and finding and producing requested file as ordered to do.

• Therefore, sanctions were abuse of discretion.
• Verm ont Suprem e Court does not reach issue of whether PVR Division hearing officer is

ever em powered to im pose m onetary sanction for com pensatory or punitive purposes arising out of discovery dispute.

Skiff v. S. Burlington Sch. Dist.

20 18 VT 117 June Term , 20 18 , issued 10 / 26 / 18

• Chapter I, Article 20 of Verm ont Constitution contains “right to petition”:

“That the people have a right to assem ble together to consult for their com m on good--to instruct their Representatives--and to apply to the Legislature for redress of grievances, by address, petition or rem onstrance.”

• Group of residents argue
• They have constitutional right to use 17 V.S.A. § 2642(a) and § 2643(a) to

bring nonbinding petitioned articles for district-wide vote; and

• Because som e m unicipalities do not have traditional town m eeting where

residents can discuss “other business,” there m ust be opportunity to instruct

• fficials through inclusion of nonbinding articles in district-wide vote.

Skiff v. S. Burlington Sch. Dist.

20 18 VT 117 June Term , 20 18 , issued 10 / 26 / 18

• Municipalities have discretion to refuse to include petitioned article in

town vote if subject concerns m atter outside of voters’ authority.

• 17 V.S.A. § 26 42(a)(2) does not include right to include articles for vote
• ver which voters do not have power to decide.

Skiff v. S. Burlington Sch. Dist.

20 18 VT 117 June Term , 20 18 , issued 10 / 26 / 18

• Chapter I of Verm ont Constitution is entitled “A Declaration of the

Rights of the Inhabitants of the State of Verm ont.” It contains rights that are personal to Verm ont’s inhabitants, not collective.

• There is no collective right to vote on advisory articles that “instruct”

m unicipality or school board.

• To extent that it contains individual right to inform one’s

representatives, residents have failed to allege any deprivation of that right in this case.

Stopford v. Milton Town Sch. Dist.

20 18 VT 120 April Term , 20 18 , issued 11/ 16/ 18

• 16 V.S.A. § 8 34 states that schools owe their students duty of ordinary care, not

heightened duty of care: “(a) Each school district and its em ployees owe its students a duty of

• rdinary care to prevent the students from being exposed to unreasonable

risk, from which it is foreseeable that injury is likely to occur. (b) School districts and their em ployees do not owe their students a duty of im m ediate supervision at all tim es and under all circum stances.”

• This language m eans that Legislature chose not to im pose heightened duty of

care upon Verm ont schools.

Stopford v. Milton Town Sch. Dist.

20 18 VT 120 April Term , 20 18 , issued 11/ 16/ 18

• Undisputed facts establish that there was no notice that this assault would occur.
• School was never m ade aware of team m em bers’ m ost egregious behavior until after

student’s death.

• “In general, crim es com m itted by a third party fall within the realm of the

unforeseeable, and therefore cannot form the basis for liability.”

• There was no special knowledge or notice to overcom e this general rule because

prior inappropriate behavior did not put school on notice about im pending physical assault.

• Fact that there m ay have been nationwide epidem ic of school hazing and harassm ent

does not m ake specific attack on student foreseeable. There m ust be specific notice for som ething like this to be foreseeable.

Paige v. State

20 18 VT 136 January Term , 20 19 , issued 12/ 21/ 18

• “The standing doctrine protects the separation of powers between the branches of

governm ent by ensuring that courts confine them selves to deciding actual disputes and avoid intervening in broader policy decisions that are reserved for the Legislature.”

• Plaintiff failed to sufficiently allege that he has been or will be directly injured in

cognizable way by Act 46.

• Allegation that residents overall will be subjected to higher education costs and

school taxes is insufficiently specific to confer standing.

• Plaintiff is not personally affected because he is neither public school student nor

parent of public school student.

• Transfer of ownership of school to new district and dilution of control over

educational decisions for students are injuries shared with taxpayers generally, not personal to Plaintiff.

• 1 V.S.A. § 316(c):

“Unless otherwise provided by law, in the following instances an agency m ay also charge and collect the cost of staff tim e associated with com plying with a request for a copy of a public record: (1) the tim e directly involved in com plying with the request exceeds 30 m inutes; (2) the agency agrees to create a public record; or (3) the agency agrees to provide the public record in a nonstandard form at and the tim e directly involved in com plying with the request exceeds 30 m inutes. The agency m ay require that requests subject to staff tim e charges under this subsection be m ade in writing and that all charges be paid, in whole or in part, prior to delivery of the copies. Upon request, the agency shall provide an estim ate of the charge.”

Doyle v. City of Burlington Police Dep’t

20 19 VT 66, April Term , 20 19 , issued 9/ 13/ 19

• Question is whether Public Records Act “authorizes state agencies to charge and

collect fees for staff tim e spent com plying with requests to inspect public records.”

• Plain language of 1 V.S.A. § 316(c) authorizes charges only for requests for copies of

public records, not for requests for inspection.

• Also, plain language throughout statute clearly distinguishes between “copy” and

“inspect.”

• Argum ent that, here, request to inspect is really request to copy is not consistent

with plain language of statute.

• Also, 1 V.S.A. § 315(a) explicitly directs courts to “liberally construe[]” Public

Records Act to “provide for free and open exam ination of records.”

Doyle v. City of Burlington Police Dep’t

20 19 VT 66, April Term , 20 19 , issued 9/ 13/ 19

• Dissent
• Sees issue as whether “this provision authorizes charges only for requests for copies of public

records, not for requests for inspection.”

• Believes “public agency’s lawfully required duties in responding to record requests, not the

wording of the particular request, should determ ine whether the agency is authorized to charge for staff tim e.”

• “It m akes no sense for the Legislature to authorize reim bursem ent for staff tim e reviewing,

redacting, and producing records for which a copy is sought, but not for the exact sam e work when a person seeks only to inspect a redacted copy.”

• “Taken to its logical extrem e, the m ajority’s holding bars public agencies from obtaining

reim bursem ent for significant staff tim e in response to onerous requests to inspect records requiring redactions—for exam ple, a request for all body cam era footage from a m unicipal police departm ent for any given period of tim e.”

Doyle v. City of Burlington Police Dep’t

20 19 VT 66, April Term , 20 19 , issued 9/ 13/ 19