Vermont Supreme Court denies Brattleboro petition appeal

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BRATTLEBORO >> The Vermont Supreme Court affirmed a lower court's ruling that the Brattleboro Select Board did not interfere in an attempt to amend the Town Charter.

According to the decision, which was posted on April 29, Kurt Daims and Craig Newbert submitted three separate petitions prior to the March 3, 2015, Town Meeting. The petitions sought to allow residents 16 years old and older to vote at town meetings and to allow voters to seek a referendum on articles authorizing the town to spend more than $2 million. The petitions also called for term limits on Town Meeting Representatives and to hold elections for reps and town officials in November, rather than in March. In addition, the petitions called for the town to provide two hours of paid leave for employees to vote at town meetings and to have the town grand juror enforce the minimum wage and to function as a district attorney for the Town.

The town held two public meetings to discuss the petitions and in February, the Select Board endorsed an information sheet regarding the petitions and distributed it to media outlets in the Brattleboro area, to Town Meeting Representatives and town staff.

The information sheet contested that term limits would be "anti-democratic" in that the would "ban Brattleboro residents from (t)own meeting(s) because they had attended six years in a row," and that moving elections from March to November "would damage the link between ... important parts of government and leave Brattleboro out of step with the rest of Vermont.

Paying employees to attend town meetings "would mandate Brattleboro employers to pay employees to attend town meetings in other towns and states" and would affect "Brattleboro residents (who) already face very steep property taxes," the sheet also contended.

The information sheet noted that giving powers to the town grand juror, which "is essentially obsolete in this modern era," is unnecessary "because enforcement of laws and ordinances is handled by other elected officials and clear structures," and "setting separate rules for voter review of budget items over $2 million is confusing and arbitrary."

On March 3, 2015, the three petitions were defeated by town voters, after which Daims and Newbert filed a complaint in Windham Superior Court, Civil Division, alleging that the Select Board had interfered with the constitutional mandate that elections be "free and without corruption ..." The pair also alleged that the board had interfered with the division of powers established in the Town Charter.

Daims and Newbert asked the superior court to nullify the vote on the petitions, order a new election, rule that the Select Board acted beyond its authority, find that the information sheet was partisan and erroneous, and instruct town officials to refrain from issuing any future statements opposing petitioned articles.

Through its attorney, the town filed a motion for summary judgment, which Judge John Wesley ruled in favor of, concluding no state statutes prevented the board from issuing an information sheet "and did not rise to the level of the selectboard interposing itself in the election process and interfering with the voters' right to decide the issues ..."

In addition, ruled Wesley, Daims and Newbert provided no support for their contention that the board revised the proposed amendments to the town charter and failed to demonstrate there was anything erroneous about the information sheet. "(E)ven if the information sheet contained errors, there was nothing to suggest that the Select Board acted willfully to deceive voters."

In their appeal to the Supreme Court, Daims and Newbert did not claim "any constitutional violations, but rather argue(d) only that the information sheet disseminated by the selectboard was unauthorized by, and inconsistent with the purpose and letter of (state statutes)..."

According to Daims and Newbert, the Select Board must "refrain from altering the petition in any way."

"In essence, plaintiffs argue that any action taken by the selectboard beyond that set forth in the statute with respect to a voter-initiated petition to amend the charter — including taking a position on the petition — is beyond the selectboard's authority," wrote the Vermont Supreme Court. "Plaintiffs read too much into the statute. ... Nothing in the statute presumes to resolve the "tension" between town voters and town elected officials by precluding the selectboard from commenting on voter-initiated petitions to amend town charters."

Daims and Newbert cited a legal principle, known as Dillon's Rule, that municipalities "derive their powers and rights wholly from, the legislature."

"We conclude that, while there is no explicit authority under the statute to allow municipal bodies to comment on voter-initiated petitions, such authority, within limitations, is fairly and reasonably implied under the statute and the town charter," noted the Supreme Court. "Indeed, plaintiffs concede that municipal bodies can comment on their own proposals, even though there is no explicit legislative authority in the statute for them to do so. Apparently, they justify this inconsistent position based on their belief that the purpose of (state statutes) is to balance power between municipal bodies and voters. We find no basis in the statute to conclude that municipal bodies may comment on their own proposals to amend a town charter, but not on voter-initiated petitions to do the same."

The Town Charter, as with state statutes, does not expressly give the board the authority to comment on voter-initiated petitions, but the charter also does not expressly forbid it, wrote the Supreme Court.

"In this case, the subject petitions concerned government functions and operations and thus were subject to good faith comment by the selectboard."

Other courts have made similar decisions, noted the Vermont Supreme Court, in which municipal authorities could comment in opposition to citizen initiatives that affect services and taxes because the initiatives fit "squarely within (the city's) competence as governor" and involved issues "germane to the mechanics of its function."

Even if the Supreme Court found the board had overstepped its bounds in issuing the information sheet, there was no attempt to alter the petitions nor post them in violation of election laws.

"(P)laintiffs' claim of improper influence rests upon the dissemination of written material that was not distributed at the polling place. (And) there is no claim of a direct impact on the right to vote."

Bob Audette can be contacted at 802-254-2311, ext 160.


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