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 of 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 only 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 opportunity 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 of 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 opportunity to obtain business advantage over com petitors who do not know it or 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 officials 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 • over 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.