Robert A. Skiff, Jr. v. South Burlington School District
Robert A. Skiff, Jr. v. South Burlington School District
Opinion
¶ 1. Following the South Burlington School District's decision to discontinue the "Rebels" name for the District's athletic teams, a group of residents in South Burlington presented a petition for a district-wide *971 vote on whether to reinstate the name. The District refused to include the item in a district-wide vote and residents appealed, alleging that the District violated their rights under the Vermont Constitution and seeking an order compelling the District to include the item on the ballot. The trial court denied the District's motion to dismiss, concluding that residents presented sufficient facts to support their request. The District then filed this interlocutory appeal. We conclude that neither the applicable statutes nor the Vermont Constitution compels the District to put the petitions to a district-wide vote. Therefore, we reverse the court's order and remand for entry of judgment for the District.
¶ 2. The facts, when viewed in the light most favorable to residents, are as follows. 1 Students in South Burlington attended Burlington High School until the 1960s when South Burlington opened its own high school. The new high school adopted the name "Rebels" for its sports teams after it was used during a game that South Burlington played against Burlington, where students formerly attended school. Although the name did not originate from a connection to the Civil War, over the years, individual students at times waved the Confederate flag at high-school football games. The practice was banned by school officials, but some individuals continued to use the name "Rebels" to express racist attitudes and beliefs at the school.
¶ 3. In 2015, there was a request that the District cease using the name "Rebels" because of the associated racist bigotry and intolerance. The request was included as an action item on the school-board agenda and the school board engaged in a discussion regarding the topic. Some board members expressed their view that the moniker was not meant to be racist, but to symbolize those who are critical thinkers and do not necessarily follow the mainstream. After consideration, the board reached a consensus to keep the name, but asked the superintendent to suggest ways to rebrand the name to express a positive connotation and not be misunderstood as an endorsement of the Confederacy or slavery. The superintendent presented five recommendations in a January 2017 memorandum, but the Board took no action at that time.
¶ 4. At the school board's meeting on February 1, 2017, the superintendent reported that he was recommending that the "Rebel identifier" be retired. He explained that the recommendation was based on, among other things, shared stories from *972 students, staff, and families, and research about the impact of racial bias on children. He stated that biases existed in the community and that the "Rebels" name felt exclusive to members of the student community. Many residents attended this meeting and it was live-streamed by the local newspaper. Following the superintendent's presentation, the board voted to discontinue using the "Rebels" name.
¶ 5. Soon thereafter, a group of District voters signed a petition requesting a district-wide vote on whether to retain the "Rebels" name. The ballot question read: "Should the name of all South Burlington School District sports teams be the 'South Burlington Rebels' and should the South Burlington City Council and South Burlington School Board be required to make official, retain, and maintain this name for all South Burlington School District sports teams?" The petition was signed by more than five percent of the District's voters and presented to the school board. On May 10, 2017, the school board considered the petition and declined to include the question on the ballot for a vote.
¶ 6. Residents filed an appeal in the Chittenden Superior Court Civil Division under Vermont Rule of Civil Procedure 75, alleging that the refusal violated the right to "instruct" in Chapter I, Article 20 of the Vermont Constitution and seeking a declaratory judgment that a vote on the petition was required. The District moved to dismiss the action on the ground that the school board had discretion not to warn the petitions because they did not concern business delegated to the voters.
¶ 7. The court determined that the purpose of Article 20 was to "assure that the people will have the opportunity to play a central role in determining what is in their own best interests, that their elected representatives will know what their constituents expect of them, and that the Legislature will be available to redress grievances." The court recounted historical practices of sending instructions to representatives, both nationally and in the state. The court noted that in Vermont at the municipal level voters gathered on town meeting day to instruct their representatives. The court interpreted this Court's prior case law on Article 20 as holding that a school board can constitutionally refuse to warn an advisory article if the article "does not at all relate to school district business or any matter falling within school district authority." The court construed the right to instruct as a collective, rather than individual, right based on the fact that the right to instruct was paired with the right to assemble and concluded that the sole means to effectuate this collective right in a location without a formal town meeting was through a district-wide vote. The court did not consider whether Article 20 is self-executing because it concluded that several statutes, including 17 V.S.A. § 2642(a)(3)(A), were enacted to effectuate the constitutional protection. Because the facts construed in the light most favorable to residents showed that the ballot item related to District business and the petition was signed by more than five percent of the voters, the court concluded that residents had presented sufficient facts that, if proven, would entitle them to mandamus relief to compel the District to place the issue on the ballot. Therefore, the trial court denied the motion to dismiss.
¶ 8. The trial court then granted the District's motion for interlocutory appeal and stayed the trial court proceedings pending this appeal.
¶ 9. "On appeal, this Court reviews a motion for summary judgment de novo, employing the same standard as applied
*973
by the trial court."
Provost v. Fletcher Allen Health Care, Inc.
,
¶ 10. Residents are seeking relief in the nature of mandamus, which is a command from a court requiring an official to perform a specific act.
Wool v. Menard
,
¶ 11. We conclude that the District did not have a duty imposed by law to include the petitioned article in a district-wide vote. See
Bargman v. Brewer
,
I. Statute
¶ 12. Residents do not assert a violation of 17 V.S.A. § 2642 and § 2643 directly, but their entire argument is based on their assertion that the statutory provisions are meant to effectuate their constitutional rights. Residents argue that they have a constitutional right to use 17 V.S.A. § 2642(a) and § 2643(a) to bring nonbinding petitioned articles for a district-wide vote because otherwise they assert that there is no mechanism for them to effectuate their constitutional right to instruct the Board as provided in Article 20 of the Vermont Constitution.
¶ 13. In a subchapter in Title 17 entitled "Town Meetings and Local Elections in General," there are statutory provisions regarding the warning and notice required in advance of town meeting. The statute states that the warning for an election must, in separate articles, "specifically indicate the business to be transacted" and "shall also contain any article or articles requested by a petition signed by at least five percent of the voters of the municipality." 17 V.S.A. § 2642(a)(2), (3)(A). These laws regarding petitioned articles and town voting also apply to school districts. 16 V.S.A. § 551.
¶ 14. This Court has on several occasions considered the circumstances in which the statute obligates a town to put petitioned articles to a district-wide vote. In sum, those cases, described in more detail below, hold that a municipality (or a school board) has discretion to refuse to include a petitioned article in a town-meeting vote if the subject matter of the article concerns a matter outside of the voters' authority.
¶ 15. We begin with
Royalton Taxpayers' Protective Ass'n v. Wassmansdorf
,
¶ 16. In
Whiteman v. Brown
,
¶ 17. In
Pominville v. Addison Central Supervisory Union-Middlebury Union High School District # 3
,
¶ 18. More recently, in
Clift v. City of South Burlington
,
¶ 19. Taken together, these cases demonstrate that the statutory duty of the board to warn items concerning the "business to be transacted," 17 V.S.A. § 2642(a)(2), means that petitioned items of business must be within the authority of voters to decide at town meeting. In the context of a school district, the petitioned items of business must be within the authority of voters to decide at a district meeting.
¶ 20. Residents argue that the issue they sought to put to voters is consistent with
Wassmansdorf
because the advisory vote would inform the school board and thus would not be "useless, frivolous or unlawful." 128 Vt. at 160,
¶ 21. This is too broad a reading of the word "useless" used in
Wassmansdorf
. The case explains that the town had no duty to hold a special meeting where the results would be "useless, frivolous or unlawful" and further elaborates that a town cannot be compelled through mandamus to include petition items that would produce results that are "nugatory, unavailing and void of any determination of right." 128 Vt. at 160,
¶ 22. This interpretation is consistent with the construction of the statutory language "the business to be transacted," 17 V.S.A. § 2642(a)(2), in the several other cases described above that limit the petition requirement to matters over which voters have authority to act. The statute does not include a right to include articles for a vote over which voters may have an opinion, but ultimately do not have the power to decide. Certainly, a town or school district
can
include a petitioned, nonbinding, advisory question on the ballot, but it is not
required
to do so under the statute. This is particularly true in an action for mandamus relief where relief is available only when "the right sought to be enforced is certain and clear."
Wassmansdorf
, 128 Vt. at 159,
¶ 23. To suggest that "usefulness" is the touchstone of the legal test, and that an
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advisory vote is not "useless" because it will inform town officials, would lead to a result at odds with our prior cases in which the petitions could have similarly been viewed as giving useful information about a topic to elected town officials. This point is well illustrated by
Kirchner v. Giebink
,
¶ 24. Here, the item-the name of the District's sports teams-that residents sought to include in a district-wide vote is not a matter within voters' authority to decide at a district-wide meeting. The powers of the electorate are delineated by statute and include discrete items, including voting for the annual salaries for school-board members and authorizing the amount of money to be expended. 16 V.S.A. § 562. The electorate is neither given authority to specifically designate the name of school teams nor general authority over that area. In contrast, the school board has broader, more general powers, including determining "the educational policies of the school district" and taking "any action that is required for the sound administration of the school district."
II. Constitutional Right to Instruct
¶ 25. The Vermont Constitution includes a "Right to assemble, instruct and petition," which provides "That the people have a right to assemble together to consult for their common good-to instruct their Representatives-and to apply to the Legislature for redress of grievances, by *977 address, petition or remonstrance." Vt. Const. ch. I, art. 20. Residents argue that even if the statute itself does not compel the District to put the petitioned article to a vote, the District was required to include it to effectuate residents' right to instruct in Article 20 of the Vermont Constitution. We conclude that Article 20 does not provide a collective right to vote on advisory articles that "instruct" a municipality or school board, and to the extent that Article 20 contains an individual right to inform one's representatives, residents have failed to allege any deprivation of that right in this case. 5
¶ 26. In
Clift v. City of South Burlington
, the voters argued that even if the City was not required by statute to include their advisory petitioned article, "the City's action in refusing to warn the advisory article was a violation of petitioners' right to assemble under Chapter I, Article 20 of the Vermont Constitution."
¶ 27. Nonetheless, residents in this case attempt to distinguish
Clift
and assert that the right to instruct in Article 20 includes the right to have a district-wide vote on petitioned, nonbinding articles related to town business.
6
Residents assert that Article 20 guarantees access to elected officials and that because some towns do not have a traditional town meeting at which residents can discuss "other business," there must be an opportunity to instruct officials through inclusion of nonbinding articles in a district-wide vote. Residents invite us to look at various historical sources to reach this conclusion. See
Chittenden Town Sch. Dist. v. Dep't of Educ.
,
¶ 28. We need not delve deeply into the contours of the right to instruct in Article 20 to conclude that it does not entitle residents to mandamus relief in this case. To the extent that an enforceable right exists under Article 20, it is an individual right and not a collective one. This is evident from the language of the Vermont Constitution and our prior cases. Article 20 is part of Chapter I of the Vermont Constitution entitled "A Declaration of the Rights of the Inhabitants of the State of Vermont." This heading signifies that the rights that follow are personal to Vermont's inhabitants. Moreover, Article 20 begins with the preface "That the people have a right to," which is indicative of a personal right. Indeed, we have construed other articles in Chapter I, which begin with the same language "That the people have a right to," as providing individual rights. See
*978
State v. Rheaume
,
¶ 29. Residents have not alleged that the District has denied them individually the right to instruct their school-board members. Indeed, the facts construed in a light most favorable to residents demonstrate that residents individually had many opportunities to instruct individual board members and the District as a whole on their opinion about the "Rebels" name. Residents also have not shown how the relief that they are seeking-inclusion of their advisory article in a district-wide vote-will effectuate their individual right. Therefore, even assuming that Article 20's right to "instruct" is self-executing, we conclude that it does not entitle residents to the mandamus relief they are seeking.
¶ 30. Residents' desire to inform their school board on matters the school board is vested with deciding does not equate to a right to a district-wide, advisory vote on the issue. The Vermont Constitution creates a representative, not a direct, democracy. See Vt. Const. ch. II, § 2 ("The Supreme Legislative power shall be exercised by a Senate and a House of Representatives."). The power of the people is delegated to government officials, who are "at all times, in a legal way, accountable to them." Vt. Const. ch. I, art. 6. In the case of local school boards, "school directors are public officials who derive their power from the law."
Buttolph v. Osborn
,
Reversed and remanded for entry of judgment for defendant .
In addition to the pleadings, the trial court considered affidavits and exhibits filed by the parties and testimony taken at a hearing on residents' motion to stay in assessing the motion to dismiss. By considering these materials, the court essentially converted the motion to dismiss to one for summary judgment. When the court considers matters outside the pleadings in deciding a motion to dismiss, a party is entitled to have the motion treated as one for summary judgment and to be accorded reasonable time to present pertinent and material matters under Vermont Rules of Civil Procedure 12(c) and 56.
Condosta v. Condosta
,
Wassmansdorf
and cases following it in the late 1960s and early 1970s involved a prior version of the statute, but "the language of those statutes was sufficiently similar to 17 V.S.A. § 2642(a) to warrant a similar interpretation here."
Clift v. City of S. Burlington
,
In
Baird v. Town of Berlin
,
The language of the petition itself appears mandatory and does not indicate that the vote is intended to be advisory or nonbinding. The petition includes the question "Should the name of all South Burlington School District sports teams be the 'South Burlington Rebels' and should the South Burlington City Council and South Burlington School Board be required to make official, retain, and maintain this name for all South Burlington School District sports teams?" (Emphasis added.) The petition then explains that a yes vote means "The name of all South Burlington School District sports teams will be 'South Burlington Rebels.' " Nonetheless, for purposes of resolving the motion for summary judgment, we accept residents' characterization of the petition as advisory.
Amicus curiae the Vermont League of Cities and Towns argues that the right to instruct in Article 20 applies solely to informing the representatives of the General Assembly because the constitutional provision refers to "Representatives" with an upper-case "R" as opposed to "representatives" with a lower-case "r," which is used in other places in the Vermont Constitution. Because we conclude that Article 20 does not provide an enforceable right to compel a district-wide vote in this case, we do not reach this question.
Residents' constitutional argument is intertwined with their statutory argument. They have not fully explained how the statutory requirements relate to the constitutional rights alleged. For example, they offer no answer to the question of whether the statutory requirement that a petition be signed by five percent of the voters is also the threshold to trigger the constitutional right alleged.
Reference
- Full Case Name
- Robert A. SKIFF, Jr. Et Al. v. SOUTH BURLINGTON SCHOOL DISTRICT
- Cited By
- 9 cases
- Status
- Published