Come to the Sunshine

By Daniel Richardson

Price v. Town of Fairlee, 2011 VT 48

Let us take a moment to praise the legal system in Vermont.  For all the inherent difficulty and imposed procedure that goes into litigating a case, the court system still remains friendly and open (although not indulgent) to citizens seeking to clarify their rights and obtain relief.  The little guy can still get his day in court, and yes, Virginia— sometimes Mr. Smith will prevail.

Playing the role of David in today’s passion play is Timothy Price.  In 2008, Mr. Price sought access to the ballots cast in the Town of Fairlee from the 2006 election.  Mr. Price’s stated purpose was to review these documents for discrepancies and to draw attention to any problems he discovered with how the Town’s Board of Civil Authority had conducted that prior year’s election.  Admittedly, the election and its initial count were far from perfect.  As the court-ordered statewide recount in the state auditor’s race demonstrated, the Town’s election count for this office changed significantly—with one candidate receiving 11 additional votes that were not included in the initial count. 

No wrongdoing was alleged by anyone, and this case is not really an update of the Great McGinty, but more about the Town’s reaction to Mr. Price’s request and the status of ballots as public records. 

The Town refused the request outright.  The record does not indicate the Town’s basis for its refusal, but the arguments indicate that the Town, at least at that time, did not believe the public was entitled to inspect the ballots. 

Mr. Price filed an action in Orange Superior Court seeking general relief from this denial and a preliminary injunction to grant him immediate access.  The State, through the Attorney General’s office sought to intervene and support the Town. 

The trial court held a hearing on the preliminary injunction and determined two things.  First, and most importantly, the trial court ruled that Mr. Price’s request was really a public-records request and came under the state’s Public Records Act, which strongly favors disclosure of all public documents and interprets any exception to this narrowly with the burden on the town or agency to prove that the document falls under the exception.  Second, the trial court ruled that Mr. Price had not established a right to preliminary relief and denied the motion.

Two days after the decision, Mr. Price filed a formal public records request for the ballots from the Town.  “Sorry,” says, the Town, “we shredded them yesterday in accord with our rights under the election law.”  Town then files a motion to dismiss because with no ballots, there can be no request, which makes the action moot.  The trial court disagrees.  While Mr. Price is ineligible for relief on the 2006 ballots, he may ask for others in the future, and the larger issue needs to be resolved since the Town has promised to continue to shred ballots.

At this point, the Attorney General’s office picks up the ball and steps into the fray.  It moves for summary judgment on behalf of the Town.  The AG’s argument is that Mr. Price is not entitled to the ballots as a matter of law because the extensive election law statutes exempt the ballots from the Public Records Act and empower the Town to deny any such request.  The trial court agrees and rules in favor of the Town.  Mr. Price, undaunted, appeals to the SCOV.

At the beginning of its opinion, the SCOV accepts and affirms the trial court’s core ruling that ballots are public documents and are therefore subject to the Public Records Act.  With this premise, the SCOV brings to bear the same high level of scrutiny and burden of proof that comes with such a request and denial.  The presumption is that public records should be disclosed, and it is up to the Town and the State to establish that the documents fit the exemption.

For the SCOV, the primary task is to sort out the obligations and exemptions of the Public Records Act in light of the limits and burdens created by the state’s election laws.  By and large, this is a straightforward task.  The SCOV concludes that the election laws protect ballots directly after they are cast and for the 90 days following the election.  These laws also exempt them from public-record requests as well.  The SCOV is unanimous in this conclusion that any requests for ballots within the first 90 days following an election may be legitimately denied as they threaten the integrity of the ballots and the chain of custody necessary for a good election.

After 90 days, though, the SCOV splits on the status of the ballots.  The four justices who make up the majority conclude that without any election law restrictions, the Public Records Act kicks back into effect, and the ballots, as public documents, are subject to a records request.  Justice Dooley dissents from the view, albeit reluctantly and on a fairly technical basis.

The gist of the split comes down to how the members of the SCOV view the interaction of two statutes.  The first, 17 V.S.A. § 2590(d), governs elections and states that the town clerk is required to retain “all ballots and tally sheets . . . for a period of 90 days from the date of the election, after which time they may be destroyed.”  The second is 1 V.S.A. § 317a, which is part of the Public Records Act and mandates the preservation of public records unless their destruction is “specifically authorized by law.”  Violating this second statute is a crime subject to fines ($50 to $1000).

For the majority, there is no conflict with these provisions.  After 90 days, a town may dispose of old ballots without penalty, but if a town has retained its ballots after 90 days, and a public records request is made, then the town is obligated to maintain the records until the request is processed.  If the town has disposed of the ballots, then it is too bad for the requesting party, but it is a perfectly legitimate action for the town to take.

Justice Dooley, however, sees this somewhat differently.  He writes that the two statutes cannot be read together because Section 2590 would allow town clerks to destroy public records at any time, which is at odds with Section 317a’s preservation requirements.  In fact, as he points out, the majority’s decision exposes the Fairlee Town Clerk to just such liability.

The majority sidesteps this issue by citing to the fact that the Town’s decision to dispose of the ballots was reasonably made after the trial court had denied the injunction and before the SCOV had clarified the law and made the potential liability clear.  In such cases, the majority notes, where the criminal liability is objectively unclear to the party, leniency must apply and criminal charges avoided. 

Towns consider this your first and only notice on the matter.  The next violation will not be greeted so warmly. 

So Mr. Price prevails and, we should note, does so as a pro-ser.  Mr. Price not only represented himself in this action, but he took on the Town of Fairlee and the Attorney General’s office to prevail.  Not bad work.  What Mr. Price gets is a little less clear.  Since the 2006 ballots were destroyed, Mr. Price cannot win his request.  The SCOV’s ruling also cuts off any damages or fee claim he might have filed for his work, but Mr. Price can take comfort in knowing that he has won for himself, and all others, the right to make this request again.  Not exactly a cash verdict but presumably more satisfying.