Monday, April 9, 2012

I Travel the Open Road


In re Town Highway No. 20, Town of Georgia, 2012 VT 17.

At first glance, the SCOV has had a slow year.  By last year at this time, it had already issued twice as many published opinions and seemed to be on record to outpace its previous docket records.  This year, the SCOV has been quieter, issuing fewer decisions.  There are always a number of reasons for this difference.  No doubt the retirement of Justice Johnson created a certain gap between her service and Justice Robinson’s succession, and the budget-induced mandatory furlough days wreak havoc on a monthly basis.  But its recent decisions, including today’s, indicate that the SCOV has had to wrestle with a number of difficult issues and has not emerged with much consensus. 

Today’s case is a story of two roads, a property owner who sought to use them for development, and a town with a fatal conflict of interest.  In this case, as with most road litigation, the history of the Town’s involvement with the road is a necessary prelude to set the stage and to illustrate the long-simmering dispute between the players. 


The two roads, Town Highway 20 and the so-called “unnamed road” boarder or run across Petitioner’s property in Georgia.  The important thing is that both represent potential and actual points of access to the property for the purposes of development.

In 1971, the Town selectboard voted to discontinue a portion of Town Highway 20 that ran across petitioner’s land.  At the same time, someone installed a culvert under the unnamed road that made it passable and allowed the Town access to a gravel pit on Petitioner’s neighbor’s land.

In 1994, Petitioner’s neighbor petitioned the Selectboard to remove the culvert.  At the time, the Selectboard was chaired by this neighbor’s son, who did not recuse himself.  Make your own conclusions about the rigor or function of that hearing. 

In 1995, Petitioner enters stage left and asks the Selectboard for several things: 1) a determination where Town Highway 20 was located next to his property; 2) to reconsider the 1971 discontinuance; 3) to give him permission to repair the road to make it passable; and 4) to order the Neighbor (same one as before) to remove the gate and stored farm equipment from the middle of the road.  The Selectboard refused. 

And we are off to the races. 

Petitioner appealed to the trial court, which found in 2001 that the 1971 discontinuance was improper and was, therefore, no discontinuance at all.  The trial court went further, though, and found that the Town and the neighbors had acted improperly in removing the culvert from the unnamed road and in blocking Town Highway 20.  The trial court found that the sole purpose of these actions was to prevent Petitioner from accessing his land and developing it.  The trial court ordered all of the equipment off the road and found that the denial of the request to repair and remove by the Town constituted discriminatory treatment and violated Petitioner’s constitutional rights to equal protection under both the United States and Vermont Constitutions.  The trial court ordered the Town to allow Petitioner to improve the road in the same manner that it allowed other citizens to do the same. 

On appeal to the SCOV, the Town did not challenge the trial court’s findings concerning the road, but it did successfully roll back some of the trial court’s constitutional conclusions.  The SCOV ruled that since no one disputed the trial court’s findings and the Town had indicated that it was ready to comply with the trial court’s order, then there was no constitutional violation.  Conclusions to the contrary were premature.

While this first horse race was winding down, a second started between Petitioner and his neighbor concerning the existence and location of the unnamed road.  This was further complicated by the neighbor’s contentions that a third road, a pent road, existed parallel to the “unnamed road.”  The law of pent roads in Vermont dates back to 1813, but it is an even older concept.  Basically, a pent road is a limited access road with gates at either end used to keep livestock fenced within the area surrounding the road.  Neighbor sought a ruling that both roads were public roads that ran to his property.  The purpose was to secure an access to the gravel pit.  The trial court ruled against the neighbor on both counts.  The pent road was deemed a private road (as most pent roads are) and the unnamed road was deemed a public road, which ended at Petitioner’s land and did not extend to the neighbor’s land.  Neighbor chose not to appeal this decision.

But wait!  We are just getting started here.

In 2005, two years after the first decision issued, the Town had still not granted Petitioner permission to repair Town Highway 20 or ordered Neighbor to remove his vehicles from the road.  This led Petitioner to launch his third legal action in federal court alleging constitutional violations.  This was dismissed because it repeated much of his state court claims.  In essence, the federal court made a hot potato ruling and tossed it back to Petitioner to raise new issues or to stick with the state court process.

In 2006, the Town’s Selectboard had the brilliant idea to deem Town Highway 20 a class 4 road and the unnamed road, a trail.  This had the effect of blocking vehicular access on the unnamed road and putting the cost of any repairs for Town Highway 20 on Petitioner. 

Petitioner appealed this decision.  In the alternative, he also asked the trial court for damages from the loss of access over the unnamed road if the trail determination was upheld.  After determining the trail classification to be legal, the trial court agreed that the decision amounted to a taking of Petitioner’s property and ordered a damage hearing. 

In 2006, three years after the first decision in this case, the Selectboard finally ordered neighbor to remove his equipment from Town Highway 20.  The Board also asked Petitioner for cost estimates for the work that he planned to do.  When Petitioner submitted his plans, the Board voted to adopt new regulations for improvements to town highways.  Petitioner filed his fifth action with the trial court asking the court to enforce its earlier order and award damages for the Town’s purposeful delays.

Petitioner also revived his federal claim by specifying the Town’s reclassification of the unnamed road into a trail to be discriminatory and part of an on-going pattern of disparate treatment by the Town against him and in favor of his neighbor. 

As part of the mediation, the parties agreed that Petitioner would once more submit his improvements for Town Highway 20 to the Town.  Petitioner did, and the Town, in 2008, rejected them stating that he had not shown a need for such improvements.

The federal court also dismissed the complaint again noting that Petitioner’s sole remedy was through state court where he already had valid and enforceable order and where the proper channel lay to get the Town to comply. 

In 2009, with court forums narrowing, the trial court conducted a hearing on Petitioner’s two sets of claims concerning Town Highway 20 and the unnamed road (now trail).  The trial court found that the Town, particularly through its Selectboard, had behaved very badly and basically confirmed what Petitioner had been charging since 2006. 

The trial court ordered the Town to grant Petitioner’s request to make repairs to Town Highway 20, within 30 days or face a contempt hearing, to pay Petitioner $830,000 for the diminution in value his land had suffered, and to pay Petitioner $5,000 for his attorney’s fees for the enforcement action.  The trial court denied Petitioner’s request for punitive damages. 

Following this decision, the Town appealed, and Petitioner cross-appealed the denial of punitive damages.  For good measure, the Town moved to reconsider the 2004 decision that ruled the unnamed road to be a public road.  The Town based this very tardy motion on the fact that the 2004 trial court did not issue a final judgment order on a separate sheet of paper, which the Town argued meant that the case was still open and the motion timely.

On this last issue, the SCOV wastes very little time rejecting the Town’s arguments.  When cases are done, the trial court is obligated to issue an entry of final judgment.  This is one sheet of paper that says, in essence: Case is Done.  Judgment is final.  In practice, courts and parties often overlook this formality. 

To address this reality, the SCOV has adopted a rule that states when the trial court issues a dispositive order (resolving the case) but does not issue the required final judgment, then a party has 150 days before judgment becomes final.  The break allows a generous period when anyone involved with the case can and should either ask for an entry of final judgment or file the next necessary motion.  In this case, the SCOV notes that while the trial court had never issued an entry of final judgment, it had marked the case closed, taken the case off of active status, and clearly indicated that the judgment was final.  The lack of a single formality does not give the Town the ability to revisit the judgment six years later. 

The meat of the SCOV’s decision and the heart of the Town’s appeal is concerned with the question of whether the Vermont Constitution gives Petitioner a private right of action to sue the Town for damages in this case. 

In general, courts recognize the ability of private parties to seek damages for violations of various rights and privileges contained within the United States and Vermont Constitutions.  This is not an explicit right, but it is one that courts have inferred to allow individuals to seek compensation for the abrogation of rights by various government entities. 

The test or limitation on this power is that the constitutional right that the government has violated must be self-executing and not merely a general principle.  In other words, the clause from the constitution must contain sufficient information that limits government or sets out how this right or privilege is to be enjoyed and protected.  For example, the Vermont Constitution’s Article 1 statement that all persons are born equally free with certain natural and inherently inalienable rights has been deemed mere principle.  In contrast, the SCOV cites its landmark case Baker v. State as a prime example of establishing such a self-executing right. 

Under the Baker analysis, Article 7 of the Vermont Constitution is self-executing because the common benefits language contains a clear and obligatory proscription against government action that favors one group over the other.  Of course, Article 7 also contains the broad and aspirational language that you would associate with general principles, but its commonwealth commandments are enough to give rise to an enforceable right. 

Since Article 7 is the same article used as a basis for the claim here, the SCOV moves on to the next question: Are money damages appropriate for a violation of this constitutional right?  This requires a more fact-specific analysis tailored to the specific case.  The SCOV looks at the nature of the harm, the availability of remedies, the existence of any bad faith or unjustified personal motive behind the Town’s actions.  The last is particularly important to the SCOV as it believes this factor is likely to be the difference between a plaintiff improperly trying to force political action through the courts and one seeking redress for actual wrongs. 

While the SCOV finds that the remedy sought here is not necessarily money damages (Petitioner, afterall simply wanted permission to use and improve his roads), the Town’s behavior was clearly improper, and the available remedy, short of damages, is unlikely to match the harm done.  In other words, a strongly worded order twelve years after the trial court’s first order is unlikely to compensate Petitioner for the harm he has suffered over the course of 12 years of consistent denials and animus from the Town.

The SCOV is not satisfied with the damage award as calculated by the trial court.  That award, upon review appears to have been a damage based on diminution of value to Petitioner’s property.  The true measure of damages is the anguish and inconvenience of his 12 years in the wilderness together with any costs created by the delay in road construction. 

In a brief, but vigorous, dissent Justice Dooley joined by Chief Justice Reiber argues for a different outcome on damages.  For the dissent, there should be a hierarchy of damages for violations of Vermont Constitutional provisions beginning with injunctive remedies.  This would favor corrective action and give the governmental actors more leeway in applying the laws without fear of suffering financial penalties. 

Only if the equitable damages proved insufficient would the dissent allow monetary damages.  In this case, the dissent is not convinced that Petitioner is entitled to damages.  He is not entitled to pain and suffering damages, as the majority has awarded him, because he never pled such injuries and there is no evidence that he actually incurred any suffering. 

Setting aside the question of whether Petitioner may have enjoyed his decades of arguing with the Town, the dissent proposes the true measure of damages to be a monetary award for the period of time that Petitioner was unable to develop his land due to the Town’s actions. 

The majority, of course, has rejected this approach in this case, but it is couched, in part, in such fact specific terms that it is not difficult to see where the dissents point of view could carry the day in the not-too-distant future.

Yet, the majority also argues quite eloquently that such damages are appropriate in cases such as this where there is evidence that the Town’s officers have abused the public trust and where the availability of such damages will empower individuals to seek relief from the court where its absence would chill such challenges. 

Finally, the SCOV addresses Petitoner’s cross-appeal for punitive damages.  Such damages are highly disfavored against municipalities and other government entities because the purpose of punitives—to punish malicious behavior with a penalty in addition to damages—is not served in such cases.  The Selectboard in this case may have behaved badly, but it will not pay the penalties.  The taxpayers of the Town will.  In such case, the true bad-acting party goes unpunished and will not necessarily be deterred by the penalty.  For these reasons, the SCOV goes on record and holds that municipalities cannot be held liable for punitive damages as a matter of law. 

So Petitioner strikes out here, but barring further shenanigans from the Town, he should have permission to repair the road, some damage award for his time, and a (hopefully) chastened Selectboard that will be more cooperative and even-handed in its treatment of Petitioner and other would-be road users in the Town.  

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