Doria v. University of Vermont

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-237


Anthony Doria                                Supreme Court

                                             On Appeal from
     v.                                      Chittenden Superior Court

The University of Vermont and                November Term, 1989
State Agricultural College


John P. Meaker, J.

David Putter of Saxer, Anderson, Wolinsky & Sunshine, Montpelier, for
  plaintiff-appellant

Michael F. Hanley and susan Boyle Ford of Plante, Hanley & Gerety, P.C.,
  White River Junction, for defendant-appellee


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.


     DOOLEY, J.   Plaintiff, Anthony Doria, appeals from the decision of the
Chittenden Superior Court granting the motion of defendant University of
Vermont to dismiss for failure to state a claim pursuant to V.R.C.P.
12(b)(6).  We dismiss the appeal as moot.
     In October 1985, a professor at the University of Vermont organized
students to conduct a telephone political poll as part of a classroom pro-
ject.  The poll was commissioned by two newspapers, for whom the professor
was serving as an unpaid consultant.  The students interviewed 503 randomly
selected individuals, asking each interviewee thirty-two separate questions
on a variety of political issues.  The content of the questions was appar-
ently determined by the newspapers.
     One of the poll questions gave rise to this litigation.  It stated:
"Now, I would like to ask you a few questions about the upcoming 1986 state
elections.  If the US senate election was held today would you be inclined
to vote for Patrick Leahy or Richard Snelling?"  At the time of the poll,
Patrick Leahy was the United States Senator and a candidate for reelection
as a democrat.  Richard Snelling was the former Governor of Vermont and an
announced candidate for United States Senate as a republican.  Plaintiff was
also an announced candidate for the United States Senate as a republican.
Plaintiff's name was omitted from the polling question because the news-
papers did not consider him a viable candidate.  Thus, the students never
informed the interviewees that there were any other candidates in the
Senate race besides Leahy and Snelling; nor was plaintiff's name mentioned.
     Plaintiff brought suit, alleging, in essence, that defendant university
was responsible for the poll and that its actions violated his Vermont
constitutional rights as a candidate because the poll "improperly influenced
the primary and general elections."  Plaintiff did not name the professor,
the students or the newspapers.  Plaintiff originally filed his complaint in
Chittenden Superior Court seeking declaratory and injunctive relief and
nominal damages.  Defendant removed the case to federal court, at which time
plaintiff, with the court's permission, amended his complaint in order to
raise additional federal causes of action under the Civil Rights Act, 42
U.S.C. { 1983 (1988).  The federal court dismissed the federal claims
because it found no state action and remanded the cause back to the superior
court to adjudicate the State constitutional claims.  The trial court
determined that no private right of action is available under any of the
three provisions of the Vermont Constitution relied upon by plaintiff, and
therefore dismissed the action.
     Plaintiff raises three issues on appeal: (1) the trial court erred in
predicating dismissal of the complaint on the theory that there is no
private right of action under Chapter I, Articles 6, 7 and 8 of the Vermont
Constitution; (2) the trial court erred by failing to declare the respective
rights and relations of the parties under the same constitutional pro-
visions; and (3) the trial court failed to give plaintiff notice and an
opportunity to address the issues before dismissing the case.  We need not
address these issues, however, because we find that the complaint fails to
state a cause of action and is moot.
     Plaintiff's complaint requested several different remedies for his
alleged harm, including:  (1) a declaratory judgment that defendant violated
his State constitutional rights; (2) an injunction prohibiting defendant
from using its name or publicly funded facilities to republish the language
of the controversial question in subsequent polls; and (3) nominal damages
for the harm caused by defendant's past actions and an award of costs.
     The purpose of a declaratory judgment is to "provide a declaration of
rights, status, and other legal relations of parties to an actual or
justiciable controversy."  Robtoy v. City of St. Albans, 132 Vt. 503, 504,
321 A.2d 45, 46 (1974); see 12 V.S.A. { 4711.  Unless an actual or
justiciable controversy is present, a declaratory judgment is merely an
advisory opinion which we lack the constitutional authority to render.  See
Lace v. University of Vermont, 131 Vt. 170, 175, 303 A.2d 475, 478 (1973).
Thus, declaratory relief is available only when a party is suffering from
"the threat of actual injury to a protected legal interest."  Town of
Cavendish v. Vermont Pub. Power Supply Auth., 141 Vt. 144, 147, 446 A.2d 792, 794 (1982).  In the present case, even if plaintiff's constitutional
rights were violated as he alleges, the harm has already passed, and there
is no longer a threat of actual injury.  The election involved is long
over, and the poll has no continuing relevance.  As a result, there is no
justiciable controversy, and declaratory relief is not an appropriate
remedy.
     Plaintiff is also seeking injunctive relief.  This form of relief,
however, is also moot.  In general, a case becomes moot "'when the issues
presented are no longer "live" or the parties lack a legally cognizable
interest in the outcome.'"  In re S.H., 141 Vt. 278, 280, 448 A.2d 148, 149
(1982) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396
(1980)).  Further, the mootness doctrine requires that there be an actual
controversy in existence at all stages of review, not merely at the time the
plaintiff originally filed the complaint.  Winton v. Johnson & Dix Fuel
Corp., 147 Vt. 236, 239, 515 A.2d 371, 373 (1986).  Because the election is
now past, and plaintiff is not currently running for office, he no longer
has a "legally cognizable interest" in this remedy nor is this issue "live."
His interest in this issue may be reborn should he once again seek political
office, but at this time, even if he succeeds on the merits, he would
receive no personal benefit from the remedy.  Thus, the claim for injunctive
relief is moot.
     Generally, mootness defeats our jurisdiction to review plaintiff's
claims.  See State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (1987).
Nevertheless, we recognize an exception to the mootness doctrine for a
narrow class of cases which are "'capable of repetition, yet evading
review.'"  Id. at 469, 537 A.2d  at 424 (quoting In re S.H., 141 Vt. at 281,
448 at 149.  As we explained in Tallman:
         The applicability of this exception is dependant on the
         satisfaction of a two-part test established by the
         United States Supreme Court in Weinstein v. Bradford,
         423 U.S. 147, 149 (1975):  '(1) the challenged action
         [must be] in its duration too short to be fully liti-
         gated prior to its cessation or expiration, and (2)
         there [must be] a reasonable expectation that the same
         complaining party [will] be subjected to the same action
         again.'"

Id.
     Plaintiff has not met the first part of the Weinstein test; if the
issue were to arise again, he would have adequate opportunity to litigate
it.  While he argues generally that the "shortness of intervals between
Vermont elections and the length of time required for final judicial
determinations" make the issues evasive of review, the facts here showed
that many months elapsed between the poll in question and the primary
election in which plaintiff was a candidate.  There was adequate opportunity
for judicial resolution of plaintiff's claims.
     He clearly does not meet the second part of the test.  A "reasonable
expectation" that plaintiff will be subjected to the same action again must
pose more than just a theoretical possibility that the same event will
happen again in the future.  In re Petition of Green Mountain Power Corp.,
148 Vt. 333, 335, 532 A.2d 582, 584 (1987).  Rather, plaintiff must show a
"demonstrated probability" that he would once again become entangled in the
same controversy before he may invoke this mootness exception.  Id.
Although plaintiff may indeed run again for political office, he has failed
to show any reasonable expectation that he will be subjected to the same
type of political poll.
     Finally, in plaintiff's complaint, he requested nominal damages for the
harm of defendant's past actions.  Nominal damages is the appropriate remedy
when there has been an invasion of a right, yet no actual damage occurred.
See Clark v. Aqua Terra Corp., 133 Vt. 54, 58, 329 A.2d 666, 668 (1974).
Unlike compensatory damages, nominal damages do not compensate the injured
party for any actual loss, but rather, "are a trivial amount awarded for
the infraction of a legal right, where the extent of the loss is not shown,
or where the right is one not dependant upon loss or damage."  See Nappe v.
Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48, 477 A.2d 1224, 1230
(1984) (quoting C. McCormick, Handbook on the Law of Damages { 20, at 85
(1935).
     Nominal damages are available in federal civil rights actions, Carey v.
Piphus, 435 U.S. 247, 266-67 (1978), and a number of federal courts have
held that a civil rights act claim for nominal damages alone is sufficient
to avoid mootness.  See 13A C. Wright, A. Miller & E. Cooper, Federal
Practice & Procedure { 3533.3, at 266 (2d ed. 1984).  We have recently found
a civil rights action moot, however, where no actual damages remained.
Silverfine v. Town of Bakersfield, No. 89-079, slip op. at 4 (Vt. Jan. 4,
1991).
     We do not believe that the claim for nominal damages avoids mootness in
this case.  We have never ruled that individuals have a claim for compen-
satory damages premised solely on a violation of the Vermont constitution.
See Shields v. Gerhart, ___ Vt. ___, ___, 582 A.2d 153, 158 (1990).  Plain-
tiff here never sought such damages although he claims his candidacy was
injured by the poll in question.  Thus, it appears that the purpose of the
nominal damage claim is solely to obtain a ruling on the validity of the
poll despite the fact that the ruling will no longer have any effect and
there remains no real controversy between the parties.  We decline to
implement that purpose.
     Although we find the matter to be moot, we have also reviewed plain-
tiff's complaint.  Even if we did reach the merits, the dismissal of
plaintiff's complaint was appropriate.  Plaintiff has relied upon three
relatively broad and general provisions of Chapter I of the Vermont
Constitution:  (1) Article 6, which makes officers of state government
servants of the people; (FN1) (2) Article 7, which provides that government is
for the people and prohibits emoluments or advantages for particular
people;(FN2) and (3) Article 8, which provides that elections should be pure and
specifies the rights of freemen therein. (FN3) To the extent these provisions
grant rights to individual citizens, they are intended to restrict the
actions of government.  While the University of Vermont receives state money
and is a public institution for purposes of providing higher education, it
has no "political power or dominion over the election process."  Doria v.
University of Vermont, Civil Action No. 86-59, slip op. at 6 (D. Vt. Aug.
11, 1986).  Neither the University nor its employees or officers are the
"officers of government, whether legislative or executive," as provided by
Article 6.  See Sprague v. University of Vermont, 661 F. Supp. 1132, 1137-38
(D. Vt. 1987) (APA does not apply to UVM because the University does not
cater to the public at large but to its students, faculty, and employees and
because "UVM officials are not traditional officers of government."); cf.
Healy v. James, 408 U.S. 169, 201-02 (1972) (Rhenquist, J., concurring)
(constitutional limitations on government acting as the administrator of a
college differ from limitations on government acting as sovereign to enforce
its criminal laws).  Further, defendant as an institution is entitled to a
measure of academic freedom, free from regulation by the executive branch or
the courts.  See generally Piarowski v. Illinois Community College, 759 F.2d 625, 629 (7th Cir. 1985), cert. denied, 474 U.S. 1007.  We would be very
reluctant to construe the constitutional rights of third-parties, outside
the academic community, as requiring court direction of the content of
defendant's academic program.
     The need for non-intervention is even stronger in this case.  According
to the facts provided by plaintiff, the poll here was done by a faculty
member and students, with the questions selected by the faculty member and
two newspapers.  The only involvement of defendant is that the professor is
an employee of defendant and uses defendant's name, staff and equipment,
and that defendant refuses to intervene to stop such polling questions in
the future.  The theory of why defendant is liable appears to involve a
mixture of respondeat superior and  breach of a duty to control faculty and
students.  We find this theory basically inconsistent with an academic
environment where faculty are entitled to some measure of freedom in
determining teaching methods.  See generally Parate v. Isibor, 868 F.2d 821,
827 (6th Cir. 1989).
     In some ways the request here is similar to that in Smith v. Day, 148
Vt. 595, 599, 538 A.2d 157, 159-60 (1987) where this Court held that a
private university had no duty to control the conduct of its students to
prevent them from harming third persons.  We found such a duty unreasonably
burdensome and inconsistent with the personal responsibility of the students
and further found it would lead to repressive regulation inconsistent with
the goals of higher education.  Similarly, we conclude that requiring
defendant to strictly regulate and control the activity involved here, or
any other student and faculty activity that might have an impact on the
electoral process, would be basically inconsistent with the academic
environment.
     We leave to another day whether actions similar to those involved here,
if done by governmental officials, would give rise to the liability plain-
tiff claims.  We hold only that the various constitutional articles are not
implicated when the actions are taken by faculty and students of the
University of Vermont.
     Appeal dismissed.

                                        FOR THE COURT:



                                        Associate Justice




FN1.    Article 6 provides:
	That all power being originally inherent in and
	consequently derived from the people, therefore, all
	officers of government, whether legislative or
	executive, are their trustees and servants; and at all
	times, in a legal way, accountable to them.

FN2.    Article 7 provides:
	That government is, or ought to be, instituted for the
	common benefit, protection, and security of the people,
	nation, or community, and not for the particular
	emolument or advantage of any single man, family, or set
	of men, who are part only of that community; and that
	the community hath an indubitable, unalienable, and
	indefeasible right, to reform or alter government, in
	such manner as shall be, by that community, judged most
	conducive to the public weal.

FN3.    Article 8 provides:
	That all elections ought to be free and without
	corruption, and that all freemen, having a sufficient,
	evident, common interest with, and attachment to the
	community, have a right to elect officers, and be
	elected into office, agreeably to the regulations made
	in this constitution.