Pominville v. Addison Central Supervisory Union

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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.
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No. 89-156

Richard Pominville, Francis C. Supreme Court
Broughton, William Holdman, Thomas
H. Dwyer, Deacy F. Leonard, Daniel On Appeal from
K. C. Zee, et al. Addison Superior Court

v. February Term, 1990

Addison Central Supervisory
Union - Middlebury Union High
School District #3

Frank G. Mahady, J.

Olin R. McGill Jr., Middlebury, for plaintiff-appellants

Kelley, Meub, Powers & English, Ltd., Middlebury, for defendant-appellee

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

MORSE, J. We decide in this appeal that a union school district budget
may be established by Australian ballot only as proposed by its school board
upon affirmative vote at the annual or subsequent meeting. 16 V.S.A. {
711a. We affirm the judgment of the Addison Superior Court, which
dismissed the action on the merits.
The Middlebury Union High School District #3's annual budget for the
1989-90 school year was duly warned for a vote by Australian ballot to be
conducted on Town Meeting Day, Tuesday, March 7, 1989. On January 25, 1989,
a petition signed by approximately ten percent of the district's voters was
presented to the school board requesting that an article be included in the
warning proposing a lower budget than the one proposed by the board. (FN1) The
board declined to place plaintiffs' petition in the warning of the March 7
meeting. Plaintiffs then brought suit to compel the board to include the
petitioned article in the business of the meeting. Injunctive relief was
denied by the trial court, the complaint was dismissed, and this appeal
followed.
Plaintiffs premise their argument on the statute authorizing five
percent of the voters to compel by petition a municipality to place an
article in the warning of the annual town meeting. 17 V.S.A. { 2642(a). (FN2)
Against the general authority of { 2642(a), the Legislature has enacted
specific procedures for voting on school budgets by Australian ballot. 16
V.S.A. { 711e (referencing the procedures set forth in 17 V.S.A. { 2680 for
local elections using the Australian ballot system). Of particular
relevance to this appeal, { 711e(f) provides:

If the proposed budget is rejected, the union district
board shall prepare a revised budget. The board shall
establish a date for vote on the revised budget, and
shall take appropriate steps to warn the vote. The date
of the vote shall be at least seven days following the
public notice. The vote on the revised budget shall be
by Australian ballot and shall take place in the same
locations that the first vote was taken. The budget
shall be established if a majority of all votes cast are
in favor. If the revised budget is rejected, the board
shall repeat the procedure in this subsection until the
budget is adopted.
Plaintiffs maintain, however, that the Legislature also provided that
"[u]nless clearly inconsistent, the provisions of chapter 55 [{{ 2630-2689]
of Title 17 shall apply to actions taken under this section [16 V.S.A. {
711e]. . . ." 16 V.S.A. { 711e(g) (emphasis added). They argue that since
17 V.S.A. { 2642(a) is a provision of chapter 55 of Title 17 and not
"clearly inconsistent" with 16 V.S.A. { 711e(f), { 2642(a) should control
and their petitioned article should be included in the warning. We reject
this argument because { 711e is sufficiently inconsistent with { 2642(a) so
that the procedure specified in { 711e must control the establishment of a
school budget by Australian ballot.
Plaintiffs point to the fact that the words "If the proposed budget is
rejected" in { 711e(f) do not require that the school board propose the
budget. They say the budget could be "proposed" by those who sign the
petition envisioned by { 2642(a).
Section 711e(f) must be read in pari materia with the rest of the
statutory scheme dealing with the creation of school budgets. 16 V.S.A. {
706q(c)(2) dictates that the school board shall prepare an annual report
including the "budget proposed for the next year" to be distributed before
the annual meeting. Section 711a requires the school board "at each annual
meeting [to] present an estimate of the expenses for the ensuing year" and {
711e(c) requires the question, when voted by Australian ballot, to be
substantially as follows:

"Shall the (union school district name) adopt a budget
of $ .00 for school year ___________?"

We cannot reconcile plaintiffs' petition with { 711e(f). Section
711e(f) describes the procedures that must be followed in the event that the
school board's first budget proposal is defeated. Simply put, if we were to
grant plaintiffs' request that their proposal be included on the ballot as
an alternative to the school board's, and the voters approved plaintiffs'
proposed alternative, the procedures in { 711e(f) would have been ignored
and the will of the Legislature defeated.
It is apparent that the Legislature did not want to risk having a
school budget gutted by what our court has called "'the uncertain disposal
of the "fierce democracie".'" Buttolph v. Osborn, 119 Vt. 116, 119, 119 A.2d 686, 688 (1956) (quoting Chittenden v. School District No. 1, in
Waterbury, 56 Vt. 551, 554 (1884)). If a budget proposed by the entity
charged with running the school is defeated by the voters, the statute calls
for a budgetary revision by the same entity. This is a commonsense balanced
approach to resolving competing interests by giving recognition both to the
expertise of the board and the taxing concerns of the community.
Since the article proposed by plaintiffs was for an "unlawful purpose,"
the board correctly refused to include it in the warning of the town
meeting. See Royalton Taxpayers' Protective Ass'n. v. Wassmansdorf, 128 Vt.
153, 160, 260 A.2d 203, 207 (1969).
Affirmed.

FOR THE COURT:

____________________________________
Associate Justice

FN1. The petition read:
We, the registered voters of the Town of ________, a
member of the Middlebury High School District #3, do
hereby petition that the following Article be included
in the Warning for the purpose stated, to be voted on
Town Meeting Day, March 7, 1989, by Australian Ballot:
Article _____ If the vote on the proposed submitted
budget by the Middlebury Union High School Board is
decided in the negative, will the voters of Middlebury
Union High School District #3 authorize its Board of
Directors to expend a sum of money not exceeding
$6,489,200.00 to defray current expenses for the ensuing
year and to pay outstanding orders and obligations?

FN2. Section 2642(a) states:
The warning shall include the date and time of the
election, location of the polling place or places, and
the nature of the meeting or election. It shall, by
separate articles, specifically indicate the business to
be transacted, to include the offices and the questions
to be voted upon. The warning shall also contain any
article or articles requested by a petition signed by at
least five percent of the voters of the municipality and
filed with the municipal clerk not less than 40 days
before the day of the meeting.

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No. 89-156

Richard Pominville, Francis C. Supreme Court
Broughton, William Holdman, Thomas
H. Dwyer, Deacy F. Leonard, Daniel On Appeal from
K. C. Zee, et al. Addison Superior Court

v. February Term, 1990

Addison Central Supervisory
Union - Middlebury Union High
School District #3

Frank G. Mahady, J.

Olin R. McGill Jr., Middlebury, for plaintiff-appellants

Kelley, Meub, Powers & English, Ltd., Middlebury, for defendant-appellee

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

ALLEN, C.J., dissenting. The Court concludes that 16 V.S.A. { 711e(f)
is "sufficiently inconsistent" with 17 V.S.A. { 2642(a) to bar the
provisions of Chapter 55 of Title 17 from applying to actions taken under {
711e. But { 2642(a) applies to actions under { 711e "[u]nless clearly
inconsistent" with them, and no clear inconsistency has been demonstrated or
is apparent.
The defendant must demonstrate a clear inconsistency between { 711e and
{ 2642(a), and it has fallen far short of doing so. "Inconsistent"
statutory provisions are ones that cannot coexist and cannot be logically
and effectively applied to the same circumstances or conditions. See State
ex rel. Dade County v. Brautigam, 224 So. 2d 688, 692 (Fla. 1969) (provision
of state constitution giving petitioner county municipal taxing powers was
not inconsistent with general law applicable to counties, limiting such
tax). Differences between two provisions, without more, will not render
them "inconsistent." Town of Clifton Park v. C.P. Enterprises, 45 A.D.2d 96, 98, 356 N.Y.S.2d 122, 124 (N.Y. App. 1974) ("To define the word
'inconsistent' narrowly as meaning merely 'different' would vitiate the
flexibility of home rule . . . .").
Plaintiffs' petition, if allowed and then adopted by the voters, would
yield a budget figure without the necessity for the board to prepare a
revised budget and a subsequent vote, as prescribed in { 711e(f). It is
circular to argue that such result is clearly inconsistent with { 711e(f)
simply because it is different. The Legislature invited the possible
application of { 2642(a) to the { 711e process, and while it did elaborate a
detailed procedure to follow when a budget is defeated -- as it was required
to do if the statute were to deal with all eventualities -- the Court has
cited no compelling reasons of language or policy why that process could not
be supplanted by another, different process via the alternative of {
2642(a). If the board's budget were adopted, the petitioners' article
would be extraneous. If the board's budget were defeated, the petitioners'
article would apply if passed. If both the budget and the petitioners'
article failed to be passed, the { 711e(f) process would go forward.
The Court opinion, then, is left at base with its policy arguments --
speculation that the Legislature would not want the carefully delineated
budgetary process upset by rampant democracy. Maj. op. at 4. On the
contrary, it is an equally likely reading of { 711e(g) that the Legislature
intended to allow local democracy to work its will, even if the local
petition process might be awkward and clumsy, compared to the more orderly
regimen contemplated in { 711e(f).
It is also within reason that { 2642(a), far from being "clearly
inconsistent" with { 711e, was intended by the Legislature to break the
impasse that is possible -- and not uncommon -- when boards and voters in
the school district repeatedly fail to agree on the amount to be
appropriated. This problem in these districts might well be avoided if the
voters were permitted to warn and vote upon an amount they deemed
appropriate at the outset.
My speculations about legislative intent may also be wide of the mark,
but the issue before the Court is not whether the Legislature in fresh
debate would prefer the policies the Court propounds to the alternatives I
am suggesting. The narrow issue is whether plaintiffs' ballot initiative
was "clearly inconsistent" with the language of { 711e(f), and neither
defendant nor the Court has suggested any basis for concluding that any
such inconsistency exists.
I would reverse the judgment of the Addison Superior Court and remand
the matter for entry of an order consistent with these views.

_________________________________
Frederic W. Allen, Chief Justice

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