Rowe v. Brown

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-500

                              JUNE TERM, 1991


Michael Rowe, Individually         }         APPEALED FROM:
and as a Selectman and Citizen of  }
Ludlow, Windsor County, Vermont    }
                                   }
     v.                            }         Windsor Superior Court
                                   }
                                   }
Dean R. Brown, Jr., Ludlow Town    }
Manager, and Planning Board and/or }         DOCKET NO. S12-85-WrC
Board of Adjustment of Ludlow, Vt; }
Herbert VanGuilder & Town of Ludlow}


             In the above entitled cause the Clerk will enter:

     Pursuant to V.R.A.P. 40, plaintiff has moved to reargue our conclusion
that the trial court appropriately dismissed his 42 U.S.C. { 1983 claim.
Upon reexamining the second amended complaint, we agree with plaintiff with
respect to the alleged July 1985 meeting and accordingly, reverse and remand
with respect to that meeting.  The trial court's opinion is affirmed in all
other respects.  Our opinion issued on January 11, 1991 is withdrawn and
amended.







                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


-----------------------------------------------------------------------------

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. 89-500


Michael G. Rowe, Individually           Supreme Court
and as a Selectman and Citizen of
Ludlow, Windsor County, Vermont         On Appeal from
                                        Windsor Superior Court
     v.

Dean R. Brown, Jr., Ludlow Town         January Term, 1990
Manager, and Planning Board and/or
Board of Adjustment of Ludlow, Vt.;
Herbert VanGuilder & Town of Ludlow


Ellen H. Maloney, J.

Thomas J. McGovern, Ludlow, for plaintiff-appellant

Sheilla C. Files of Douglas Richards, P.C., Springfield, for defendants-
appellees


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



     PECK, J.   Plaintiff appeals from a superior court dismissal of his
action for damages pursuant to 42 U.S.C. { 1983, the Vermont Constitution
and the Vermont Open Meetings statute, 1 V.S.A. {{ 311-314.  Plaintiff
alleged that he was injured when defendants improperly excluded him from
various municipal meetings in Ludlow.  We reverse with respect to
defendant's 1983 claim and affirm with respect to all other claims.
     The complaint alleged that defendant was excluded from meetings of the
Ludlow Board of Selectmen, the Planning Board, and the Board of Adjustment
in 1984 and 1985.  Plaintiff named town manager and zoning administrator
Brown and selectman VanGuilder as defendants, alleging that they "willfully
or maliciously and under color of state law" requested the Planning Board
and Board of Adjustment to exclude plaintiff from their meetings.  In
addition, the complaint alleged that the actions of the defendants violated
plaintiff's free speech rights and caused him to suffer fear of bodily harm,
personal humiliation and mental anguish.  The complaint rested on the
Vermont Open Meetings Law, and the free speech and due process clauses of
the Vermont and the federal constitutions. (FN1) Plaintiff sought declaratory
relief and damages for violation of state statutory and constitutional law
and under 42 U.S.C. { 1983 and attorneys' fees under 42 U.S.C. { 1988.
     In September, 1988, the trial court dismissed plaintiff's federal law
claims, holding that plaintiff had no federal first amendment right to
attend the meeting in question, nor any due process right to a hearing on
his exclusion.  Because the court concluded that 42 U.S.C { 1983 could not
be employed to vindicate rights having their source in state law, and
because his claim was not supported by federal law, his { 1983 claims were
dismissed.
     In September, 1989, the trial court dismissed plaintiff's state law
claims.  The court held that the Open meeting Law created no private right
of action for its enforcement, and that plaintiff had no standing to assert
a cause of action under the state constitution. The present appeal
followed.
     The Open Meeting Law on its face creates rights in favor of all members
         of the public:
          All meetings of a public body are declared to be open to
          the public at all times, except as provided in section
          313 of this title [relating to executive sessions].  No
          resolution, rule, regulation, appointment, or formal
          action shall be considered binding except as taken or
          made at such open meeting, except as provided under
          section 313(a)(2) of this title.  A meeting may be
          conducted by audio conference or other electronic means,
          as long as the provisions of this subchapter are met.

1 V.S.A. { 312(a).  The statute protects the public interest, and its viola-
tion offends the public weal. (FN2) The enforcement provisions of 1 V.S.A. {
314(b) allow the attorney general "or any person aggrieved by a violation of
the provisions" of the law to seek injunctive or declaratory relief.  Thus,
if a Ludlow citizen sought an adjudication that the municipality
misconstrued the statutory provision under which it conducted executive
sessions (or otherwise violated the Open Meeting Law), the citizen could
seek a declaration that the town was in violation of the statute and could
enjoin that violation or seek an additional declaration under { 312(a) with
respect to action purportedly taken in an unlawfully conducted meeting.
     Plaintiff's { 1983 claim rests in part on the first amendment to the
United States constitution.  Plaintiff argues that because, under the Open
Meetings Law, the 1984 and 1985 meetings should have been open, under the
first amendment, he could not be arbitrarily excluded.  The trial court
correctly concluded that { 1983 does not create a remedy for the violation
of purely state-created rights, as its manifest purpose is to "create[] a
species of liability in favor of persons deprived of their federal civil
rights by those wielding state authority."  Felder v. Casey, 108 S. Ct. 2302, 2307 (1988); Williams v. Conway, Nos. 88-309 and 89-042, slip op. at
17-18 (Vt. Nov. 9, 1990). (FN3) However, plaintiff had a federal first amendment
right not to be excluded from a forum generally held open to the public.
See Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45 (1983).
     Plaintiff admits that the relevant 1984 meetings were designated
executive meetings.  Such meetings, which must be approved by vote and are
restricted in nature, are not generally held open to the public.  See 1
V.S.A. {313.  Thus, plaintiff had no first Amendment right to be present.
Moreover, the fact that matters may have been considered at the executive
sessions which are required under the Open Meetings Law to be considered
only at public meetings did not convert those executive sessions into
public meetings.   Rather, if members of the public body, in violation of 1
V.S.A. { 313, considered at executive sessions matters which should have
been considered publicly, they may be liable under the penalty section of
the Open Meetings Law, 1 V.S.A. { 314.  Plaintiff also alleged in his
complaint that he was excluded from a public meeting in July 1985, however.
No facts were developed as to the nature of that meeting; thus, dismissal of
the 1983 claim with respect to the July 1985 meeting was premature.
     Defendant claims next that the defendants violated his Vermont
constitutional right to be present at public meetings.  He notes that in
passing 1 V.S.A. { 312 the legislature codified the public's constitutional
right to attend open meetings.  An examination of the legislative history of
the statutory scheme in question reveals an intention by the legislature to
give meaning to Chapter I, Article 6 and Chapter II, Section 8 of the
Vermont constitution.  See Open Meetings: Hearings on S. 35 Before the
Senate General Committee, Forty-Fourth Biennial Session (February 14,
1957)(statement of Senator Fayette).
     Regarding Chapter I, Article 6 we have previously stated that it is "a
truism of a republican form of government, and provides no private right of
action.  The remedy contemplated by it is that of popular election." Welch
v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980).  In Seery we
explained that for enforcement of the constitutional maxim, other than
popular election, plaintiffs must avail themselves of the legislative
enactments giving effect to Article 6. (FN4) Similar analysis is warranted under
Chapter II, Section 8.
     Nor has plaintiff stated a  claim for damages under Vermont's Open
Meetings Law.  Although plaintiff's amended complaint sought declaratory and
injunctive relief, it is clear that the issues raised on appeal relate
solely to the claim for damages.  The Open Meeting Law on its face provides
no such damages, and plaintiff offers no theory under which this Court may
infer that what are in effect private tort remedies are to be implicitly
read into the statute.  There is no indication of legislative intent,
explicit or implicit, to create a private tort remedy.  See Cort v. Ash, 422 U.S. 66, 78 (1975).  Moreover, it is not "consistent with the underlying
purposes of the legislative scheme to imply such a remedy" for violations of
the Open Meetings Law.  Id.   The Legislature might have considered the
positive and negative impacts on public bodies of private damage suits for
violations of the Open Meetings Law, but plaintiff does not contend that it
did so.  It can hardly be assumed that such an important provision of the
statute, with such broad possible effects, would have been allowed to become
law by implication, particularly in light of the very explicit limitations
placed on the nature of private relief under { 314(b). (FN5)
     We note that the amended complaint does seek other relief, specifically
a judgment "finding that the defendants unlawfully excluded plaintiff from
their meetings and . . . prohibiting the defendants from excluding this
plaintiff, Michael G. Rowe, from public meetings in the future . . . ."
This is the kind of relief now available under { 314(b). (FN6) Thus, the trial
court erred in stating that "the given [i.e., the sole] remedy for such a
violation is prosecution by the state under 1 V.S.A. { 314."  But while we
do not require plaintiffs to cite a correct statutory remedy if they clearly
and adequately describe the relief sought at trial and if that relief is
available, plaintiff at bar has not raised this issue on appeal either by
reference to statutory authority or otherwise.  On the contrary, he has made
it plain in his brief that the issues he wishes to present to this court are
his { 1983 claims and "a United States or Vermont Constitutional cause of
action" and that he seeks damages to redress "the injury done to his
person." (FN7) Issues not raised on appeal are deemed waived.  See In Re Smith,
Bell & Hauck Real Estate, Inc., 132 Vt. 295, 300, 318 A.2d 183, 187 (1974).
     Finally plaintiff argues that he suffered "a distinct and palpable
injury to himself" and that Chapter 1, Article 4 of the Vermont constitution
requires that he be afforded a remedy. (FN8) The legislature has provided the
remedy of injunctive or declaratory relief to a plaintiff whose public right
to open meetings has been violated.  Article 4 does not afford a plaintiff
who chooses not to pursue those remedies additional private tort remedies.
See Levinsky v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989)
(Article 4 has been treated as the Vermont equivalent of the federal due
process clause), overruled on other grounds, Muzzy v. State, 1 V.L.W. 363,
364 (1990).
     Consideration of plaintiff's request for attorney's fees is premature
at this juncture in the absence of a final determination of his 1983 claim.


     Reversed with respect to dismissal of plaintiff's 1983 claim; affirmed
in all other respects.


                                        FOR THE COURT:



                                        ________________________________
                                        Associate Justice





FN1.    Plaintiff had earlier filed a complaint seeking redress as a town
selectman, but this Court on January 10, 1988 dismissed that claim as moot
since plaintiff at that time was no longer a selectman.  We granted leave to
file an amended complaint, and that amended complaint is the basis for the
present action.

FN2.    1 V.S.A. { 311(a) states:
               (a) In enacting this subchapter, the legislature
          finds and declares that public commissions, boards and
          councils and other public agencies in this state exist
          to aid in the conduct of the people's business and are
          accountable to them pursuant to Article VI of the
          Vermont constitution.

FN3.    When state laws are enforced in a manner that offends rights,
privileges, or immunities guaranteed by the federal constitution and
enforceable against the states, { 1983 may be invoked in appropriate cases
to redress the federal violation.  See Monroe v. Pape, 365 U.S. 167, 180
(1961).

FN4.      In this case the legislative enactment is 1 V.S.A. {{ 311-314.

FN5.      The legislature did consider allowing courts to "assess against
the public body reasonable attorney's fees and other litigation costs
reasonably incurred in any case under this section in which the complainant
ultimately prevails."  H.91 {23(c), Fifty-Ninth Biennial Session, Journal of
the House of the State of Vermont at 208 (Biennial Session 1987).  This
provision, however, was not enacted.  If the Legislature considered but
rejected awarding attorney's fees to injured plaintiffs it is unlikely that
it intended to permit recovery for damages.

FN6.      Section 314(b) was enacted on June 16, 1988, after plaintiff filed
his amended complaint but before the trial court decided the case.

FN7.    The closest plaintiff comes to raising the question of injunctive
and declaratory relief is the prayer in the conclusion of his appellate
brief that the trial court "order the defendants to answer the second
amended complaint and grant plaintiff any further relief the Court deems
just and proper under the circumstances of this case."  This kind of omnium
gatherum might be said to raise all of the issues arising from the
complaint, including injunctive and declaratory relief.  But the isolated
and oblique reference to the complaint does not suffice to revive what is
not discussed in the brief.  And in any event this Court is not required to
undertake a search for error where it is not adequately briefed or supported
by the arguments.  Tallarico v. Brett, 137 Vt. 52, 61, 400 A.2d 959, 965
(1979).

FN8.      Article 4 states: "Every person within this state ought to find a
certain remedy, by having recourse to the laws, for all injuries or wrongs
which he may receive in his person, property or character . . . ."