Putter v. Montpelier Public School System

Putter v. Montpelier Public School System  (96-419); 166 Vt. 463; 697 A.2d 354

[Filed 6-Jun-1997]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-419


David Putter                                 Supreme Court

                                             On Appeal from
    v.                                       Washington Superior Court

Montpelier Public School                     March Term, 1997
System, et al.

John P. Meaker, J.

Joshua R. Diamond, Montpelier, for plaintiff-appellant

Douglas D. LeBrun of Dinse, Erdmann, Knapp & McAndrew, P.C., Burlington, for
defendants-appellees


PRESENT:  Amestoy, C.J., Gibson, Dooley, and Morse, JJ.


       MORSE, J.   Plaintiff David Putter appeals from a judgment of the
  Washington Superior Court dismissing as untimely his action to invalidate a
  municipal election, but allowing him to proceed with his claim for other
  forms of relief.  We conclude that the judgment was correct, although for
  reasons different from those stated by the trial court, and affirm. I. On
  March 5, 1996, voters in the City of Montpelier approved the annual
  operating budget proposed by the Board of School Commissioners, as well as
  a multi-million-dollar bond proposal for the construction of various school
  improvements.  Four weeks after the election, plaintiff filed this action
  against the Montpelier Public School System, claiming that the election had
  been tainted by the Board's funding, publication and distribution, shortly
  before the election, of a newsletter entitled "Class Acts."  The
  newsletter's lead article focused on the reasons underlying the proposed
  2.4% operating budget increase and school bond proposal.  It stated that
  "[s]tudent learning will remain the focus for our schools for the immediate
  future if our

 

  operating budget and facility bond proposals are supported," and warned
  that without the increased funding some reduction in programs, services and
  educational opportunities would occur.

       The twelve-page newsletter contained two other articles relating to
  the upcoming election. One addressed the proposed budget in a
  question-and-answer format, explaining that approval was necessary to avoid
  further cuts in services and programs and to maintain the current student-
  to-teacher ratio; the article also contained graphs and charts illustrating
  the respective local, state and federal shares of the budget.  Another
  story addressed the bond proposal, describing the current shortcomings in
  existing school facilities and detailing how and where the bond monies
  would be spent.  Each of the foregoing articles contained a subcaption and
  a cartoon urging readers to "Vote Yes" on the ballot proposals. In addition
  to the materials referenced in the complaint, plaintiff claims to have
  subsequently discovered that defendant also distributed leaflets and
  promotional stickers advocating passage of the school bond.

       Plaintiff alleged that by expending public funds and resources in a
  "partisan" fashion, defendant had "improperly influenced the election on
  Article 13" (the bond proposal).  In five separate counts, he claimed that
  defendant had thereby: (1) exceeded its lawful authority; (2) conferred a
  government "emolument" upon the private citizens who created the articles
  in violation of Chapter I, Article 7 of the Vermont Constitution; (3)
  violated the guarantee of a republican form of government set forth in
  Article IV, Section 4 of the United States Constitution, and contravened
  Chapter I, Articles 6 and 8 of the Vermont Constitution, which provide,
  respectively, that all officers of government are the "trustees and
  servants" of the people, and that "all elections ought to be free and
  without corruption"; (4) engaged in "viewpoint discrimination" in violation
  of the First Amendment of the United States Constitution and its equivalent
  in the Vermont Constitution; and (5) compelled plaintiff to endorse a
  political position he opposed, contrary to the free speech clauses of the
  United States and Vermont Constitutions.

 

       The allegations of federal constitutional law were brought under 42
  U.S.C. § 1983, which confers a private federal right of action for damages
  and injunctive relief against state actors who deprive any citizen of
  "rights, privileges, or immunities secured by the Constitution and laws." 
  In these, as in the other counts, plaintiff sought a variety of remedies,
  including a declaration that the election approving the bond proposal was
  invalid; an order enjoining defendant from utilizing public resources to
  advocate a partisan position; reimbursement for all funds illegally
  expended; and damages and attorney's fees under 42 U.S.C. §§ 1983 and 1988.

       Defendant moved to dismiss the complaint on the ground, among others,
  that the suit was untimely under 17 V.S.A. § 2603.  Under that section,
  "[t]he result of an election for any office, other than for the general
  assembly, or public question may be contested by any legal voter entitled
  to vote on the office or public question to be contested."  Id. § 2603(a). 
  A contest is initiated by filing a complaint in superior court alleging
  that errors were committed in the conduct of the election, that there was
  fraud in the electoral process, or "that for any other reason" the election
  was invalid.  Id. § 2603(b).  The complaint must be filed within fifteen
  days after the election, or, if there is a recount, within ten days after a
  court issues its judgment on the recount.  Id. § 2603(c).

       Plaintiff opposed the motion claiming that suit under § 1983 is
  governed by the local statute of limitations applicable to personal injury
  actions, which in Vermont is three years.  See 12 V.S.A. § 512(4).  The
  trial court selected the limitations period most analogous to the specific
  forms of relief sought, applying the fifteen-day period to plaintiff's
  effort to invalidate the election, and the three-year period to the extent
  that plaintiff was seeking relief for other injuries.  Accordingly, the
  trial court dismissed as untimely the challenge to the election result, but
  otherwise allowed the action to proceed.  Finally, finding no reason for
  delay, the trial court ordered entry of final judgment with respect to the
  order dismissing the challenge to the election result.  See V.R.C.P. 54(b).

                                     II.


 

       Whether the trial court properly applied the fifteen-day limitations
  period of 17 V.S.A. § 2603(c) to the federal claims presents an interesting
  question, but not one that the Court must decide in this matter.  The
  United States Supreme Court has held, to be sure, that a single state
  statute of limitations applies to "all § 1983 claims," and that the most
  appropriate limitations period is that applicable to personal injury
  actions.  Wilson v. Garcia, 471 U.S. 261, 275, 280 (1985).  The high court
  has reaffirmed this rule on several occasions.  See Felder v. Casey, 487 U.S. 131, 143 (1988) (holding that application of 120-day notice-of-claim
  rule to § 1983 actions was "incompatible with the compensatory goals of the
  federal legislation"); Burnett v. Grattan, 468 U.S. 42, 54-55 (1984)
  (application of six-month limitations period for employment discrimination
  claims was inadequate to accomodate complexities of federal civil rights
  actions).

       The Supreme Court has not considered, however, whether a state may,
  for good and sufficient reasons, apply a shorter limitations period to one
  particular equitable remedy available under § 1983, such as election
  invalidation, as opposed to the § 1983 claim in its entirety. Strong
  arguments could be advanced on either side of the question.  On the one
  hand, where the constitutional infringement is sufficiently egregious, it
  could be argued that denial of the new-election remedy is tantamount to a
  denial of the right itself.  On the other hand, the state's interest in
  finality of elections may be sufficiently compelling to justify a shorter
  limitations period where other remedies exist to cure the infirmity.

       As noted, however, we need not resolve this particular issue.  For the
  judgment, as explained below, may be affirmed on a separate ground.

                                    III.

       Even assuming that plaintiff's § 1983 suit was timely, the fundamental
  question remains whether plaintiff has stated a claim for which the
  extraordinary equitable remedy of election invalidation can be granted. 
  Although not raised below, the issue was briefed by the parties on appeal,
  and is dispositive of the matter.

 

       Invalidation of an election requires more than merely a claim of
  election irregularity, even one of constitutional dimensions.  As one
  author has explained, "The fact that the invalidation power is rooted in
  equity is the key to the usefulness of this remedy, for it means that the
  determination of illegality in the electoral process does not automatically
  invoke the new-election remedy.  The . . . judge sitting . . . in equity
  may detect malfeasance, perhaps of an egregious nature, but nonetheless
  stay his hand in providing full relief."  K. Starr, Federal Judicial
  Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U.
  L. Rev. 1092, 1099 (1974) (footnote omitted); see also Gjersten v. Board of
  Election Comm'rs, 791 F.2d 472, 478 (7th Cir. 1986) (court need not
  exercise equitable power of invalidation in response to all
  unconstitutional election practices).

       Voiding an election and ordering a new one represents one of the more
  extreme remedial measures available to a court sitting in equity.  Nothing
  is so profoundly destabilizing to the local political process; budgets or
  projects debated during the campaign and approved by the electorate must
  invariably be delayed or postponed, and lame-duck incumbents may be unable
  as a practical matter to conduct the public business for which they were
  elected.  See Gjersten, 791 F.2d  at 479; McGill v. Ryals, 253 F. Supp. 374,
  376 (M.D. Ala. 1966), appeal dismised, 385 U.S. 19 (1966); Starr, supra, at
  1105-06, 1128.

       As a result, courts reviewing election challenges under federal law
  have established a high threshold for what one court has described as the
  "[d]rastic, if not staggering" equitable remedy of election invalidation. 
  Bell v. Southwell, 376 F.2d 659, 662 (5th Cir. 1967); see also Gjersten,
  791 F.2d  at 478 (courts should not lightly "resort to this intrusive
  remedy").  "The setting aside of an election is an extraordinary remedy,"
  observed the court in Smith v. Paris, 257 F. Supp. 901, 905 (M.D. Ala.
  1966), "which the Court should grant only under the most extraordinary of
  circumstances."  Dilution of votes through malapportioned districts,
  Reynolds v. Sims, 377 U.S. 533, 554 (1964); purposeful or systematic
  discrimination against voters of a certain class, Hadnott v. Amos, 394 U.S. 358, 366-67 (1969); pervasive election fraud, Griffin

 

  v. Burns, 570 F.2d 1065, 1074, 1078-80 (1st Cir. 1978); and "other wilful
  conduct which undermines the organic processes by which candidates are
  elected," Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975), represent
  the kinds of violations for which courts have typically employed the
  new-election remedy.

       Conversely, courts have frequently declined to order a new election
  where the governmental misconduct, considered in light of all the
  circumstances, did not warrant so extraordinary and destabilizing a remedy.
  See, e.g., Saxon v. Fielding, 614 F.2d 78, 79-80 (5th Cir. 1980); Hennings,
  523 F.2d  at 864; Hamer v. Ely, 410 F.2d 152, 156 (5th Cir.), cert. denied,
  396 U.S. 942 (1969).  In determining whether such drastic relief is
  warranted, courts have focused on several key considerations, including the
  nature and severity of the federal violation, the probability that it
  actually affected the election result, the presence or absence of culpable
  intent, and the harm to the organic processes of the election.  Gjersten,
  791 F.2d at 478-79; Bodine v. Elkhart County Election Bd., 788 F.2d 1270,
  1272 (7th Cir. 1986); Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983); Hennings, 523 F.2d  at 864.

       Considered in the light of these criteria, plaintiff's claims fall
  well below the requisite threshold for election invalidation.  The United
  States Constitution protects the right of all qualified citizens to vote in
  state and federal elections, Reynolds, 377 U.S.  at 554, and to have their
  votes counted without debasement or dilution.  Hadley v. Junior College
  Dist., 397 U.S. 50, 52 (1970).  Plaintiff here has not alleged that any
  qualified voters were denied the right to vote in the school bond election,
  or that their votes were improperly diluted through deliberate governmental
  contrivance.  Rather, he asserts in broad terms that defendant "improperly
  influenced" the election by disseminating "partisan" pamphlets to the
  electorate in violation of the Vermont and United States Constitution.  He
  does not allege that any electors actually changed their votes as a
  consequence of reading the disputed materials, or that municipal voters
  were actually "influenced" in sufficient numbers to alter the election
  result.

 
  Courts generally "require the plaintiffs to demonstrate that the
  unconstitutional practice had a significant impact on the particular
  election they seek to have declared invalid."  Gjersten, 791 F.2d  at 479
  (emphasis added).  Although some courts have required as little as a
  "reasonable possibility" that a violation affected the result, Smith v.
  Cherry, 489 F.2d 1098, 1103 (7th Cir. 1973), cert denied, 417 U.S. 910
  (1974); Saxon, 614 F.2d  at 79, plaintiff here has not alleged even this
  much.  Furthermore, while there is some authority for invalidation even
  absent such proof, this has generally occurred only in cases where the
  governmental misconduct was extreme and intentional, and the remedy was
  deemed necessary to extinguish the taint.  See, e.g., Bell, 376 F.2d  at
  664-65 (despite noneffect on outcome, invalidation remedy was appropriate
  in light of "gross, spectacular, completely indefensible" racial
  discrimination in election process); Starr, supra, 49 N.Y.U. L. Rev. at
  1115-16 ("Whether the illegality complained of actually affected the
  outcome is of secondary importance . . . so long as there is substantial
  illegality resulting from culpable intent or the form which the illegality
  takes is highly egregious.") (footnotes omitted).

       Plaintiff's complaint alleges nothing even remotely suggestive of
  "extreme" or "indefensible" governmental malfeasance.  This is not to imply
  that his claims lack merit. Although not before us, plaintiff's assertion
  that the federal Constitution prohibits governmental entities from spending
  public funds to promote partisan positions in election campaigns finds
  support in a number of judicial authorities.  See Alabama Libertarian Party
  v. City of Birmingham, 694 F. Supp. 814, 816-21 (N.D. Ala. 1988); Mountain
  States Legal Found. v. Denver Sch. Dist., 459 F. Supp. 357, 360 (D. Colo.
  1978); Stanson v. Mott, 551 P.2d 1, 8-9 (Cal. 1976); see generally Carter
  v. City of Las Cruces, 915 P.2d 336, 338-39 (N.M. Ct. App. 1996)
  (collecting cases).  Several respected commentators have also explored the
  question of whether official "partisanship" through the act of
  disseminating campaign literature violates the constitutional rights of
  those opposed to the government's position.  See S. Shiffrin, Government
  Speech, 27 U.C.L.A. L. Rev. 565 (1980); M. Yudof, When Governments Speak:
  Toward A

 

  Theory of Government Expression and the First Amendment, 57 Tex. L. Rev.
  863 (1979); E. Ziegler, Government Speech and the Constitution: The Limits
  of Official Partisanship, 21 B.C. L. Rev. 578 (1979).

       But even assuming their technical merit, plaintiff's arguments
  preclude any finding of willful misconduct.  However well pled, the
  constitutional claims are relatively novel, the supporting authorities
  comparatively sparse, and the rules defining the scope of permissible
  conduct currently unsettled; the issue, in short, is one about which
  reasonable minds may easily disagree.  Indeed, most courts and commentators
  acknowledge that the line between providing "neutral information" and
  promoting "partisan" views on election issues may be "exceedingly
  difficult" to draw.  Yudof, supra, at 899; see also Stanson, 551 P.2d  at 12
  ("the line between unauthorized campaign expenditures and authorized
  informational activities is not so clear"); Shiffrin, supra, at 655
  (subject contains far too many complexities "to make the government speech
  problem an easy one to resolve"); Ziegler, supra, at 615 (discussing the
  "dilemma of distinguishing proper from improper government conduct in this
  context").   As the Court in Buckley v. Valeo, 424 U.S. 1, 93 (1976)
  observed, virtually every public expenditure will "to some extent involve a
  use of public money as to which some taxpayers may object. Nevertheless,
  this does not mean that those taxpayers have a constitutionally protected
  right to enjoin such expenditures."

       Thus, regardless of whether the disputed materials actually crossed
  the nebulous line separating information from propaganda, the claimed
  constitutional infringement provides no basis for a finding that the Board
  willfully and knowingly violated plaintiff's constitutional rights.  As
  noted, courts have occasionally invoked the new-election remedy as a
  punitive measure "to wipe out any fruits of indefensibly illegal conduct,"
  Starr, supra, at 1119 (emphasis added); conversely, the absence of willful
  misconduct has been a prime consideration in rejecting the invalidation
  remedy.  See Allen v. State Bd. of Elections, 393 U.S. 544, 572 (1969)
  (invalidation of election unwarranted where despite violations of Voting
  Rights Act, case

 

  involved "complex issues of first impression" barring finding that
  defendants conduct "constituted deliberate defiance of the Act").  Ordering
  a new election absent any basis for a finding that the disputed materials
  were outrageously illegal or significantly skewed the election outcome
  would thus grossly exceed the alleged wrongdoing.

       In sum, plaintiff's § 1983 claims do not -- and cannot -- even
  remotely approach the level of extremity, culpability or undue influence on
  the electoral process necessary to warrant the extraordinary remedy of
  election invalidaton.  Plaintiff's constitutional claims involve complex
  issues of first impression that bar any possibility of a finding of willful
  or outrageous misconduct.  See Allen, 393 U.S.  at 572.  Accordingly, albeit
  for a different reason from that stated by the trial court, we conclude
  that the judgment dismissing the challenge to the election result, but
  otherwise permitting the action to proceed, was correct.  The judgment,
  therefore, may properly be affirmed.  See Gochey v. Bombardier, Inc., 153
  Vt. 607, 613, 572 A.2d 921, 925 (1990) (this Court may affirm correct
  judgment even though grounds stated in support of it are erroneous).

       Affirmed.


                               FOR THE COURT:


                              _______________________________________
                              Associate Justice