Brady v. Dean

Brady v. Dean (2000-547); 173 Vt. 542; 790 A.2d 428

[Filed 26-Dec-2001]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-547

                             NOVEMBER TERM, 2001


Edward J. Brady, et al.	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Washington Superior Court
                                       }	
Howard Dean, et al.	               }
                                       }	DOCKET NO. 308-5-00 Wncv 

                                                Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:


       Plaintiffs appeal from a superior court order dismissing their
  challenge to the civil union law  enacted by the Legislature in response to
  this Court's decision in Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999). 
  Plaintiffs contend the trial court erred in concluding that they lacked
  standing and   failed to state a claim on which relief could be granted. 
  We affirm.  

       On April 26, 2000, the Governor signed into law Act 91, "An Act
  Relating to Civil Unions."   1999, No 91 (Adj. Sess.).  Shortly before its
  effective date of July 1, 2000, plaintiffs - a group  comprised of Vermont
  taxpayers, members of the Vermont House of Representatives, and three 
  Vermont town clerks - brought this action against the Governor and other
  state officials, seeking to  enjoin the implementation of the law.  The
  taxpayer and legislator plaintiffs asserted a number of  claims based on
  the allegation - which we accept as true for purposes of review, see
  Schievella  v.  Department of Taxes, __ Vt. __, __, 765 A.2d 479, 480
  (2000) (mem.) - that  fourteen members of  the House of Representatives
  participated in a "dollar-a-guess" betting pool in connection with a 
  preliminary vote on the civil unions bill.  The money went to the
  participant coming closest to  predicting the number of "yes" votes.  The
  vote was seventy-six to sixty-nine in favor of having the  bill read a
  third time. All fourteen participants in the pool voted "yes."  Following
  the vote,  Representative Doran Metzger brought the betting pool to the
  attention of the Speaker.   Representative Metzger stated that he was
  "appalled" and "ashamed" by the conduct of the  participants and "concerned
  [about] the impact on the final vote," but otherwise interposed no 
  objection, challenge or other motion addressing the participants' vote or
  asking to conduct a revote.   Although the Speaker later expressed
  disapproval of the betting pool, he did not take any action to  disqualify
  the participants, and none undertook to disqualify themselves.  

       Plaintiffs asserted in their complaint that the Speaker erred in
  failing to disqualify the fourteen  betting-pool participants,  in
  violation of a House Rule which provides that "[m]embers shall not be 
  permitted to vote upon any question in which they are immediately or
  directly interested."  Plaintiffs  also claimed that by voting on the bill,
  the betting-pool participants violated various provisions of the  Vermont
  Constitution, including Chapter I, Article 6, which provides that all power
  is "derived from  the people" and that government officials are therefore
  "accountable to them," Chapter I, Article 7,  which provides that
  government is "instituted for the common benefit, protection, and 

 

  security of the people, nation, or community," Chapter II, § 12, which
  states that no member of the  General Assembly may "receive any fee or
  reward" for bringing forward or advocating any bill, and  Chapter II, § 61,
  which prohibits public officers from "tak[ing] greater fees than the law
  allows," as  well as several statutory provisions, including 13 V.S.A. §§
  2101, 2141, and 2151, which criminalize  the running of lotteries, games of
  chance and bookmaking.  

       The three town clerks raised a separate claim, asserting that their
  obligation under the civil  union law to either issue a civil union license
  or to appoint an assistant to do so, see 18 V.S.A. §  5161, contravened
  their sincerely held religious beliefs, in violation of their right to the
  free exercise  of religion under Chapter I, Article 3 of the Vermont
  Constitution.  

       The trial court (Judge Martin) denied plaintiffs' initial and renewed
  requests for a preliminary  injunction.  Thereafter, the court (Judge Katz)
  granted defendants' motion to dismiss, ruling that  plaintiffs lacked
  standing, and that even if they had standing the claims failed on their
  merits. As to  the constitutional and statutory claims raised by the
  taxpayer and legislator plaintiffs, the court found  that they presented a
  "nonjusticiable political question," observing that judicial intervention
  to  disqualify the betting-pool participants retroactively and to
  invalidate the law "would intrude on the  separation of powers and subvert
  rather than enforce legislative procedure." With respect to the  claims of
  the town clerks, the court ruled that any alleged injury was "too remote
  and abstract to  support standing," and further concluded that, as public
  officials, the clerks were not constitutionally  entitled to "become a law
  unto themselves and hold the State's neutral and generally applicable laws 
  hostage to [their] beliefs."  Accordingly, the court also concluded that
  the town clerks had failed to  state a claim on which relief could be
  granted and dismissed the complaint. This appeal followed.

                                     I.

       The doctrine of standing, although often amorphous in the abstract,
  represents a core  constitutional and prudential commitment to judicial
  restraint.  Courts and commentators have long  recognized that, as one
  author recently observed, "[s]tanding and the separation of powers doctrine 
  [are] wedded together."  Note, The New Law of Legislative Standing, 54
  Stan. L. Rev. 205, 207  (2001). Drawing on well established federal
  precedents construing the case-or-controversy  requirement of Article III
  of the United States Constitution, this Court has explained the standing 
  doctrine as follows:

    Article III embodies various doctrines, including standing,
    mootness,  ripeness and political question, that help define and
    limit the role of courts  in a democratic society. . . .  One of
    the "passive virtues" of the standing  doctrine is to promote
    judicial restraint by limiting the occasions for  judicial
    intervention into the political process.  See generally A. Bickel, 
    The Least Dangerous Branch 111-98 (2d ed. Yale Univ. Press 1986) 
    (1962). Standing doctrine is fundamentally rooted in respect for
    the  separation of powers of the independent branches of
    government.

  Hinesburg Sand & Gravel, Inc. v. State, 166 Vt. 337, 340-41, 693 A.2d 1045,
  1047-48 (1997)  (emphasis added).

 

       Elaborating on the circumstances in which courts should refrain from
  intervening in cases that  present political questions more suitable for
  legislative or executive resolution, the United States  Supreme Court in
  the seminal case of Baker v. Carr, 369 U.S. 186, 217 (1962), observed: 

    Prominent on the surface of any case held to involve a political
    question is  found a textually demonstrable constitutional
    commitment of the issue to a  coordinate political department;  or
    a lack of judicially discoverable and  manageable standards for
    resolving it; or . . . the impossibility of a court's  undertaking
    independent resolution without expressing lack of the respect  due
    coordinate branches of government; or an unusual need for 
    unquestioning adherence to a political decision already made; or
    the  potentiality of embarrassment from multifarious
    pronouncements by  various departments on one question.      

       The prudent exercise of judicial self-restraint and deference to the
  independence of a  coordinate governmental branch is compelled by the facts
  and circumstances of this case.  Our state  constitution, in defining the
  powers of the House of Representatives, expressly provides that the 
  members shall "judge of the elections and qualifications of their own
  members." Vt. Const., ch. II, §  14.  This and numerous other state courts
  have held that where the state legislature is made the judge  of the
  qualifications of its members by a provision of the state constitution, the
  legislature has the  sole authority to do so, and courts must refrain from
  interfering in that determination.  See Kennedy  v. Chittenden, 142 Vt.
  397, 399-400, 457 A.2d 626, 627 (1983) (the Constitution "places the final 
  determination of the election and qualifications of its members exclusively
  in the House of  Representatives," rendering any attempted judicial
  intervention ineffective and violative of  separation of powers); see
  generally State ex rel. Turner v. Scott, 269 N.W.2d 828, 831 (Iowa 1978) 
  (collecting state court decisions declining to review legislative
  determination of members'  qualifications); In re Jones, 476 A.2d 1287,
  1291-92 (Pa. 1984) (noting extensive body of case law  vesting exclusive
  responsibility in legislative body to determine members' qualifications).

       Although our constitution does not define, nor have we previously
  addressed, the precise scope  of the legislative prerogative over members'
  "qualifications," we note that at least one state court has  held that the
  disqualification of legislators for having a personal interest in a
  proposed bill falls  within the constitutional "power of each house of the
  legislature to judge the qualifications of its own  members."  Melland v.
  Johanneson, 160 N.W.2d 107, 116 (N.D. 1968). We believe, similarly,  that 
  the Vermont House of Representative's exclusive constitutional prerogative
  to "judge of the  qualifications of its members" encompasses the authority
  to determine whether a member's  personal  or pecuniary interest requires
  disqualification from voting on a question before it.  Indeed,  the House 
  has adopted rules addressed to this very problem.

       House Rule 75 provides that "[m]embers shall not be permitted to vote
  upon any question in  which they are immediately or directly interested." 
  House Rule 75.   Additional rules in Mason's  Manual of Legislative
  Procedure, adopted by reference through House Rule 88, instruct that the 
  conflict of interest provision "is obviously not self-enforcing and unless
  the vote is challenged  members may vote as they choose."  Mason's Manual
  of Legislative Procedure, § 522(1).  Thus, a  legislative procedure was
  readily available to challenge the civil union vote on the grounds that 
  fourteen House members had a disqualifying personal interest in the
  outcome.  Whether an adequate  objection on this basis was raised by
  Representative Metzger, or whether the Speaker adequately 

 

  responded to his concerns, are matters constitutionally entrusted to the
  sound and exclusive judgment  of the House, not to this Court.    

       We further conclude that, as a policy matter, a proper regard for the
  independence of the  Legislature requires that we respect its members'
  personal judgments concerning their participation   in matters before them. 
  See Baker, 369 U.S.  at 217 (finding of non-justiciability  may reflect  
  difficulty of "undertaking independent resolution without expressing lack
  of the respect due  coordinate branches").  Although the separation of
  powers doctrine does not, to be sure,  "contemplate an absolute division of
  authority among the three branches," In re D.L., 164 Vt. 223,  228, 669 A.2d 1172, 1176 (1995), it does ensure, at a minimum, that no branch will
  usurp the "core  functions," State v. Pierce, 163 Vt. 192, 197, 657 A.2d 192, 195 (1995) or impair the "independent  institutional integrity" of
  another. D.L., 164 Vt. at 229, 669 A.2d  at 1176.   A member's decision to 
  vote on a matter before the House represents, in our view, a core
  legislative function that must  remain inviolate to ensure the continued
  integrity and independence of that institution.        
      
       This is not, of course, to hold that all potential conflicts of
  interest of state legislators are  immune from every form of executive or
  judicial oversight. Senate and House members may be  criminally prosecuted
  for certain actions, such as soliciting or accepting bribes, see 13 V.S.A.
  §  1102, or even subject to civil suit for actions outside the scope of 
  their legislative duties. See United  States v. Brewster, 408 U.S. 501, 526
  (1972) ("Taking a bribe is, obviously, no part of the legislative  process
  or function; it is not a legislative act."); Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979)  (allowing defamation action against legislator for
  acts outside the "legislative function or the  deliberations that make up
  the legislative process").  Nor is it to conclude that courts may not 
  interpret the Constitution in the first instance to determine whether and
  to what extent an issue is  committed to the legislative branch.  See,
  e.g., Powell v. McCormack, 395 U.S. 486, 518-22  (1969)  (political
  question doctrine did not preclude Supreme Court from interpreting federal
  constitution to  hold that age, citizenship and residence qualifications
  expressly prescribed by Constitution were  exclusive, and therefore
  Congress lacked authority to prescribe additional requirements).  It is
  simply  to recognize that a representative's decision to vote on a matter
  before the House is  a core legislative  function which this Court - as a 
  constitutional and prudential matter - will not scrutinize. 

       The several conflict-of-interest cases on which plaintiffs rely all
  involved elected officials of  political subdivisions such as cities and
  towns which do not raise similar separation-of-power  concerns.  Coleman v.
  Miller, 307 U.S. 433 (1939), on which plaintiffs also substantially rely,
  is  equally unavailing.  There the Supreme Court held that twenty state
  senators from Kansas had  standing to challenge the  constitutionality of a
  vote on a proposed amendment to the United States  Constitution based on
  their claim that a tie-breaking vote cast by the state's lieutenant
  governor did  not represent a ratification by the state "Legislature," as
  required by Article V of the United States  Constitution.  As the Supreme
  Court more recently explained in Raines v. Byrd, 521 U.S. 811, 823  (1997)
  (holding that members of Congress lacked standing to challenge the
  constitutionality of the  Line Item Veto Act), Coleman stands "at most" for
  the narrow proposition that legislators whose  votes would have been
  sufficient to defeat or enact a bill have standing to sue if their votes
  "have  been completely nullified"  in contravention of a discrete
  constitutional provision which, correctly  applied, would have specifically
  invalidated the vote.  Plaintiffs do not, and cannot, claim here that 
  their votes were "completely nullified" by virtue of the civil unions bill
  having been deemed enacted  in direct contravention of a discrete
  constitutional provision, as in Coleman.

 

       Our conclusion that the issue before us presents a nonjusticiable
  political question bars the  plaintiff taxpayers' challenge to the vote on
  the civil union bill as effectively as it does the plaintiff  legislators. 
  Accordingly, we conclude that the trial court correctly dismissed their
  claims.   

                                     II.

       The town clerks raised a different challenge to the civil unions law,
  asserting that their  obligation under the law to issue a civil union
  license, or to appoint an assistant to do so, violates  their sincerely
  held religious beliefs under Article 3 of the Vermont Constitution.  The
  parties  dispute, at the threshold, the standard to be applied in
  evaluating this claim.  Plaintiffs note that we  have traditionally applied
  a balancing test drawn from a long line of United States Supreme Court 
  decisions, which asks whether an interference with a sincerely held
  religious belief serves a  compelling governmental interest and is narrowly
  tailored to serve that interest. See Lyng v.  Northwest Indian Cemetery
  Protective Ass'n, 485 U.S. 439, 447 (1988); State v. DeLaBruere, 154  Vt.
  237, 249, 577 A.2d. 254, 261 (1990).  Defendants urge that we apply the
  modified test adopted  by the United States Supreme Court in Employment
  Division, Department of Human Resources v.  Smith, 494 U.S 872, 879 (1990),
  under which a law that is neutral and of general applicability need  not be
  justified by a compelling governmental interest even if the law has the
  incidental effect of  burdening a particular religious practice. 

       We need not resolve this particular issue.  For even under the more
  stringent pre-Smith test  urged by plaintiffs, "we must first make the
  threshold determination of whether [the law]  substantially burdens [their]
  sincerely held beliefs."  Hunt v. Hunt, 162 Vt. 423, 432, 648 A.2d 843, 
  850 (1994); see also Hernandez v. Comm'r of I.R.S., 490 U.S. 680, 699
  (1989) (to trigger analysis of  state's justification of law, interference
  with free exercise must at least rise to level of "substantial  burden"). 
  An accommodation of plaintiffs' beliefs is not required if the burden on
  religion is not  considered substantial.  See, e.g., Jimmy Swaggert
  Ministries v. Bd. of Equalization, 493 U.S. 378,  384-92 (1990); Hernandez,
  490 U.S.  at 699; see also L. Tribe, American Constitutional Law (2d ed. 
  1988) § 14-12 at 1248 ("sincerity and centrality do not always suffice to
  meet a claimant's required  showing; the claimant must also demonstrate a
  significant burden"). We believe that plaintiffs in this  case have failed
  to make this threshold showing.  

       In deciding this issue, we accept for purposes of analysis the highly
  questionable proposition  that a public official - here a town clerk - can
  retain public office while refusing to perform a  generally applicable duty
  of that office on religious grounds.  We observe, however, that this 
  proposition - which means that the personal religious beliefs of a public
  officer may in some  circumstances trump the public's right to have that
  officer's duties performed - is neither self-evident  nor supported by any
  of the cases cited by plaintiffs.

       We also accept at face value plaintiffs' allegation that the act of
  issuing a civil union licence, or  even of appointing a substitute for that
  purpose, offends their sincerely held religious beliefs.  See  Thomas v.
  Review Bd., Ind. Emp. Sec. Div., 450 U.S. 707, 714-16 (1981) (all that is
  necessary to  establish the required sincerity is "an honest conviction"
  that one's religion prohibits the conduct  required by law);  Hunt, 162 Vt.
  at 432-33, 648 A.2d  at 851 ("matters of faith 'need not be  acceptable,
  logical, consistent or comprehensible to others in order to merit First
  Amendment  protection'") (quoting Thomas, 450 U.S. at 714).  We also
  recognize that courts must be cautious in  judging the "centrality" or
  relative importance of a particular religious practice to a particular 

 

  faith.  Smith, 494 U.S.  at 887.  It is well settled, nevertheless, that
  "some inquiry" into the threshold  requirement of a substantial burden,
  i.e., the extent to which the government's requirement will make  the
  believer's religious duties "more difficult or more costly," Tribe, supra,
  at 1247-48, is essential to  ensure that the neutral laws do not become
  virtually captive to any declaration of a sincerely held  religious belief,
  however slight the burden.  "[T]he very concept of ordered liberty
  precludes  allowing every person to make his own standards on matters of
  conduct in which society as a whole  has important interests."  Wisconsin
  v. Yoder, 406 U.S. 205, 215-16 (1972).

       In this regard, numerous decisions have indicated that a burden on
  religion is not substantial if,  as one court observed, "one can avoid it
  without violating one's religious beliefs."  Smith v. Fair  Employment &
  Hous. Comm'n, 913 P.2d 909, 926 (Cal. 1996); see also Tony & Susan Alamo 
  Found. v. Sec'y of Labor, 471 U.S. 290, 303 (1985) ("It is virtually
  self-evident that the Free Exercise  Clause does not require an exemption
  from a governmental program unless, at a minimum, inclusion  in the program
  actually burdens the claimant's freedom to exercise religious rights."). 
  Here, the civil  union law itself provides the means of avoiding any
  potential free exercise burden on town clerks, by  expressly providing that
  "[a]n assistant town clerk may perform the duties of a town clerk under
  this  chapter."  18 V.S.A. § 5161(b).  Thus, the law itself offers an
  "accommodation" for town clerks with  religious reservations about issuing
  a civil union license.  Plaintiffs assert that even the act of  appointing
  an assistant clerk to issue a license violates their sincerely held
  religious beliefs.  We do  not believe, however, that such an indirect and
  attenuated connection to the subject of the law  substantially burdens
  plaintiffs' rights to freely exercise their religion in any degree
  approaching  constitutional significance.  See, e.g., Curtis v. School
  Committee of Falmouth, 652 N.E.2d 580,  587-89 (Mass. 1995) (availability
  of, or exposure to, condom distribution program in public schools  did not
  substantially burden objecting parents' or students' free exercise rights
  "to any degree  approaching constitutional dimensions").  Therefore,  we
  hold the trial court correctly concluded that  plaintiff town clerks failed
  to allege facts sufficient to state a claim on which relief could be
  granted. 
       
       Affirmed.
                       	    

                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice