All Cycle, Inc. v. Chittenden Solid Waste District

Annotate this Case
ALL_CYCLE_V_CHITTENDEN_SOLID_WASTE_DIST.94-511; 164 Vt 428; 670 A.2d 800

[Opinion Filed 20-Oct-1995]

[Motion for Reargument Denied 14-Dec-1995]

       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. 94-511

 All Cycle, Inc.                                   Supreme Court

                                                   On Appeal from
     v.                                            Chittenden Superior Court

 Chittenden Solid Waste District                   May Term, 1995

Merideth Wright, J.

       Christopher D. Roy and Marc B. Heath of Downs, Rachlin & Martin,
  Burlington, for plaintiff-appellant

       John L. Franco, Jr., of McNeil, Leddy & Sheahan, Burlington, for

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

       ALLEN, C.J.  Plaintiff All Cycle, Inc. appeals from the Chittenden
  Superior Court's dismissal of its three-count complaint, which alleged that
  the defendant Chittenden Solid Waste District's waste management scheme
  violated the Commerce Clause of the United States Constitution.  Plaintiff
  requested injunctive, declaratory, and monetary relief.  We reverse, except
  for the court's dismissal of injunctive relief in Count I, which we affirm.

       Defendant is a union municipal district organized under 24 V.S.A.,
  Chapter 121. Pursuant to the Solid Waste Management Ordinance, enacted by
  defendant on June 24, 1992, all waste haulers operating in the District
  must obtain a license that requires haulers to comply with all ordinances
  and regulations enacted by the District.  Violations of the licensing
  conditions may result in civil or criminal penalties.  The Solid Waste
  Management Plan, adopted by


  defendant on March 24, 1993 and subsequently approved by the State,
  required all licensees to dispose of solid waste collected in the District
  at a single designated landfill.  This type of regulatory scheme is
  commonly called flow control.  From January 2, 1993 through the
  commencement of this litigation, the District had designated only the
  landfill on Redmond Road in Williston for disposal of District waste.  The
  District owned and operated the Redmond Road landfill and charged haulers
  who disposed of waste at the facility a processing or "tipping" fee of
  $74.20 per ton.

       On June 30, 1993 the District enacted the Solid Waste Management Fee
  Ordinance, which taxed all solid waste collected in the District on the
  basis of weight.  The Fee Ordinance became effective on August 30.  The
  District assessed a management fee at $17.60 per ton and included it in the
  Redmond Road landfill's per ton tipping fee.  The Fee Ordinance required
  haulers to weigh their loads, using only approved scales, both immediately
  before and after disposing of their loads.  The District owns three scales,
  the one at the entrance to the Redmond Road landfill and two others, one in
  South Burlington and the other in Williston.  The parties dispute whether
  use of the scales, other than the one at the Redmond Road landfill, was
  feasible while flow control was in effect.  The District alleged in its
  affidavits that procedures exist for obtaining approval for the use of
  scales other than those owned by the District.

       On May 16, 1994, in C & A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, 1682-83 (1994), the United States Supreme Court held
  unconstitutional a flow control scheme similar to the District's Waste
  Plan.  On June 7, 1994, the District responded to the Carbone decision by
  issuing draft amendments to its Waste Plan which said that Carbone would
  "mak[e] it difficult to require private haulers who serve District member
  municipalities to use the District transfer station and the designated
  disposal facility."

       Plaintiff filed its complaint on June 8, 1994, alleging that the
  District's waste management scheme was unconstitutional and requesting
  damages under 42 U.S.C. § 1983. According to plaintiff, the Waste Plan and
  Fee Ordinance violated the Commerce Clause of the United States
  Constitution, which prohibits states from discriminating against or


       burdening interstate commerce.  Count I of the complaint sought
  injunctive and declaratory relief with regard to defendant's Waste Plan. 
  Count II sought injunctive and declaratory relief with regard to the
  defendant's collection of the management fee, which plaintiff alleged was
  unconstitutional whether it was collected in conjunction with or
  independently of the Waste Plan. Count III sought monetary damages under 42
  U.S.C. § 1983, calculated as a refund of the allegedly excessive tipping
  fees that resulted from the District's landfill monopoly and the management
  fees that were collected pursuant to the Fee Ordinance.  Plaintiff also
  presented a motion for class certification pursuant to V.R.C.P. 23(a), in
  which it sought to represent a class of approximately twenty-five haulers
  licensed in the District.  On June 22, the District Board formally ratified
  the District manager's decision to suspend enforcement of flow control
  until Congressional authorization of flow control regulation by the states.

       Defendant moved to dismiss, arguing that the court lacked subject
  matter jurisdiction under V.R.C.P. 12(b)(1) because Counts I and II were
  moot.  Defendant also argued that Counts II and III failed to state a cause
  of action and should be dismissed under V.R.C.P. 12(b)(6). Because
  affidavits had been submitted with the complaint and defendant's motion,
  the superior court informed the parties that it would treat the motion to
  dismiss as one for summary judgment.

       Prior to the scheduled hearing on defendant's motion, plaintiff filed
  a request for a temporary restraining order (TRO).  In deciding plaintiff's
  request for a TRO, the superior court noted that defendant had committed to
  suspend enforcement of its flow control scheme pending this litigation and
  ordered defendant to publicize its nonenforcement policy to the town and
  waste haulers within its jurisdiction.  The court otherwise denied
  plaintiff's request for a TRO.  On August 9, 1994, the court dismissed
  without prejudice all counts of plaintiff's complaint.

       Because the court treated defendant's motion to dismiss as one for
  summary judgment, we review its decision by applying the legal standards
  developed under V.R.C.P. 56. Cavanaugh v. Abbott Laboratories, 145 Vt. 516,
  520, 496 A.2d 154, 157 (1985).  We review a motion for summary judgment
  under the same as the standard as the trial court:  summary


  judgment is appropriate only when the record clearly shows that there
  is no genuine issue of material fact and that the movant is entitled to
  judgment as a matter of law.  Id.; V.R.C.P. 56(c).  In making this
  determination, we regard as true all allegations of the nonmoving party
  that are supported by admissible evidence, and we also give the nonmoving
  party the benefit of all reasonable doubts and inferences.  Messier v.
  Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 100 (1990).

       Because the superior court dismissed all counts and requests for
  relief in plaintiff's complaint, we address each count and each request for
  relief individually.  Plaintiff also offered two theories for its claim in
  Count II, and the superior court dismissed Count II under both theories. 
  Therefore, in analyzing Count II, we also consider both of plaintiff's

                           Count I - Flow Control

       We first must determine whether the superior court properly granted
  summary judgment to defendant on the ground that plaintiff's request for an
  injunction in Count I was moot.  The central question of all mootness
  problems is "whether decision of a once living dispute continues to be
  justified by a sufficient prospect that the decision will have an impact on
  the parties."  13A C. Wright et al., Federal Practice & Procedure § 3533,
  at 212 (1984); see Doria v. University of Vermont, 156 Vt. 114, 117, 589 A.2d 317, 319 (1991) (issues become moot when they are no longer live or
  parties lack legally cognizable interest in outcome).  In United States v.
  Concentrated Phosphate Export Ass'n, 393 U.S. 199 (1968), the Supreme Court
  explained that "[m]ere voluntary cessation of allegedly illegal activity
  does not moot a case; if it did, the courts would be compelled to leave
  `[t]he defendant free . . . to return to his old ways.'" Id. at 203


  (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). 
  The Court continued, however, by noting that "[a] case might become moot if
  subsequent events made it absolutely clear that the allegedly wrongful
  behavior could not reasonably be expected to recur."  Id.; see also W.T.
  Grant Co., 345 U.S.  at 633 (case moot if defendant meets heavy burden of
  showing there is no reasonable expectation that wrong will be repeated).

       Defendant asserted that plaintiff's request for injunctive relief in
  Count I was no longer justiciable because defendant had committed not to
  enforce the disputed flow control scheme and had communicated that
  commitment to the haulers in the District.  In support of its motion,
  defendant submitted the affidavits of Norman Blais, the District Grand
  Juror, and Fred Moody, the District General Manager.  These affiants swore
  that, as of May 23, 1994, they had decided not to enforce the contested
  flow control scheme unless and until Congress passed legislation
  authorizing flow control regulation by the states.  In addition to these
  affidavits, defendant pointed to the District Board's ratification of
  Messrs. Blais and Moody's decision at its June 22, 1994 meeting as an
  indication that there was no reasonable expectation that the flow control
  ordinance would be enforced in the future.  Thus, defendant contended that
  there was no genuine issue of fact regarding the justiciability of
  injunctive relief in Count I and that it was entitled to dismissal under
  the mootness doctrine.

       Plaintiff argued that the request for injunctive relief in Count I
  presented a live controversy because defendant was currently in the process
  of amending its ordinances and might reenact aspects of the currently
  unenforced flow control scheme.  It also argued that defendant's commitment
  not to enforce flow control was ineffective because "flow control" remained
  undefined.  Plaintiff did not, however, submit any evidence which would
  have presented a genuine issue of fact regarding defendant's nonenforcement
  commitment.  Plaintiff's argument that defendant might surreptitiously
  reenact flow control did not create a genuine issue of fact in the absence
  of evidence that the defendant was indeed contemplating such action. 
  Plaintiff did not present evidence of any of the factors which create a
  reasonable expectation of renewed enforcement by the District -- warnings
  by officials that they might resume enforcement in the


  future, continued assertions of legality despite nonenforcement, and
  dilatory nonenforcement. Wright supra § 3533.7, at 356-57.  Moreover,
  plaintiff did not submit evidence showing that a dispute existed regarding
  the meaning of flow control.  Consequently, plaintiff did not meet its
  burden of showing that there were disputed facts on the issue of whether
  there exists a reasonable expectation that flow control would be enforced
  again.  Summary judgment on the issue of injunctive relief in Count I was
  therefore proper.

       The appropriateness of summary judgment for defendant on plaintiff's
  request for declaratory relief in Count I actually involved two issues: 
  (1) whether the District's flow control scheme, as it operated up until
  voluntary cessation, was unconstitutional, and (2) whether declaratory
  relief was appropriate despite the mooted request for injunctive relief. 
  "The purpose of a declaratory judgment is to `provide a declaration of the
  rights, status, and other legal relations of parties to an actual or
  justiciable controversy.'" Doria, 156 Vt. at 117, 589 A.2d  at 318 (quoting
  Robtoy v. City of St. Albans, 132 Vt. 503, 504, 312 A.2d 45, 46 (1974)). 
  The two issues involved here establish the parties' rights both
  prospectively and retrospectively and correspond to the dual purposes of
  declaratory judgments.  See, e.g., Wolff v. McDonnell, 418 U.S. 539, 554-55
  (1974) (request for injunction dismissed but declaratory judgment not
  barred because predicate to damages award--retrospective purpose); Halkin
  v. Helms, 690 F.2d 977, 1007 (D.C. Cir. 1982) (where parties are involved
  in ongoing relationship that may present opportunity for future
  disagreement, declaratory judgment may be appropriate--prospective

       We are hampered in our review of the superior court's determination of
  these issues by its failure to address plaintiff's request for declaratory
  relief in Count I.  Although the court determined that plaintiff's request
  for injunctive relief in Count I was no longer justiciable, its order fails
  to address the justiciability of plaintiff's request for declaratory relief
  in Count I.  We cannot assume that the court made the same determination on
  declaratory relief as it did with injunctive relief because the two forms
  of relief demand separate inquiries.  See Super Tire Eng'g Co. v. McCorkle,
  416 U.S. 115, 121-22 (1974) (injunctive relief was mooted, but request

  for declaratory relief remained viable because parties could have
  retained sufficient interests and injury to justify award of declaratory

       Nevertheless, plaintiff's request for declaratory relief was not moot
  because of the retrospective purpose of a declaratory judgment.  A
  declaration on the constitutionality of government conduct is a predicate
  to the award of damages in a § 1983 claim.  See 12 V.S.A. § 4718 ("Further
  relief based on a declaratory judgment or decree may be granted whenever
  necessary or proper."); see also Wolff, 418 U.S.  at 554-55 (despite
  dismissal of request for injunctive relief, prisoner's request for
  declaratory judgment was not barred in § 1983 suit because declaratory
  judgment was predicate to damages award).  Moreover, it is well established
  that claims for damages or other monetary relief automatically avoid
  mootness.  Heleba v. Allbee, 160 Vt. 283, 287, 628 A.2d 1237, ___ (1992),
  cert. denied, 114 S. Ct. 388 (1993). Because Count III seeks damages under
  42 U.S.C. § 1983 for the past constitutional violations alleged in Count I,
  the request for a declaratory judgment on the constitutionality of the
  defendant's flow control scheme presents a live controversy.

                 Count II - Constitutionality of Fee Ordinance

       Plaintiff argues that the superior court erred in dismissing Count II
  of its complaint.  We agree.  Although it is not clear from the court's
  August 9 order whether Count II was decided under the Commerce Clause or
  under the mootness doctrine, the court erred under either approach.

       In its complaint, plaintiff presented two theories supporting its
  claim that defendant's procedure for collecting the management fee violated
  the Commerce Clause.  First, it argued that the weighing procedure depended
  on the unconstitutional flow control scheme.  Second, it argued that, even
  if independent of the flow control scheme, the weighing procedure violated
  the Commerce Clause because it imposed an excessive burden on interstate

       In its order, the superior court noted that plaintiff had not
  presented any evidence in its affidavits to counter defendant's assertion
  that the management fee scheme operated independently of the flow control
  ordinance.  The court may thereby have concluded that the


  defendant was entitled to summary judgment under the Commerce Clause
  on plaintiff's first theory.  The court further determined that there were
  no genuine issues of material fact regarding the burden on interstate
  commerce that resulted from the District's weighing procedures.  The court
  may thereby have concluded that defendant was entitled to summary judgment
  under the Commerce Clause on plaintiff's second theory.  The court also
  concluded, however, that the complaint did not "assert a justiciable
  dispute as to which there is a genuine issue of material facts for trial,"
  and dismissed Count II without prejudice.  The court thus implied that
  Count II was moot.  Because the superior court did not clearly articulate
  its reason for dismissing Count II, we consider both the Commerce Clause
  and mootness doctrines.

       The superior court properly granted summary judgment to defendant on
  plaintiff's request for injunctive and declaratory relief under plaintiff's
  first theory.  Defendant had satisfied its burden by submitting affidavits
  in which the affiants stated that, while flow control was no longer
  enforced, the management fee continued to be collected.  This assertion
  supported the inference that flow control and the management fee operated
  independently.  Defendant also submitted copies of the ordinance itself as
  evidence that the Waste Plan and the Fee Ordinance were severable. 
  Plaintiff did not submit any evidence that would have created a genuine
  issue of material fact regarding the independence of the two schemes. 
  Plaintiff did not satisfy its burden, and the court properly granted
  summary judgment on plaintiff's first theory.

       The court erred, however, by granting summary judgment to defendant on
  plaintiff's request for both declaratory and injunctive relief under
  plaintiff's second theory.  Plaintiff alleged in its complaint that "[i]f
  [defendant] were to enforce the Fee Ordinance independent of its
  unconstitutional flow control scheme, the Management Tax as currently
  devised would still impose a burden on interstate commerce that is clearly
  excessive in relation to the putative local benefits."

       The controlling Commerce Clause analysis requires the court to engage
  in a factually intensive inquiry.  The court must determine (1) the
  putative local benefit of the challenged law, (2) the burden imposed on
  interstate commerce by the law, (3) whether this burden is clearly


  excessive in relation to the local benefits, and (4) whether the local
  benefit can be promoted with a lesser impact on interstate commerce.  Pike
  v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Defendant alleged in its
  affidavits that it contemplated allowing haulers to use its scales in South
  Burlington and Williston, as well as privately owned scales approved by the
  District.  Plaintiff submitted the affidavit of its president, Richard
  Dooley, alleging that it was not feasible to use scales other than the one
  on Redmond Road while flow control was enforced.  Dooley further alleged
  that, even if members of the yet-uncertified plaintiff class were allowed
  to dispose of waste outside the District, using the District's two other
  scales in South Burlington and Williston would increase transportation
  costs and impose a logistical burden on haulers.  Plaintiff argues that
  requiring haulers to use the District's three scales is a de facto
  requirement that haulers use the Redmond Road landfill because the
  proximity of the three District scales to the Redmond Road landfill makes
  disposal elsewhere economically infeasible.  A factual dispute clearly
  exists regarding whether the weighing procedure, as it existed under flow
  control and as it currently exists, unconstitutionally burdens interstate
  commerce.(FN2)  The court therefore erred in dismissing Count II because
  plaintiff's affidavits create a dispute regarding whether it would have
  been economically feasible to use scales other than the one on Redmond Road
  while flow control was enforced and whether the use of the District's other
  scales would be a burden on interstate commerce.

       Defendant argues that the court correctly found that the haulers may
  have trucks weighed at alternative sites.  In its order, the court merely
  stated that defendant had met its burden on the existence of alternative
  sites and that plaintiff did not present evidence of a factual dispute.
  Nevertheless, plaintiff presented evidence disputing whether it was
  feasible to use these other


  scales and whether their use unconstitutionally burdened interstate
  commerce.  A finding by the court on these issues would have been improper
  in the context of a motion for summary judgment.  See Crosby v. Great
  Atlantic & Pacific Tea Co., 143 Vt. 537, 539, 468 A.2d 567, 569 (1983) (in
  context of summary judgment, findings of fact should merely be precise
  statement of uncontroverted fact).  Although the existence of alternative
  scales was undisputed, genuine issues of fact exist regarding the burden on
  interstate commerce caused by the use of the alternative scales.

       Because the court dismissed Count II without prejudice and concluded
  that it was not justiciable, we also must review the trial court's decision
  under the mootness doctrine, if that was indeed the basis for its decision. 
  A claim is moot if it no longer presents a live controversy and the parties
  have no legally cognizable interest in the outcome.  Doria, 156 Vt. at 117,
  589 A.2d  at 319.  Because it is undisputed that the District continues to
  collect the management fee, plaintiff retains a legal interest in a
  determination of the constitutionality of the weighing procedures used for
  its collection.  Plaintiff would also be eligible for prospective relief if
  those procedures are found to be unconstitutional.  Moreover, a claim for
  damages from a past constitutional violation automatically avoids a
  mootness determination.  Heleba, 160 Vt. at 287, 628 A.2d  at 1239.  Here,
  plaintiff predicates its claim for damages in Count III on a determination
  of the constitutionality of the weighing procedures as alleged in Count II.
  Therefore, the trial court erred if it dismissed Count II of plaintiff's
  complaint under the mootness doctrine.

                    Count III - Damages under § 1983

       Plaintiff also argues that the court erred when it dismissed Count
  III.  We agree.  The court dismissed the request for damages in Count III
  because it had dismissed Counts I and II, upon which the claim for damages
  was predicated.  Having reversed the superior court's dismissal of Counts I
  and II, we must also reverse its dismissal of Count III.


       Reversed, except for dismissal of request for injunction in Count I,
  which is affirmed.

                                   FOR THE COURT:

                                   Chief Justice


FN1.   In a motion filed with this Court, on which we reserved
  decision until our determination of the merits, defendant argued that this
  appeal should be dismissed because plaintiff lacks standing to seek
  prospective relief.  Defendant made its request because plaintiff, All
  Cycle, Inc., allegedly sold its Chittenden County solid waste business to
  All Cycle Waste, Inc. in the summer of 1994.  We do not address defendant's
  argument that plaintiff lacks standing because it is an issue not raised
  first before the superior court.  In re Johnston, 145 Vt. 318, 321, 488 A.2d 750, 752 (1985).

FN2.  In its brief, defendant highlights the factual issues that exist
  under plaintiff's second theory: "Was All-Cycle itself so inconvenienced? 
  Had it chosen an alternative disposal . . . [site at] some location in fact
  more convenient . . . than the District scales at Redmond Road?  Did the
  District in fact refuse All-Cycle permission to [use] the weigh scales of
  such facility?  Were its transportation costs materially increased to such
  an extent as to in fact amount to discrimination against interstate
  commerce under the balancing test of Pike . . . ?"