St. Albans v. Northwest Regional Planning Commission (97-268);
167 Vt. 466; 708 A.2d 194
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
City of St. Albans Supreme Court
On Appeal from
v. Franklin Superior Court
Northwest Regional Planning Commission December Term, 1997
Linda Levitt, J.
Robert E. Farrar, St. Albans, for Plaintiff-Appellant.
Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J. Plaintiff City of St. Albans appeals from a Franklin
Superior Court order granting defendant Northwest Regional Planning
Commission's (NWRPC) motion for summary judgment. City of St. Albans
contends the court erred in concluding that the method of selecting NWRPC's
commissioners does not violate the equal protection clause of the United
States Constitution and its "one person, one vote" principle. We affirm.
NWRPC was created to serve the 24 towns, villages, and city (St.
Albans) of Grand Isle and Franklin counties. See 24 V.S.A. § 4341 ("A
regional planning commission may be created . . . by the act of the voters
or the legislative body of each of a number of contiguous municipalities .
. . ."). While a regional planning commission (RPC) is required to
"contain at least one representative appointed from each member
municipality," id. § 4342, individual RPCs may have more than one
representative per member municipality if its charter and bylaw so permit.
See id. § 4343. NWRPC's bylaws provide that each municipality, regardless
of its population, must appoint two commissioners to represent them and
each commissioner has one
vote. Thus, there are forty-eight NWRPC commissioners. In addition,
NWRPC's bylaws provide that each member municipality will be assessed a
share of NWRPC's expenses based upon the member municipality's population
compared to the total population of NWRPC.
The general purpose of an RPC is to "encourage the appropriate
development of all lands." Id. § 4302(a). "Appropriate development"
requires RPCs to consider the impact development has on a long list of
delineated subject areas, including public health and safety, the general
welfare, taxes, traffic, arts, architecture, and the environment. See id.
§ 4302(a). Sections 4302(b) and (c) require an RPC to "engage in a
continuing planning process" to further a number of specific goals,
including developing "a coordinated, comprehensive planning process and
policy framework to guide decisions by municipalities, [RPCs], and state
agencies." St. Albans (hereinafter `City') is the largest member
municipality in NWRPC.(FN1) Because each
member municipality of NWRPC is represented by two votes regardless of that
member municipality's population and because the expenses of NWRPC are
shared on a per-capita basis, the City sought a declaratory judgment in
Franklin Superior Court, pursuant to 12 V.S.A. § 4711. The City claimed
that the current NWRPC commissioner-selection scheme violates the
Fourteenth Amendment to the United States Constitution (FN2) because NWRPC
fails to provide apportionment on a "one person, one vote" basis and,
thereby, denies the residents of the City equal protection under the law.
Both the City and the NWRPC subsequently filed motions for summary judgment
claiming that there was no genuine issue of material fact -- the City
claiming that NWRPC's apportionment scheme violated the equal protection
clause and NWRPC claiming that the equal protection clause was inapplicable
to NWRPC's apportionment scheme. The court, concluding that the equal
protection clause did not apply to NWRPC's apportionment scheme because
NWRPC commissioners are appointed officials and NWRPC has a special and
limited purpose, granted NWRPC's motion for summary judgment. This appeal
In reviewing a grant of summary judgment, we apply the same standard
as the trial court. See Madden v. Omega Optical, Inc., 165 Vt. 306, 309,
683 A.2d 386, 389 (1996). Thus, summary judgment will be granted if there
are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. See Wesco, Inc. v. Hay-Now, Inc., 159 Vt. 23,
26, 613 A.2d 207, 209 (1992). When both parties move for summary judgment,
"both parties are entitled to the benefit of all reasonable doubts and
inferences when the opposing party's motion is being judged." Tooley v.
Robinson Springs Corp., 163 Vt. 627, 628, 660 A.2d 293, 294 (1995).
It is clear that on a population basis, the City's representative
strength in NWRPC is diluted in comparison with those of the other member
municipalities -- the City's population accounts for 16.2% of the total
population of NWRPC member municipalities but it is represented by only
4.2% of all NWRPC commissioners. The question is whether this dilution
violates constitutional standards.
The United States Supreme Court has held that the equal protection
clause mandates that seats in state legislatures be apportioned on the
basis of population. See Reynolds v. Sims, 377 U.S. 533 (1964).
Protection afforded by the equal protection clause has also been extended
to apportionment schemes of local governmental units. See Gray v. Sanders,
372 U.S. 368 (1963). A state or local government, however, may select some
government officials by appointment, and where appointment is permissible,
the "one person, one vote" doctrine does not apply. See Sailors v. Board
of Educ. of the County of Kent, 387 U.S. 105, 111 (1967).
In Sailors, residents of school districts (qualified school electors)
elected members to their local school district boards. Each local school
board then sent a delegate to a biennial meeting and those delegates
elected members to the county board of education from candidates nominated
by the qualified school electors. Candidates did not need to be members of
the local boards. Each local board could pick only one delegate regardless
of the number of people within the local board's district. A group of
school electors brought suit claiming that the county board was
unconstitutionally constituted. The Court concluded that the county board
performed "essentially administrative functions; and while they are
important, they are not legislative in the classical sense." Id. at 110
(footnote omitted). In addition, the Court concluded that the county board
members were "basically" appointed rather than elected. Id. at 109.
Therefore, the Court held that "[s]ince the choice of members of the county
school board did not involve an election and since none was required for
these nonlegislative offices, the principle of `one man, one vote' has no
relevancy." Id. at 111.(FN3)
We next consider whether it is constitutionally permissible to appoint
NWRPC. In Hadley v. Junior College Dist. of Metro. Kansas City, 397 U.S. 50 (1970), the Court was again required to decide whether the "one person,
one vote" principle applied to a local governmental unit. Missouri law
authorized separate school districts to vote by referendum to create a
consolidated junior college district and elect six trustees to manage the
affairs of the district. The junior college district was authorized to (1)
levy and collect taxes, (2) issue bonds, (3) hire and fire teachers, (4)
make contracts, (5) collect fees, and (6) acquire property by condemnation.
These trustees were apportioned among the member school districts based on
"school enumeration," which was statutorily defined as the number of
persons between the ages of six and twenty years, who resided in each
district. Under this apportionment scheme, the largest member school
district, which contained 60% of the total "school enumeration," was only
permitted to select three trustees, or 50% of the total number of trustees.
The largest member school district brought suit claiming that their
right to vote for the trustees of the district was unconstitutionally
diluted. Deciding that the "legislative-administrative" test as described
in Sailors was unmanageable because governmental activities "cannot easily
be classified in the neat categories favored by civics texts," id. at 56,
the Court replaced it with the "governmental functions" test (FN4) and
concluded that the trustees performed governmental functions. Because the
trustees were elected officials and performed governmental functions, the
Court found the statutory scheme unconstitutional. See id. ("[A]s a
general rule, whenever a state or local government decides to select
persons by popular election to perform governmental functions, the Equal
Protection Clause of the Fourteenth Amendment requires that each qualified
voter must be given an equal opportunity to participate in that election .
. . ."); see also In re Reapportionment of Town of Hartland, 160 Vt. 9, 35,
624 A.2d 323, 338 (1993) ("[E]qual representation applies to local
governing bodies in situations where the members of
the local body are elected officials, and the body exercises a wide range
of local governmental functions.").(FN5)
The Hadley Court, however, went on to state that "where a State
chooses to select members of an official body by appointment rather than
election, and that choice does not itself offend the Constitution, the fact
that each official does not `represent' the same number of people does not
deny those people equal protection of the laws." See Hadley, 397 U.S. at
58. Thus, it is clear that in certain circumstances, governments may
authorize appointment of members to governmental bodies without regard to
issues of representational equality. See id.; Sailors, 387 U.S. at 111
("At least as respects non-legislative officers, a State can appoint local
officials or elect them or combine the elective and appointive systems as
was done here."). The United States Supreme Court, however, has provided
no clear guidance to the states to assist them in determining under what
circumstances may a state authorize appointments to local governmental
units. Therefore, lacking such a test, we will determine whether the
duties and tasks of NWRPC are similar in scope and scale to those
constitutionally permitted to be performed by the appointed county school
board in Sailors. See Van Zanen v. Keydel, 280 N.W.2d 535, 539 (Mich. Ct.
App. 1979) ("The most that can be said is that the more a local unit's
functions and powers parallel those of the board of education considered in
Sailors, the more likely it is that a state may constitutionally provide
for appointment of government officials to that unit.").
The required duties of NWRPC, set forth in 24 V.S.A. § 4345a, include:
(1) promoting mutual cooperation between its member municipalities; (2)
assisting and advising its member municipalities regarding economic
development; (3) advising municipal governing bodies regarding public
financing; (4) providing technical and legal assistance to municipalities;
cooperating with neighboring states, regions, counties, and municipalities;
(6) preparing a detailed regional plan and implementation guidelines; (7)
reviewing municipality plans and state capital expenditures; (8) appearing
before district environmental commissions and public service boards; and
(9) holding public hearings. In addition, NWRPC's optional powers and
duties, set forth in 24 V.S.A. § 4345, include: (1) conducting studies,
undertaking comprehensive planning, and making recommendations regarding
land development, urban renewal, transportation, economic, industrial,
commercial, and social development; (2) collecting relevant information
from member municipalities and all state agencies; (3) examining and
surveying land; (4) retaining staff and consultants; and (5) managing
economic development programs.
The Sailors county board's main functions included: (1) appointing a
county school supervisor; (2) preparing an annual budget; (3) levying
taxes; (4) distributing delinquent taxes; (5) furnishing consulting or
supervisory services to the member districts upon request; (6) conducting
cooperative educational programs; (7) employing special-education teachers;
(8) at the direction of the Board of Supervisors, establishing a school at
the juvenile home; and (9) transferring areas from one school district to
another. See Sailors, 387 U.S. at 110 n.7.
By comparing NWRPC's mandatory and optional duties with those of the
Sailors county board, it is clear that NWRPC has been authorized to perform
far fewer functions that could reasonably be considered governmental in
nature than the county board in Sailors, i.e., NWRPC can not levy taxes nor
can it alter boundary lines of its member municipalities. Because NWRPC
performs fewer governmental functions than the Sailors county board, we
conclude that it is constitutionally permissible for the State to provide
for appointment of NWRPC commissioners. Compare Van Zanen, 280 N.W.2d at
539 (concluding that even though Huron-Clinton Metropolitan Authority
(HCMA) is authorized to perform more governmental functions than the
Sailors board, the appointment of HCMA members was constitutionally
permissible). In addition, we note that numerous "two-tier" appointment
processes, similar to NWRPC's procedures, have been found to be
constitutional by other courts. See e.g., Burton v. Whittier Reg'l
Vocational Technical Sch. Dist., 587 F.2d 66, 70 (1st Cir. 1978); Rosenthal
v. Board of Educ. of Cent. High Sch. Dist. No. 3, 385 F. Supp. 223, 226
(E.D.N.Y. 1974). Finally, we note that the residents of the City knew when
they ratified NWRPC's by-laws that their representation in NWRPC would not
be in proportion to their population and that NWRPC commissioners would be
appointed by their respective municipal officials and not elected. See
Burton, 587 F.2d at 70; Van Zanen, 280 N.W.2d at 539 (noting that "each
member county voted to join the [metropolitan authority] with full
knowledge of the representation they would be afforded"). No voting rights
were denied the residents of the City of St. Albans, nor was there any
violation of the "one person, one vote" constitutional standard.
FOR THE COURT:
FN1. According to the U.S. Department of Commerce, 1990 Census of
Population and Housing: Summary Population and Housing Characteristics:
Vermont, at 2, the populations of NWRPC's member municipalities are as
Franklin County Grand Isle County
Bakersfield town 977 Alburg town 1,362
Berkshire town 1,190 *Alburg village 436
Enosburg town 2,535 Grand Isle town 1,642
*Enosburg Falls vill. 1,350 Isle La Motte town 408
Fairfax town 2,486 North Hero town 502
Fairfield town 1,680 South Hero town 1,404
Fletcher town 941
Franklin town 1,068 TOTAL POPULATION 5,318
Georgia town 3,753
Highgate town 3,020 * The populations of the villages are
Montgomery town 823 also included in their respective town's
Richford town 2,178 population and,therefore, are not used
*Richford village 1,425 to calculate the totalpopulations
St. Albans city 7,339 of the counties.
St. Albans town 4,606
Sheldon town 1,748
Swanton town 5,636
*Swanton village 2,360
TOTAL POPULATION 39,980
FN2. "No State shall . . . deny any person within its jurisdiction
the equal protection of the laws." U.S. Const. amend. XIV, § 1.
FN3. Although the City suggests that the definition of "appointive
office" found in Sailors may preclude a holding that NWRPC commissioners
are "appointed," we reject this argument. Section 4343 of title 24 states
that "Representatives to a regional planning commission representing each
participating municipality shall be appointed for a term." Because the
City's contention "comes at the expense of the plain meaning of" § 4343, we
conclude that commissioners are "appointed officials." Agency of Natural
Resources v. Henry, 161 Vt. 556, 559, 641 A.2d 1345, 1347 (1994).
FN4. In fact, two years prior to Hadley, the Court had formulated an
alternative test to the Sailors "legislative-administrative" test, which
instead determined whether local governmental bodies exercised "general
governmental powers over an entire geographic area." Avery v. Midland
County, 390 U.S. 474, 485-86 (1968).
FN5. We note that the United States Supreme Court again addressed
the "one person, one vote" principle in Board of Estimate of City of New
York v. Morris, 489 U.S. 688 (1989). Because the Court found that the
members of the Board of Estimate were elected "as a matter of law," see id.
at 694, we conclude that Board of Estimate is not dispositive of the issues
in the present case.