Brady v. Dean

• Decision Date: 26 December 2001
• Docket Number: No. 00-547.,00-547.
• Citation: 790 A.2d 428
• Court: Vermont Supreme Court
• Parties: Edward J. BRADY, et al. v. Howard DEAN, et al.

790 A.2d 428

Edward J. BRADY, et al. v. Howard DEAN, et al.

No. 00-547.

Supreme Court of Vermont.

December 26, 2001.

Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

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, 171 Vt. 591, 591, 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 Co. 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, 82 S.Ct. 691, 7 L.Ed.2d 663 (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 selfrestraint 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, 505 Pa. 50, 476 A.2d 1287, 1291-92 (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...