Ferry v. City of Montpelier

CourtUnited States State Supreme Court of Vermont
Citation2023 VT 4
Docket Number22-AP-125
PartiesCharles Ferry et al. v. City of Montpelier
Decision Date20 January 2023

2023 VT 4

Charles Ferry et al.
City of Montpelier

No. 22-AP-125

Supreme Court of Vermont

January 20, 2023

On Appeal from Superior Court, Washington Unit, Civil Division Robert A. Mello, J.

Brady C. Toensing of DiGenova & Toensing, LLP, Washington, DC, Patrick N. Strawbridge of Consovoy McCarthy PLLC, Boston, Massachusetts, and James F. Hasson, Arlington, Virginia, for Plaintiffs-Appellants/Cross-Appellees.

Michael J. Tarrant II and K. Heather Devine of Tarrant, Gillies & Shems, Montpelier, for Defendant-Appellee/Cross-Appellant.

Susanne R. Young, Attorney General, Rachel E. Smith, Deputy Solicitor General, and Briana T. Hauser, Assistant Attorney General, Montpelier, for Appellee State.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.


¶ 1. In this declaratory-judgment action, we are asked to consider whether a statute allowing noncitizens to vote in City of Montpelier elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution. We conclude that the complaint alleges facts to establish standing at the pleadings stage for plaintiffs to bring their facial challenge to the statute. However, we conclude that the statute allowing noncitizens to vote in local Montpelier elections does not violate Chapter II, § 42 because that constitutional provision does not apply to local elections. We accordingly affirm the trial court's grant of the City's motion to dismiss.


¶ 2. Chapter II, § 42 of the Vermont Constitution provides:

Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state
You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person.

¶ 3. Generally, voters in any Vermont election, whether local or statewide, are required to be United States citizens. See 17 V.S.A. § 2121(a)(1) (defining criteria for voter eligibility, which includes citizenship); id. § 2656 (stating qualifications to vote in municipal elections are same as those provided in chapter containing § 2121). In 2018, Montpelier voters approved a proposed amendment to the city's charter that would allow noncitizens to vote in its local elections. The Legislature authorized the amendment in 2021, overriding the Governor's veto. As enacted, the relevant provision of Montpelier's charter states, "Notwithstanding 17 V.S.A. § 2121(a)(1), any person may register to vote in Montpelier City elections who on election day is a citizen of the United States or a legal resident of the United States, provided that person otherwise meets the qualifications of 17 V.S.A. chapter 43." 24 V.S.A. App. Ch. 5, § 1501. Under the statute, a "legal resident of the United States" is "any noncitizen who resides in the United States on a permanent or indefinite basis in compliance with federal immigration laws." Id. § 1504(1). The City Clerk is required to maintain a separate "City voter checklist" from other voter checklists. Id. § 1502.

¶ 4. Plaintiffs include two Montpelier residents who are United States citizens and registered to vote in Montpelier, eight Vermont voters who are United States citizens and reside in other localities in the state, the Vermont Republican Party, and the Republican National Committee. They filed a complaint in the civil division against the City and the City Clerk in his official capacity, seeking a declaratory judgment that Montpelier's new noncitizen voting charter


amendment violates Chapter II, § 42 of the Vermont Constitution, and an injunction to prevent defendants from registering noncitizens to vote in Montpelier.

¶ 5. The City moved to dismiss plaintiffs' complaint. It argued that plaintiffs lacked standing to bring their challenge because they did not allege a particularized injury, and that they failed to state a claim upon which relief could be granted because, as a matter of law, the charter provision does not violate Chapter II, § 42 of the Vermont Constitution. The State intervened to defend the constitutionality of the noncitizen voting charter provision but took no position on whether plaintiffs had standing.

¶ 6. Following a hearing, the trial court granted the City's motion to dismiss. It concluded that plaintiffs alleged sufficient facts in their complaint to establish standing under a vote-dilution theory because two plaintiffs were Montpelier residents whose votes in local elections would be directly impacted by the noncitizen-voting statute. However, looking to the history of Chapter II, § 42 and this Court's precedents, it concluded that the noncitizen-voting statute was constitutional.

¶ 7. Plaintiffs appealed the trial court's dismissal and the City cross-appealed its determination that plaintiffs pleaded sufficient facts to establish standing. Before us, plaintiffs argue that § 42, which requires voters to be citizens of the United States, applies to municipal elections and therefore the statute allowing noncitizens to vote in Montpelier local elections is unconstitutional. In support, they contend that § 42 unambiguously applies to votes "on any matter concerning the State of Vermont," and that local elections today have statewide implications that subject them to this constitutional provision. The State, on behalf of itself and the City, counters that this Court has a long line of precedent distinguishing between municipal and statewide elections and that those cases dictate that § 42 does not apply to municipal elections, even with the changes in the statewide impacts of such elections over time. The City argues that plaintiffs lack standing to challenge the statute because they failed to allege a personal, particularized injury.


¶ 8. We review motions to dismiss without deference. Deutsche Bank v. Pinette, 2016 VT 71, ¶ 9, 202 Vt. 328, 149 A.3d 479. In doing so, "we assume as true the nonmoving party's factual allegations and accept all reasonable inferences that may be drawn from those facts." Murray v. City of Burlington, 2012 VT 11, ¶ 2, 191 Vt. 597, 44 A.3d 162 (mem.). Motions to dismiss for lack of subject-matter jurisdiction, V.R.C.P. 12(b)(1), and for failure to state a claim, V.R.C.P. 12(b)(6), "may not be granted unless it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Wool v. Off. of Pro. Regul., 2020 VT 44, ¶ 8, 212 Vt. 305, 236 A.3d 1250 (quotation omitted).

¶ 9. We turn to standing first and conclude that plaintiffs alleged facts sufficient to establish standing at the pleadings stage. We then turn to the merits of plaintiffs' constitutional claims under Chapter II, § 42. We conclude that § 42 does not apply to municipal elections as a matter of law and therefore the trial court properly dismissed plaintiffs' complaint.

I. Standing

¶ 10. We begin, as we must, with standing.[1] See Ihinger v. Ihinger, 2003 VT 38, ¶ 5, 175 Vt. 520, 824 A.2d 601 (mem.) ("Because standing is a jurisdictional issue, we must first determine the merits of [this] threshold argument."). "Whether a plaintiff has standing is a legal question,


which we review with no deference to the trial court." Taylor v. Town of Cabot, 2017 VT 92, ¶ 9, 205 Vt. 586, 178 A.3d 313.

¶ 11. Vermont courts' subject-matter jurisdiction is limited to "actual cases or controversies." Parker v. Town of Milton, 169 Vt. 74, 76-77, 726 A.2d 477, 480 (1998); see also In re Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) (adopting federal case-or-controversy requirement as part of separation-of-powers doctrine in Vermont Constitution and declining to issue advisory opinions). Standing is one of several prerequisites to satisfy the case-or-controversy requirement. See Hinesburg Sand & Gravel Co., 166 Vt. at 341, 693 A.2d at 1048 (explaining that case-or-controversy requirement "embodies various doctrines, including standing, mootness, ripeness and political question, that help define and limit the role of courts in a democratic society"). It is thus "fundamentally rooted in respect for the separation of powers of the independent branches of government." Id. "The gist of the question of standing is whether [the] plaintiff's stake in the outcome of the controversy is sufficient to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Turner v. Shumlin, 2017 VT 2, ¶ 10, 204 Vt. 78, 163 A.3d 1173 (per curiam) (quotation omitted).

¶ 12. This Court adopted a three-part test for standing originally articulated for federal courts: (1) injury in fact; (2) causation; and (3) redressability. Hinesburg Sand & Gravel Co., 166 Vt. at 341, 693 A.2d at 1048. In other words, to have standing, a plaintiff must "have suffered a particular injury that is attributable to the defendant and that can be redressed by a court of law." Parker, 169 Vt. at 77, 726 A.2d at 480. These requirements apply equally to petitions for declaratory judgment. Paige v. State, 2018 VT 136, ¶ 7, 209 Vt. 379, 205 A.3d 526.

¶ 13. The first and foremost requirement, injury in fact, depends on the nature of the right allegedly intruded upon.[2] Injury in fact is "the invasion of a legally protected interest."


Hinesburg Sand & Gravel Co., 166 Vt. at 341, 693 A.2d at 1048 (quotation omitted). Standing is a substantive issue separate from the merits of a plaintiff's case; however, they are "closely related." ...

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    • United States
    • Vermont Supreme Court
    • June 9, 2023
    ... ... Spottswood, ... Solicitor General, and Rachel E. Smith, Deputy Solicitor ... General, Montpelier, for Intervenor-Appellee State ...           ... PRESENT: Reiber, C.J., Eaton, Carroll, ... Vermont Constitution, which was adopted more than a hundred ... years earlier. See Ferry v. City of Montpelier, 2023 ... VT 4, ¶ 29, ___Vt. ___, ___A.3d ___ (explaining that ... ...
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    • California Court of Appeals Court of Appeals
    • August 8, 2023
    ...vote for such other purpose under a State constitution or statute or a local ordinance"]; Ferry v. City of Montpelier (Vt., Jan. 20, 2023) 2023 VT 4 [Vermont Constitution does not prohibit noncitizen voting in local elections].) [27] We address equal protection vote dilution claims raised b......
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    ... ... for such other purpose under a State constitution or statute ... or a local ordinance"]; Ferry v. City of ... Montpelier (Vt., Jan. 20, 2023) 2023 VT 4 [Vermont ... Constitution does not prohibit noncitizen voting in local ... ...
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