Pease v. Windsor Dev. Review Bd.

• Decision Date: 29 September 2011
• Docket Number: Nos. 10–286,10–287.,s. 10–286
• Citation: 35 A.3d 1019,2011 VT 103
• Parties: Craig M. PEASE v. WINDSOR DEVELOPMENT REVIEW BOARDCraig M. Pease v. Town of Windsor.
• Court: Vermont Supreme Court

2011 VT 103

35 A.3d 1019

Craig M. PEASE

v.WINDSOR DEVELOPMENT REVIEW BOARDCraig M. Pease

v.Town of Windsor.

Nos. 10–286

10–287.

Supreme Court of Vermont.

Sept. 29, 2011.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Plaintiff appeals the trial court's summary judgment determination that defendants had fully responded to his Public Records Act (PRA) request and had not violated his constitutional rights. On appeal, plaintiff contends that defendants' responses to his PRA requests were improperly made through counsel and the custodian of records and thus did not comply with the statute. He also contends that the trial court erred in both its conclusion that his free speech claims against defendants based on their filing of a motion for protective order were barred by litigation immunity and its conclusion that the remainder of his alleged free speech violations were cured by subsequent hearings. We affirm.

¶ 2. Plaintiff is a resident of and property owner in the Town of Windsor. His property abuts another lot that is the site of a proposed subdivision development, Morgan Meadows. The Windsor Development Review Board (DRB) approved the subdivision application on April 2, 2009. Plaintiff, through counsel, appealed this decision to the Superior Court, Environmental Division.

¶ 3. In connection with that appeal, plaintiff made written pro se public records requests to the Town's Zoning Administrator, and to the seven individual members of the DRB. One DRB member responded personally to plaintiff's requests by sending plaintiff the records he requested but noting in an attached letter that it was her “practice to regularly delete email due to the volume on [her] computer, and it appear[ed] that” she had “deleted the contents of [her] computer inbox on March 16, 2009.” The remaining members responded through the Zoning Administrator.

¶ 4. According to the Zoning Administrator's unrebutted affidavit, he acts as the DRB's clerk, collects all DRB communications, and responds to requests for public records. He also averred that “[i]n the execution of [his] duties as DRB clerk [he] saved all paperwork related to the Morgan Meadows application for site plan approval, including but not limited to the emails that were sent among the various DRB members.” In his response to plaintiff's public records requests, the Zoning Administrator sent a letter indicating that some of the records he had requested relating to DRB deliberations were exempt under the Public Records Act but that all nonexempt records would be available by May 7, 2009. According to the unrebutted affidavit, all nonexempt records were in fact available at the Windsor Town Hall on that date, but plaintiff never picked up those records. Plaintiff concedes this fact.

¶ 5. On May 8, 2009, the Town filed a motion for protective order asking the Environmental Division to enjoin plaintiff from requesting additional records or contacting DRB members other than through counsel. Plaintiff's DRB requests had been made pro se, despite the fact that he was represented by counsel in the matter pending before the Environmental Division. The Town argued that his public records requests were actually nothing more than discovery requests in the pending appeal, and therefore, plaintiff's attorney of record should be the one seeking the records.¹ The Environmental Division responded in a brief entry order on May 11, 2009, staying all discovery “being sought through the civil discovery rules based on the pendency of this appeal” until the date of a scheduled telephone conference, May 27, 2009, but held that “[t]o the extent that those requests [we]re sought through Vermont's Public Records laws, the procedure and appeal is found in 1 V.S.A. § 318 and any litigation regarding such requests must be addressed in superior court. See 1 V.S.A. § 319.”

¶ 6. On May 12, 2009, shortly after the Town had filed its motion for protective order, plaintiff attended a Town selectboard meeting. The chair of the meeting called on plaintiff who asserted that the engineering firm tasked with evaluating the Morgan Meadows subdivision had a conflict of interest. The Town Manager interrupted plaintiff and announced to all assembled that such comments were inappropriate at a public meeting because of the pending litigation in the Environmental Division. He then directed plaintiff to address his concerns with the appeal to the Town's attorney.

¶ 7. The day of the scheduled telephone conference, May 27, 2009, the Town filed a motion to remand the DRB's April 2, 2009 decision back to the DRB, which the Environmental Division granted on June 4, 2009. In so doing the court noted that the DRB's decision lacked a “statement of the factual bases on which the [DRB] ha[d] made its conclusions and a statement of the conclusions.”

¶ 8. Plaintiff subsequently filed the underlying complaints against the Town and the DRB in Windsor Superior Court. Plaintiff's complaint against the Town contained three counts and sought three forms of relief. The first count averred a PRA claim seeking production of the same records sought in his original April 17, 2009 request for records. The second alleged a retaliatory constitutional claim based on the Town's filing of its motion for protective order in the Environmental Division proceeding and sought to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances. In the third count plaintiff claimed that the Town had retaliated against him for exercising his free speech rights when it interrupted him during the selectboard meeting and when it filed the aforementioned motion for protective order. The third count sought an injunction prohibiting further unconstitutional conduct. Neither the second nor the third counts sought any award of monetary damages.

¶ 9. Plaintiff's complaint against the DRB sought an order to compel the production of the same records he had originally requested from the individual DRB members. The complaint alleged inappropriate participation in the DRB process by the Zoning Administrator and argued the DRB had waived the public records exemption under 1 V.S.A. § 317(c)(24) when it essentially released the documents to the Town by allowing the Zoning Administrator and other third parties to participate. Plaintiff also argued that “the DRB violated the Municipal Administrative Procedure Act's (MAPA) prohibition against ex parte communications” when it allowed the Zoning Administrator, a Town employee, to participate in the DRB's deliberative sessions as its clerk.

¶ 10. During discovery, plaintiff issued discovery requests to the Town and the DRB entitled respectively: “Plaintiff's First Set of Discovery Requests for Town of Windsor” and “Plaintiff's First Set of Discovery Requests for Windsor DRB.” Within these discovery requests were plaintiff's requests to admit. Defendants failed to respond to these requests. Plaintiff filed a motion for summary judgment and statement of undisputed material facts against the Town and the DRB arguing that as defendants had admitted the facts in his requests to admit by their failure to respond, he was entitled to summary judgment. Defendants filed motions to enlarge time to answer the discovery requests and file their own motions for summary judgment. These motions were discussed at a status conference held April 9, 2010.

¶ 11. With regard to the requests to admit, defendants claimed that they were “not aware of them” and opined that the requests must have been “buried” because they “did not see them.” Also at this hearing, defendants gave plaintiff a copy of all remaining public records and represented to the court that all records had been produced. The court explained that plaintiff was entitled to have the representation in writing, and defendants sent two letters stating that all of the information plaintiff sought from both the Town and individual DRB members had already been produced. Plaintiff conceded at trial that it was undisputed that “the records released to [p]laintiff on 21 July 2009 and 9 April 2010 together fully respond to the Public Records Act request that [p]laintiff sent to [the Zoning Administrator].” The court granted defendants' motions to enlarge time on April 15, 2010.

¶ 12. Defendants subsequently responded to the discovery requests and filed cross-motions for summary judgment. Plaintiff objected to the cross-motions, asserting that the trial court's grant of the motion to enlarge time did not include a grant to file cross-motions. In response, defendants filed two more motions to enlarge, specifically requesting leave to file a cross-motion for summary judgment. The trial court noted that such motions were unnecessary but granted them nevertheless.

¶ 13. Plaintiff filed a second motion to compel discovery, essentially reiterating his arguments that the DRB had failed to respond to his PRA requests because its members had not responded in their individual capacities. Defendants filed an objection to this motion, noting that “[t]he DRB has elected to respond to [p]laintiff's discovery requests through counsel and through [the Zoning Administrator]. The individual members of the DRB do not have, nor did they ever, any documents other than those which have already been produced to [p]laintiff.” Defendants contended that “because there [were] not additional documents, [p]laintiff's motion to compel should be denied.”

¶ 14. In its order dated June 28, 2010, the trial court denied plaintiff's motion for summary judgment and granted defendants' cross-motions. In so doing, the court concluded that defendants had fully answered plaintiff's PRA requests by their responses through counsel and the DRB's clerk, that both defendants were protected by judicial immunity with respect to the motion for protective order, that the Town did violate plaintiff's free speech rights at the...