Price v. Town of Fairlee.

• Decision Date: 25 May 2011
• Docket Number: No. 10–125.,10–125.
• Court: Vermont Supreme Court
• Parties: Timothy K. PRICEv.TOWN OF FAIRLEE.

26 A.3d 26

2011 VT 48

Timothy K. PRICE

v.TOWN OF FAIRLEE.

No. 10–125.

Supreme Court of Vermont.

April 29, 2011.Motion for Reargument Denied May 25, 2011.

Timothy K. Price, Pro Se, Fairlee, Plaintiff–Appellant.Frank H. Olmstead of DesMeules, Olmstead & Ostler, Norwich, for Defendant–Appellee.William H. Sorrell, Attorney General, and Jacob A. Humbert, Assistant Attorney General, Montpelier, for Appellee–Intervenor State of Vermont.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.BURGESS, J.

¶ 1. The question presented is whether, under the Vermont Access to Public Records Act, ballots and tally sheets from the November 2006 election in the Town of Fairlee are open to public inspection. For the reasons set forth below, we conclude that they are. The trial court judgment to the contrary, therefore, is reversed.

¶ 2. The factual and procedural background is as follows. In August 2008, plaintiff, a resident of the Town of Fairlee, filed a pro se complaint in the superior court seeking access to the ballots and tally sheets from the November 2006 election in the possession of the town clerk “before they are in any way tampered with or destroyed.” Plaintiff's stated purpose was to determine whether “the vote totals as tabulated are in agreement with the actual ballot count in all the races, and to learn, if possible, how errors may have happened, [and] to verify the integrity of the voting process in Fairlee.” In a contemporaneous letter filed with the court, plaintiff explained that the complaint was prompted by the recount in the 2006 race for State Auditor which revealed that town officials had undercounted eleven votes for one of the candidates. Plaintiff was concerned about the error, and wished to determine whether it was isolated or part of larger pattern for purposes of evaluating the overall performance of the local board of civil authority.

¶ 3. The Town moved to dismiss the complaint, alleging that plaintiff failed to state a claim for which relief could be granted because the time for an election contest or recount had long since passed. See 17 V.S.A. §§ 2602(b), 2683(a) (state and local candidates must file petitions for recount within 10 days of election); id. § 2603(a), (c) (“any legal voter” may contest result of election by filing complaint “within 15 days after the election in question, or if there is a recount, within 10 days after the court issues its judgment on the recount”). In conjunction with the Town's motion to dismiss, the State of Vermont, by and through the Office of the Attorney General, moved to intervene in support of the Town's position, stating its view that disclosure of ballots and tally sheets two years after completion of an election was inconsistent with the State's interest in the finality of elections.

¶ 4. The pending motions and plaintiff's request for injunctive relief were heard on November 10, 2008. In the course of the proceeding, the trial court observed that plaintiff's complaint was really in the nature of a request for access to the election materials under the Vermont Access to Public Records Act, 1 V.S.A. §§ 315–320 (PRA). Accordingly, the court ruled that plaintiff should be allowed to file an amended complaint for declaratory relief under the PRA and denied the motion to dismiss. As to plaintiff's request for injunctive relief, however, the court noted that under 17 V.S.A. § 2590(d), the town clerk was required to retain “all ballots and tally sheets ... for a period of 90 days from the date of the election, after which time they may be destroyed.” Because the statute authorized the clerk to destroy the materials after ninety days, the court concluded that there was “no right on the part of a citizen to have access to them” after that time, and as there was “no right” under the statute plaintiff could demonstrate no harm. As the court later explained, it viewed the issue as “whether ballots and tally sheets that remain in the Town Clerk's possession after expiration of the secure [90–day] period are subject to inspection under the Public Records Act ... if they have not yet been destroyed.” (Emphasis added.) Accordingly, plaintiff's request for injunctive relief was denied.

¶ 5. Two days later, on November 12, 2008, plaintiff submitted a request to the Town for disclosure of the election materials under the PRA. The Town's attorney responded by letter indicating that, following the court's denial of the preliminary injunction, the town clerk had indeed destroyed the 2006 ballots and tally sheets “as authorized by law” and that plaintiff's request could not be met “because the documents do not exist.” The Town then filed a second motion to dismiss, asserting that the action was moot because the requested materials had been destroyed and were no longer available for disclosure.

¶ 6. In early December 2008, the trial court issued a written decision, denying the motion to dismiss. The court acknowledged that the destruction of the election materials had rendered the case moot, since it could no longer grant the relief requested. It concluded, however, that the case fit within an exception to the mootness doctrine for actions “capable of repetition, yet evading review.” In this regard, the court found that the time period between a request for records of this nature and their authorized destruction was “too short for the legal issue to be fully litigated” and that the action was likely to recur, plaintiff having indicated an interest in requesting “access to ballots and tally sheets following future elections” and the Town having expressed no intention of responding any differently. See In re Vt. State Emps. Ass'n, 2005 VT 135, ¶ 12, 179 Vt. 578, 893 A.2d 338 (mem.) (restating principle that exception for matters “capable of repetition yet evading review” may apply where challenged action “was in its duration too short to be fully litigated prior to its cessation or expiration” and there is “reasonable expectation that the same complaining party would be subjected to the same action again” (quotation omitted)).¹

¶ 7. Shortly thereafter, the State moved for summary judgment, asserting that disclosure of the requested materials was prohibited under the “comprehensive statutory framework” governing the conduct of elections in Vermont. Under that scheme, ballots, tally sheets, and other election materials must be “securely sealed” in containers provided by the Secretary of State and returned “to the town clerk, who shall safely store them, and shall not permit them to be removed from his or her custody or tampered with in any way.” 17 V.S.A. § 2590(a), (c). Furthermore, as noted, “[e]xcept as otherwise provided by federal law, all ballots and tally sheets shall be retained for a period of 90 days from the date of the election, after which time they may be destroyed; provided, however, that if a court order is entered prior to the expiration of the 90–day period, ordering some different disposition of the ballots, the town clerk shall abide by such order.” ² Id. § 2590(d).

¶ 8. The election statutes identify several specific scenarios in which election ballots may be unsealed. If a container “breaks, splits, or opens through handling,” the Secretary of State may order the contents moved to new bags. Id. § 2590(c). In addition, a court may order a recount of the ballots in two circumstances: first, where the election results are sufficiently close and the “losing candidate” petitions for a recount within ten days of the election, id. §§ 2601, 2602(b); and second, where “any legal voter” files a complaint within fifteen days after the election, or within ten days after a court-ordered recount, alleging error or fraud sufficient to change the ultimate result, id. § 2603(a)-(c). And, of course, the containers may be unsealed and the ballots and tally sheets “may be destroyed” 90 days after the election. Id. § 2590(d).

¶ 9. The election statutes also authorize the public dissemination of certain specific election materials. These include “spoiled” ballots, which after ninety days may be destroyed or “distributed by the town clerk for educational purposes,” id. § 2568; the “return” or summary sheet showing vote totals, a copy of which shall be made “available to the public upon request,” id. § 2588(c); and a copy of the entrance or exit “checklist,” which must be retained for a period of at least five years from the date of the election and “made available at cost to the public upon request.” Id. § 2590(e).

¶ 10. Viewing the elections scheme as a whole, the trial court concluded that it effectively excluded the requested ballots from disclosure under two settled PRA exemptions: as “records which by law are designated confidential or by a similar term,” 1 V.S.A. § 317(c)(1), and as “records which by law may only be disclosed to specifically designated persons,” id. § 317(c)(2). “Given the care with which the Legislature specifically crafted procedures for the sealing, storage, and transportation of ballots after an election,” the court concluded, they qualified as records designated confidential “by law” and accessible only to designated persons.

¶ 11. The court also ventured that “sound public policy reasons” supported a construction “limiting access to sealed ballots only to the enumerated instances permitted in the election statute,” to wit, the “overriding need for finality in elections.” While acknowledging that plaintiff's intent was not to challenge any specific election result but rather to hold the Town's election officials “to high standards of accountability,” the court reasoned that “the incidental effects of studies such as the one plaintiff hopes to undertake could serve to undermine the public's confidence in the validity of the various elections nonetheless.” The strict statutory timeframes for election challenges, the court concluded, were imposed “precisely to prevent re-examination of election results months or years...