EDWARD J. BRADY; REJEAN LAFLECHE, SR.; STEPHAN CABLE; BARTHOLOMEW J. BONANZINGA, M.D., Individually; NANCY SHELTRAL ORESTE VALSANGIACOMO, SR.; DANNY DEUEL; RICHARD HOWRlGAN; ROBERT STARR; GEORGE SCHIAVONE; HENRY GRAY; RUTH TOWNE; DORAN METZGER; THOMAS MCGRATH; JOHN ROBB, Individually and in their official capacity as Representatives of the Vermont House; SUSAN FORTUNATI; GERRY LONGWAY, DARLENE WYMAN, Individually and in their official capacity as Town Clerks of the State of Vermont, Plaintiffs,
Washington Superior Court
Docket No. 308-5-00Wncv
v.
HOWARD DEAN, in his official capacity as Governor of the State of Vermont; MICHAEL OBUCHOWSKI, in his official capacity as Speaker of the Vermont House of Representatives; PETER SHUMLIN, in his official capacity as President Pro Tem of the Vermont Senate; and WILLIAM SORRELL, in his official capacity as Attorney General of the State of Vermont, Defendants,
OPINION AND ORDER
In this case challenging the legislative procedure and constitutionality of Act 91 (An Act Relating to Civil Unions), Defendants have filed a motion to dismiss. For the reasons stated below, Defendants' motion is GRANTED.
Background
The complaint names three groups of plaintiffs: first, Vermont residents and taxpayers (Taxpayers); second, several members of the Vermont House of Representatives, also taxpayers (Legislators); and third, three Vermont town clerks (Town Clerks). Plaintiffs seek a declaration that Act 91 is void, and an injunction barring its enforcement. The court denied Plaintiffs' earlier motions for preliminary injunction.
Fourteen members of the House are alleged to have participated in a "dollar a guess" betting pool on the outcome of the third House vote on H. 846 (the civil unions bill) regarding whether it should be read a third time. The vote was 79 in favor, 68 against. Though the existence of the betting pool was brought to the attention of the House by Plaintiff Metzger, neither objection nor request that the vote be retaken ensued. The following day, the bill was read for a third time and was passed by a vote of 76 to 69. The Senate voted to pass the amended bill on April 19, 2000; the House voted to concur with the amendment on April 25, 2000. The Governor signed the bill, now known as Act 91, on April 26, 2000.
Section 5 of Act 91 requires town clerks to issue civil union licenses to qualified applicants. See 18 V.S.A. §§ 5160, 5161. Section 5161 provides: "(a) A town clerk shall issue a civil union license to all applicants who have complied with the provisions of section 5160 of this title, and who are otherwise qualified . . . . (b) An assistant town clerk may perform the duties of a town clerk under this chapter."
Taxpayers and Legislators claim that Act 91 should be declared "null, void, and ineffective" because the betting pool legislators, all of whom voted in favor of the bill, should have been disqualified, and the bill would not then have passed. Town Clerks claim that Act 91, particularly section five, unconstitutionally infringes on their sincerely held religious beliefs.
Discussion
Defendants argue that Plaintiffs lack standing to bring these claims and that, moreover, the complaint sets forth no claims upon which relief can be granted. The court agrees; Defendants' motion to dismiss is GRANTED.
Taxpayers do not have standing because they allege at best a generalized harm and speculative causation. See Parker v. Town of Milton, 169 Vt. 74, 77-78 (1998). Their citation to Central Vt. Pub Serv. Corp. v. Town of Springfield, 135 Vt. 436, 438 (1977), does not help.
Legislators cite Coleman v. Miller, 307 U.S. 443 (1939), in support of standing, while Defendants cite Raines v. Byrd, 521 U.S. 811 (1997). In Coleman, state legislators had standing in federal court where a 20-20 vote sufficed to defeat certain legislation, but then the lieutenant governor broke the tie to pass it. The United States Supreme Court described the action of the lieutenant governor as nullifying the vote of those legislators who opposed the bill (and who all sued as a bloc). In Raines, federal legislators lacked standing because their votes were given full effect. In this case, Legislators (not suing as a bloc) claim that their votes were nullified and, if not so nullified, the vote would have favored their position. Especially where the separation of the branches is in issue, such linguistic acrobatics must be eschewed. Legislators' votes were only "nullified" insofar as they claim that some other legislators should have been disqualified. They seek redress in the judiciary after not seeking it in the legislature to reach out and nullify others' votes, not to challenge the nullification of their own votes. Legislators therefore do not survive their burden of demonstrating any injury, causation, and redressability. See Parker, 169 Vt. at 77-78.
Town Clerks lack standing for lack of any demonstrable injury. Assuming the sincerity of their religious beliefs, and that those religious beliefs prevent them from personally issuing civil union licenses under 18 V.S.A. § 5161(a), they have resort to 18 V.S.A. § 5161(b). Any argument that the act of appointment of an assistant itself demonstrates injury is too remote and abstract to support standing.
Even if any of Plaintiffs could demonstrate standing, Taxpayers' and Legislators' claims are not within the court's subject matter jurisdiction: they present only a nonjusticiable political question. Town Clerks simply fail to state a claim upon which relief may be granted.
The United States Supreme Court describes the political question doctrine as follows:
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 a judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of 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 of one question.
Baker v. Carr, 369 U.S. 186, 217 (1962).
Taxpayers and Legislators do not assert any subversion of legislative procedure; rather, they appeal to the judiciary in the first instance to retroactively disqualify other legislators. They cite, inter alia, to House Rule 75 ("Members shall not be permitted to vote upon any question in which they are immediately or directly interested").
Judicial intervention in these circumstances clearly would express a potent lack of respect due the legislature. The legislation at issue ultimately was passed by the Senate and House and signed into law by the Governor, with knowledge, at least in the House, of the fourteen dollar betting pool. Afterwards, Legislators, a small minority of those legislators who voted similarly, bring to the Judicial Branch a House Rule that they did not seek to enforce in the House. Intervention now and in this fashion would intrude on the separation of powers and subvert rather than enforce legislative procedure. See Vt. Const. ch. Il, § 5; Andrews v. Lathrop, 132 Vt. 256, 265 (1974).
The House has the power to determine the qualifications of its members. See Vt. Const. ch. II, § 14; Kennedy v. Chittenden, 142 Vt. 397, 399 (1983). Here, Plaintiffs attempt to use the Judicial Branch to determine certain legislators' qualification to vote, rather than to moderate any abuse or usurpation of legislative procedure. Moreover, intervention would impose on legislators' right to "freedom of deliberation, speech, and debate." Vt. Const. ch. I, art. 14. Plaintiffs' claims necessarily would involve the court in a detailed analysis of the individual motivations behind the betting pool legislators' votes. Plaintiffs resist this interpretation, arguing instead that any demonstrable conflict of interest her se disqualifies a House member from voting. Plaintiffs' argument is in direct opposition to House Rule 88, which adopts Mason's Manual of Legislative Procedure for questions of parliamentary procedure. Section 522.1 states:
It is the general rule that no members can vote on a question in which they have a direct personal or pecuniary interest. The right of members to represent their constituencies, however, is of such major importance that members should be barred from voting on matters of direct personal interest only in clear cases and when the matter is particularly personal. This rule is obviously not self-enforcing and unless the vote is challenged members may vote as they choose.
Viewed in this contest, it is clear that Plaintiffs seek to use the Judicial Branch as a sword in the Legislature. Particularly, determinations would have to be made as to whether the hopes by any affected legislators of winning the alleged fourteen dollar jackpot rises to the level contemplated by the rules. The court declines.
Town Clerks fail to state under Vt. Const. ch. I, art. 3, a claim upon which relief may be granted. Assuming that Town Clerks have a sufficient religious belief, they still may not become a law unto themselves and hold the State's neutral and generally applicable laws hostage to those beliefs. See <I>Employment Division v. Smith<D>, 494 U.S. 872, 885 (1990); State v. Delabruere, 154 Vt. 237, 263-70 (1990); Ferriter v. Tyler, 48 Vt. 444, 469 (1876). The alternative would permit, for instance, a family court judge who believes that marriage is a sacrament to undo the laws of divorce, or a Muslim Commissioner of Banking to apply the Koran's proscription against lending money at interest. Individual public officers cannot refashion the law in this manner; rather, they promise to uphold it.
ORDER
For the reasons stated above, Defendants' motion to dismiss is GRANTED. This case is hereby DISMISSED.
Dated at Montpelier, County of Washington and State of Vermont, this 24th day of October, 2000.
Matthew J. Katz, Presiding Judge