Morin v. City of Burlington

7ermont Superior Court
Filed 02/07/25
Chittenden Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 24-CV-02403
175 Main Street
Burlington VT 05401
802-863-3467
www.vermontjudiciary.org

Michele Morin et al v. The City of Burlington, Vermont

DECISION ON MOTION TO DISMISS
In June 2023, the legislature enacted an amendment to the City of Burlington charter, extending

eligibility to noncitizen residents of Burlington to vote in City elections, including Burlington school
district elections.! See 2023, No. M-16; 24 App. V.S.A. ch. 3 §§ 8, 8a. Plaintiffs Michele Morin and
Karen Rowell, Burlington residents and voters, now challenge the Burlington charter amendment as
unconstitutional under § 42 of the Constitution insofar as it extends to school district votes, whether for
the annual budget or to elect the members of the Board of School Commissioners, who develop that

budget. The City moves to dismiss. The court grants the motion.
Two years prior, the legislature had enacted an amendment to the City of Montpelier charter,
extending to noncitizen residents of Montpelier eligibility to vote in City elections. See 2021, No. M-
5; 24 App. V.S.A. ch. 5 §§ 1501-1504. In January 2023, the Vermont Supreme Court rejected a facial

challenge asserting that the enactment necessarily violates Vt. Const. ch. II, § 42, which requires that
voters be U.S. citizens. Ferry v. City of Montpelier, 2023 VT 4, 217 Vt. 450. The Ferry Court drew a
fundamental distinction between statewide and municipal elections and determined that § 42, and

hence its citizenship requirement, applies only to statewide elections. Municipal voter eligibility

instead is determined by the legislature and, generally, also requires U.S. citizenship but for statutory

exceptions such as that made in Montpelier's case. 17 V.S.A. §§ 2121(a)(1), 2656 (U.S. citizenship
generally required in both statewide and municipal elections).
Seeking to avoid the application of Ferry, Plaintiffs here argue that while § 42 of the
Constitution may generally tolerate noncitizen voting in municipal elections, school district elections
are different. They point out that after the decision in Brigham v. State, 166 Vt. 246 (1997), the

legislature set about modifying Vermont's education funding scheme to better equalize educational

'
A noncitizen is a "legal resident of the United States ... who resides on a permanent or indefinite basis in compliance
with federal immigration laws," but who is not a citizen. 24 App. V.S.A. ch. 3 § 8a(b).
Decision on Motion to Dismiss Page 1 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont
opportunities among the municipalities regardless of disparities in property wealth from town to town.
Plaintiffs argue that this reform has so transformed the education funding scheme to one collectively
paid by voters statewide, that otherwise “local” school district elections now present fundamentally
statewide matters that fall under § 42 and its citizenship requirement.
The dismissal briefing reflects no fundamental disagreement as to the current nature of school
funding in Vermont. In short, local school districts determine their own budgets. How exactly those
budgets then get funded is a complex matter involving numerous funding sources, including property
taxes, aggregated and distributed by the State, to fund those budgets, in a manner that is calculated to
comply with the equalization mandate of Brigham. See Brigham, 166 Vt. at 256 (“Money is clearly
not the only variable affecting educational opportunity, but it is one that government can effectively
equalize.”). The redistribution of resources from municipality to municipality and from nonmunicipal
funding sources, and the extra-municipal impact of individual budgets on more broadly applicable tax
rates, as Plaintiffs see it, make the post-Brigham funding scheme a statewide matter under the
principles of Ferry. See Plaintiffs’ Opposition to Motion to Dismiss at 9 (filed Sept. 9, 2024)
(“Burlington is by far Vermont’s largest city and its budget underscores the statewide implications of
school elections. In 2023, the City voted for a school budget that forced Vermont taxpayers to pay the
City about $94.4 million more than the State collected from the City’s homestead property taxes.”).2
In Ferry, the plaintiffs presented a facial challenge to Montpelier’s noncitizen voting statutes.
Here, Plaintiff’s challenge the relevant Burlington statutes “as applied” to school district elections
only. They do not challenge noncitizen voting in other municipal elections. As the Vermont Supreme
Court has explained:

“The distinction between facial and as-applied challenges . . . goes to the breadth of the
remedy.” In a facial challenge, a litigant argues that “no set of circumstances exists
under which [a statute or regulation] [c]ould be valid.” The remedy in a successful
facial challenge is that a court will invalidate the contested law. In an as-applied
challenge, however, a party claims that a statute or regulation is invalid as applied to the
facts of a specific case. The scope of the remedy in an as-applied challenge is narrower.
Although a court grants relief “to the parties before the Court,” it does not necessarily
invalidate the contested law in its entirety.

2 Plaintiffs point to other funding issues that point up the redistribution of resources aspect of the current funding scheme,

including “categorical aid” and State rather than municipal responsibility for teacher pensions (which preceded Brigham),
though the values of those pensions relate to municipal salary decisions. It is unnecessary to detail and deconstruct the
entire funding system here. Plaintiffs’ main point cannot be denied: the State is deeply involved in how the operations of
school districts are funded and, at least to some extent, what happens with the budget in one district has some impact on
resource availability and usage everywhere.

Decision on Motion to Dismiss Page 2 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont
In re Mountain Top Inn & Resort, 2020 VT 57, ¶ 22, 212 Vt. 554 (citations omitted). Plaintiffs argue
that the Burlington statutes are unconstitutional as applied to school district elections. “[S]tatutes are
presumed to be constitutional and are presumed to be reasonable. We have often observed that the
proponent of a constitutional challenge has a very weighty burden to overcome.”3 Badgley v. Walton,
2010 VT 68, ¶ 20, 188 Vt. 367 (citations omitted).
To be sure, the Ferry Court was well aware that because it was addressing a facial challenge
only that it did not need to resolve precisely the line between statewide and local elections, and it did
not attempt to craft a legal test for future as-applied challenges:
Because plaintiffs bring a facial challenge, we need not define the line between
‘local’ or ‘municipal’ and ‘statewide’ issues in this opinion. For this reason, we
disagree with plaintiffs’ assertion that our conclusion in this case precludes
judicial review of municipal elections. A vote municipal in name, but
traditionally the province of ‘freemen’ in substance, could not avoid the
requirements of § 42. It is a different legal question to determine whether a
specific vote is properly municipal or statewide—and one not presented in this
case.

Ferry, 2023 VT 4, ¶ 50 (citations omitted).
Nevertheless, a close reading of Ferry reveals that Plaintiffs are largely fighting the last war.
Their argument, in substance, is as follows: (1) the voter eligibility criteria in Vt. Const. ch. II, § 42,
among which is U.S. citizenship, apply to votes “touching any matter that concerns the State of
Vermont”; (2) the post-Brigham education funding scheme means that individual school district
budgets now concern the State insofar as they will have extra-municipal financial impacts; (3)
Burlington voters in school district elections therefore are subject to the eligibility criteria of § 42
rather than the broader Charter provisions. Ferry largely rejected this type of argument.
The constitutional provision at issue in Ferry and here provides as follows:

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:

3 To the extent that Plaintiffs argue that a presumption of constitutionality is only properly drawn when a statute is

ambiguous and the court therefore must fashion a reasonable interpretation of it (not the case here), see Plaintiff’s
Opposition to Motion to Dismiss at 13–14, that assertion is wrong. As described in Badgley, Vermont law is crystal clear
that statutes, as a general matter, are presumed to be valid—including as to their constitutionality—and reasonable. The
presumption is by no means unique to Vermont. See 2A Sutherland Statutory Construction § 45:11 (7th ed.) (“Courts
presume legislation is constitutional and resolve any doubt about the validity of a statute or amendment in favor of
sustaining the legislation. . . . Unless a constitution expressly or by necessary implication restricts the actions of the
legislative branch, the legislature is free to implement legislation, even if an act may be unwise, unfair, or unjust.” (footnote
omitted)).
Decision on Motion to Dismiss Page 3 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont
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.

Vt. Const. ch. II, § 42. As Ferry explains, the expression “privileges of a voter of this state” relates
back to those privileges exercised by freemen, and case law establishes that freemen exercised the
privilege to vote in statewide elections, subject to eligibility criteria in § 42, whereas the legislature
sets eligibility criteria for voting in local or municipal elections. See Ferry, 2023 VT 4, ¶¶ 32–36.
The fundamental distinction of consequence here is between local and statewide elections, not
issues: “[Relevant] precedents draw a distinction between statewide and local elections for purposes of
the Vermont Constitution’s voting requirements. The distinction drawn is categorical, and we
accordingly reject plaintiffs’ contention that these cases create a flexible, case-specific sliding scale for
identifying local versus statewide issues and therefore what voter eligibility requirements must be met
for any given election. These cases dictate that § 42 does not apply to municipal elections.” Id. ¶ 36
(emphasis added).
The Court expressly rejected the argument, nevertheless asserted by Plaintiffs here, that the
question instead turns on whether the vote touches on “any matter that concerns the State of Vermont.”
Id. at ¶ 41 (“When read together with the qualifications for ‘freeman,’ ‘touching any matter that
concerns the State of Vermont’ refers to matters concerning state government as opposed to local
government.”). Thus, under Ferry, when evaluating the local versus statewide distinction, one must
look to the election at issue as a whole and determine the matter categorically.
The Court went on to reject the plaintiffs’ argument that the contemporary prevalence of extra-
municipal impacts arising out of traditionally local votes counsels in favor of rejecting the historically
categorical distinction between local and statewide votes. The plaintiffs had argued,

that the categorical conclusion that § 42 does not apply to municipal elections in our
precedents is predicated on historical distinctions between local and statewide elections
that no longer exist. Therefore, they assert that § 42 should properly apply to any
election with an extra-municipal impact. They then list various examples of extra-
municipal impacts to demonstrate that local elections today should be treated like
statewide elections and therefore be limited to citizen voters. They specifically identify
the fact that municipalities are subsidized by the state and that local officials serve on
boards with extra-municipal impacts to explain why they believe all Vermont elections
today involve “freemen’s” issues.

Decision on Motion to Dismiss Page 4 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont
Id. ¶ 39. The Court then explained that such entanglements between state and local government are
not determinative, at least as a broad matter of law:

Fundamental aspects regarding municipalities to this day fit with the
distinction our case law draws between municipal and statewide elections.
Municipalities in Vermont are “created by the Legislature pursuant to express
authority conferred by the Constitution” and their powers are “expressly delegated
to them by legislative enactment” such that they have “no rights . . . outside the
limits of legislative control.” Moreover, once created, a municipality still “has
only those powers and functions specifically authorized by the legislature, and
such additional functions as may be incident, subordinate or necessary to the
exercise thereof.”

Further, there are limitations on the Legislature’s ability to delegate power to
a municipality. “In this State as elsewhere it is a doctrine well established and
frequently reiterated by the courts that the functions of the Legislature which are
purely and strictly legislative cannot be delegated but must be exercised by it
alone.” Under this doctrine, a municipality may be given “certain powers of
legislation as to matters purely of local concern” or “the authority or discretion
merely to execute, rather than make, the laws.” Despite these connections to
statewide government, municipalities generally remain entities that control local
affairs. Also, municipal officers today are still accountable to their local
electorate and not “the votes of the freemen of the State at large.” It is
fundamentally different to act as a statewide officer compared to a municipal
officer in terms of powers and accountability. Therefore, the structure of the
Vermont Constitution and the Constitution’s treatment of municipalities in the
scheme of statewide governance indicate that Chapter II’s requirements for
statewide elections and representatives, including those in § 42, do not apply to
municipal elections and officers.

* * *

. . . [W]e do not agree with plaintiffs that some extra-municipal impact, no matter
how tenuous, constitutes a statewide issue subject to the requirements in § 42.
The “purely local” distinction plaintiffs ask us to draw is untenable and not
grounded in history.

* * *

. . . . There is still a difference between municipal government and state
government.

Id. ¶¶ 45–46, 48–49 (citations omitted). The Ferry Court plainly rejected the argument the
identification of extra-municipal impacts is sufficient on its own to render an election one properly
characterized as addressing a statewide rather than a local matter. If extra-municipal impacts alone—
and that is the only argument Plaintiffs raise here—can be sufficient, they presumably would have to
Decision on Motion to Dismiss Page 5 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont
be so substantial as to reflect that the municipal voters effectively are deciding statewide rather than
local matters.

This is not what happens when Burlington voters cast their votes in school district elections.
Such elections are addressing distinctly local matters: who will be their school board members, and
whether to support the budget, and all the distinctly local priorities it represents, as recommended by
the board. Board members’ duties are distinctly local in nature. See generally 24 App. V.S.A. ch. 3 §§
163–170 (school commissioners).4 Nor in adopting a budget are they in fact adopting a budget for any
other municipality.
Burlington voters in these elections have no say in how the school funding scheme adopted by
the legislature operates, and they are not in any meaningful sense responsible for how that system
affects them in relation to non-Burlington voters and municipalities. In short, Plaintiffs identify extra-
municipal impacts, but they do not identify extra-municipal impacts that transform a local election into
a statewide election in any meaningful sense under Vermont case law. School district elections have
always been considered municipal, rather than statewide, in nature. See Woodcock v. Bolster, 35 Vt.
632, 638 (1863) (voters in school district elections not required to be freemen).
Brigham did not change that. It expressly distinguished between those education matters
properly left to local control and how schools are funded:
Individual school districts may well be in the best position to decide whom to hire, how
to structure their educational offerings, and how to resolve other issues of a local nature.
The State has not explained, however, why the current funding system is necessary to
foster local control. Regardless of how the state finances public education, it may still
leave the basic decision-making power with the local districts.

Brigham v. State, 166 Vt. 246, 265–66 (1997); see also id. at 267 (“[T]here is no necessary or logical
connection between local control over the raising of educational funds, and local decisionmaking with
respect to educational policy.”).
Plaintiffs focus exclusively on extra-municipal impacts related to educational funding. Any
such impacts are indirect and, as to their specifics, out of Burlington voters’ hands. Burlington school
district elections address traditional local issues not in the province of freemen. The legislature thus
was free under Ferry to determine the eligibility criteria for voters in such elections.

4 There is no need to itemize all the functions of board members. Their duties—not surprisingly—all are focused on
managing Burlington’s school district, not that of any other municipality.
Decision on Motion to Dismiss Page 6 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont
ORDER

The court grants the motion. The case is dismissed with prejudice.

Electronically signed pursuant to V.R.E.F. 9(d): 2/6/2025 3:25 PM

___________________________
Samuel Hoar, Jr.
Superior Court Judge

Decision on Motion to Dismiss Page 7 of 7
24-CV-02403 Michele Morin et al v. The City of Burlington, Vermont