Paige v. Copeland-Hanzas

VERMONT SUPERIOR COURT CIVIL DIVISION
Orange Unit Case No. 24-CV-04754
5 Court Street
Chelsea VT 05038
802-685-4610
www.vermontjudiciary.org

H. Paige v. Sarah Copeland-Hanzas et al

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 2)
Filer: Sara-Ellen M. A. Moran
Filed Date: January 15, 2025

The motion is GRANTED.
The present action concerns a decision made by the Vermont Secretary of State’s Office
concerning a local election in the Town of Washington for the Justice of the Peace. Plaintiff H.
Brooke Paige, who was a candidate for this office and who was duly elected to the office has filed
the present complaint seeking relief from the Secretary’s decision. Since there is neither standing
nor a live controversy, the Secretary’s Motion to Dismiss is Granted. Plaintiff Paige’s claims under
17 V.S.A. § 2603 and the substance of his original complaint are Dismissed pursuant to V.R.C.P.
12(b)(1) and (6). Further, Plaintiff’s late-noticed request to appeal his November 4, 2024 complaint
filed with the Vermont Secretary of State under 17 V.S.A. § 2458 is Denied, and the matter is
Remanded to the Secretary of State for Plaintiff to exhaust his administrative remedies.

Background Facts

Based on the Plaintiff’s Complaint, the Court takes the following facts for purposes of the
present motion to dismiss. Richards v. Town of Norwich, 169 Vt. 44, 48–49 (1999).1

1 While a court must look to the well-pled facts of the complaint, it is not required to accept as true “conclusory

allegations or legal conclusions masquerading as factual conclusions.” Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10. The
Court may also take judicial notice of statutes, regulations, and matters of public record. Kaplan v. Morgan Stanley & Co.,
2009 VT 78, ¶ 10 n.4 (mem.).

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On August 8, 2024, the Town of Washington’s Republican Committee caucused and
nominated a slate of candidates for the office of Justice of the Peace pursuant to 17 V.S.A. § 2413. 2
Plaintiff was both chair of the Committee and one of the nominees on this list. Although the list
was generated by the Town’s Republican Committee, Plaintiff claims that it intentionally did not
state party affiliation and effectively re-nominated all seven of the then-current justices of the peace
on what Plaintiff characterizes as a bipartisan slate. The Committee transmitted this list to the Town
Clerk who, in turn, submitted it to the Secretary of State’s Office through an on-line election portal.
As part of this submission, the Town Clerk designated all of the candidates as being “Dem/Rep”
affiliation. On August 23, 2024, the Secretary of State’s Office contacted Plaintiff shortly after the
submission asking him to confirm the submission, which listed the seven candidates and their
“Dem/Rep” affiliation, and to review for any errors. Plaintiff confirmed the list of nominees, asked
to have his address and phone number corrected, and made no other corrections to the list or to
their party affiliation.

On August 30th, Plaintiff, in response to feedback from other nominees, contacted the
Secretary of State’s Office and requested to have the “Dem/Rep” affiliation removed from all of the
nominees on the list. Plaintiff claims that he received no immediate reply, but on September 13,
2024, the Secretary of State’s Office notified him that after further review the nomination form had
been deemed invalid by the Secretary.3 Since it was too late for either a new Committee nomination
to be submitted or for the filing of independent nomination, the Office stated that it would not be
placing any justice of the peace candidates on the November ballots prepared by the Secretary’s
Office for the Town of Washington.

2 As established by the Vermont Constitution, each town, depending on its population, elects between 5 and 15 justices

of the peace. Vt. Const.CH. II, § 52. While justices of the peace serve multiple roles, they primarily serve as election
officers through their role as members of the Town’s Board of Civil Authority. 17 V.S.A. § 2451; 24 V.S.A. § 801.
3 The letter, submitted as part of Plaintiff’s complaint, indicated, that the Secretary of State’s Office had found that the

mixture of nominees across parties (including Democrats, Republicans, and Independents) did not comply with either 17
V.S.A. § 2413 (party nominations) or 17 V.S.A. § 2402 (independent nominations). The Office found that these
designations needed to indicate both the nominees’ political affiliation and the party who submitted the nomination, if
different. 17 V.S.A. § 2472. Given the back-and-forth confusion, the Secretary of State’s Office further concluded that
it did not have the nominees’ consent as required under 17 V.S.A. § 2385(e). The Office also found that there was an
issue with the nomination form as it was notarized by one of the nominees. In response, Plaintiff argued that the Office
did not have the authority to strike the nominations as control of the election was a local issue and was subject to the
Town Clerk and the local BCA’s authority under Section 47 of Chapter II of the Vermont Constitution and 17 V.S.A. §
2451. Plaintiff also objection to the Office’s analysis and requirement of registering their political preference.
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Following this decision, the Ballots for the Town of Washington for the November 2024
election issued and did not contain any of the seven nominees for the office of Justice of the Peace.
Instead, seven write-in spots were left for this office. Following a write-in campaign, Plaintiff and all
of the other six incumbent Justices of the Peace were successfully re-elected to office.

On November 18, 2024, Plaintiff filed the present complaint and seeks a finding that the
Secretary of State acted in violation of Title 17, an order that the Secretary and her office refrain
from such activities in the future, an order requiring the secretary to issue a public statement
detailing her errors and pledging to refrain from them in the future, and an award of $750 to
Plaintiff.

Legal Standard

To determine whether a complaint survives a motion to dismiss, the Court assumes the
factual allegations in the complaint are true. Colby, 2008 VT 20, at ¶ 5. The Court will only grant the
motion if there are no facts or circumstances that would grant plaintiff relief. Id. This is because the
purpose of a motion to dismiss for failure to state a claim is “to test the law of the claim, not the
facts which support it.” Brigham v. State of Vermont, 2005 VT 105, ¶ 11 (quoting Powers v. Office of Child
Support, 173 Vt. 390, 395 (2002)). Courts rarely grant motions to dismiss for failure to state a claim.
Colby, 2008 VT 20, at ¶ 5; see also Kaplan v. Morgan Stanley & Co., Inc., 2009 VT 78, ¶ 7. Courts
generally disfavor these motions. Bock v. Gold, 2008 VT 81, ¶ 4 (“Motions to dismiss for failure to
state a claim are disfavored and should be rarely granted.”). For these reasons, a party seeking
dismissal has a high burden to show that they are entitled to such an initial ruling. Bock, 2008 VT 81
at ¶ 4.

Legal Analysis

As a threshold matter, the first question raised by Plaintiff’s complaint is mootness. The
jurisdiction of Vermont courts is limited “to the determination of actual, live controversies between
adverse litigants.” Wool v. Office of Professional Regulation, 2020 VT 44, ¶ 6. “Otherwise, any opinion
issued by this Court would merely be advisory, and would not be within our constitutional authority
to render.” Paige v. State, 2017 VT 54, ¶ 6. A case becomes moot and jurisdiction expires when the
court can no longer grant effective relief related to the nature of the plaintiff’s injury in fact. Id.
(citing to Paige v. State, 2013 VT 105, ¶¶ 8–9).

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In this case, the source of Plaintiff’s injury in fact, his non-placement on the 2024 ballot as a
candidate for justice of the peace for the Town of Washington, arises from his allegation that the
Secretary of State and her Office improperly refused to accept his nomination as a candidate.
Before this complaint was filed, however, Plaintiff won his election, and he currently holds this
office. 4 Therefore, there is no live controversy under 17 V.S.A. § 2603 or relief that the Court can
award to Plaintiff as he has the office that he sought and with which he contends the Secretary and
her Office, interfered. Paige, 2013 VT 105, at ¶ 8.

The Court further finds that the factual circumstances alleged by Plaintiff do not meet the
exception for mootness. Id. at ¶¶ 10–11. To overcome mootness, a plaintiff must show “a
reasonable expectation that the same complaining party will be subject to the same action again.”
Id. (quoting Price v. Town of Fairlee, 2011 VT 48, ¶ 24). “Reasonable expectations” require “more
than just a theoretical possibility that the same event will happen in the future.” Id. (quoting Doria v.
Univ. of Vt., 156 V. 114, 118 (1991)). In this case to re-create the controversy, Plaintiff would have
to continue as a candidate for Justice of the Peace in 2026; the Town of Washington Republican
Committee would have to vote a similar slate of candidates in the precise same manner; the Town
Clerk would have to enter the names into the State election system with the same issue; and the
same notarization issue would have to be repeated. While some of these events are under Plaintiff’s
general control (deciding to run for re-election), several of them are not, and there is nothing in the
next two years that prevents Plaintiff or other town officers from clarifying the rules surrounding
how to properly file a political party’s nomination. For these reasons, the Court finds Plaintiff’s
complaint to be moot. Therefore, dismissal is appropriate under V.R.C.P. 12(b)(1).

While the Court’s analysis could end here, it will, for the purpose of clarity, extend the
analysis to Plaintiff’s request for relief under 17 V.S.A. § 2603. This statute provides that any legal
voter can contest an election for (1) errors committed in the conduct of the election or in the count

4 Plaintiff suggests in his reply that his win was so marginal as to indicate that the Secretary’s actions had sullied his win.

Plaintiff provides no support for this sore winner contention that a cause of action can arise if a candidate wins but not
by enough to satisfy them. Under Section 2603(b), a plaintiff must demonstrate in his or her pleadings that the actions
of defendants changed the ultimate result. In this case, Plaintiff can point to the lower margin of victory in 2024 as
opposed to prior elections, but he cannot demonstrate a change in the ultimate result, which was his re-election as a
Justice of the Peace. Mere sullying of one’s victory is not enough to overcome mootness. In this respect, Section 2603
abides by the limitation that a party seeking to challenge the finality of an election contest must first demonstrate that the
issue altered or undermined the outcome to such an extent that the Court must supplant the process with a judicially
crafted remedy.

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or return of votes; (2) fraud in the process; or (3) any other reason that invalidates the election. 17
V.S.A. § 2603(b). In each case, the allegations must rise not merely to bad behavior or violations,
but they must also have changed the ultimate result. As discussed in footnote 4, supra, there was no
change in the outcome of the vote. Plaintiff admits that he does not seek to invalidate the 2024 vote
for the Town of Washington’s Justices of the Peace. He also does not allege that the errors resulted
in an outcome that should be changed. Instead, Plaintiff wants a ruling that effectively says, the
Secretary of State did something incorrect. He also wants an apology. Neither of these are remedies
offered by 17 V.S.A. § 2603(e), which authorizes a decision of the Court to supersede the certificate
of election and permits the Court to invalidate an election, order a recount, order a new election, or
grant similar relief when the issues have altered or undermined the election. The language of
Section 2603, as its title indicates, is focused on contesting an election outcome. It is not a vehicle
for relief that seeks to reform or alter how a party or governmental official acted when those actions
did not alter or threaten to alter the outcome. For these reasons, Plaintiff fails to make out a claim
under 17 V.S.A. § 2603, and dismissal is appropriate under V.R.C.P. 12(b)(6).

In his April 14, 2025 reply to the Secretary’s Motion to Dismiss, Plaintiff, for the first time,
raises the fact that on November 4, 2024 he filed a complaint with the Secretary of State regarding
her office’s actions to invalidate his nomination under 17 V.S.A. § 2458. He states that he has not
received a response to this complaint and that the time for the Secretary to review it has passed.
Plaintiff’s November 4th complaint was filed pursuant to Section 2458, which allows

[A]ny person who believes that a violation of this title or any other provision of 52
U.S.C. chapter 209, subchapter III (Uniform and Nondiscriminatory Election
Technology and Administration Requirements) has occurred, is occurring, or is
about to occur in the course of any election in which a candidate for federal office
appears on the ballot.

17 V.S.A. § 2458(a).

As a preliminary matter, Plaintiff’s introduction of this claim at the eleventh hour of this
briefing process is improper as it goes beyond his complaint. The proper process to add new claims
in response to a motion to dismiss is to file a motion to amend under Rule 15 and to demonstrate
the basis for such a motion. Plaintiff, while self-represented, is no stranger to the courts and to
court process. While the Court will give self-represented parties some leeway when it comes to the
rules of civil procedure, it does not suspend such rules, and self-represented litigants remain bound
to abide by these standards. Zorn v. Smith, 2011 VT 10, ¶ 22.
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Normally, the Court would give a party in Plaintiff’s position time to file a motion to amend
under Rule 15 and provide the Court with a basis to review the amendment under Rule 15’s
generous standards. Colby, 2008 VT 20, at ¶ 4. In this case, there is a complicating factor. Plaintiff’s
claim under Section 2458 is effectively a Rule 74 appeal from an administrative process because the
statute gives Plaintiff the right to an appeal. 17 V.S.A. § 2458(d); see, e.g., Friends of Pine Street v. City
of Burlington, 2020 VT 43, ¶ 16 (noting that Rule 74 governs appeals from administrative agencies
where the right of appeal is granted by statute). There is, however, no decision to appeal since the
Secretary’s Office has not responded to Plaintiff’s November 4th complaint.

While the Court could view this as a failure of the Secretary to act, there are two
countervailing considerations that persuade the Court such action would be improper. First, there
are the circumstances of the November 4th complaint in the context of the current litigation.
Plaintiff filed the present action concerning the exact same actions that were the subject of his
November 4th complaint less than two weeks after filing that complaint. It is not unreasonable to
infer that the Secretary’s delay in responding to Plaintiff is related, in part, to the fact that her office
was put in the position of responding to the same issues in the course of this litigation. It also
created ambiguity. Was Plaintiff abandoning his Section 2458 complaint in favor of his Section 2603
litigation? Plaintiff’s original complaint makes no reference to the Section 2458 complaint, even in
passing, and there is nothing before the Court to indicate that Plaintiff had followed up on his
Section 2458 complaint prior to his April 14, 2025 reply. Given this confusion, there is compelling
reasons to remand this Section 2458 complaint to the Secretary and allow the informal and formal
processes adopted by her office to go forward to review and address the complaint.

In light of these facts, the Court also finds that Plaintiff has not exhausted his administrative
remedies. The language of Section 2458(c) calls for the Secretary to apply an informal or formal
process to review and address complaints filed under this section. Plaintiff effectively short-
circuited this process by filing a nearly identical complaint with this Court prior to any action by the
Secretary to review or conduct her process under Section 2458. Nothing in either Section 2458 or
the Secretary’s rules governing such procedures prevent the Secretary from hearing this complaint or
rendering a determination at this juncture. By its plain language, Section 2458 complaints may be
filed before, during, or after an election. 17 V.S.A. § 2458(a). Plaintiff may assert these concerns
despite the completion of the election and seek clarity on these issues from the Secretary. Given
that these administrative processes and remedies may cure or narrow the issues, the Court is
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persuaded that the most prudent course of action is to remand the matter to the Secretary to
consider it. Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997) (noting that a "party's failure to

exhaust administrative remedies permits a court to dismiss the action for lack of subject matter

jurisdiction"). As such, the Court finds that it has no present subject matter jurisdiction over
Plaintiff's Section 2458 complaint as he has not exhausted his administrative remedies. The matter
is remanded to the Secretary to address in conformance with her rules and procedures.°

ORDER

Based on the foregoing, the Defendants' Motion to Dismiss is Granted. Plaintiffs

complaint and action is Dismissed pursuant to V.R.C.P. 12(b)(1) and (6). The Court denies
Plaintiffs request to consider his Section 2458 complaint at this time and Remands the complaint
to the Secretary to address in accordance with her procedures and process for addressing Section

2458 complaints. This Entry shall constitute a final order in this matter. V.R.C.P. 58. Parties shall

bear their own costs.

Electronically signed on 5/20/2025 12:57 PM pursuant to V.R.E.F. 9(d)

Vermont Superior Court
Filed 05/20/25
Orange Unit

Daniel Richardson
Superior Court Judge

>
This remand effectively re-starts the clock on any timelines that the Secretary has, and it should be treated as a newly
filed complaint in this respect.

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