kramer v. bd of educ

Vermont Superior Court
Filed 02/0 24
Washmgton nit

VERMONT SUPERIOR COURT £3: CIVIL DIVISION
Washington Unit Case No. 22-CV-03875
65 State Street
f1
Montpelier VT 05602
802—828—2091
WWW.Verm0ntiudiciarV.0rQ

Christopher Kramer V. Board of Education

Opinion and Order on Cross-Motions for Summarv Judgment

In response to Plaintiff Christopher Kramer’s request for public records,

Defendant the Vermont State Board of Education has Withheld a subset of responsive

records that it contends are subject to attorney—client privilege and, thus, exempt from

production under Exemption 4 (1 V.S.A. § 317(c)(4)) of the Public Records Act (PRA), 1

V.S.A. §§ 315—320). The parties have filed cross-motions for summary judgment

addressing the question of privilege. In his motion, Mr. Kramer also argues that he is

entitled to his legal fees in this case because, after he filed the complaint, the Board

voluntarily produced some records that it had not produced earlier. The Court makes the

following determinations.

Summary judgment procedure is “an integral part of the . . . Rules as a whole,

which are designed ‘to secure the just, speedy and inexpensive determination of every

action.” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,

47 7 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the

record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there

is no genuine issue as to any material fact and that the movant is entitled to judgment as

a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)

(summary judgment will be granted if, after adequate time for discovery, a party fails to
Order Page 1 of 17
22—CV-03875 Christopher Kramer v. Board of Educan'on
make a showing sufficient to establish an essential element of the case on which the

party will bear the burden of proof at trial). The Court derives the undisputed facts from

the parties’ statements of fact and the supporting documents. Boulton v. CLD

Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing

summary judgment may not simply rely on allegations in the pleadings to establish a

genuine issue of material fact. Instead, it must come forward with deposition excerpts,

affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,

628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,

380. Where, as here, there are cross-motions for summary judgment, the parties

opposing summary judgment “are entitled to the benefit of all reasonable doubts and

inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181 Vt. 154, 156.

I. Timeliness of Mr. Kramer’s Motion for Summary Judgment

The Board objects to the untimeliness of Mr. Kramer’s motion for summary

judgment and requests that it be denied for that reason. Mr. Kramer has not attempted

to justify his noncompliance with the filing deadline and has not provided any reason

why the requested relief should not be granted.

According to the original February 2023 scheduling order, pretrial motions were to

be filed no later than May 19, 2023. On May 18, the Court extended that deadline to

June 9. The Board then filed its motion for summary judgment. The Court then granted

three extensions for Mr. Kramer to file any opposition to the Board’s motion. None of

those requests or extensions included any mention of extending the time for Mr. Kramer

to file his own motion for summary judgment. His July 10 request states that “the Court

should extend the time for Plaintiff to oppose Defendant’s motion for summary judgment

Order Page 2 of 17
22-CV-03875 Christopher Kramer v. Board of Education
by 60 days.” His September 8 request states that “the Court should extend the time for

Plaintiff to oppose Defendant’s motion for summary judgment to October 1.” And his

October 2 request states that “the Court should extend the time for Plaintiff to oppose

Defendant’s motion for summary judgment to October 6.” On October 6, Mr. Kramer

filed his opposition to the Board’s summary judgment motion. Along with it, he filed his

own motion for summary judgment.

Mr. Kramer’s cross-motion is long out of time under the scheduling order, and he

has come forward with no explanation for the delay. Ordinarily, the Court would deny

the motion for that reason alone. See Vt. R. Civ. P. 16.2 (“When a party fails to obey a

scheduling order, the court may impose the sanctions provided in Rule 37(b)(2)(B) or (C)

or, if the failure is to appear for trial as directed, dismiss the action or enter a default.”);

Carpenter v. Cent. Vermont Med. Ctr., 170 Vt. 565, 568–569 (1999) (trial court did not

abuse discretion by enforcing the scheduling order).

In this case, however, denying Mr. Kramer’s cross-motion on that basis would be

counterproductive, and the Court declines to do so. Mr. Kramer’s cross-motion presents

two matters: (1) whether the records were properly withheld as privileged, and (2)

regardless of the arguably privileged records, whether he is entitled to legal fees because

the Board voluntarily produced some records after litigation began. The first issue is

fully briefed in the context of the Board’s motion, so denying Mr. Kramer’s motion for

untimeliness as to that matter would be an empty gesture. Denying his motion as to the

request for fees would accomplish nothing other than to leave that issue to be decided

even though it also has been fully briefed by the parties. Accordingly, while the Court

Order Page 3 of 17
22-CV-03875 Christopher Kramer v. Board of Education
does not excuse Mr. Kramer’s unexplained lateness, it will address the matters presented

in his summary judgment motion.

II. Whether the Withheld Records are Privileged

Mr. Kramer sought from the Board all records in its possession that were

generated “between January 1, 2020 and September 8, 2022 that relate to the question of

the withdrawal of the town of Ripton from the Addison Central School District, the

formation of the Ripton School District, the assignment of the Ripton School District to a

supervisory union, the question of whether the Ripton School District should be

designated a supervisory district, or the preparedness of the Ripton School District to

operate as a supervisory district.” In response, the Board evidently provided access to a

substantial volume of records.

It has withheld 143 records, however, which are documented in a Vaughn index

that is in the record as Exhibit A to the parties’ stipulated statement of undisputed facts.

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). According to the index, the withheld

records appear to be Board communications with legal counsel, mostly Attorney Donna

Russo-Savage. The index also reflects that these records have been withheld as

privileged under 1 V.S.A. § 317(c)(4).1

Mr. Kramer contends that these records have been withheld in error because: (1)

to the extent that the lawyers who counseled the Board were employed by the Agency,

rather than the Board, no attorney–client relationship ever could have arisen; and (2)

1 To the extent that the Board now claims that at least some of the withheld records also

may be exempt from the PRA as records relating to its deliberative processes, the parties
have not briefed that issue in detail; and, given the Court’s ruling below, it is
unnecessary to address it in any event.

Order Page 4 of 17
22-CV-03875 Christopher Kramer v. Board of Education
regardless whether any attorney–client relationship could have arisen, the undisputed

facts show that none did.2 The former argument misapprehends the law; the latter

misapprehends the facts.

A. Whether Attorney–Client Relationships Could Have Existed

Mr. Kramer’s first argument is substantially as follows. The Agency and the

Board are separate entities with potentially disparate views. Two of the attorneys with

whom the Board consulted were employed by the Agency. Those attorneys’ roles within

the Agency necessarily created a conflict of interest, at least during the relevant time, as

to any representation provided by those attorneys to the Board. An attorney–client

relationship cannot arise, Plaintiff maintains, if the attorney has a conflict of interest.

Therefore, no attorney–client relationship could have arisen here. Because there was no

attorney–client relationship, there could be no communications protected by attorney–

client privilege, Exemption 4 cannot apply, and the records should have been produced.

The Board disagrees with those contentions.

The parties devote substantial energy to debating whether there may have been

any conflict of interest weighing on the representation of the Board by Agency attorneys.

The issue in this public records case, however, is simply whether the records were

properly withheld as privileged. Mr. Kramer’s argument that they could not have been is

predicated on a substantial mistake of law, which the Board does not clearly correct in

briefing. The privilege operates for the benefit of and must be invoked by or on behalf of

2 To the extent that a small portion of the withheld records reflect Board representation

by attorneys from the Office of the Attorney General, Plaintiff has not contested the
Board’s position that such documents are privileged. The sole controversy between the
parties is as to records relating to representation by attorneys employed by the Agency.
Order Page 5 of 17
22-CV-03875 Christopher Kramer v. Board of Education
the client. The Late Paul R. Rice, et al., Attorney-Client Privilege in the U.S. §§ 2:3, 11:1.

Neither party has come forward with any law to the effect that a client whose lawyer

may have been wiser to exercise her professional judgment by avoiding representation

due to a conflict of interest or to flag a perceived conflict and seek the clients’ potential

assent to representation notwithstanding the conflict, forfeits protection of the attorney–

client privilege as to communications otherwise appropriately subject to it. There is no

such law. See, e.g., St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, 746

S.E.2d 98, 106 (Ga. 2013) (conflict of interest does not abrogate privilege); Garvy v.

Seyfarth Shaw LLP, 966 N.E.2d 523, 538 (Ill. 2012) (violation of ethics rules “has no

relevance to the issue of whether the documents in question are protected by the

attorney-client privilege”).

An attorney who fails to follow the rules as to conflicts of interest may be sued,

may be professionally disciplined, or there may be other consequences, but the Court has

found no law that would penalize the client after the fact by fully negating the privilege

in the manner advocated by Mr. Kramer. See Attorney-Client Privilege in the U.S. §§ 2:3

(“The purpose of the privilege in the United States has always been to encourage people

to seek legal advice freely and to communicate candidly with the attorney during those

consultations.” (footnote omitted)).

According to the Restatement:

A relationship of client and lawyer arises when:

(1) a person manifests to a lawyer the person’s intent that the lawyer
provide legal services for the person; and either

(a) the lawyer manifests to the person consent to do so; or

Order Page 6 of 17
22-CV-03875 Christopher Kramer v. Board of Education
(b) the lawyer fails to manifest lack of consent to do so, and the
lawyer knows or reasonably should know that the person reasonably
relies on the lawyer to provide the services; or

(2) a tribunal with power to do so appoints the lawyer to provide the
services.

Restatement (Third) of the Law Governing Lawyers § 14; see also Cody v. Cody, 2005 VT

116, ¶¶ 19–20, 179 Vt. 90, 96 (discussing when relationship arises). Basically, the test

depends on reasonable expectations in the circumstances. Nothing about it remotely

implies that confidential communications with counsel stop being protected by the

attorney–client privilege if it is later determined that a conflict of interest, whether

disclosed or not, attended the representation.

The Court rejects Mr. Kramer’s argument that some alleged conflict of interest

automatically means that no attorney–client relationship could have existed between

members of the Board and attorneys employed by the Agency and, thus, no privileged

communications could have occurred.

B. Whether, In Fact, No Attorney–Client Relationships Ever Existed

The question here turns whether the circumstances were such that neither the

Board nor the Agency attorneys could have had any reasonable expectation that they had

entered into an attorney–client relationship. As set forth below, the Board has submitted

substantial evidence showing how attorneys, including Agency attorneys, come to

represent the Board. Those submissions are largely uncontradicted and support

reasonable beliefs by both the Board and counsel that such relationships existed vis-à-vis

the withheld records. Mr. Kramer does argue, however, that this evidence is

“immaterial;” and, at least with regard to Board representation by Attorney Russo-

Savage, is directly contradicted by the Board president’s and Attorney Russo-Savage’s
Order Page 7 of 17
22-CV-03875 Christopher Kramer v. Board of Education
own statements expressly disclaiming any such relationship. The Court will address

those contentions in turn.

The undisputed facts show that the Board has never had any staff attorneys (or

any staff at all) in its employ. When it needs formal legal advice, it confers with the

Agency. A determination is made as to whether Board representation by an Agency

attorney would present a conflict of interest. If not, an Agency attorney is made

available to the Board. If there is a conflict, the Board will get counsel elsewhere,

whether from the Attorney General’s Office or an outside source. The withheld records

involving communications with Agency attorneys arise out of attorney–client

relationships that occurred only after that process was followed in the ordinary course by

both the Board and the Agency in this case.

Mr. Kramer does not dispute the facts described above. He asserts, though, that

they are immaterial based largely on his views that the operative questions are limited to

whether there was a conflict of interest and that there, in fact, was such a conflict. See

generally Plaintiff’s Statement of Disputed Facts (Filed Oct. 6, 2023). But as the Court

explained above, the mere existence of a conflict of interest, if there was one, does not

demonstrate that there was no attorney–client relationship or that communications with

counsel could not have been privileged. The process by which the Board comes to be

represented by Agency attorneys, and the process followed in this case, is not immaterial

for summary judgment purposes. It is important context evidence supporting the

reasonableness of beliefs by Board Chair Oliver Olsen and Attorney Russo-Savage that

there was an attorney–client relationship. See Declarations of Oliver Olsen and Donna

Russo-Savage and Joint Statement of Facts ¶ 27 (filed June 12, 2023) (“It was Mr.

Order Page 8 of 17
22-CV-03875 Christopher Kramer v. Board of Education
Olsen’s understanding in 2021 and 2022 that communications between the Board and

Ms. Russo-Savage were privileged.”).

In any event, Mr. Kramer also argues that both Mr. Olsen and Attorney Russo-

Savage expressly disclaimed any attorney–client relationship at relevant times. The

parties have stipulated that, on one or two occasions, Mr. Olsen conversed directly with

Attorney Mark Oettinger, who was representing the Town of Ripton in the Board

proceeding; that Attorney Oettinger asked Mr. Olsen if “he” was represented; and that

Mr. Olsen said no.3 Mr. Kramer takes this as proof positive that Mr. Olsen in fact had no

subjective belief that the Board had any attorney–client relationship with any Agency

attorney. An insurmountable problem with this argument is that Mr. Kramer has

stipulated that the opposite is the case. The stipulations include this:

24. When Mr. Oettinger asked Mr. Olsen whether he was represented by
counsel, Mr. Olsen understood Mr. Oettinger to be asking whether they
could speak directly without a lawyer present. Mr. Olsen understood that
whether he could speak directly with Mr. Oettinger without a lawyer
present was a separate and distinct question from whether he could have
privileged conversations with counsel without Mr. Oettinger present.

25. Mr. Olsen did not understand Mr. Oettinger to be asking whether he
had ever had any privileged conversations in the past that were potentially
relevant to the matters he expected to discuss with Mr. Oettinger, or
whether he might have any privileged conversations in the future that could
be relevant to the matters he expected to discuss with Mr. Oettinger.

3 Attorney Oettinger asserts in his declaration that, if he had known that the Board was

represented by counsel, he would have considered it unethical to communicate directly
with Mr. Olsen because doing so would have violated Rule 4.2 of the Vermont Rules of
Professional Conduct. The Board argues that, in the context of the proceeding that was
underway, such communications would not violate that rule. The dispute is beyond the
scope of this case, and the Court declines to address its substance in detail. It suffices to
note that many jurisdictions have found that Rule 4.2 permits communications from
attorneys directly to public officials even if the officials are represented by counsel. See
Restatement (Third) of the Law Governing Lawyers § 101, Reporter’s Note cmt. b (“Most
of the extant bar-association opinions take an intermediate position, permitting
extensive contact.”).
Order Page 9 of 17
22-CV-03875 Christopher Kramer v. Board of Education
26. If Mr. Oettinger had asked Mr. Olsen to waive privilege over any past
or future conversations with counsel outside the presence of Mr. Oettinger,
Mr. Olsen would have said no.

27. It was Mr. Olsen’s understanding in 2021 and 2022 that
communications between the Board and Ms. Russo-Savage were privileged
and confidential when those communications did not involve third parties or
relate to issues involving potential conflicts between the interests
of the Board and the Agency.

Joint Statement of Facts ¶¶ 24–27 (filed June 12, 2023).

That Attorney Oettinger may have interpreted his exchanges with Mr. Olsen

differently is irrelevant for purposes of this case. The parties have stipulated that Mr.

Olsen understood that there was an attorney–client relationship and that Board

communications with counsel were privileged. Mr. Olsen, thus, did not disclaim an

attorney–client relationship with Attorney Russo-Savage.

Mr. Kramer argues that Attorney Russo-Savage also disclaimed any such

attorney–client relationship in an e-mail to a third party. The Board objects that the e-

mail represents multiple levels of hearsay, is inadmissible for that reason, and cannot

properly be relied upon during summary judgment proceedings. In response, Mr.

Kramer has not attempted to show how the e-mail might be admissible. The e-mail

plainly would be inadmissible hearsay to the extent that it makes an assertion of

nonrepresentation and that is the fact for which it is being offered in support. 4 Evidence

4 At oral argument, Mr. Kramer appeared to argue that the e-mail is not hearsay because

it is not being offered for the truth of the matter asserted but simply to document what
Ms. Russo-Savage said. This argument is not persuasive. Mr. Kramer is asserting that
Ms. Russo-Savage essentially said that she did not represent the Board and that lack of
representation is exactly what Mr. Kramer is attempting to use this communication to
prove. He is offering an out-of-court statement to prove the truth of the matter claimed
to be asserted, which is the definition of hearsay. Vt. R. Evid. 801.
Order Page 10 of 17
22-CV-03875 Christopher Kramer v. Board of Education
considered in summary judgment proceedings must be admissible. Vt. R. Civ. P. 56(c)(1),

(2), (4); see also Levarge v. Preston Bd. of Educ., 552 F. Supp. 2d 248, 251 n.3 (D. Conn.

2008) (unsworn correspondence not admissible evidence for purposes of summary

judgment). On that basis, the Court will not rely upon the e-mail.

Admissibility aside, the e-mail simply does not say what Mr. Kramer suggests it

does. In the e-mail, a third party who identifies herself as a candidate for a seat on the

Board of the Addison Central School District poses some questions to Attorney Russo-

Savage as to the Town of Ripton’s proposed withdrawal from the School District,

purportedly so that she could best inform her constituents. Attorney Russo-Savage’s

response includes this:

Although the Agency is happy to help in any way possible, it’s important to
note that we are only able to provide guidance – only a school district’s
attorney can provide it with legal advice. In addition, the State Board of
Education is a separate entity from the Agency (and I am not one of its
members) and so we can only speculate as to what it may do.

That said, responses to your questions are integrated below. As is our
practice, I’ve cc’d your superintendent in case others ask him similar
questions.

E-mail from Donna Russo-Savage to Mary Heather Noble (dated Feb. 17, 2021).

Apart from generally answering the underlying questions, Attorney Russo-

Savage’s response asserts that: (1) by answering the questions, Attorney Russo-Savage is

not purporting to give the school district legal advice, (2) only the school district’s own

lawyer can do that, (3) the State Board and the Agency are separate entities, (4) Attorney

Russo-Savage is not a member of the State Board, and (5) cannot speak for it. None of

the response appears to be intended to address at all whether she then had, or ever had,

an attorney–client relationship with the Board notwithstanding her Agency employment.

Order Page 11 of 17
22-CV-03875 Christopher Kramer v. Board of Education
In sum, Mr. Olsen’s statement to Attorney Oettinger and Ms. Russo-Savage’s

statement to Ms. Noble simply do not in any way indicate that the Board never had an

attorney–client relationship with Attorney Russo-Savage.

Finally, to the extent that Mr. Kramer’s argument may be that Attorney Russo-

Savage’s alleged conflict of interest was so flagrant and substantial, presumably

demonstrating some extreme and obvious adversity of interests, that there is simply no

way that either the Board or Attorney Russo-Savage could possibly have reasonably

thought that there was any attorney–client relationship between them, the record does

not support it. The closest the record comes to documenting a palpable conflict is

described in the parties’ stipulated facts as follows:

12. On May 19, 2021, the Board passed a motion conditionally approving
the withdrawal and reconstitution of the Ripton school district. A copy of
meeting minutes reflecting the motion is attached as Exhibit B. The Board
also requested that the Secretary provide a recommendation to it regarding
how supervisory union services should be provided to Ripton.

13. The Secretary thereafter told Ms. Russo-Savage what he intended to
recommend and what facts supported the recommendation. At his direction,
Ms. Russo-Savage drafted a memorandum for the Secretary’s review. On
August 24, 2021, the Secretary issued a public memorandum to the Board
with his recommendations. Exhibit D. The Secretary concluded that “it is
likely that [Ripton] would be too small a system to perform some . . . SU
duties itself in an efficient and effective manner” due to its small size. Id.
The Secretary ultimately recommended that the Board designate Ripton to
be its own Supervisory District. Id.

14. On January 19, 2022, the Board voted on, and agreed to follow, the
Secretary’s recommendation.

Order Page 12 of 17
22-CV-03875 Christopher Kramer v. Board of Education
Joint Statement of Facts (filed June 12, 2023).5 Thus, to some extent, Attorney Russo-

Savage appears to have been serving two masters in relation to the same subject matter

at the same time, which is quite possibly in tension with the process described above that

is used by the Board and the Agency to attempt to avoid conflicts of interest.6

Attorney Russo-Savage’s representation of the Board and her work on the

Secretary’s memorandum is troubling at the least and certainly not a best practice.

Whether it amounted to a technical conflict of interest the Court declines to say. Again,

the question is not whether there was a conflict. The issue is whether the interests of

lawyer and client were so obviously misaligned that they could not have had a reasonable

belief that they had a lawyer–client relationship. Here, the record shows that such a

relationship existed well before the memorandum, was ongoing, and was the product of a

formal vetting process to ascertain whether a conflict existed. The record is insufficient

to demonstrate that Attorney Russo-Savage’s participation in drafting the Secretary’s

memorandum created such an obvious and flagrant conflict that any continuing belief by

the Board in an attorney-client relationship would have been unreasonable.

The remaining proffered conflicts relied upon by Mr. Kramer are not articulated

with great clarity. Mr. Kramer appears to assert that, although Ms. Russo-Savage was

advising the Board in relation to a Board, not Agency, proceeding, the Agency had a

5 The record is silent as to whether the Board knew in real time that Ms. Russo-Savage

participated in drafting the memorandum and, if so, whether it cared. On its face, she is
not identified as the author or a contributor.

6 As far as the stipulated facts go, Ms. Russo-Savage’s role with regard to the

memorandum was spelling out the position expressly asserted by the Secretary of the
Agency, not personally advocating that Agency position to the Board, as Mr. Kramer
implies.
Order Page 13 of 17
22-CV-03875 Christopher Kramer v. Board of Education
position on the matter that was in tension with the Town of Ripton’s views. That alleged

conflict, between Agency and Town interests, presumably should be attributed to

Attorney Russo-Savage, demonstrating that she also had a conflict of interest with the

Board. But the conclusion simply does not follow. Mr. Kramer does not explain why the

Agency’s alleged views presented any conflict between Attorney Russo-Savage and the

Board, much less one so obvious and severe that both she and the Board could not

reasonably have thought that they continued to share an attorney–client relationship.

And the Vaughn index reflects that the Board consulted with Attorney Russo-Savage

frequently during the relevant time. There is no dispute that, but for Mr. Kramer’s

argument about a conflict of interest, the Board’s communications with counsel are

appropriately subject to the privilege. Thus, if there was some conflict of interest, it

plainly is not one that caused the Board and counsel to have any subjective awareness

that their communications were not privileged, and the Court declines to conclude that

their interests were so adverse that, objectively speaking, they could not have had a

reasonable belief that they were in a lawyer–client relationship.

The Court concludes that the withheld materials are subject to attorney–client

privilege and were properly withheld from production under Exemption 4.7

7
The parties also spar over whether this case presents a circumstance where the Agency
and the Town were adverse parties in a “quasi-judicial” proceeding. The Byzantine
process for withdrawals set out in 16 V.S.A. § 724 and No. 176 (Adj. Sess.), § 4 has few of
the hallmarks of a judicial process. See Frawley v. Police Com’r of Cambridge, 46 N.E.3d
504, 514 (Mass. 2016) (“[W]hen assessing whether a proceeding is quasi-judicial, ‘we have
looked to the form of the proceeding ... and the extent to which that proceeding resembles
judicial action.”’ (citation omitted)). No matter how the proceeding is characterized,
however, the statute does not specifically designate the Agency a “party” to it; and there
is no cogent explanation by Mr. Kramer as to how the Agency somehow was in the
position of an adversary for purposes of that proceeding, or how any of this shows that
the Board did not have a lawyer—client relationship with Attorney Russo-Savage.
Order Page 14 of 17
22-CV-03875 Christopher Kramer v. Board of Education
III. Plaintiff’s Entitlement to Legal Fees

Mr. Kramer asserts in his cross-motion that, after he filed the complaint in this

case, the Board produced some records that it had not produced earlier. He argues that

he is entitled to his attorney fees in this case as to those records under 1 V.S.A. §

319(c)(1), regardless of the principal dispute above, which has now been resolved in the

Board’s favor. Mr. Kramer’s motion is not supported by a statement of undisputed facts

or any evidence describing the Board’s voluntary post-complaint production. The record

is silent as to the nature of the documents produced or their volume. Accordingly, Mr.

Kramer’s argument presumably is that § 319(c)(1) requires some assessment of attorney

fees anytime there is any production of records after litigation begins.

Mr. Kramer’s argument is untenable. The Vermont Supreme Court has been

crystal clear that attorney fees awards depending on who substantially prevailed must

look to the entire case rather than who prevailed on isolated issues or claims. See In J &

K Tile Co. v. Wright & Morrissey, Inc., 2019 VT 78, ¶ 37, 211 Vt. 179, 194 (“The court

should have determined who was the substantially prevailing party as a whole,

considering all the claims together.”). It has further made clear that fee awards under

the PRA are no different. See Energy Pol’y Advocs. v. Att’y Gen.’s Off., 2023 VT 43, ¶ 21

(“The canons of statutory interpretation further support this, because to allow such a

parsing of claims would essentially mandate the award of attorney’s fees for any legal

victory, no matter how small. This is an absurd result which we will not sanction.”).

Order Page 15 of 17
22-CV-03875 Christopher Kramer v. Board of Education
Here, Mr. Kramer’s complaint focuses exclusively on the 1448 documents that were

withheld under a claim of attorney─client privilege and listed in the Vaughn index. The

parties have engaged in significant briefing disputing whether such documents were

rightfully withheld based on the asserted claim of privilege. If there are other documents

that have been produced or discovered, those do not appear to be referenced as part of

the current version of the complaint. Nor has Plaintiff described them in any detail in

his motion.

Subsection 319(c)(1) provides for attorney fees when “the complainant has

substantially prevailed.” Plaintiff bears the burden of establishing that status. See

Burlington Free Press v. Univ. of Vermont, 172 Vt. 303, 305–06, 779 (2001). In this

instance, the dispute relating to the documents described in the Vaughn index is the only

contest raised in the complaint and litigated by the parties. It has been resolved in the

Board’s favor. See Jeremiah Beach Parker Restoration and Const. Management Corp.,

2010 VT 55, ¶ 8, 188 Vt. 583, 585 (noting court can consider which party prevailed “on

the issues actually litigated”). Mr. Kramer is not the substantially prevailing party.9

8
The number is sometimes referred to as 143 in the materials.

9
Given that determination, the Court need not weigh in on the Board’s legal contention
that attorney’s fees may not be awarded under the PRA in the absence of a judicial order
of production.
Order Page 16 of 17
22-CV-03875 Christopher Kramer v. Board of Education
Conclusion

For the foregoing reasons, Mr. Kramer’s motion for summary judgment is denied.

The Board’s motion is granted.

Electronically signed on Friday, February 2, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

Order Page 17 of 17
22-CV-03875 Christopher Kramer v. Board of Education