Blum v. Friedman

Blum v. Friedman (2000-341); 172 Vt. 622; 782 A.2d 1204

[Filed 12-Sept-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-341

                               JUNE TERM, 2001


Michael Blum    	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Bennington Superior Court
                                       }	
Theodore H. Friedman, Robert G. Oakes, }
Frank R. Pinto, Town of Winhall        }
Selectboard and Town of Winhall        }	DOCKET NO. 78-3-00 Bncv
	
                                                Trial Judge:  Richard W. Norton

             In the above-entitled cause, the Clerk will enter:


       Plaintiff Michael Blum appeals from the Bennington Superior Court's
  grant of the V.R.C.P.  12(b)(6) motion to dismiss of defendants Theodore
  Friedman, Robert Oakes, Frank Pinto, the Town  of Winhall Selectboard and
  the Town of Winhall (collectively Town).  Plaintiff claims the trial court 
  erred in (1) applying an incorrect standard in dismissing his complaint
  (FN1), (2) applying the  exception within 1 V.S.A. §313(a)(1), (3)
  dismissing his First Amendment claim, and (4) dismissing  his access to
  public documents and breach of contract claims.  We reverse and remand.

       When reviewing judgments of dismissal under V.R.C.P. 12(b)(6) we
  accept all allegations  pleaded in the complaint, as well as reasonable
  inferences from the complaint, to be true, and treat all  contrary
  allegations of the moving party as false.  Amiot v. Ames, 166 Vt. 288, 291,
  693 A.2d 675,  677 (1997).  Plaintiff's complaint states that he resides in
  the Town of Winhall, and his home is  located in an area where many
  nonresidents own homes.  The Stratton Corporation provides  municipal
  services to these home owners, including road maintenance and improvements,
  under a  contract negotiated with the town.  The Stratton Corporation
  charges the home owners directly, and  not the town, for the services. 
  Periodically, the corporation and the town renegotiate the agreement  for
  the services the corporation provides.  Plaintiff requested to be present
  during the renegotiation  meetings between the town selectboard and the
  corporation, and was refused.

       Plaintiff also requested property tax documents in electronic format
  under Vermont's access to  public documents law, 1 V.S.A. §316(a).  The
  town agreed to provide the documents in return for a  fee, which plaintiff
  paid.  The town has now refused to provide the documents.

 

       As to the meetings, plaintiff alleged that defendants violated the
  open meeting law and, also,  violated his First Amendment right of access
  to the meetings and sought a declaratory judgment and  an injunction
  against conducting future meetings in executive session.  As to the
  documents, plaintiff  alleged that defendants violated the access to public
  records law and breached the contract to provide  him the records.  On
  these counts, he sought an order requiring defendants to give him the
  records.

       In response to defendants' motion to dismiss, the court dismissed
  plaintiff's complaint ruling: (1) preliminary contract negotiations of the
  kind involved here are exempted from public access by 1  V.S.A. §
  313(a)(1); (2) plaintiff has failed to demonstrate that he suffered harm
  from the denial of  access to the negotiation because he can be present
  when the selectboard formally signs the resulting  agreements in open
  session; (3) because plaintiff had no right to be present at the
  negotiating  sessions, his First Amendment claim fails; (4) plaintiff's
  complaint demands a "usable" copy of the  tax records, and the law does not
  require the town to produce records in that format; (5) if plaintiff  has
  no right to the records under the statute, his contractual claim must also
  fail.

       The standard to be applied to a Rule 12(b)(6) motion is set out in
  Amiot: to grant the motion, it  must appear "'beyond doubt' that there
  exist no facts or circumstances that would entitle the plaintiff  to
  relief."  166 Vt. at 291, 693 A.2d  at 677 (1997) (quoting Levinsky v.
  Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982)).  Using this
  standard, we cannot affirm the decision of the trial  court.

       Plaintiff first argues that the court erred in applying the open
  meeting law exception in 1  V.S.A. §313(a).  Vermont's open meeting law
  requires meetings of a public body "to be open to the  public at all times,
  except as provided in section 313."  1 V.S.A. § 312(a).  In Trombley v.
  Bellows  Falls Union High School, 160 Vt. 101, 104, 624 A.2d 857, 860
  (1993), we ruled that Vermont's open  meeting law is to be construed
  liberally, except that the exceptions must be construed strictly, in  order
  to provide "open access to public meetings for members of the public."  The
  exception relevant  to this case, and invoked by the trial court, is the
  exception contained in 1 V.S.A. § 313(a)(1). (FN2)  This exception allows
  public bodies to hold executive sessions to consider "contracts [and] labor 
  relations agreements with employees" if "premature general public knowledge
  would clearly place"  the town "at a substantial disadvantage."  Id. 
  Accordingly, discussion of contracts in executive  session is permissible
  only when a "substantial disadvantage" is present.  Id.; see also Trombley,
  160  Vt. at 104-05, 624 A.2d  at 860.

       In essence, the superior court held that all contract negotiations
  necessarily meet the statutory  standard.  That approach is prohibited by
  Trombley, which requires a case by case analysis of the  application of the
  "substantial disadvantage" proviso in the exception.  Trombley, 160 Vt. at
  104, 

 

  624 A.2d  at 860-61.  Indeed, it is unclear how access to the negotiation
  would place the town at a  substantial disadvantage since the adversary in
  the negotiation, Stratton Corporation, is already  present.

       Defendants argue, however, that we should not consider this objection
  to the superior court  decision because plaintiff never raised the
  application of the statutory exception in his complaint.   We reject this
  argument as inconsistent with the limited role of the court in addressing a
  Rule  12(b)(6) motion.  Plaintiff pled that the negotiating meetings should
  be open under the open meeting  law, and the decision to hold them in
  executive session was unlawful.  It is up to defendants to show  that they
  are entitled to an exception from public access and that "no facts or
  circumstances" would  entitle plaintiff to relief.

       Second, plaintiff alleges that the court erred in concluding that he
  does not have standing.  The  private remedy provision of the open meeting
  law requires that plaintiff be "aggrieved" by the action  of the town.  1
  V.S.A. § 314(b); Trombley, 160 Vt. at 105, 624 A.2d  at 801.  We have
  applied  general standing doctrine to similar statutory standing
  requirements.  See In re Diel, 158 Vt. 549,  552, 614 A.2d 1223, 1225-26
  (1992).  The main standing requirement is that plaintiff show threat of 
  injury to a protected interest.  Richards v. Town of Norwich, 169 Vt. 44,
  49, 726 A.2d 81, 85 (1999);  see generally Parker v. Town of Milton, 169
  Vt. 74, 77, 726 A.2d 477, 480 (1999).  In the context of  a motion to
  dismiss, plaintiff has pled sufficient injury to show he is aggrieved. 
  Richards, 169 Vt. at  49, 726 A.2d  at 85.  The town is negotiating the
  level of fees and charges which plaintiff will pay,  and he wants to
  observe what positions his elected officials take in that negotiation.

       We cannot accept that plaintiff does not have standing because he can
  object to any contract  before the selectboard formally agrees to it, an
  act they have to take in open session.  See 1 V.S.A. §  313(a).  Under that
  theory no member of the public can ever object to an executive session
  because  the law requires that the formal acts be taken in open session.

       Next, plaintiff argues that the court erred in dismissing his access
  to public documents law  claim.  Again, we stress that the standard is
  whether the complaint shows beyond doubt that there are  no facts or
  circumstances that would entitle plaintiff to relief.  The court focused on
  the allegations  that defendants offered some records to plaintiff, but
  plaintiff found the records offered not usable  and complete.  The court
  held that the statute does not require that copies of requested material be
  in  "usable" form; rather it requires only that the material be presented
  in "standard format" in "which  the record is maintained."  1 V.S.A. §
  316(h).  On this theory, it dismissed the complaint as  inadequate.  While
  we agree with the superior court that the statute does not require the
  agency to  provide the information in usable form, plaintiff also alleged
  that the information was not complete.   Again, we conclude that the court
  struck too soon in dismissing the complaint.

       We have a similar reaction to the last issue - the rejection on the
  face of the complaint of  plaintiff's theory that defendants contractually
  obligated themselves to provide the information in the  format plaintiff
  requested.  We see nothing in the law which prevents a public agency from 

 

  contractually binding itself to provide electronic versions of documents in
  a specified format in  return for sufficient consideration.

       Plaintiff also filed a motion to take judicial notice of the judgment
  of the Bennington Superior  Court decision in the companion tax appeal
  case.  We find the information contained in the  companion case to be
  unnecessary to our decision, and we have not considered this evidence.  See 
  State v. Malinowski, 148 Vt. 517, 523 n.3, 536 A.2d 921, 925 n.3 (1987).

       Reversed and remanded.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  We do not reach this claim independent of the substantive claims.  

FN2.  The superior court assumed that the negotiating sessions are meetings
  for purposes of the  acts, see 1 V.S.A. § 310(2), and neither party has
  contested that assumption.  Similarly, the parties  agree that § 313(a)(1)
  applies, although the "meetings" are negotiating sessions in which the
  other  party to the contract is present.  We rely on both assumptions
  without examining their accuracy.