 My name is Rachel Seneschal, I'm the Program and Development Coordinator here at the Library and I've been very pleased to work with the League of Women Voters, Sue Racconelli, who is here tonight and Kate Boehrer, who couldn't be here tonight because of a family, a deaf man family and we're very excited about that and this series has been on the First Amendment and it's been a great series and we've had really wonderful people here to talk about various issues about the different First Amendments and I want to thank Sue for helping to organize this and every other program in the series and Sue will in turn introduce tonight's moderator who will in turn introduce tonight's presenters. So please help me welcome Sue Racconelli. Thank you Rachel. As many of you know the League of Women Voters is a nonpartisan organization. We were founded in 1920 and will proudly be celebrating our 100th year in 2020. We are delighted you could join us this evening to hear our program on freedom to petition the government for a redress of grievances. This is the final presentation in our series on the First Amendment. It is my pleasure to welcome Kerry Brown, who will be our moderator this evening. Kerry is Executive Director of the Vermont Commission on Women. She worked in the field of gender equity in Vermont since the mid 1990s, including the Vermont Technical College and Vermont Works for Women. Her early days were spent as an educator and she has a master's degree in public administration. Kerry lives in Montpelier with her family where she is a justice of the peace. Kerry will take over and introduce us to the panel. Thank you. Thank you everyone. Thank you all for coming out tonight to hear about the Constitution. There is no better topic than we can be talking about than the Constitution. What is more important than this? I am very pleased to be here. The Vermont Commission on Women is a state agency. We work to increase opportunities and reduce discrimination for women and girls across Vermont. And so fundamental rights are at the heart of what we do. And I am very excited to be here partly because when I was a kid my hope was to grow up to be a Supreme Court justice one day. And I think this might be the closest I've gotten so far. Thank you for this opportunity. So tonight we're going to have, each of our panelists will have about 15 minutes to talk about different aspects of this particular part of the First Amendment. And then after that we'll have time for questions and discussion. So I will introduce everybody right now so you know who's up here. And then we'll go one by one and they'll take their turns talking about their particular topics. So we have, our first speaker will be Professor Peter Tichaut. He's a professor at Vermont Law School. He's recognized for his expertise regarding the constitutional and history of Vermont and the United States. Professor Tichaut received his bachelor's degree from Amherst College, his JD degree from Harvard Law School, and a master's degree from the University of Sussex. He joined Vermont Law School faculty in 1975. His expertise has been frequently tapped by Vermont's legislature and judiciary which has sought his testimony and advised on the balanced budget amendment, flag desecration legislation, the redrafting of the state constitution in gender neutral language for which I have to say the Vermont Commission on Women is very thankful. The Education Financing and Civil Union legislation. And he will, well I'll tell you a little bit more about what he's going to say. Our second panelist is Paul Gillies who works for Terant Gillies and Richardson and he's been there since January of 1993 and he joined that firm after 12 years as Deputy Secretary of State for Vermont. His practice involves most of the usual civil areas of law including municipal zoning and land use, property appellate and trial work. He has a special fascination for old roads, boundary lines, rights of way and other easements and that special land where history collides with law which I think is going to be quite appropriate tonight. And then our third panelist is John Franco. John Franco is a native of Vermont. He has more than 35 years experience in public service. 40. 40, more than 40? No, 40. Exactly 40 years experience in public service. His private law practice is dedicated to serving the needs of working Vermonters and small business. So we are going to start with Professor Teachout who's going to give us a little bit of a historical context for tonight. So I am going to ask you to address a few broad issues here. We want to hear about the origins of the right to petition in the Anglo-American constitutional tradition. We want to hear a little bit about the relationship that this right to petition has to other rights such as speech, press, assembly that are addressed in the First Amendment. And a little bit about kind of the historical progression of our thoughts about those rights and how they came to be. Thank you, Kerry. Can you hear me okay? Well, I would be remiss in beginning without first of all thanking all of you for taking the time to show up this evening. It's not the most exciting right in the First Amendment, but it is a very important one as we shall come to see and equally important as I think we will stress in our presentation tonight is a parallel provision in the Vermont Constitution, which my colleague Paul Gillies will talk about in much more detail. I'd also be remiss if I did not share with you the special resonance that this library has for me. When I was a little kid going to kindergarten and first grade in the Union School, this library was on my route home. I had to walk through the State House and then up Clarendon Avenue. I think some of you know where that is. And on my way home, after school, I would stop in what was then the Children's Library, which was downstairs at that point in time. And I would sit on the floor consumed by books even before I knew how to read. And as I got a little bit older, I read every single book in this library about boys. George Washington, boy statesman. John Paul Jones, boy mirror. John Marshall, boy adventurer. Alexander Hamilton, boy stockbroker. Anyway, if there's, when I come here, I think I can't think of any other place in my whole life that in some ways probably had a more powerful shaping influence on my education, on who I've become, for whatever it's worth. But it's just a tremendously nice residence. I think probably some of you remember the libraries that occupied you and engaged you when you were small children as well. So I want to begin tonight by sharing with you a paradox of sort of all of the rights that are mentioned in the First Amendment, free exercise, non-establishment, right to free speech, freedom of press, right of assembly. The one right that has the most ancient and venerable heritage is the right to petition. I will explain why. The paradox is that today of all of those rights, in some ways the right to petition has become the least significant now. When I say least significant, I don't want to imply not significant. I'm just saying if you read the books, you read the cases, you'll find it's one of the least litigated and one of the least significant provisions in the First Amendment. So how can that be? The most venerable, the most ancient right of all those mentioned in the First Amendment, but yet today, in some ways, the least significant. So that's what I'd like to basically trace with you in my introductory remarks this evening. And I want to begin by carrying us all the way back to the origins of the right to petition. I'm sure we can go back further, but one of the major moments in Anglo-American history was the meeting of the lords with the king at Runamid Meadows in 1215 at the time of the signing of the Magna Carta. One of the main purposes of that meeting and those negotiations between the king and his knights was over the right to petition. Among the grievances that the lords had, I'll give you just one example. At that time it was a practice of the king when a knight died, a knight that owed him fealty died. If he was married, the king would take his property and either give it or sell it to somebody else leaving his widow penniless. And one of the things that was negotiated at Runamid Meadows, that doesn't seem right, that's a grievance. And it was one of the terms of the agreement that was worked out at that time. If we move fast forward to our own colonial history, by the way, I've handed out two sheets and if you want to track very roughly my comments you'll find on the first sheet and you'll find at the top both the language of the First Amendment and also the language of Article 20 of Chapter 1 of the Vermont Constitution which contains a parallel provision in the Vermont Constitution. So my comments from this point forward will be sort of tracking that very crude outline at the bottom of that same page. So I've mentioned the Magna Carta. Fast forward to the colonial period. One of the most influential books for lawyers and for citizens generally in the colonies during the 1760s was a work by William Blackstone called Commentaries on the Law of England. At that point in time the colonies followed English law. They had no, they had some independent law of their own but the dominant source of law was English law. And this is before the Declaration of Independence. If you read Blackstone Commentaries you will find this. The right of petitioning the king or either House of Parliament for the redress of grievances is quote, a right appertaining to every individual. That was a fundamental right. If you read the Declaration of Independence you will find that one of the major grievances of the colonists was the lack of response of the king and parliament to petitions for redress of grievances by the colonists. I will quote from the Declaration. In every stage of these oppressions we have petitioned for redress in the most humble terms. Our repeated petitions have been answered only by repeated injury. Nice way of putting things down. A prince whose character is thus marked by every act which may define a tyrant is unfit to be the ruler of our free people. You see the centrality of this notion of a right to petition and a right to get at least a response to petitions in which that requested redress of grievances. So what happens after that? How can we explain then that today the right to petition does not hold a great as much significance as any of the other rights in the First Amendment? Well, one of the things that's really interesting is during the period following the Declaration of Independence every state at that point had to somehow rip up the old colonial charters and adopt for the first time in Anglo-American history written constitution. These are the very first constitutions in our experience and most of those constitutions had two components. One was a declaration of rights and the other was called a frame of government which talked about legislature, executive body, and so on and so forth. If you look at those early state constitutions it's pretty significant that all of them by that time included a strong statement about the importance of freedom of the press. Freedom of the press during the time of the Revolutionary period was thought of as the great bulwark of liberty. But only one of those state constitutions, Pennsylvania, had a provision protecting freedom of speech. So this is kind of an incubation period in which these grievances, notions of rights of English persons are beginning to appear in state constitutions but at that point in time you have the right to petition and the right of free speech, perhaps a right of assembly but except for one state, Pennsylvania, no right of freedom of speech. There was a republic during that time called the Republic of Vermont and the Republic of Vermont, the first constitution, did protect the right of free speech but it was an anomaly in that sense. So during the next decade between declaration and adoption of the constitution and then adoption of the Bill of Rights in 1791 we begin to see this understanding of the whole group of rights coming into focus, they become crystallized. And what they reflect interestingly is a radical transformation in political thought between say the mid 1600s when Parliament and the King are having it out in England and the mid 1700s. And what's the nature of that transformation because it's absolutely crucial to understanding this whole development. If you look at my little outline this is going to be a little bit simplistic but it actually is accurate. During the mid 1600s the basic conception of political organization was one, a hierarchical one, there was a king up there and down below were his subjects, right? By the mid 1700s in part due to a whole number of factors including the experience in the American colonies that relationship is totally reversed. By the time these state constitutions are being written you'll find exactly the opposite understanding of the relationship of the people to government authorities. And I've included on the other handout I don't know if I've kept a copy we don't have any extra. A section that you will find in virtually every state constitution during this time it seems like such a cliche to us so ordinary that would say how could that possibly be revolutionary? But I will tell you at this point in time it was a kind of revolutionary statement and the statement was a very simple one it's called trustees and service that all power being originally inherent in and consequently derived from the people therefore all officers of government whether legislative or executive are their trustees and servants and at all times in a legal way accountable to them. So you see an absolute flip-flop of the relationship between rulers and people in that hundred years span and that is reflected in the Vermont constitution and in the federal constitution in a myriad of different ways a requirement that government be open to examination free speech, freedom of the press there are also reflections of that same the underlying that all is a notion that government officials are accountable and need to be held accountable to the people so what happens to the good old right to petition during this time? It gradually loses a kind of significance it once had when it was the sole basis for challenging government actions now suddenly we see the right of freedom of the press rising to the top free speech rising to the top a judicially created right of association that is related to the right of free speech and freedom of the press and so these rights then become the primary ways in which all of us can then express our challenges our grievances and so on by themselves without needing to resort to the right to petition which at one point in time was the sole way of doing so so I want to close then by well let me make one further point I don't know if any of you studied law the constitutional textbook that I use today is 1800 pages long okay it is that fat if you look at that textbook you will not find a single case a single major federal constitutional case involving the right to petition if you look through the index of that 1800 page casebook you will not find the right to petition even mentioned okay so something has happened and as I've tried to suggest its relevance and significance generally speaking has diminished as these other rights have come to sort of take over and do the work that the right to petition had to do all by itself in a much earlier period finally if you'll take a look at me hand out with the language of the First Amendment and the language of the Parallel Provision in the Vermont Constitution you'll notice that there are certain parallels but you'll also notice there are certain differences and differences that I think Paul Gillies will tell us are extremely important so let's, we know what the First Amendment provides let's just take a moment to read Article 20 of the Vermont Constitution we borrowed this or stole it from the Pennsylvania Constitution the way we stole most of the other provisions in the First Vermont Constitution word for word but there it is that the people have a right to assemble together to consult for their common good to instruct their representatives and to apply to the legislature for redress of grievances by address, petition or remand spirits which the difference, is there any significance difference that flows from the different language in the federal constitutional provision and the state provision I will now turn the floor over to Paul Gillies to tell you a very interesting story why you ready? I feel like I'm in the law school I'm sorry let me just get a little bit into it before we start there in my experience I was a selectman in Berlin, a chair for three years I was JP for eight years I was deputy secretary for 12 years and all that time one message became clear to me which is that government that ignores what the people want is in trouble and it causes problems not only the loyalty of the citizens but also the respect for the government and a sense of separateness that keeps us from each other and this right to petition this right to bring your concerns to the government to see if you can have a response is in my mind so critical to the continuance of good government that government ought to be able to respond government like anyone is offended when you oppose it to criticize it and there are systems that are designed so that we don't get the kind of constructive dialogue that we should have Sam Frank Bryan professor at UVM smartly said that there's a significant difference between a public hearing and a town meeting because at a town meeting you have control and at a hearing you get to say what you have to say and then there's no necessary reaction to the dialogue Peter's explanation of the federal constitutional matter is very clear to those of us who are now waging a battle in South Burlington and it may seem like a quotidian matter but to 800 or 900 former graduates of South Burlington High School and rebels made sense the guys that got their letter jackets that said rebels all of a sudden it became politically incorrect because it sounded as though it was racist and the school board decided to change it to unfortunately they chose to change it to wolves which probably has some of the problems of itself and the people rose up and petitioned them to have a vote on a non-binding referendum a non-binding article that would say how do you think would you like to have the name changed or not and the background of this is that the issue had been broiling for years the school board had actually taken a position not to change it and then without proper notice they changed it one night the next school budget which included the next language to change which was something like $180,000 to change the signs and all the stuff that goes with it failed the second budget had that as well it failed the third time they took it out and it passed but they made no change to do that so we went to court and we went to the superior court where we had now stepping back they have a long history 30 or 40 years in Vermont of court saying no to petitioners and a lot of times it was justified because sometimes they wanted to change the person that did the public accounts sometimes they what thought why don't we pick three of us from the people and we'll replace the listeners so we got a fair grand list you can imagine how grand this would have been could I ask a question just to clarify sure is it a school board warrant or is it a town board it's a school board district warning that they hoped to have a special election or an annual meeting where they would have a vote on this question they had to supply it with 5% signatures of the voters and it was repudiated and it was justified by saying that it was only within the discretion of the school board as to what kind of articles of non-binding nature would be placed before the voters and that was the ruling of the Supreme Court in a case heard several years before which I was also involved in where they declared incidentally from South Burlington itself that a lady who had circulated a petition had got 5% of the voters who wanted to have a question as to whether there was support in the city for a early notification of childhood abortion necessarily a right-wing issue but all she wanted to do was to put it before them the court said no the Supreme Court said absolutely no but they said that the city council could put something on if they wanted and South Burlington had a long history of nuclear freeze of South America and a lot of issues over time political issues and this city has had many times where you've had political issues there but the ultimate ruling at this juncture was that the city council or the select court could decide it so we're two weeks away from the moral argument the briefs have been submitted and we are focusing not on the statute which had been declared in declared different from what it seemed to say which is you could put a non-binding article in the warning and we have turned to article 20 of the Vermont Constitution which as Peter has said has it has no history in Vermont and the First Amendment doesn't have any history in the country so we're going to get the history and there's an analysis we'll go through and the interesting part of this is that article 20 there is some use in Vermont there was a long history until the 1800 of people petitioning the legislature for declare me so I don't get sued by my creditors or let me get out of jail or even as Omerus says give me a new trial or allow a piece of evidence to be admitted that a court has kept out and the Supreme Court by 1826 declared that as an unconstitutional matter and petitions then slowed down and stopped what the people in South Burlington wanted to do was to have an opportunity to just express their opinion they did not expect that they would make the decision to change that rule as the judge mellow said in his decision in the superior court the this is an enforceable and a non-binding article is enforceable at the next election day if you feel strongly enough that people didn't respond you had expressed as an opinion then you should be able to take them out but there's no mandamus or no action which would force the school board in South Burlington to change their mind on the expression of that so we have an important decision coming up in the Supreme Court previously all the decisions that have come before have been generally discouraging to people from the petitioning side I'll go back to my central point which is that government needs to breathe it needs to be a dialogue we can't have the king in the form of boards lording over the servants which are the voters to whom they answer so we have a situation where we have a chance to change things by looking at the constitution and the constitution is sort of a blank slate one of the issues that has come out which has been briefed and argued over and over will no doubt come out in the oral argument is whether the word representatives in article 4 is capitalized or not and those who say that the school board is right say that capital are representatives means people that serve in the legislature has no relationship to the to town me don't you just love it now I went through every published version of the Vermont Constitution including the first one that Ira Allen arranged to have published in Connecticut so we could have a government and there is no consistency the first I appreciate this 1777 and 1786 lower case are 1793 capital are and in the since 1880 capital are so what are we going to do with that I'm using up my time it's time to go to John and I don't know that I answered Peter's question but I managed to avoid them usually impossible so maybe I do the same now well I would just like you to consult article 20 and just notice that there in fact are two provisions in article 20 one is a right to petition the legislature for redress of grievances there's the second provision on which Paul's case rest which is the right to instruct their representatives so it's kind of interesting we're talking about the right to position there's a unique provision in the Vermont Constitution which gives the people a right to instruct their representatives thank you thanks John Franco again I do a lot of frankly a lot of constitutional law two cases on the stove in any given year that are either civil rights or constitutional issues and I'm sort of a practitioner in this stuff and maybe later this evening we can talk about some of my frustrated, grumpy old man views about how these rights are treated by the courts you know first I want to comment about Paul's case when I first heard about the decision in red my first reaction was Paul and Judge Mellor were out of their cotton pickin' lines what were they thinking of here and the reason for that is I got burned in this case myself once way way way back there's a case called Royalton Taxpayer Association versus Wassertendorf and the reason I remember Royalton Taxpayer Association is because I was going a lot of Vermont law so we're getting constitutional law from this guy in self-roiling and that said no no no it's the power of the select board to do what you're asking to do and the term was nougatory or nugatory I love that word well it's different about Paul's case they said well wait a minute you're instructing you have the right to instruct the school board about how you feel and something that they have authority to do something about and this had to do with the changing of the name from rebels to wolves and the other thing I'll tell you is I wasn't terribly enthralled politically with or something that had politically with the plaintiffs in the case but when I read it the second time I said this is interesting and then the third time I read it frankly Paul said this is brilliant and I think it's a really and I think it's a really important president in the state of Vermont and let me follow up on that that had significant and immediate repercussions in the city of Burlington because there has been an ongoing controversy about the location of the F-35 fighters of the Burlington airport and a number of enterprising opponents circulated petitions and 5% of the voters in Burlington is a lot because the voter was so inflated with all the students that registered for Barack Obama then left and they never really kept their roles up so when they got a petition of 5% of the voters to have the town meeting to consider a question of whether or not basically whether the F-35 should be cited in the city of Burlington or whether the city council should do something I forgot exactly what it was as keep in mind that the airport in South Burlington is an apartment of the city of Burlington so it was within the city council's jurisdiction which was important about Paul's case now what happened with that and what's significant politically was there was an effort by people that opposed that petition in support of the F-35 they were saying this petition is not it's biased and it's slanted in its wording and the city council should change it and rewrite it and that did that effort was not successful because the majority of the city council was persuaded based upon Paul's case that they had to take the petition as it was circulated inside if you start, you as the city council start amending it you're not honoring their right to instruct their representatives I think very significant, the other kind of general point I want to make and then we can open it up to some discussion I couldn't agree more with Peter about what happened to the right to petition I recently have involved in litigation right now in federal court which involved what we thought was a denial my clients do process rights to be heard to take an appeal through the zoning processes that are provided by the planning act and one of the things I looked at because the right to petition is not just legislative the right to petition is recognized as also a first amendment right looking at the case law of that what it provides you I mean nothing, I just abandoned it I just said this isn't worth pursuing what you have to do is you have to show you have a property right now right was denied the denial of notice and the process and so forth and so on the thing about the right to petition it would have been a much more expansive argument and I wouldn't have to you know wouldn't have to make the proof or show them what's called a property right whatever that means so I think it has fallen by the wayside at least directly maybe in the discussion a little later we can talk about how it still exists sort of underground in various formats particularly in public document cases which I think are very significant I think it's very closely related to that so maybe we can open it up for discussion so you guys can keep going thank you so much you know one of the things that I'm really struck by in listening to all this and in reading ahead of time this has this is a right that we don't really talk about most of us don't hear much about it we don't, it sounds like it's not really used very much but it really goes to the absolute heart of democracy that this is really at the the fundamental level of what it means for the people to be in charge and so I'm very encouraged to hear about the progress that you're making and the ways that we have to use this right and it makes sense when you talk about the historical context that it's not, that it's sort of faded away I can see why that happened but it's still there right, it didn't actually go away, it's still there and so we still have that to draw on so I would love to have an opportunity for folks in the audience if you have some questions can I ask if we can continue this discussion does anyone have anything they want to ask about or say yeah I'm kind of curious in that obviously a lot of these things were thought about and included in like Vermont Constitution prior to the federal constitution being drafted and I'm wondering how come more of these rights were incorporated in the original Constitution in the original Vermont Constitution not in the original federal constitution well the small question when the constitution emerged from the Philadelphia convention in the summer of 1787 and went out on the circuit to state ratifying conventions one of the major objections to the proposed new constitution, very powerful argument that it contained no Bill of Rights Massachusetts, two vote difference changed the outcome New York one vote difference at the ratifying convention and one of the most powerful arguments was if the federal constitution didn't contain a Bill of Rights the primary argument was that states already protected Bill of Rights in their state constitutions so it was unnecessary since this is talking about simply the creation of the federal government with very limited powers it didn't finally work and one of the deals that was made was an agreement that if the proposed new constitution were to be ratified the very first thing that would happen would be a proposed set of rights a declaration of rights would go out to the people in the various states and those since have become the first ten amendments including the first amendment which contains all the rights that we know it does that's not a terrible adequate answer but that's the best answer I can give you a very controversial issue it strikes me that the other freedoms are very intuitive freedom of religion freedom of speech you know where there's a transgression or you can envision the case but the case of freedom to petition seems like it sets up a stage for death by a thousand cuts what is the process and can you give an example of a petition that was made and how it came about let me answer it by looking at the state of Vermont's experience with referendum we have had 30 instances in the course of our history where the legislature has given the voters an opportunity to give their opinion about legislation it's been very carefully drawn that it does not give the voters the right to adopt it or to enforce, to ensure its passage merely to inform the legislature as to what was about we did that with uh horse racing mutual horse racing we did it with early on we did it with whether we should have legal, except as legal tender of goods and meat and potatoes in place in Green Mountain Parkway we just celebrated the centennial of the Vermont Supreme Court building which was a subject of a referendum in 1914 and they asked the voters the way it was written was this building would be constructed at a cost of $300,000 and it was very clear that if you voted no and should that act take effect on July 1st, 1915 and if you vote no it'll take effect on July 1st, 1960 but it was it was effective because $300,000 was too much for the legislature to expect that they could spend given that the vote went against the $150,000 the $300,000 vote so they came back and voted a building for $150,000 showing our conservative qualities but the process is the government presenting an issue to the people it's not the people presenting an issue to the government I'm not seeing where an individual or a group of individuals find a pathway to petitioning the government about a surge let me give you two examples one of the examples is the case of the federal whistleblower who says I've got a grievance the part of the federal government that I work for is cutting corners they're not complying with the law and so on the problem, you're perfectly free to petition for repressive bad grievance then you get fired the next day so retaliation against whistleblowers is one of the few areas where you see this right to petition still maybe has a little bit of purchase another area which I've one of my students worked on out in I think it was Wisconsin the city council was very much in favor of expanding a local nuclear power plant and he represented an environmental group that was opposed to it now the city employees were allowed to sign a petition supporting the expansion of the nuclear power plant and he said that's not right because they're denying my environmental organization the right to use the same channels to see if we can get people to sign a petition opposed to the expansion it's interesting the way that's handled today is through freedom of speech viewpoint based discrimination not permitted if you create a forum for one group you have to provide the same forum for another but it's not treated technically under the right to petition so it's interesting the way that issue that once would have been a right to petition issue has now become a free speech issue I was mentioned before where I see that the kind of the subterranean issues but right to petition and one of them is let me give you a tour as one of them is the Public Documents Act in order for people to effectively petition the government they have to be able to find out what's going on and that is stated in the Public Documents Act the purpose of it it's actually under the section of the statute that says common rights for monitors and I've done a little bit of public document litigation but I'll tell you what I find a part of it is because the statute is just so long and opaque it's hard to really sort stuff out but the general reflex of government in Vermont is to deny the public document request and require the person requesting it to go first through the administrative appeal and then to the spirit court and then to the supreme court to get the public document and by the time you get there it's like staleer than stale and then the other problem that we have is even though we're supposed to get if you're a citizens group and you're hired you're supposed to be able to get a fee shift for that which means that the government loses they pay your legal fees but the Vermont supreme court as often as not will deny the fees for that so what kind of right is it for public access to documents is that at the end of the day you've got to spend a lot of money to get the documents get them on a stale basis and then be denied your right of the statute to to get reimbursed by the government for your efforts to make the government comply with the law the other area that really I've run up against a couple of times in constitutional cases is how the courts wield you mentioned depth by thousand cuts they wield things that are called standing requirements standing requirements are requirements that if you want to oppose something you want to oppose a piece of legislation you want to oppose an ordinance you've got to show that you have standing and standing means that you have to show that you're injured and something that you can bring a redress of grievances and I've been involved in a couple of cases where I think both Superior Courts and the Vermont Supreme Court very unfairly denied kick the case out on the standing issue and I got to tell you that I actually came across one federal case that said if anybody tells you there's any coherence or consistency in standing jurisprudence they're absolutely lying to you it depends on whether or not they like your case or not it depends on whether or not they want to throw you out and I got to tell you that is absolutely the God's honest truth I had a case a couple of years ago in Burlington one of the plaintiffs with Jared Carter who's a professor at the law school with Professor Keech out we had very good arguments for standing in that case established arguments and standing in the way that the Supreme Court dealt with them and they just ignored them and said basically we don't like a petition you don't have standing one area where we should have had standing is Vermont traditionally allowed it's called a taxpayer stand taxpayer standing meant that a group of taxpayers could come in and bring a petition against municipal government on the theory that they're really you know they're screwing up and they're costing us more money than we really should have to be paying and then we have to pay for it and up until very recently that right by the way it was an analogy to what you see in corporate law in corporate law there's what's called the derivative actions to shareholders to bring it so it'll be half of all the other shareholders to say management's screwing up you're violating your fiduciary duties you're costing us money so that was sort of the municipal corporation analogy to that but what's happened in the last I don't know 5, 10, 15 years and it's symptomatic of what I see happening in legal practice all over the place is we're now seeing that right of taxpayer actions being passed well you know Mr. Jones didn't show that he or she really you know we're going to get going to get injured financially or not injured a lot or blah blah blah blah blah and that was one of the things that our case umbrella thing got thrown out on but then in another case they allowed it and if you want to you were looking for a cohered ration out for that you can't it's just totally result oriented so those are the little things by which the right of petition agreements are denied and again you have to understand that the right of petition again it's not just with the legislature I would say the bigger component is the right to petition either the courts or the administrative agencies for redressing the grievance and what happens is that you know I don't know if it's the political culture whatever but there's a tendency of the court system to throw up all these obstacles to protect our beloved city councils and school boards from these folks and the kinds of cases that they bring I mean some of it is legitimate the courts they look at we're not in the business of running your town that's why you elect select board members and I understand that but I've really seen in the last few years in my view that that really goes overboard and they you know the sign is the only one at the end we don't want you I just want to take a minute to suggest that the laws that even authorize petitions sometimes are skewed against the petitioners if you were to have a great idea that you would like to have a zoning change and you were to get 5% to put the other petition and you'd submit it to the planning commission the planning commission would be obliged to hold a hearing and not to touch it they have to turn it over to the select board so it remains pure except for maybe you know to get the wrong number or something and then the select board gets it and they're mandated to hold a hearing within a certain number of days so we're getting a nice you know of course here we've got a little pace going and then they can do one of three things they can adopt it or they can deny it or they can take no action and if they deny it then within 30 days 35% can force a vote to have the vote directly made by the people instead of by the select board but if they do nothing the law says that that petition to force a vote on it has to wait 10 months and that goes with what John's saying which is the aging of that fierce concern will have dissipated and no one will care about it and goodness knows if my folks ever get a vote on the sports teams it isn't going to amount to much because it's going to be 2-3 years down the road but the principle is good so this is so essential to me it seems to me that if the more we discourage people from having a say in government the more likely government remains isolated and unresponsive and where are we going to go from there can I just follow up with that with what happened to Burlingan and the F-35 vote was really interesting sort of side effect Burlingan voted and it was by a pretty wide margin that they didn't want the plane there and Winooski, if you've ever been to Winooski and had to live under the jet staking off which I did in college when they had the delta daggers in there after burners, wow Winooski was on record of being opposed to it but what happened as a result of the Burlington vote was then the city of South Burlington city council came out and said you know what, we're really not crazy about the airplane either and that was a result of the vote in Burlingan so your idea about opening up to this kind of getting the juices flowing about discussion your precedent really had that effect very demonstrably in this case two questions I'm 83 years old so forgive me if my question is so vague you can't answer it we're lawyers, we're in the business of vague pardon pardon me I said we're lawyers, we're in the business of vague when I was a kid I went around like Dad who practiced law up in Caledonia County I remember one trial where he was defending several boys for disturbance of a peace with a jury you don't see that nowadays do you? incidentally we still have a right to a jury trial in a criminal matter but there are and there we have jury trials in civil cases but the numbers today are amazingly low I don't remember what they were but they're less than like 2% of the number of cases that we've heard but yes, that's one of your fundamental rights to have a jury trial and the other thing and this this is the arrows I just wanted to say in the 1600s the king was on top subjects were underneath absolutely I'm a divine right of kings but within the course of a century that had been turned on its head so the people are on top and government officials are considered their trustees and servants that's that whole notion of accountability that is the central theme of our discussion today so here's a case where number two question states have passed marijuana regulations taking the harness off to a certain extent and this was all done by legislators by the general public right? in Vermont it was a legislator yeah but Vermont is the only one that ever did from the top how are those going in a different direction? certain western states have the right for initiative which means you can petition to have a law introduced and passed or referendum which is that it will pass only if the legislature or if the people approve it but we don't have that ironically we have one municipality in Vermont that has initiative and referendum and that's Brattleburg and it is somewhat abused there but at least it's on the books and it is used on a regular basis to condemn those that don't have it thank you very much just one more question now that I'm 83 I've talked with lawyers intermittently here and there and I've never run across one that wasn't affected I had a gut response to the fact that when they tell the lawyer whose judge is going to run things they get a pain in their gut because they seem to know I've been through this before yeah is that yeah that's happened that's like a hero on the back of your neck but you know the familiar feeling of losing a case going out in the car beating on the truck saying everything was wrong but after a while if you have enough of those cases in a row begin to think we can't blame these people that are judges we chose them to make these decisions and we're going to live with them we don't like them, we'll appeal wasn't it justice Hayes that I don't know if I'm getting this because you have three inalienable rights one is to retire to your local cadaver the second one is to curse the court and the third one is to take an appeal thank you sir, yes there's some things I've heard on the BBC or late night things bubbled up and disturbing that the army president has decided to use the presidency as a a profit center which strikes me as one of the things that was struck down during the reign of Charles I which came to a very abrupt end what's going on how can this guy keep on yeah, I can do it well are we going to have to buy a little crown for this guy maybe we can borrow one from Putin but I don't know if they say anything can you move the party of what made North Korea really cheap okay, you ready for this okay, three days after Trump assumed the presidency a group in New York led by my daughter Zephyr sued Trump in federal court for violating what's called the emoluments clause of the constitution which prohibits the president or any other federal government official from using their office for personal profit now that particular litigation ran into a little headwind in the lower court but it's on appeal but another case brought by the state of Maryland and I believe the District of Columbia has in fact got some traction and is working its way up through the courts so you're absolutely right to be up to object to that it is absolutely unconstitutional unethical, the only question is is that the kind of problem that the courts are very well equipped to deal with and if the courts can't do it then maybe somebody at some point, if politics shift just a little bit somebody ought to think about the device of impeachment that's a little point I had a comment on that I actually had a conversation with our congressman two days ago about this administration and I said you gotta understand what's going on I don't know if you guys have watched this stuff but this administration is like Latin American telenovela it's an endless soap opera that has all these subplots and if you ever watch those things the subplots never get resolved it grabs your attention and another one and another one and it's just an endless process and to answer your question one of my fear is that people are already eyes happening to me, it becomes sudden to all this stuff I mean it's a constant deluge I get to the point where if I want to watch screaming and yelling I turn the channel to the sports center I've had that I saw a certain handle over here yes I forget my ignorance about the referendum process I'm not a reminder by birth but what's the history of binding referendum movement as per California had like California had and how does the Bar Association feel about it well I can't speak for this association but I tell you that we've never had binding referendum at the state level I guess what I meant is there a movement towards that, has there been any history of people trying to implement that and being sparked by the list I know I know that as I mentioned the Brattleboro Charter was raised there and I've written several draft charters over the time where the petitioners had wanted to include it it's not unconstitutional it's just that it has to come in through state law it can't be adopted by the town it has to be a charter the town adopts the charter and then they send it to legislature and the legislature usually approves it but there has been no state referendum at that point and we have to think about Vermont we celebrate it in Vermont life as the home of direct democracy this is where the people rule but we really only want to see you when it's time to be elected or when we need a budget passed and otherwise stay home and watch TV what would require to be a simple majority of the legislature both houses to invoke a to pass a binding no there would need to be a constitutional amendment because section six of the Vermont constitution says a legislature decides the law constitutional amendment would be a constitutional amendment requires a two thirds vote of the senate a majority vote of the house from election vote of the senate again and vote of the house again and then a vote directly to the people at the following annual town meeting but they got rid of the ten year time lock we can move faster than that every four years but it's controlled by the legislature and if the legislature is made up principally of selectmen and trustees who have been reluctant to share power you may not find them to be as responsive on the area but tonight my way of gentle disagreement with my fellow panelists I testify before the Vermont legislature frequently and I think of all the governments all of the democratic assemblies and all of the states there probably is no other legislature which is more accessible than the Vermont legislature I think generally speaking our legislatures are not just looking after their own political skin I know some of them are but I think they really are trying and have tried consistently to do the right thing and the creative thing so I just feel blessed to live in Vermont in this state as far as the operation of democracy goes compared to any other state in the union now these guys obviously disagree I didn't say that I was going to suggest one of the reasons probably that initiative didn't get traction in Vermont when I was a kid the population of Vermont was 300,000 which was what it was at the time of the Civil War it took us 100 years to recoup and that's a city state that's a small population so it's pretty accountable and pretty responsible I don't pretend to know what the history of initiative and referendum was in the western states and why that got traction there as opposed to the east but I suspect one of the reasons that that idea hasn't gotten a lot of traction in Vermont is basically wasn't needed I think a lot of people would also be afraid keep in mind what happened what was happening 15 to 20 years ago a lot of these initiatives were being hijacked by well money and special interests that were getting very well considered through these public initiatives I mean everybody in Vermont loves them now because that's my pocket legalized in both states but you know there's the old thing about be careful what you wish for you might get it and those have been views probably isn't the word but they've been really taken over and used by money and special interests so that's also consideration yeah you mentioned Brownwell they have a representative town meeting was there a relation between that and the initiative it came in at the same time they actually have you know you're trying to progressive ideas is referendum initiative and public recall and they have all 3D in their charter and it came in at the same time they had the representative town meeting representative town meeting means they elect 100 voters and they do what people do at town meetings say Mike and it's now authorized by general law that any town could go to a representative town meeting system but so far nobody has done it and it's worth pointing out that we have cities and we have towns and some cities such as Burlington and South Burlington rely on a system which is more representative government than direct democracy that's true and the fights that have come out of the cities have to do with perhaps a little chafing by the voters that they don't have as much opportunity or as much effect in terms of reaching out to their officials to see what if they could express their opinions it's also a question though the political culture in the community in Burlington I was involved in the city government in the 80s when Bernie Sanders was mayor but there was always a political culture in Burlington voters got a 5% petition for something on the ballot the city councilors and the mayor that opposed that were doing very much at their own risk generally speaking those items were put on the ballot that was just the culture not a similar culture in South Burlington obviously or in other places in fact these non-binding referendum in the 80s as Paul mentioned and Peter mentioned were the bread and butter of town meeting I mean there would be nuclear freeze issues there would be all these issues that were on and one of the ideas was to bring people out again interested in town meeting by bringing national and international issues and putting those on the ballot I believe that by the way didn't Brad a plural vote that if George Bush showed up in town they would have them arrested that's true more questions I'd be very much interested in your opinion of we have so many problems and how come in our in our schools the students are not taught some of the truths that we all know about later on how come you know they can name passes being down from the very bad burden and all that stuff but do they know history from this point of view or do they just know 1492 as a historian it's always hard to defend the chronological approach to history but I know that there's a constant questioning in the educational system as to whether we do enough in terms of what we used to call civics teaching people about town meaning and it's shown in you know I have a lot of small town clients and nobody wants to run for select board and nobody wants to get involved and this is going to change everything because now we're starting to hear regional planning commission saying well we could run these towns and we may be going in a traditional way of approaching highway maintenance and other matters Vermont which has a reputation as again as being this sanctum of direct democracy is in fact one of the most centralized states other than perhaps Hawaii we don't have any county government we have town government where we do a lot of things but the courts have traditionally treated towns as in one case, mere creatures of the legislatures and so how does that go with Dylan's rule, only those powers expressly granted are necessarily implied oh god did I have a diet of that in the 80s and I was in the city attorney's office and part of it was you couldn't poop because they would say the legislature wouldn't let you do it and we were always going down there with charter changes so we wouldn't have clear authority to do this and there's always a fight every year government, municipal corporations and senate operations to get stuff through and many times we had the process for charter amendments is you have to first get a referendum and get approval and we had charter provisions that would pass by 65% of the voters I was there at the time and I remember there was a general belief that if Burlington wants they can't have it there was no soup for you any more questions? yeah any of you that have any closing words you'd like to offer us we covered a lot here I have a question from my fellow panelist on the other side I want to get a true answer from you John is it not true that your grandfather was convicted for murdering somebody no that's not true grandfather no who shot that guy that was my step great grandfather ok you shot that guy that's alright let me give you the story the actual story you brought it up the actual story was the actual story was the actual story was the anarchist for coming to bust up the meeting at the social slave hall in granite street and my step great grandfather stood out of the front step of the courthouse and fired a warning shot in the air but he went like this and Ilya Kordy who was the greatest sculptor in history in the city of Barry happened to be looking out of the window of the 2nd or 3rd floor and caught in the ramp and was killed and my great grandfather's name was Goreto and he dropped his pistol and ran to the house of the nearest judge and turned himself and he was convicted for manslaughter not for murder and he spent a winter prison as a trustee of the warden translating Italian and English for the warden so there alright and on that note thank you all so much for coming tonight and thank you to the legal women boarders and to the college numbered library for hosting this event thank you