Michele Morin and Karen Rowell v. City of Burlington

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2026 VT 17

No. 25-AP-072

Michele Morin and Karen Rowell Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division

City of Burlington October Term, 2025

Samuel Hoar, Jr., J.

Brady C. Toensing of DiGenova & Toensing, LLP, Washington DC, Patrick N. Strawbridge of
Consovoy McCarthy PLLC, Boston, Massachusetts, and James F. Hasson1 of Consovoy
McCarthy PLLC, Arlington, Virginia, for Plaintiffs-Appellants.

Erik Ramakrishnan, Assistant City Attorney, Office of City Attorney & Corporation Counsel,
Burlington, for Defendant-Appellee City of Burlington.

Charity R. Clark, Attorney General, Ryan Kane, Deputy Solicitor General, and Jonathan Rose,
Solicitor General, Montpelier for Defendant-Appellee State of Vermont.

PRESENT: Eaton, Cohen and Waples, JJ., and Zonay and Corbett, Supr. JJ.,
Specially Assigned

¶ 1. WAPLES, J. In this appeal, we consider whether a Burlington charter amendment

allowing noncitizens to vote in the City of Burlington’s school board and school budget elections

violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution.

Plaintiffs sought declaratory and injunctive relief to this effect below and challenge the trial court’s

1
Attorney James F. Hasson was on the brief and argued but withdrew prior to issuance of
decision.
dismissal of their complaint for failure to state a claim upon which relief can be granted. We

extend our discussion in Ferry v. City of Montpelier, 2023 VT 4, 217 Vt. 450, 296 A.3d 749, to

clarify the distinction between local and statewide elections. We conclude that plaintiffs’

complaint failed to demonstrate that school elections are statewide elections that implicate § 42.

See Ferry, 2023 VT 4, ¶ 1 (explaining § 42 “does not apply to local elections”). We affirm the

trial court’s dismissal.

¶ 2. “Generally, voters in any Vermont election, whether local or statewide, are required

to be United States citizens.” Id. ¶ 3 (citing citizenship requirement to vote in statewide elections

in 17 V.S.A. § 2121 and incorporation of requirement in municipal elections in 17 V.S.A. § 2656);

see 1869, No. 50, § 1 (requiring voters at local meetings to be citizens); Art. Amend. 1, 1828

(adding citizenship requirement to Constitution); see also J. Douglas, Sec’y of State of Vt.,

Records of the Council of Censors of the State of Vermont 332-33 (P. Gillies & G. Sanford eds.,

1991) (adopting constitutional amendment requiring citizenship to “exercise the privileges of a

freeman”2). However, since the founding of Vermont, the Legislature has amended local voter-

qualification rules, which developed independently from statewide voter-qualification rules,

resulting in distinct pools of eligible voters for local and statewide elections. Ferry, 2023 VT 4,

¶¶ 37, 47 (describing “general historical understanding that local elections are subject to different

voter qualifications from statewide elections,” creating “distinction between the two types of

voters”). For example, historically, local voter-qualification rules required voters to be taxpayers,

while statewide voters did not have to be taxpayers. See, e.g., 1915, No. 111, § 1 (qualifying male

citizens who have paid taxes, among fulfillment of other criteria, to vote in local elections); 1917,

No. 98, § 1 (extending local voter eligibility to women who have paid taxes); 1919, No. 95, § 1

2
In Ferry, we explained that “the word ‘freeman’ in the Vermont Constitution was used
to identify persons with the ability to vote in statewide elections as opposed to voters in municipal
elections.” 2023 VT 4, ¶ 33.
2
(requiring local voters to pay poll taxes); Ferry, 2023 VT 4, ¶ 47 (providing that right to vote in

local elections was “grounded in liability to pay taxes” while voters in statewide elections did not

have to be taxpayers (quotation omitted)). The Legislature subsequently abolished taxpaying

requirements. 1966, No. 6 (Spec. Sess.), § 1; see Ferry, 2023 VT 4, ¶ 47 (“Voters in local elections

no longer need to be men, own property, or pay poll taxes.”). Despite changes over time, local

and statewide voter qualifications—as well as local and statewide elections—remained distinct.

Ferry, 2023 VT 4, ¶ 47 (maintaining distinction between local and state voters even though some

historical differences between local and statewide elections no longer existed, such as paying

taxes). The Legislature’s recent ratification of localities’ extension of the right to vote in local and

school elections to resident noncitizens while the Vermont Constitution requires citizenship for

statewide voters is part of this long-running development. See Vt. Const. ch. II, § 42.

¶ 3. We have previously discussed the constitutionality of city charter provisions

permitting noncitizen voting. In Ferry v. City of Montpelier, the plaintiffs brought a facial

challenge to the City of Montpelier’s 2018 noncitizen-voting charter amendment, arguing the

amendment violated Chapter II, § 42 of the Vermont Constitution. 2023 VT 4, ¶ 4. Section 42

provides:

Every person of the full age of eighteen years who is a citizen of
the United States, having resided in this State for the period
established by the General Assembly and who is of a quiet and
peaceable behavior, and will take the following oath or affirmation,
shall be entitled to all the privileges of a voter of this state:

You solemnly swear (or affirm) that whenever you give your vote
or suffrage, touching any matter that concerns the State of Vermont,
you will do it so as in your conscience you shall judge will most
conduce to the best good of the same, as established by the
Constitution, without fear or favor of any person.

¶ 4. In Ferry, we held that § 42 applies to statewide elections but does not apply to

municipal elections. 2023 VT 4, ¶¶ 9, 36. Because the plaintiffs raised a facial challenge in Ferry,

we did not need to define the distinction between statewide and local elections. Id. ¶ 50 (declining

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to “define the line between ‘local’ or ‘municipal’ and ‘statewide’ issues”); see id. ¶ 26 (explaining

that in facial challenge, litigant argues “no set of circumstances exists under which a statute or

regulation could be valid” (quotation omitted)). However, we explained that “whether a specific

vote [was] properly municipal or statewide” was a different legal question and provided that a vote

municipal in name but statewide in substance was a statewide vote subject to § 42. Id. ¶ 50.

¶ 5. The instant case presents such a question. In 2023, the Legislature approved an

amendment to the City of Burlington charter. See 24 V.S.A. App. Ch. 3, § 8a. The amendment

allows noncitizens to vote in “a local City of Burlington or Burlington School District election” if

they meet enumerated criteria, including being “a legal resident of the United States,”3 “resid[ing]

in the City of Burlington,” and “tak[ing] the Voter’s Oath.” Id. § 8a(a)(1)-(4). The “section does

not change a noncitizen’s ability to vote in any State or federal election.” Id. § 8a(c).

¶ 6. Plaintiffs—two U.S. citizens residing and registered to vote in Burlington—

challenged the City’s charter amendment as applied to votes on the Burlington School District’s

annual education budget and votes for members of the Board of School Commissioners, who

prepare and adopt that annual budget. Plaintiffs argued that although Burlington’s school elections

appear local, these school elections are statewide elections because Burlington’s education budget

is funded through the State Education Fund, such that school election votes “directly impact the

State budget” and “the financial interests of Vermonters statewide.” Plaintiffs contend that school

elections therefore involve issues reserved to statewide voters, barring noncitizen participation

under § 42. In the civil division, plaintiffs sought a declaratory judgment that allowing noncitizen

voting “on matters involving the City of Burlington’s school board and education budget” violated

3
The statute defines a “legal resident of the United States” as “any noncitizen who resides
on a permanent or indefinite basis in compliance with federal immigration laws.” 24 V.S.A. App.
Ch. 3, § 8a(b).
4
§ 42. Plaintiffs also sought an injunction to prevent the City from registering noncitizens to vote

in Burlington school elections.

¶ 7. The City moved to dismiss plaintiffs’ complaint for failure to state a claim upon

which relief could be granted under Vermont Rule of Civil Procedure 12(b)(6). It argued that

plaintiffs essentially sought to relitigate our decision in Ferry. The City contended school elections

are—and have traditionally been—local affairs. The State intervened to defend the

constitutionality of the noncitizen-voting charter provision on similar grounds and supported the

City’s motion.

¶ 8. In February 2025, the trial court granted the City’s motion and dismissed the case

with prejudice. The court concluded that school elections are local in nature because they address

“distinctly local matters,” such as “who will be their school board members, and whether to support

the budget, and all the distinctly local priorities it represents, as recommended by the board.” The

court deemed plaintiffs’ “exclusive[]” focus on extra-municipal impacts unpersuasive given

Burlington voters were not responsible for how the Legislature’s school-funding scheme affected

them and others in non-Burlington municipalities. The trial court concluded that the City’s

noncitizen-voting charter amendment did not implicate § 42.

¶ 9. Plaintiffs appealed. On appeal, plaintiffs argue the trial court improperly focused

on the label affixed to the election, employing a “circular definition” that failed to distinguish local

and statewide elections. They contend such a definition “attempt[s] to reformulate Ferry.”

Plaintiffs maintain that school elections are statewide elections and urge us to reverse the trial

court’s dismissal and vacate Burlington’s charter amendment as applied to its school elections.

¶ 10. We review de novo the trial court’s dismissal of plaintiffs’ complaint for failure to

state a claim upon which relief can be granted. Baldauf v. Vt. State Treasurer, 2021 VT 29, ¶ 8,

215 Vt. 18, 255 A.3d 731. In doing so, “we assume as true the nonmoving party’s factual

allegations and accept all reasonable inferences that may be drawn from those facts.” Murray v.

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City of Burlington, 2012 VT 11, ¶ 2, 191 Vt. 597, 44 A.3d 162 (mem.). We “grant a motion to

dismiss for failure to state a claim only when it is beyond doubt that there exist no facts or

circumstances that would entitle [the plaintiff] to relief.” Montague v. Hundred Acre Homestead,

LLC, 2019 VT 16, ¶ 10, 209 Vt. 514, 208 A.3d 609 (quotation omitted).

I. Issue on Appeal

¶ 11. We first clarify the issue on appeal. Plaintiffs frame their issue as: “Does

Burlington’s charter amendment violate Section 42 of the Vermont Constitution when applied to

education elections, because such elections are ‘municipal in name, but traditionally the province

of “freemen” in substance’?” and cite Ferry, 2023 VT 4, ¶ 50. As discussed above, Ferry held that

§ 42 applies only to statewide elections and does not govern the voting requirements for local

elections. Id. ¶ 9.

¶ 12. Although plaintiffs ultimately seek to exclude noncitizens from voting in

Burlington’s school elections, the thrust of their argument does not depend on voter eligibility

rules. The parties do not dispute that local and statewide voter pools differ or that noncitizens are

eligible to participate in local elections but not in statewide elections. See id. ¶ 32 (requiring voters

in statewide elections to be citizens under § 42). Rather, the parties dispute whether education

elections are properly categorized as local or statewide. In other words, the parties do not dispute

that if education elections are properly categorized as statewide elections, § 42 applies and bars

noncitizen voting in education elections.

¶ 13. As set forth below, we clarify that local and statewide elections are distinguished

by the level of government with proper authority over the election and reject plaintiffs’ proposed

test relying on extra-municipal effects. We then turn to plaintiffs’ as-applied argument that

education elections are properly categorized as statewide elections. Because plaintiffs did not

argue that school elections involve matters over which state government must retain authority, we

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conclude that plaintiffs’ complaint fails to demonstrate that Burlington’s school elections are

statewide elections subject to § 42.

II. Distinguishing Local and Statewide Elections

¶ 14. We first elucidate the distinction between local and statewide elections. In Ferry,

we rejected the contention that local elections no longer existed because “[f]undamental aspects

regarding municipalities to this day fit with the distinction our case law draws between municipal

and statewide elections.” 2023 VT 4, ¶ 45. These aspects were grounded in municipal and state

governments’ respective powers and electorates. Id. ¶¶ 45-46 (explaining municipalities are

created by Legislature and possess powers “expressly delegated to them” (quotation omitted)). In

maintaining the distinction between local and statewide elections, we repeatedly stressed the

“difference between municipal and state government.” Id. ¶ 49. In the same vein, we held that

“when an individual gives their vote ‘touching any matter that concerns the State of Vermont,’ ”

they give their vote on “matters concerning state government as opposed to local government.”

Id. ¶ 41.

¶ 15. Rooting the distinction between local and statewide elections in their respective

levels of government makes sense. Statewide elections provide qualified voters the avenue to

exercise their fundamental right to vote to ensure that state government officers, who “are [the

people’s] trustees and servants,” remain “at all times, in a legal way, accountable to them.” Vt.

Const. ch. I, art. 6 (providing that all power is “originally inherent in and co[n]sequently derived

from the people”); see Temple v. Mead, 4 Vt. 535, 539-40 (1832) (explaining Constitution “was

intended to present a frame of government and a mode of election”). Likewise, voters in local

elections hold local governments accountable. See Ferry, 2023 VT 4, ¶ 46 (explaining municipal

officers are “accountable to their local electorate and not the votes of the freemen of the State at

large” (quotation omitted)). From this discussion, we understand that statewide elections involve

matters for which state government may be held accountable—namely, matters over which state

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government has authority. Likewise, local elections involve matters under local government

authority.

¶ 16. The Vermont Constitution and the Legislature have established some elections as

plainly statewide, including elections of certain constitutional officers and of all national,

statewide, and county officials. See, e.g., Vt. Const. ch. II, §§ 44, 47, 48 (specifying manner of

election of constitutional officers, including members of General Assembly, Governor, Lieutenant

Governor, Treasurer, and Secretary of State); 17 V.S.A. § 2471(a)(1) (listing candidates on

consolidated general election ballot). The Legislature has also provided that any votes on “[a]ny

statewide public question” are reserved for the statewide voter pool. 17 V.S.A. § 2471(a)(1); see,

e.g., 1912, No. 254, § 5 (reserving votes on constitutional amendments to statewide voters); 1915,

No. 4, §§ 31-35 (calling for statewide referendum on establishment of statewide system for

primary elections). We clarify that a “statewide public question” is one over which state

government has authority and may be held accountable by and to state voters.

¶ 17. How do we determine what level of government has authority—and thus may be

held accountable—over a given matter? Ferry again provides guidance. In Ferry, we explained

that “[i]t is fundamentally different to act as a statewide officer compared to a municipal officer in

terms of powers and accountability.” 2023 VT 4, ¶ 46. This is due to “the Constitution’s treatment

of municipalities in the scheme of statewide governance.” Id. Specifically, state government

receives its plenary powers from the Constitution and creates Vermont municipalities pursuant to

authority from the Constitution. Id. ¶ 45; see Rowell v. Horton, 58 Vt. 1, 6, 3 A. 906, 907 (1886)

(explaining towns, unlike state government, “derive their powers, not from constitutional

provisions, but from legislative enactments”). The State then “expressly delegate[s]” certain

powers to municipalities, which have “no rights . . . outside the limits of legislative control.”

Ferry, 2023 VT 4, ¶ 45 (quotation omitted). Accordingly, state government is vested with

authority over—and may be held accountable for—all matters other than those it has statutorily

8
granted to Vermont municipalities and “those powers necessarily or fairly implied in the powers

expressly granted.” Daims v. Town of Brattleboro, 2016 VT 55, ¶ 10, 202 Vt. 276, 148 A.3d 185

(quotation omitted); see Town of Bennington v. Park, 50 Vt. 178, 191, 202 (1877) (contrasting

state legislature, which “possesses all the law-making power of the people, except so far as it is

withheld by the Constitution itself,” with municipal government, which has “no such paramount

right”); City of Montpelier v. Barnett, 2012 VT 32, ¶ 20, 191 Vt. 441, 49 A.3d 120 (describing

Dillon’s Rule).

¶ 18. However, the Legislature’s ability to delegate authority to municipalities is not

limitless. Ferry, 2023 VT 4, ¶ 46. For example, “ ‘[i]n this State as elsewhere it is a doctrine well

established and frequently reiterated by the courts that the functions of the Legislature which are

purely and strictly legislative cannot be delegated but must be exercised by it alone.’ ” Id. (quoting

Stowe Citizens for Responsible Gov’t v. State, 169 Vt. 559, 560, 730 A.2d 573, 575 (1999)

(mem.)). The Legislature may vest municipalities with “certain powers of legislation as to matters

purely of local concern” and “the authority or discretion merely to execute, rather than make, the

laws.” Stowe Citizens, 169 Vt. at 560-61, 730 A.2d at 575-76 (quotation omitted). Any

“delegation of authority” must not be “so vague and uncertain that, in exercising its discretion, the

municipality must, in effect, make the law.” Id. at 561, 730 A.2d at 576.

¶ 19. From this dual-level governance scheme, we derive two principles to distinguish

local and statewide elections. First, local elections may only involve questions that have been

delegated to localities such that local governments have authority over them. Second, given the

limitations on the State’s ability to delegate, any delegation of authority to municipalities must be

lawful.

¶ 20. Consistent with these principles, we distinguish local and statewide elections as

follows: when the question voted on has been (1) delegated to the locality, and (2) such delegation

is lawful, the election is properly a local election. On the other hand, when the question either

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(1) has not been delegated or (2) cannot lawfully be delegated to local governments, the election

is properly a statewide election.

¶ 21. This analysis is consistent with precedent. First, although Ferry did not define the

line between local and statewide elections, 2023 VT 4, ¶ 50, Ferry instructed that the distinction

between them “is categorical.” Id. ¶ 36. Elections manifest the categorical “difference between

municipal government and state government” based on “the power [municipal government]

wields.” Id. ¶ 49. Local elections express local government’s position as “structurally subordinate

to and distinguishable from statewide government.” Id. ¶ 44.

¶ 22. Second, this analysis comports with Ferry’s clarification that “[a] vote municipal

in name, but traditionally the province of ‘freemen’ in substance, could not avoid the requirements

of § 42.” Id. ¶ 50. Ferry allows us to assess whether a specific vote is properly categorized as

municipal or statewide. See id. (providing whether specific vote is properly municipal or statewide

is “different legal question”). An election on a statewide issue over which state government has

proper authority, either because it has not delegated or cannot delegate such authority, is a

statewide election regardless of its municipal appearance.

¶ 23. Such was the case in Martin v. Fullam, 90 Vt. 163, 97 A. 442 (1916). There, the

Legislature passed two acts—on primary elections, 1915, No. 4, and alcohol sales, 1915, No.

171—both presenting “a question of general public policy” on which “the people of the whole

state [were] equally interested.” Martin, 90 Vt. at 168, 97 A. at 444. The Legislature distributed

ballots to each town and city to collect votes on which of two dates the enactments would take

effect; these votes were then returned to the secretary of state. The plaintiff, who was eligible to

vote in statewide elections but not in local elections because he had not paid his taxes, was

excluded from voting and filed a lawsuit challenging the denial of his right to vote.

¶ 24. The Court determined the election was statewide, and the plaintiff was eligible to

vote. The Court assessed “the intention of the Legislature,” id., and noted that “[i]t is

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significant . . . that no officer of the town meeting has authority to declare the result of the votes

so given”; rather, the secretary of state reserved authority “to issue his proclamation certifying the

result, not in any town or towns, but in the whole state,” id. at 172, 97 A. at 446 (emphasis added).

Because the legislative enactment calling for the referendum did not contain “plain and

unmistakable language” demonstrating intent to use the local voter pool, every person eligible for

statewide elections could vote and exercise their right to hold “[t]he legislators [who] are the

representatives of the people” answerable “to the people it represents, in other words to the

electorate.” Id. In Martin, the State did not delegate authority over the election’s questions to the

towns, even though the votes were physically gathered by the towns.

¶ 25. Plaintiffs argue that statewide elections are those that affect statewide governance.

Plaintiffs rely on a 1913 dictionary definition of “concern,” defined as “affect[s] the interest of,”

which they use to interpret § 42’s phrase, “touching any matter that concerns the State of

Vermont.”

¶ 26. We disagree with plaintiffs’ imprecise formulation. Although “our interpretation

begins with the plain language” when construing a constitutional provision, State v. Pellerin, 2010

VT 26, ¶ 7, 187 Vt. 482, 996 A.2d 204, we also “examine the whole and every part of a provision,

together with others governing the same subject matter, as parts of a system,” State v. Lohr, 2020

VT 41, ¶ 7, 212 Vt. 289, 236 A.3d 1277 (quotation omitted) (emphasizing that in constitutional

interpretation, “we do not read sentences or phrases in isolation”). See also Chittenden Town Sch.

Dist. v. Dep’t of Educ., 169 Vt. 310, 327, 738 A.2d 539, 552 (1999) (warning against “excessive

reliance on a plain meaning approach to constitutional interpretation”). “[T]he Constitution sought

to provide a framework for statewide government specifically,” and therefore, neither expressly

differentiates between state and local government nor refers to local government. Ferry, 2023 VT

4, ¶ 44; see id. ¶ 33 (“[T]he framers of the constitution were forming a plan for the general

government of the State and did not appear to have had an eye on the internal regulation of lesser

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corporations like towns.” (quotations omitted)); Rowell, 58 Vt. at 5, 3 A. at 907 (clarifying Chapter

II “has no reference to the plan and frame of town governments, nor to the qualifications of voters

therein”). However, the Constitution allows the State to create “towns, borroughs, cities and

counties” and grant powers to them. Vt. Const. ch. II, § 6; see Park, 50 Vt. at 202 (“Every power

[towns] exercise in the local administration of their affairs, is expressly delegated to them by

legislative enactment.”).

¶ 27. Because the State governs everything within its borders, including towns,

everything may, in some way, affect or relate to state government. To interpret § 42’s phrase

“touching any matter that concerns the State of Vermont” so broadly would render meaningless

the Legislature’s ability to designate certain elections as local elections and delegate authority over

those elections to localities. As the Legislature may “delegate[] to municipalities powers

concerning essentially state functions,” the relevant question is whether the election calls for votes

on a statewide matter, not whether the votes broadly connect to a statewide matter. Stowe Citizens,

169 Vt. at 561, 730 A.2d at 576 (“A law [is not] invalid because it delegates to municipalities

powers concerning essentially state functions, such as education or taxation.”); see Ferry, 2023 VT

4, ¶ 48 (distinguishing local and statewide elections despite “connection between municipal and

state governance”). Taking together state government’s ability to delegate to local governments

and our conclusion that “ ‘touching any matter that concerns the State of Vermont’ refers to matters

concerning state government as opposed to local government,” Ferry, 2023 VT 4, ¶ 41, elections

touch matters concerning the State of Vermont when they involve matters over which state

government has authority, either because the State has not delegated or cannot delegate such

authority to municipalities.

¶ 28. Plaintiffs highlight the Court’s analysis of Martin in another case, Slayton v. Town

of Randolph, 108 Vt. 288, 187 A. 383 (1936), to emphasize the purported significance of an

election’s effect. In Slayton, town residents, who were eligible to vote in statewide elections but

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not in local elections because they had not paid their taxes, contested their exclusion from an

election on whether the town would permit alcohol sales during the upcoming year. Id. at 289-90,

187 A. at 384. The Court again focused on the language of the legislative enactment calling for

votes and held that “it was the manifest purpose of the Legislature to allow the towns in the state

to speak on the liquor questions as towns.” Slayton, 108 Vt. at 291, 187 A. at 384. Unlike in

Martin, the Legislature delegated authority over the question to the towns and “left it to each town

in the state to determine for itself whether the liquor law should be effective in it.” Id.

Accordingly, the Court concluded that the Slayton plaintiffs were properly excluded from this local

election. Id.

¶ 29. The Court contrasted the Martin vote, which “was in essence and effect” statewide,

with Slayton’s local election. Id. at 290, 187 A. at 384. It explained that in Slayton’s election,

“[n]o general state policy is involved,” and “[t]he result in one town has no effect at all on any

other town or the state at large.” Id. at 290-91, 187 A. at 384. From the latter statement, plaintiffs

assert that because “the vote [did] not change the legal obligations of Vermonters anywhere else,”

“the questions voted on [were] of local importance only.”

¶ 30. Plaintiffs’ construction skews the Court’s reasoning in Slayton. The effect, or lack

thereof, on other towns did not determine whether the question was statewide or local, but rather

the reverse. That is, because the question voted on in Slayton was local, and one over which local

government had proper authority, the election did not affect Vermonters across the state. See

Ferry, 2023 VT 4, ¶ 46 (“Despite these connections to statewide government, municipalities

generally remain entities that control local affairs.”). However, local questions may have statewide

effect; as we recognized in Ferry, requiring municipal issues to be “purely local” is “untenable and

not grounded in history.” Id. ¶ 48. The Legislature may allow local governments to regulate

questions with extra-municipal effects to the extent that such allowance is lawful.

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¶ 31. Plaintiffs also posit that “a voter deciding a statewide issue in Vermont is acting as

a ‘voter of this state.’ ” Because the word “decide” can be imprecise, and constitutional and

statutory language focus on the issue voted upon, such as votes on a “matter that concerns the State

of Vermont,” Vt. Const. ch. II, § 42, or on a “statewide public question,” 17 V.S.A. § 2471(a)(1),

we clarify that a voter acts as a statewide voter if they vote on a statewide issue. To reiterate, in

this context, a statewide issue is not determined by its impact on state government; rather, a

statewide issue is one under the State’s authority.

¶ 32. Having established the appropriate test to distinguish local and statewide elections

we now turn to the merits of plaintiffs’ as-applied challenge.

III. As-Applied Challenge

¶ 33. Plaintiffs argue that although Burlington’s school board and school budget

elections may appear to be local elections, under Vermont’s current school-funding mechanisms,

they are properly categorized as statewide elections subject to § 42. If plaintiffs successfully

demonstrate that school elections are statewide elections such that Burlington’s noncitizen-voting

charter amendment “is invalid as applied to” Burlington’s school elections, we “will grant relief

to the parties before [the Court] but will not necessarily invalidate the contested law in its entirety.”

Ferry, 2023 VT 4, ¶ 43 (quotations omitted). We give no deference to the trial court when

“reviewing a constitutional challenge to the application of a statute.” Athens Sch. Dist. v. Vt. State

Bd. of Educ., 2020 VT 52, ¶ 20, 212 Vt. 455, 237 A.3d 671 (quotation omitted).

¶ 34. As set forth above, in determining whether the City’s school elections are local or

statewide, we consider whether the election has been delegated to the municipality, and if so,

whether such delegation was lawful. Supra, ¶¶ 19-20.

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¶ 35. Here, the Legislature has expressly indicated that school matters are local. Pursuant

to statute, local school districts4 develop their own programs, including decisions about school

budgets, in recognition that “one of the strengths of Vermont’s education system lies in its rich

diversity and the ability for each local school district to adapt its educational program to local

needs and desires.” 16 V.S.A. § 1; see also id. § 562(8), (10) (granting local electorates authority

over approving proposed budgets and electing school board officers); id. § 511(a) (“[T]he

electorate within an incorporated school district shall vote such sums of money as it deems

necessary for the support of schools.”); id. § 563(11)(A) (delegating authority to elected school

board officers over preparing annual proposed budgets); cf. Brock v. Bruce, 58 Vt. 261, 268, 2 A.

598, 606 (1886) (explaining school-district officers “are not regarded as in authority under this

State, within the meaning of the Constitution, but rather as in authority under their respective

municipalities”). Plaintiffs do not dispute that the Legislature has delegated authority over schools

to localities.

¶ 36. Plaintiffs contend, however, that insofar as “the Legislature has delegated education

related votes—a state constitutional responsibility—to municipalities, it has also made those

[statewide] votes by placing the responsibility to pay for the results of those votes at the state

level.” Plaintiffs raise several arguments that despite legislative intent indicating otherwise, school

elections are in fact statewide, which we address below. We note that, to the extent that plaintiffs

argue school elections require votes on matters over which state government must retain authority,

such that granting localities authority over school elections unlawfully delegates state authority,

this claim is not properly before the Court. Plaintiffs did not plead a delegation-doctrine claim in

their complaint nor properly preserve such a claim for this Court. Plaintiffs did not establish what

matters must remain under state authority; explain how the State’s current funding formulas are so

4
The Burlington School District itself is a municipality and a separate corporate entity
from the City of Burlington. Baird v. Town of Berlin, 126 Vt. 348, 352, 231 A.2d 110, 113 (1967).
15
different from past practices that they now unlawfully delegate authority on those matters; or argue

that statutes subjecting school elections to local voter-qualification rules are unconstitutional.

¶ 37. Instead, plaintiffs rely on other legal theories. First, they claim our decision in

Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997) (per curiam), demonstrates education funding

issues have always been statewide matters. Next, they contend that even if education was

traditionally subject only to local control, legislative reforms since Brigham have transformed

school votes into statewide votes. Specifically, plaintiffs assert that school votes “create a legal

obligation for the State to pay for those budgets using State revenue. Therefore, City voters do

decide State taxpayer expenditures, which are quintessentially state policy.”

¶ 38. We agree that Vermont education, including education funding across the state, is

of statewide concern, but plaintiffs oversimplify the Brigham Court’s analysis and conflate state

and local governments’ respective purview. In Brigham, we assessed whether the then-

predominant means of financing Vermont public schools “deprive[d] children of an equal

educational opportunity in violation of the Vermont Constitution.” Id. at 249, 692 A.2d at 386.

At that time, public schools were financed through two principal means: funds municipalities

raised through local property taxes and “funds distributed by the state under a complex aid

formula.” Id. at 252, 692 A.2d at 387. However, “the major weakness” of the State’s formula was

that “it equalize[d] capacity only to a level of a minimally adequate education program.” Id. at

253, 692 A.2d at 388. This standard left “substantial deficiencies in overall equity” because school

districts with greater property wealth could easily spend more to improve their educational

offerings. Id.

¶ 39. Given the “wide disparities” among Vermont school districts, the Brigham Court

concluded that the State’s financing system was “constitutionally deficient.” Id. at 255-56, 692

A.2d at 389-90. The Court explained that the Vermont Constitution’s Education Clause made

clear the state’s “obligation to provide for the education of its youth.” Id. at 258, 692 A.2d at 391;

16
see Vt. Const. ch. II, § 68. However, the Court clarified that while the State could not “abdicate

the basic responsibility for education by passing it on to local governments,” “[t]he state may

delegate to local towns and cities the authority to finance and administer the schools within their

borders.” Brigham, 166 Vt. at 264, 692 A.2d at 395. That is, the State could “still leave the basic

decision-making power with the local districts.” Id. at 266, 692 A.2d at 396. The Court

acknowledged “the laudable goal of local control” and the consideration that “[i]ndividual school

districts may well be in the best position to decide . . . issues of a local nature.” Id. at 265-66, 692

A.2d at 396.

¶ 40. Properly understood, Brigham requires the State to retain authority over education

across all Vermont school districts but allows the State to delegate authority to localities over their

internal school districts’ administration. Brigham does not preclude the existence of two levels of

responsibility—local and state—over education issues, including education funding. Indeed,

when the Court heard Brigham, the State had already been using a “complex aid formula” to

finance public schools. Id. at 252, 692 A.2d at 387-88 (describing formula known as Foundation

Plan). Even though school elections were funded, in part, by state funds, the Court recognized

both local and state levels of authority over delegable and nondelegable education matters,

respectively. While we agree with plaintiffs that education is a state obligation, we see no reason

to conclude from this bare assertion that school elections are not local.

¶ 41. Plaintiffs’ arguments that post-Brigham education elections create a “legal

obligation” that the State “must” pay and that school votes “decide . . . state policy” rely on this

improper conflation. Because municipalities exist “structurally subordinate to” the State, which

answers only to the Constitution, municipalities do not create obligations for the State. Ferry, 2023

VT 4, ¶ 44. The Legislature crafted its post-Brigham formula incorporating school election votes

of its own volition, and the Legislature is free to delegate less authority over school elections to

localities or to amend state procedures making use of resultant votes if it so desires. Park, 50 Vt.

17
at 195 (“Is it not true that the Legislature can recall any of these powers existing in these

municipalities, and resume their exercise at its will and pleasure?”). In the same vein, contrary to

plaintiffs’ argument, it is not municipal votes that decide statewide expenditures but the State’s

use of those municipal votes. Collapsing this distinction disregards the State’s independent

exercise of its statewide authority in creating a funding formula and making use of school votes.

As mentioned above, plaintiffs did not challenge the lawfulness of the State’s formula or explain

how the State’s formula unlawfully makes school votes questions over which state government

must retain authority.

¶ 42. Finally, plaintiffs highlight the statewide effects of school votes following the

State’s incorporation of such votes. They contrast school elections with Slayton’s local election

because those votes “would not change the legal obligations of Vermonters” at large. However,

whether an election is local or statewide does not depend on its effects but rather on the government

with authority over, and held accountable for, the election. The Slayton Court held that the

Legislature had delegated the questions to the towns such that the towns had authority over them.

See 108 Vt. at 290-91, 187 A. at 384 (leaving liquor law to towns to regulate). Unlike in Slayton,

plaintiffs in the instant case assert that despite delegation, school elections are nevertheless

statewide, presenting a claim that was not before the Slayton Court.

¶ 43. For these reasons, we reject plaintiffs’ arguments. While we are “particularly wary

of dismissing novel claims,” like the one before us, on a motion to dismiss for failure to state a

claim because “[t]he legal theory of a case should be explored in the light of facts as developed by

the evidence,” factual development of the complaint’s legal claims would not change our

conclusion here. Montague, 2019 VT 16, ¶ 11 (quotation omitted).

¶ 44. Given plaintiffs’ complaint did not present a sufficient basis to allow this Court to

evaluate whether statewide school-funding mechanisms make the local-voting provisions of Title

16 an unconstitutional delegation of authority, it does not satisfy the rigorous standard necessary

18
for us to “declare null an[] act of the Legislature.” Park, 50 Vt. at 191; see State v. Curley-Egan,

2006 VT 95, ¶ 27, 180 Vt. 305, 910 A.2d 200 (“[W]e presume a statute is constitutional absent

clear and irrefragable evidence to the contrary.” (quotation omitted)); State Treasurer v. Cross, 9

Vt. 289, 293 (1837) (“The doings of the Legislature, when not liable to constitutional objections,

are to be respected by the other branches of the government, and their wisdom or propriety are not

to be questioned by a co-ordinate branch.”). At this juncture, we do not conclude that school

elections are statewide contrary to the Legislature’s delegation, and accordingly, we do not

conclude that the Burlington charter amendment allowing noncitizens to vote in school elections

violates the voter-eligibility requirements in § 42.

¶ 45. If, in a future case, plaintiffs demonstrate that the State’s education-funding

mechanism makes school votes matters over which the State must retain authority—and therefore,

that school elections are statewide elections—then school elections would be statewide for every

Vermonter. Every local school budget would require participation from all state voters according

to state procedures. In other words, such an outcome would entail more than simply preventing

noncitizens from voting in the City’s school elections.

¶ 46. For the foregoing reasons, we conclude that plaintiffs’ complaint failed to

demonstrate that school elections are statewide elections subject to § 42. The trial court properly

dismissed plaintiffs’ claim as a matter of law.

Affirmed.

FOR THE COURT:

Associate Justice

¶ 47. ZONAY, Supr. J., Specially Assigned, concurring and dissenting. The

majority concludes that plaintiffs failed to demonstrate that school-board and school-budget

19
elections are statewide elections subject to the voter-eligibility requirements of Chapter II, § 42 of

the Vermont Constitution. I concur in part because I agree that a vote to elect members of the

Burlington School District’s Board of School Commissioners is, as a matter of law, a local election.

Plaintiffs’ argument that the Burlington City Charter amendment violates § 42 as applied to votes

to ratify the District’s education budget, however, demands an answer to the question left open in

Ferry v. City of Montpelier—how do we distinguish between local and statewide issues where a

vote is “municipal in name” but allegedly statewide in character? 2023 VT 4, ¶ 50, 217 Vt. 450,

296 A.3d 749. In my view, the text of our state Constitution supplies a complete answer to that

question: § 42 provides that its voter-qualification requirements apply to votes “touching any

matter that concerns the State of Vermont.” Vt. Const. ch. II, § 42. It is undisputed that under

Vermont’s current education-funding structure, a vote on the District’s annual education budget

has statewide effects. That being the case, I would reverse the trial court’s dismissal of plaintiffs’

claim that the Burlington City Charter amendment violates § 42 as applied to the District’s

education-budget vote.

¶ 48. Although Ferry did not reach the constitutional question at the heart of this case, it

laid the groundwork for today’s analysis in delineating the nature and scope of the unique right

protected by § 42. 2023 VT 4, ¶ 18 (“This case presents a uniquely Vermont constitutional

question—what is required for a plaintiff to establish standing where the alleged injury is derived

from a violation of Chapter II, § 42 of the Vermont Constitution?”). The Court explained that § 42

“defines who is entitled to ‘the privileges of a voter in this state’ ” and thus “creates the lawful

voter pool for elections to which its provisions apply.” Id. ¶ 20 (quoting Vt. Const. ch. II, § 42).

It further held that “a person legally voting within the pool” created by § 42 “has an interest in

ensuring that the voter pool in which they are participating is constitutionally sound to preserve

the effectiveness of their vote,” recognizing that “ ‘the rights of qualified voters to cast votes

20
effectively . . . are of the most fundamental significance under our constitutional structure.’ ” Id.

¶¶ 20-21 (quoting Trudell v. State, 2013 VT 18, ¶ 7, 193 Vt. 515, 71 A.3d 1235).

¶ 49. Of course, Ferry also held that § 42 applies only to statewide elections and does not

govern the voting requirements for local elections. Id. ¶¶ 9, 36. But because the Ferry plaintiffs

raised a facial challenge, the Court repeatedly stressed that it was unnecessary to “define the line

between ‘local’ or ‘municipal’ and ‘statewide’ issues in this opinion.” Id. ¶¶ 43, 48, 50. To be

sure, it rejected the plaintiffs’ sweeping contention that there simply “are no more ‘local’ elections

as contemplated in the Vermont Constitution when § 42 was first drafted.” Id. ¶ 48. But it was

only with reference to that broad facial challenge that Ferry rejected the idea that “some extra-

municipal impact, no matter how tenuous, constitutes a statewide issue subject to the requirements

in § 42.” Id. The Court simultaneously affirmed that its holding did not “preclude[] judicial review

of municipal elections” under § 42. Id. ¶ 50. Rather, Ferry explained that “[i]t is a different legal

question to determine whether a specific vote is properly municipal or statewide—and one not

presented in this case.” Id. ¶ 50.

¶ 50. Ferry thus cannot be read to suggest that extra-municipal impacts are irrelevant to

answering this question in the context of a specific vote. Indeed, in recognizing the possibility of

an as-applied challenge, the Court relied on two Vermont cases that expressly spoke of extra-

municipal effects: Martin v. Fullam, 90 Vt. 163, 97 A. 442 (1916), and Slayton v. Town of

Randolph, 108 Vt. 288, 187 A. 383 (1936). Ferry, 2023 VT 4, ¶ 50. In Martin, the Court described

municipal voters as “those . . . who by law are entitled to vote in town meetings upon matters

relating exclusively to the town or city in which the votes are given.” 90 Vt. at 168, 97 A. at 444

(emphasis added). In Slayton, the Court was even more explicit, explaining that a vote was not

governed by § 42 where “[t]he questions voted on are of local importance, only,” thus presenting

“to each town a question of purely local policy” upon which “[e]ach town speaks for itself and for

no one else” and “[t]he result in one town has no effect at all on any other town or the state at

21
large.” 108 Vt. at 291, 187 A. at 384 (emphasis added). Moreover—as the Ferry Court observed—

Slayton clarified that Martin stood for the proposition that statewide voters could not be denied

the right to participate in an election that, while administered by the municipalities, was “ ‘in

essence and effect’ ” a statewide vote. Ferry, 2023 VT 4, ¶ 50 (emphasis added) (quoting Slayton,

108 Vt. at 290-91, 187 A. at 384).

¶ 51. Drawing guidance from Ferry, plaintiffs in this case filed a complaint alleging that

the statute allowing noncitizens to vote in local Burlington elections, see 24 V.S.A. App. Ch. 3,

§ 8a, violates § 42 as applied to the following municipally administered votes: (1) votes on the

Burlington School District’s annual education budget; and (2) elections for members of the Board

of School Commissioners, who are responsible for preparing and adopting that annual budget.

This is so, plaintiffs allege, because under Vermont’s current statewide education-funding system,

the District’s education budget—though prepared by the Board and ratified by Burlington voters—

is bankrolled by the State Education Fund. Plaintiffs contend that because votes establishing the

size of the District’s budget determine the allocation of State funds and can impact the statewide

tax rate, they necessarily involve issues that affect statewide governance and are therefore reserved

to the statewide voting pool under § 42.

¶ 52. In response, the majority formulates a new test under the Vermont Constitution. It

rejects plaintiffs’ contention that whether a vote is one “touching any matter that concerns the State

of Vermont” is—as both the case law described above and the plain language of § 42 suggest—

measured by its impact on Vermonters outside the municipality where the vote is taken. Ante,

¶¶ 25-31. Instead, the majority concludes that so long as the question to be voted on falls within

authority the Legislature has lawfully delegated to a municipality, that election is categorically

“local” and thus not subject to the voter-qualification requirements of § 42. Ante, ¶¶ 19-20. It

then holds that because plaintiffs did not “plead a delegation-doctrine claim in their complaint” or

22
otherwise preserve this unanticipated issue for review, they necessarily cannot prevail on their

claim to invoke the entirely separate constitutional protections of § 42. Ante, ¶ 36.

¶ 53. For the reasons detailed below, I cannot join the majority’s analysis. I pause to

note, however, that I concur in a portion of the result—albeit on different grounds. I agree that a

vote to determine the membership of the Burlington School District’s Board of School

Commissioners is, as a matter of law, a local election under Ferry. The District is a municipal

entity separate from the City, and the Board “constitute[s] the legislative branch” of the District.

1 V.S.A. § 135; see id. § 126; Baird v. Town of Berlin, 126 Vt. 348, 352, 231 A.2d 110, 113

(1967). Board members, like all “municipal officers today” remain “accountable to their local

electorate and not ‘the votes of the freemen of the State at large.’ ” Ferry, 2023 VT 4, ¶ 46 (quoting

Rowell v. Horton, 58 Vt. 1, 5, 3 A. 906, 907 (1886)); see also Woodcock v. Bolster, 35 Vt. 632,

637-39 (1863) (concluding that noncitizen may hold local office). This distinction is categorical:

“it is fundamentally different to act as a statewide officer compared to a municipal officer in terms

of powers and accountability.” Ferry, 2023 VT 4, ¶ 46. Because Ferry thus determined that

“Chapter II’s requirements for statewide elections and representatives, including those in § 42, do

not apply to municipal elections and officers,” id., I would conclude that a vote to elect members

of the Board is, as a matter of law, categorically local and therefore not subject to § 42.5

5
It is true, as plaintiffs point out, that the Board is “responsible for the preparation and
adoption of a budget” based on “a detailed estimate of revenues and expenditures” for the ensuing
fiscal year. 24 V.S.A. App. Ch. 3, § 168(a)(1). But it is the municipal voters who are ultimately
tasked with approving the education-spending portion of the District’s budget. Id. § 168(b)(1). If
the majority of voters do not approve the budget before the commencement of the fiscal year, the
Board must amend the budget to permit education spending for that fiscal year in an amount not
to “exceed the education spending last duly approved by the legal voters adjusted by the total dollar
amount change in the base education payment for the budget year multiplied by the equalized pupil
count for the budget year.” Id. § 168(b)(2). Moreover, the Board’s budget-related responsibilities
represent only a fraction of its members’ broad duties in administering the District. Id. §§ 167,
169; 16 V.S.A. §§ 554, 561, 563; see Skiff v. S. Burlington Sch. Dist., 2018 VT 117, ¶ 24, 208 Vt.
564, 201 A.3d 969 (recognizing that powers of school district include, among other things,
“determining the educational policies of the school district and taking any action that is required
for the sound administration of the school district” (quotation omitted)). Regardless of the Board’s
23
¶ 54. But the second component of plaintiffs’ as-applied challenge—their argument that

a vote to ratify the District’s annual education budget is subject to Vermont Constitution’s voter-

qualification requirements—does not fall within one of the categories recognized in Ferry. It thus

demands an answer to the question left open in that case: how does § 42 “define the line between

‘local’ or ‘municipal’ and ‘statewide’ issues?” Ferry, 2023 VT 4, ¶ 50.

¶ 55. Where, as here, the Court is faced with the weighty task of establishing a new test

under the Vermont Constitution, our goal is “to discover and protect the core value that gave life

to” the provision at issue and arrive at a result that “give[s] meaning to [its] text in light of

contemporary experience.” State v. Misch, 2021 VT 10, ¶ 9, 214 Vt. 309, 256 A.3d 519 (per

curiam) (quotations omitted) (establishing standard to determine whether law infringes right to

bear arms under Chapter I, Article 16 of the Vermont Constitution). The Court has repeatedly

affirmed that this work “begins with the plain language” of the constitutional provision at issue.

State v. Pellerin, 2010 VT 26, ¶ 7, 187 Vt. 482, 996 A.2d 204; see, e.g., Misch, 2021 VT 10, ¶¶ 11-

12 (explaining that goal for Court in that case was to discern “plain meaning” of phrase “ ‘right to

bear arms’ ” as used in Article 16); Turner v. Shumlin, 2017 VT 2, ¶ 25, 204 Vt. 78, 163 A.3d

1173 (“ ‘[W]e first look to the plain meaning of the [constitutional] language in question’ ”

(quoting State v. Madison, 163 Vt. 360, 368, 658 A.2d 536, 541-42 (1995)). Indeed, State v.

Jewett, perhaps this Court’s most significant case concerning the interpretation of the Vermont

Constitution, echoed the words of Justice Joseph Story: “ ‘It is obvious, that there can be no

security to the people in any constitution of government if they are not to judge of it by the fair

meaning of the words of the text.’ ” 146 Vt. 221, 226, 500 A.2d 233, 237 (1985) (quoting P.

Bobbit, Constitutional Fate—Theory of the Constitution 25 (1982) (quoting J. Story, 1

Commentaries on the Constitution of the United States § 407, at 390 n.1 (1st ed. 1833))). Further,

budget-related responsibilities, the vote plaintiffs challenge is still one for the election of municipal
officers and thus categorically local under Ferry. 2023 VT 4, ¶ 46.
24
it is not the role of this Court to pass on the wisdom of the Burlington City Charter amendment or

the validity of the concerns that animate it, but merely to determine whether it “passes

constitutional muster.”6 Peck v. Douglas, 148 Vt. 128, 133, 530 A.2d 551, 554 (1987) (per

curiam).

¶ 56. The majority cites to Chittenden Town School District v. Department of Education,

which recognized that “[t]here are sound reasons for avoiding excessive reliance on a plain

meaning approach to constitutional interpretation, even if a plain meaning can be found.” 169 Vt.

310, 327, 738 A.2d 539, 552 (1999); ante, ¶ 26. I agree: as the Court explained in Ferry, it is often

necessary, “[w]hen we look to the plain text of a constitutional provision,” to “simultaneously rely

‘on historical context to illuminate its meaning.’ ” 2023 VT 4, ¶ 27 (quoting Misch, 2021 VT 10,

¶ 12). This is not to say, however, that the duty to enforce the Vermont Constitution is somehow

satisfied by an analysis unmoored from its plain text. State v. Badger, 141 Vt. 430, 448-49, 450

A.2d 336, 347 (1982) (recognizing this Court’s duty to enforce Vermont Constitution as “an

independent authority, and Vermont’s fundamental law”). Just the opposite, in fact: to my mind,

this Court’s cases cautioning against overreliance on the plain meaning of constitutional language

suggest that the true meaning of an early constitutional provision can only be ascertained when the

6
I note that the City strays from this established analytical framework in arguing that the
challenged Burlington charter amendment “had the support not only of a majority of Burlington
voters, but also of an overwhelming number of the state’s democratically elected delegates to both
houses of the General Assembly.” As this Court recognized in interpreting Article 11 of the
Vermont Constitution to provide greater protection than the Fourth Amendment of the U.S.
Constitution, the question for this Court “is not what society is prepared to accept but what the
constitution requires.” State v. Kirchoff, 156 Vt. 1, 12, 587 A.2d 988, 995-96 (1991) (declining
to import, wholesale, federal “reasonable expectation of privacy” test under Article 11, explaining
that societal recognition of reasonable expectation of privacy “shifts with political winds and the
perceived exigencies of the day, and should not be the measure of individual rights under state and
federal constitutions—which, in our view, are to be protected, even from those intrusions that
society may be prepared at the moment to tolerate”). This Court’s ultimate duty is to enforce the
will of the people as expressed through their ratification of the Vermont Constitution, not as
indicated by their subsequent votes and the actions of legislators. Cf. Shields v. Gerhart, 163 Vt.
219, 223, 658 A.2d 924, 928 (1995).
25
plain language is placed in its historical context. See, e.g., Ferry, 2023 VT 4, ¶ 27 (explaining that

we must read § 42 in its historical context “because ‘we are trying to make the best sense we can

of an historical event—someone, or a social group with particular responsibilities, speaking or

writing in a particular way on a particular occasion’ ” (quoting Chittenden Town Sch. Dist., 169

Vt. at 327, 738 A.2d at 552)); cf. Turner, 2017 VT 2, ¶¶ 23, 25 (enforcing plain meaning of term

used in provisions of Vermont Constitution that took effect in 1974 and noting that “we are not

construing an ancient constitutional provision that would give us pause in applying the plain

meaning of the provision’s language without considering its historical context”).

¶ 57. As discussed above, § 42 protects the right to vote—a right that “is ‘individual and

personal in nature.’ ” Ferry, 2023 VT 4, ¶ 20 (quoting Gill v. Whitford, 585 U.S. 48, 49 (2018));

see Brigham v. State, 166 Vt. 246, 262, 692 A.2d 384, 394 (1997) (per curiam) (rejecting argument

that “placement of the Education Clause in Chapter II, setting forth the ‘Frame of

Government’ . . . implies that education was not considered by the framers to be an individual

right” and noting that Chapter II of original Vermont Constitution “enumerated any number of

individual rights” and was “a perfectly logical place” to provide for right that played “essential

role” in “framers’ theory of self-government”). The delegation doctrine, on the other hand, stems

from “a fundamental principle of the American constitutional system, clearly expressed in our own

State Constitution,” see Vt. Const. ch. II, § 5, “that the legislative, executive and judicial

departments of government are separate from each other, and therefore such functions of the

Legislature as are purely and strictly legislative cannot be delegated, but must be exercised by it

alone.” State v. Auclair, 110 Vt. 147, 162, 4 A.2d 107, 115 (1939).

¶ 58. Because the delegation analysis is thus shaped by pragmatic concerns, “we apply a

relatively forgiving standard to separation-of-power claims.” State v. Nelson, 170 Vt. 125, 128,

742 A.2d 1248, 1250 (1999); see Hunter v. State, 2004 VT 108, ¶ 21, 177 Vt. 339, 865 A.2d 381

(recognizing “that we must construe the constitutional command” of separation of powers

26
“consistent with efficient and effective governmental structures that are able to respond to the

complex challenges and problems faced by today’s state government”). On the other hand, we

have never before suggested that the Court should cast a forgiving eye on a claimed violation of a

fundamental right. Cf. Brigham, 166 Vt. at 265; 692 A.2d at 396 (“Where a statutory scheme

affects fundamental constitutional rights . . . both federal and state decisions have recognized that

proper equal protection analysis necessitates a more searching scrutiny.”). Given the entirely

disparate principles at stake in these two inquiries, I cannot agree that the delegation-doctrine

analysis gives meaning to the text of § 42 or protects the individual right recognized in Ferry.7 See

7
Moreover, while the majority acknowledges that this Court has repeatedly cautioned that
we must be “particularly wary” of dispensing with “novel claims” like the one before us on a
motion to dismiss for failure to state a claim because “ ‘[t]he legal theory of a case should be
explored in the light of facts as developed by the evidence, and, generally, not dismissed before
trial because of the mere novelty of the allegations,’ ” it proceeds, in my view, to do just that.
Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 11, 209 Vt. 514, 208 A.3d 609
(quoting Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 447, 494 A.2d 122, 125
(1985) (collecting cases and authorities)); ante, ¶ 43. Plaintiffs brought the as-applied challenge
this Court forecasted in Ferry with careful fidelity to the guidance set forth therein. In response,
the majority adopts its novel delegation test—in reality, a requirement that plaintiffs bring an
entirely separate constitutional claim in order to vindicate their individual rights under § 42—and
then affirms the dismissal of plaintiffs’ complaint for failure to state a claim thereunder. That
plaintiffs did not expressly raise a separate constitutional claim they could not have anticipated
would be necessary to prevail on a challenge under § 42 does not mean it is “beyond doubt that
there exist no facts or circumstances that would entitle the plaintiff to relief.” Colby v. Umbrella,
Inc., 2008 VT 20, ¶ 5, 184 Vt. 1, 955 A.2d 1082 (quotation omitted). More fundamentally,
however, the procedure followed by the majority results in the resolution of a novel legal question
on grounds not anticipated or briefed by the parties. See Jewett, 146 Vt. at 229, 500 A.2d at 238
(identifying this Court’s “obligation . . . when state constitutional questions of possible merit have
been raised, to address them or order that they be rebriefed when the briefs do not pass muster,”
and explaining that “[i]f we breach this duty, we fail to live up to our oath to defend our constitution
and we help to destroy the federalism that must be so carefully safeguarded by our people”); see
also Bloomer v. Gibson, 2006 VT 104, ¶¶ 33, 40, 180 Vt. 397, 912 A.2d 424 (Teachout, J.,
dissenting) (observing that “opportunity to present arguments on the legal issue upon which a case
is to be decided is fundamental to sound legal process, and it is important to public confidence in
the judiciary,” and dissenting where “[t]he Court has been deprived of the benefit that comes from
a full airing of the legal issues, including analysis and arguments presented by advocates, and
dialogue that would be helpful in evaluating the wisdom of a proposed rule of law”); Harris v.
Town of Waltham, 158 Vt. 477, 485, 613 A.2d 696, 700 (1992) (Allen, C.J., dissenting) (“A
principal reason for not considering issues not presented by the parties . . . is the great risk of
deciding important issues without hearing reasoned arguments on both sides of a question,
27
Badger, 141 Vt. at 449, 450 A.2d at 347 (“If our state constitution is to mean anything, it must be

enforced where it is the only law capable of providing a final answer to a claim, and a party, such

as this defendant, has invoked its protections.”). There is some measure of irony here. In adopting

this test, the majority itself all but delegates to the Legislature a fundamental task of this Court—

the responsibility to determine whether an issue is local or statewide under § 42 of the Vermont

Constitution. But the Legislature has “no power to add to, alter, abolish, or infringe any part of

[the Vermont] Constitution.” Vt. Const. ch. II, § 6. Rather, “[i]t is the province of the court to

decide whether Vermont’s laws comply with the State Constitution.” State v. Shores, 2025 VT

62, ¶ 10, __ Vt. __, __ A.3d __ (quotation omitted). Our decisions, therefore, should be grounded

in the text of our state charter.

¶ 59. I thus begin with the language of the provision in question, which leads me down a

different path. The voter-qualification requirements of the Vermont Constitution apply where the

vote is one “touching any matter that concerns the State of Vermont.” Vt. Const. ch. II, § 42. In

modern parlance, we would understand this broad phrasing to encompass all votes related to any

issue that affects all Vermonters. See Touching, Merriam-Webster Online Dictionary, https://

www.merriam-webster.com/dictionary/touching [https://perma.cc/A9FE-P38F] (“in reference to :

concerning”); Any, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/

dictionary/any [https://perma.cc/PP9S-KE4M] (defining “any” to include “one or some

indiscriminately of whatever kind,” “one, some, or all indiscriminately of whatever quantity,”

“unmeasured or unlimited in amount, number, or extent,” and “appreciably large or extended”);

Concern, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/

concern [https://perma.cc/7WHT-9667] (defining “concern” to include “to relate to : be about,”

“to bear on,” “to have an influence on : involve” and “to be the business or affair of”). Of course,

especially a novel question.”), majority decision superseded by statute as recognized in Guntlow
v. Bd. of Abatement, Town of Pownal, 2014 VT 118, ¶ 26, 198 Vt. 174, 112 A.3d 732.
28
we must be careful to read this language in its historical context. But reference to that context

does not suggest that a different meaning was intended.

¶ 60. As set forth below, at the time the voter’s oath was drafted and throughout the vast

majority of our state’s history, there was an understanding that the power to approve educational

expenditures was local in nature precisely because it was yoked to the local community’s

obligation to fund those expenditures through the payment of taxes—precisely the obligation this

Court fundamentally reformulated in Brigham v. State, 166 Vt. at 249, 692 A.2d at 386. Because

a district’s education budget is now funded by the State rather than local taxes, I would conclude

that a vote to ratify a municipal budget is one “touching [a] matter that concerns the State of

Vermont.” Vt. Const. ch. II, § 42.

¶ 61. As Ferry recognized, “§ 42 is unique.” 2023 VT 4, ¶ 24. It has no parallel in the

United States Constitution, id. ¶ 19, or, indeed, any other state charter. Although the voter’s oath

first appeared in Vermont’s 1777 Constitution, which was substantially modeled on the

Pennsylvania Constitution of 1776, the oath was not derived from the Pennsylvania charter. P.

Gillies, Not Quite a State of Nature: Derivations of Early Vermont Law, 23 Vt. L. Rev. 99, 119,

122 (1998). Rather, the drafters of the Vermont Constitution added both the requirement that

freemen take an oath and the oath itself. Id. “The parts Vermont added and subtracted from the

Pennsylvania Constitution are what makes Vermont unique among governments throughout

history.” Id. We should take care to render decisions informed by those choices.

¶ 62. Vermont’s 1777 Constitution “provided that ‘[a] school or schools shall be

established in each town, by the legislature, for the convenient instruction of youth, with such

salaries to the masters, paid by each town, making proper use of school lands in each town, thereby

to enable them to instruct youth at low prices.’ ” Chittenden Town Sch. Dist., 169 Vt. 310, 335,

738 A.2d 539, 557 (1999) (emphasis added) (quoting Vt. Const. of 1777, ch. II, § XL)); see also

Gillies, supra, at 116 (noting that while Pennsylvania’s 1776 Constitution “required schools in

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each county to be supported by the public,” the drafters of Vermont’s 1777 Constitution chose to

“require[] a school in each town paid for by each town”). “By 1782, the Vermont Legislature had

implemented the section by providing for and requiring that a uniform system of local school

districts be created and that they be financed by taxes on all rateable property of residents of the

district, supplemented by a special tax paid by parents whose children attended schools.”

Chittenden Town Sch. Dist., 169 Vt. at 335, 738 A.2d at 557 (quotation omitted).

¶ 63. In 1839, the Court considered a challenge to a Woodstock school district’s vote to

raise money for the support of a school by taxing the inhabitants of the district in proportion to the

number of students they sent to that school. Brown v. Hoadley, 12 Vt. 472 (1839). The Court

observed that in 1797, the Legislature passed an act providing that:

“the inhabitants of any school district, at a legal meeting, holden for
that purpose, shall have power to raise money, by a rate or tax, on
the list of the polls and rateable property of the inhabitants of such
district, or by subscription, or otherwise, as they shall think most
proper, for the purpose of erecting and repairing s[c]hool houses,
and supporting schools in such districts.”

Id. at 477 (emphasis added). Following the passage of several intervening laws, the Court

observed, public schools were “now supported, in a considerable measure, by taxes raised upon

the list, the interest of public moneys, and the rents of public lands.” Id. at 479. Despite these

changes, the Court concluded, “the law, on this particular point, has remained substantially the

same. . . . [I]t was the unquestioned practice for the districts to support their respective schools in

the manner indicated by their votes.” Id. at 478-79 (“[V]otes of . . . school districts, to raise taxes

not exceeding a specified sum, are sanctioned by very general practice.”). As a result, the Court

held that the remaining “balance of moneys” required for the support of schools after accounting

for other funding sources “may legally be raised upon the list or scholar, as a majority of the legal

voters” within the district “shall prefer.” Id. at 479.

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¶ 64. The inexorable connection between the right to determine a district’s budget and

the obligation to fund that same budget—to the extent it exceeds other available funding sources—

by raising taxes on the inhabitants of the district is illustrated by numerous decisions throughout

this period. See, e.g., Bowen v. King, 34 Vt. 156, 161-62 (1861) (affirming that “[t]he statutes

authorizing school districts to raise taxes for building school houses, and supporting schools,

require them to be raised by vote in a meeting legally warned” and explaining that the “legal

liability upon the district . . . must eventually be satisfied by a tax upon the inhabitants of the

district”); Town of Barre v. Sch. Dist. No. 13, 67 Vt. 108, 110-11, 30 A. 807, 807 (1894)

(explaining that under act giving municipality “power to divide its territory into such a number of

school districts as it might deem necessary to furnish the required instruction,” each district

“became a corporation,” the “sole power and function” of which was “to provide the required

instruction to the young of all classes” and “[o]nly for that purpose could it assess taxes”). It was

perhaps most succinctly articulated in Greenbanks v. Boutwell, where the Court affirmed the

legality of a tax assessed by a school district to fund the construction of a new schoolhouse. 43

Vt. 207, 221 (1870). The Court observed that the “quantity and lay of the land” a schoolhouse

should stand on, as well as the “number or kind of rooms, or the particular use to be made of the

rooms constituting a school-house” are matters necessarily “left to the judgment and discretion of

the district, fairly and honestly exercised, and having reference to the conditions and circumstances

of such district.” Id. at 217. It held, however, that “[w]hen the district is to get, and actually does

get, the thing which it is both its province and its duty to have, it is equally its province and its

duty to pay for it.” Id. at 216.

¶ 65. This dovetails neatly with the historical understanding of the distinction between

local and statewide issues laid out in Ferry. As Ferry observed in analyzing Vermont cases

concerning the right to vote in municipal elections around this time: “[s]tated succinctly, ‘the right

to vote’ in local elections was ‘grounded in the liability to pay taxes.’ ” 2023 VT 4, ¶ 47 (quoting

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Town of Bennington v. Park, 50 Vt. 178, 200 (1877)). Consistent with this understanding, as

recently as 1990, the Court recognized that a statutory procedure pursuant to which a union school

district board was required to revise its proposed budget if not initially approved by municipal

voters represented “a commonsense balanced approach to resolving competing interests by giving

recognition both to the expertise of the board and the taxing concerns of the community.”

Pominville v. Addison Cent. Supervisory Union, 154 Vt. 299, 302, 575 A.2d 196, 197-98 (1990)

(emphasis added).

¶ 66. As plaintiffs recognize, however, this Court’s 1997 decision in Brigham v. State

marked a sea change in Vermont’s school-funding mechanism. Brigham concluded that “the

current system for funding public education in Vermont, with its substantial dependence on local

property taxes and resultant wide disparities in revenues available to local school districts, deprives

children of an equal educational opportunity in violation of the Vermont Constitution.” 166 Vt. at

249, 692 A.2d at 386; see also Anderson v. State, 168 Vt. 641, 644, 723 A.2d 1147, 1149 (1998)

(mem.) (“In Brigham, we held that students had a right to equal educational opportunity that was

violated by the then-existing system allowing districts to assess property taxes locally and spend

what they raised.” (emphasis added)).

¶ 67. In response to Brigham, the Legislature passed Act 60, the Equal Educational

Opportunity Act of 1997. 1997, No. 60, § 18; 16 V.S.A. § 4000(a). “From the broadest

perspective,” Act 60 represented the Legislature’s attempt “to rectify the inequality in educational

opportunity in Vermont resulting from the state’s heavy reliance on local property taxes to fund

schools.” Town of Killington v. State, 172 Vt. 182, 191, 776 A.2d 395, 402 (2001). Following

Act 60, the Legislature continued to make changes to the education-funding scheme. See 2003,

No. 68, § 25; Brigham v. State, 2005 VT 105, ¶ 4, 179 Vt. 525, 889 A.2d 715 (mem.) (noting

State’s argument that plaintiffs’ challenge to Act 60’s method of taxation was mooted by passage

of Act 68, because Act 68 allegedly “established new methods of funding education that

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ameliorated the deficiencies that plaintiffs alleged were present in Act 60”). By 2022, this Court

explained that “[u]nder the current system, voters within each school district decide the district’s

budget for each fiscal year,” and “[t]he budgets are then funded by the State, which collects

property taxes at rates it sets to cover a portion of the cost.” Boyd v. State, 2022 VT 12, ¶¶ 5, 32,

216 Vt. 272, 275 A.3d 155 (noting that “the State now funds the entirety of school district

budgets”).

¶ 68. Today, the approved education budget sent to the State by a municipality is not a

“request” which the State can reduce or modify; instead, the State must fund it. Id. As such, when

one municipality votes for higher school spending, it votes to increase total statewide education

costs. To cover those costs, the State may adjust education tax rates, affecting taxpayers in other

municipalities. Local budget decisions in each municipality can therefore have a direct impact on

the tax rates in other municipalities across the state. When § 42 was drafted, educational

expenditures were a local issue because those expenditures were funded by local coffers. Brigham

unquestionably decoupled these two concepts in recognizing that the State cannot “abdicate the

basic responsibility for education by passing it on to local governments.” 166 Vt. at 264, 692 A.2d

at 395.

¶ 69. When the text of § 42 is “understood in its historical context,” it compels the

conclusion that the authority to approve educational expenditures belonged to municipal voters

only because they bore the burden of funding those expenditures—first entirely, and later to the

extent that they exceeded other available funds—with their own tax dollars. Misch, 2021 VT 10,

¶ 9. Thus, a school budget vote is, today, one “touching [a] matter that concerns the State of

Vermont.” Vt. Const. ch. II, § 42. As a result, I would conclude that the Burlington charter

amendment violates § 42 as applied to an education-budget vote.

¶ 70. In sum, I am compelled to conclude that the drafters of § 42 meant precisely what

they said. Today, a vote to ratify a school district’s education budget is one “touching [a] matter

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that concerns the State of Vermont.” Id. I would therefore hold that members of the voting pool

must satisfy the Vermont Constitution’s requirements for statewide voters. Accordingly, I would

reverse the decision of the trial court insofar as it determined that school-budget votes are not

governed by § 42. For this reason, I respectfully dissent in part.

Superior Judge, Specially Assigned

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