Handverger v. City of Winooski

2011 VT 130, 38 A.3d 1153, 191 Vt. 556, 2010 Vt. LEXIS 126, 2011 WL 6097735
CourtSupreme Court of Vermont
DecidedNovember 29, 2011
DocketNo. 10-174
StatusPublished
Cited by10 cases

This text of 2011 VT 130 (Handverger v. City of Winooski) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Handverger v. City of Winooski, 2011 VT 130, 38 A.3d 1153, 191 Vt. 556, 2010 Vt. LEXIS 126, 2011 WL 6097735 (Vt. 2011).

Opinion

¶ 1. Plaintiff Joshua Handverger, the former city manager of the City of Winooski, appeals from the trial court’s dismissal of his claim for extraordinary relief against the City under Vermont Rule of Civil Procedure 75 and a related wage claim for double damages under 21 V.S.A. § 347. Plaintiff complains that the Winooski City Council improperly terminated his employment by failing to give him a public hearing between fifteen and thirty days after the city council voted to dismiss him, as provided in the Winooski City Charter. The trial court ruled that since the charter, enacted by the Legislature and codified at 24 V.S.A. Appendix chapter 17, explicitly bars judicial review of any action suspending or removing the city manager, plaintiff was not entitled to review of the City’s action under Rule 75. We agree and therefore affirm.

[557]*557¶ 2. Plaintiff was hired on October 1, 2007. At that time, he signed a contract that explicitly made him an “at will” employee during his first year of employment, permitting the City to dismiss him without cause at any time during the first year. The contract further provided that, after the first year, the City could dismiss plaintiff only for “just cause.” On September 22,2008, ten days before the one-year anniversary of his hire date, the city council voted to remove plaintiff. Plaintiff responded on September 27 by requesting an open hearing pursuant to the following provision in the city charter:

Within five days after a copy of the resolution is delivered to the manager, the manager may file with the council a written request for a public hearing. This hearing shall be held at a council meeting not earlier than 15 days nor later than 30 days after the request is filed.

24 V.S.A. App. ch. 17, § 3.3(a)(2).

¶ 3. The next day, September 28, the City offered to hold an open hearing two days hence, but asserted that the charter’s hearing provisions were inapplicable due to plaintiff’s at-will contract. Out of state for a religious holiday and wanting more time to prepai'e, plaintiff on September 30 filed a demand for a later hearing conforming to the § 3.3(a)(2) timeframe. The City offered, in response, to hold a hearing sometime later on the condition that plaintiff waive all time-related claims he might make due to the delay in holding the hearing. The City acknowledged at oral argument that this condition was to avoid a demand by plaintiff for the City to show cause for his dismissal, since a later hearing would not have occurred until after the expiration of his at-will probationary period. Plaintiff did not answer this conditional offer, and the city council proceeded with the open hearing as originally scheduled, voting to confirm plaintiff’s removal.

¶ 4. Plaintiff contested the City’s decision in superior court, seeking review of governmental action and extraordinary relief under Rule 75, as well as double damages for failure to pay wages, and making other claims against the City and its attorney, including a federal civil rights claim.1 The City removed the matter to federal district court. The federal court returned the state law claims to superior court and stayed consideration of the federal claims until completion of the state proceedings. At plaintiffs request, the superior court first considered his Rule 75 motion before ruling on his other claims. Relying on the following charter provision, the court held that the city charter foreclosed any form of judicial appeal and therefore precluded Rule 75 review: “The action of the council in suspending or removing the manager shall not be subject to review by any court or agency.” Id. § 3.3(b). The court emphasized that plaintiff was “not being denied [his] ability to challenge his termination in court, as is evidenced by the other counts in his complaint, now pending in both state and federal court.” According to the court, its decision was only that “the specific claim under Rule 75 for mandamus or certiorari” was inapplicable. Plaintiff then dropped all claims except the Rule 75 action and wage claim, requesting a partial final judgment in favor of the City so he could appeal.2 The trial court entei’ed the order, and the instant appeal followed.

[558]*558¶ 5. On appeal, plaintiff dedicates a major portion of his brief to his argument that his employment agreement with the city establishing a one-year at-will employment period did not trump the removal procedures set forth in the city charter. The trial court did not consider this issue, instead addressing the primary question of whether plaintiff was entitled to judicial review at all under Rule 75, given the charter provision barring any court or agency review of an action to remove the city manager. Accordingly, we first address whether the trial court erred in ruling that Rule 75 did not provide a basis for plaintiff to challenge the City’s removal decision.

¶ 6. Plaintiff devotes three pages of his brief to this issue. He argues for the first time on appeal that because the City’s failure to follow removal procedures set forth in the chai’ter amounted to a jurisdictional failure rather than a substantive “action,” review was not barred by the charter provision foreclosing court or agency review of the city council’s “action” removing a city manager. Because this “jurisdictional” argument is actually an attack on the manner in which the City exercised its jurisdiction rather than on the authority of the City to consider such matters, we decline to consider this argument for the first time on appeal. See State v. Thompson, 2011 VT 98, ¶¶ 10-12, 190 Vt. 605, 30 A.3d 671 (mem.) (noting this Court’s adoption of modern trend to reduce vulnerability of final judgments to attack on grounds that tribunal lacked subject matter jurisdiction and recognizing that true subject matter jurisdiction concerns whether tribunal had authority to adjudicate type of controversy at issue rather than whether tribunal exercised that authority in impermissible manner); In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (stating our repeated admonition that issues are not preserved for review on appeal unless they were presented below with specificity and clarity so as to provide trial court with opportunity to rule on them).

¶ 7. That leaves us with plaintiffs brief argument that Chapter I, Article 4 of the Vermont Constitution guarantees his right to judicial review notwithstanding the charter provision precluding it. On numerous occasions over the years, we have addressed claims made pursuant to this clause, which states, in relevant part, as follows: “Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character.” Vt. Const. ch. I, art. 4. “We have treated Article 4 as the Vermont equivalent of the federal constitution’s Due Process Clause, and we have interpreted Article 4 as requiring adequate access to judicial process.” Holton v. Dep’t of Emp’t & Training, 2005 VT 42, ¶ 27, 178 Vt. 147, 878 A.2d 1051 (citations omitted). Plaintiff does not argue a lack of due process under a federal due process analysis, but rather contends that the instant case is controlled by Vincent n Vermont State Retirement Board, 148 Vt. 531, 536 A.2d 925 (1987), and not Mason v. Thetford School Board, 142 Vt. 495, 457 A.2d 647

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Cite This Page — Counsel Stack

Bluebook (online)
2011 VT 130, 38 A.3d 1153, 191 Vt. 556, 2010 Vt. LEXIS 126, 2011 WL 6097735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handverger-v-city-of-winooski-vt-2011.