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: JUD.Reporter@vermont.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.
2021 VT 53
No. 2020-183
Kaleb Vasseur Supreme Court
On Appeal from v. Superior Court, Washington Unit, Civil Division
State of Vermont January Term, 2021
Timothy B. Tomasi, J.
Neil L. Nussbaum, Law Offices of Neil L. Nussbaum, Moretown, for Plaintiff-Appellant.
Thomas J. Donovan, Jr., Attorney General, and David Boyd and Rachel Smith, Assistant Attorneys General, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. COHEN, J. Plaintiff Kaleb Vasseur, an elementary school student in Fayston,
Vermont, filed an action in the superior court arguing that the way his school district elects its
school board members violates the Vermont Constitution. The court dismissed the complaint for
lack of constitutional standing. Plaintiff now appeals the court’s order that denied his motion to
amend the complaint because the proposed amended complaint also failed to satisfy the standing
requirement. We affirm.
¶ 2. In Brigham v. State, this Court held that under the Education and Common Benefits
Clauses of the Vermont Constitution, Vt. Const. ch. I, art. 7, ch. II, § 68, Vermont children have a
fundamental right to education and a right to equal educational opportunities regardless of where they reside in the state. 166 Vt. 246, 263, 268, 692 A.2d 384, 394, 397 (1997). Based on Brigham,
plaintiff filed a complaint in the superior court alleging that the way in which Act 46 of 2015
allows eighteen school districts in the state to vote for members of the school board deprives
children living in rural areas within those districts of equal educational opportunities under the
Vermont Constitution. More specifically, plaintiff claimed that Act 46 allows his school district
to adopt an electoral system in which each town within the district elects a certain number of school
board members and those members’ votes are weighted according to the town’s population. Thus,
his rural town of Fayston, with 10.5 percent of his school district’s population, was allotted 10.5
percent of the votes in the school board, in contrast to Waterbury, which was four times more
populous and accordingly had greater voting power in the school board. Meanwhile, plaintiff
observed that other school districts in the state have adopted “at-large” voting systems, in which
all the voting residents of the district vote for, and are represented by, a given number of school
board members. Plaintiff thus asked the court to invalidate Act 46 and dissolve the eighteen
unconstitutional school boards he identified.
¶ 3. The superior court granted the State’s motion to dismiss under Vermont Rule of
Civil Procedure 12(b)(1), concluding that plaintiff lacked constitutional standing because,
assuming there was an injury, he had not shown that the State caused the injury. The court
observed that while Act 46 sought to achieve consolidation of school districts, it did not compel a
district to choose any particular electoral system to elect its school board.
¶ 4. Plaintiff then filed motions to reconsider and amend the complaint, attaching a
second amended complaint. In this amended complaint, plaintiff made the same substantive claim
but added that “[s]ome Vermont towns with comparatively low populations have been rendered
too weak to provide an adequate education to Vermont’s schoolchildren that reside in their towns”
and that “[c]omparatively low school board representation causes comparatively diminished
2 educational opportunities for the students living in the affected towns.” He further maintained that
school districts cannot consolidate without approval from the Vermont State Board of Education
and that the State caused the alleged injury when the Board approved the formation of his school
district with the challenged electoral system.
¶ 5. The court denied the motions, holding that the new complaint also failed to allege
that the State caused plaintiff’s injury. It concluded that because the new complaint did not satisfy
the standing requirement, allowing plaintiff to amend the complaint would be futile.
¶ 6. Plaintiff appeals from that ruling, arguing that the superior court abused its
discretion in denying his motion to amend the complaint. He argues that he cured the standing
defect in his first complaint by alleging in his second that the Board of Education caused the
alleged injury by approving the formation of his school district. Plaintiff further maintains that the
amended complaint alleges an injury because it is unfair to allow the residents of more populous
towns to have more voting power in a school board. As an example of injury, he alleges for the
first time in his reply brief that his school board adopted a motion to “continue exploration and
development of a . . . plan . . . that includes closing Fayston Elementary School,” which he attends.
From this, we are asked to infer that the school board is exploring this action because Fayston
voters have less voting power in the school board than other towns in the district and that if this
action is taken, he will be subject to unequal educational opportunities.1
¶ 7. “Under the rules of civil procedure, leave to amend the complaint ‘shall be freely
given when justice so requires,’ ” and we adhere to a tradition of liberally allowing amendments
to pleadings when opposing parties will not be prejudiced. Colby v. Umbrella, Inc., 2008 VT 20,
¶ 4, 184 Vt. 1, 955 A.2d 1082 (quoting V.R.C.P. 15(a)). But a court may deny a motion to amend
1 Plaintiff does not contend that his district’s school board election system violates the constitutional requirement of one-person, one-vote, but instead rests his case on the contention that it leads to unequal educational opportunity.
3 when, among other reasons, amendment would be futile. Id.; see also Gus’ Catering, Inc. v.
Menusoft Sys., 171 Vt. 556, 559, 762 A.2d 804, 808 (2000) (mem.) (affirming trial court’s refusal
to allow amendment of complaint where amendment would have been futile given substantive
law). Amendment is futile if the amended complaint cannot withstand a motion to dismiss. Prive
v. Vt. Asbestos Grp., 2010 VT 2, ¶ 13, 187 Vt. 280, 992 A.2d 1035 (noting that “the only way to
know whether the . . . motion to amend is futile is to analyze whether plaintiff’s . . . amended
complaint would survive defendant’s motion to dismiss”). We review the superior court’s decision
on a motion to amend for abuse of discretion. Colby, 2008 VT 20, ¶ 4.
¶ 8. Our inquiry is accordingly whether plaintiff’s second amended complaint could
survive a motion to dismiss for lack of standing. We agree with the superior court that plaintiff
failed to satisfy the constitutional standing requirement. We do so, however, on the alternative
basis that he failed to allege an injury in fact. Because we discern no injury, we do not consider
whether causation was adequately pleaded.2
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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: JUD.Reporter@vermont.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.
2021 VT 53
No. 2020-183
Kaleb Vasseur Supreme Court
On Appeal from v. Superior Court, Washington Unit, Civil Division
State of Vermont January Term, 2021
Timothy B. Tomasi, J.
Neil L. Nussbaum, Law Offices of Neil L. Nussbaum, Moretown, for Plaintiff-Appellant.
Thomas J. Donovan, Jr., Attorney General, and David Boyd and Rachel Smith, Assistant Attorneys General, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. COHEN, J. Plaintiff Kaleb Vasseur, an elementary school student in Fayston,
Vermont, filed an action in the superior court arguing that the way his school district elects its
school board members violates the Vermont Constitution. The court dismissed the complaint for
lack of constitutional standing. Plaintiff now appeals the court’s order that denied his motion to
amend the complaint because the proposed amended complaint also failed to satisfy the standing
requirement. We affirm.
¶ 2. In Brigham v. State, this Court held that under the Education and Common Benefits
Clauses of the Vermont Constitution, Vt. Const. ch. I, art. 7, ch. II, § 68, Vermont children have a
fundamental right to education and a right to equal educational opportunities regardless of where they reside in the state. 166 Vt. 246, 263, 268, 692 A.2d 384, 394, 397 (1997). Based on Brigham,
plaintiff filed a complaint in the superior court alleging that the way in which Act 46 of 2015
allows eighteen school districts in the state to vote for members of the school board deprives
children living in rural areas within those districts of equal educational opportunities under the
Vermont Constitution. More specifically, plaintiff claimed that Act 46 allows his school district
to adopt an electoral system in which each town within the district elects a certain number of school
board members and those members’ votes are weighted according to the town’s population. Thus,
his rural town of Fayston, with 10.5 percent of his school district’s population, was allotted 10.5
percent of the votes in the school board, in contrast to Waterbury, which was four times more
populous and accordingly had greater voting power in the school board. Meanwhile, plaintiff
observed that other school districts in the state have adopted “at-large” voting systems, in which
all the voting residents of the district vote for, and are represented by, a given number of school
board members. Plaintiff thus asked the court to invalidate Act 46 and dissolve the eighteen
unconstitutional school boards he identified.
¶ 3. The superior court granted the State’s motion to dismiss under Vermont Rule of
Civil Procedure 12(b)(1), concluding that plaintiff lacked constitutional standing because,
assuming there was an injury, he had not shown that the State caused the injury. The court
observed that while Act 46 sought to achieve consolidation of school districts, it did not compel a
district to choose any particular electoral system to elect its school board.
¶ 4. Plaintiff then filed motions to reconsider and amend the complaint, attaching a
second amended complaint. In this amended complaint, plaintiff made the same substantive claim
but added that “[s]ome Vermont towns with comparatively low populations have been rendered
too weak to provide an adequate education to Vermont’s schoolchildren that reside in their towns”
and that “[c]omparatively low school board representation causes comparatively diminished
2 educational opportunities for the students living in the affected towns.” He further maintained that
school districts cannot consolidate without approval from the Vermont State Board of Education
and that the State caused the alleged injury when the Board approved the formation of his school
district with the challenged electoral system.
¶ 5. The court denied the motions, holding that the new complaint also failed to allege
that the State caused plaintiff’s injury. It concluded that because the new complaint did not satisfy
the standing requirement, allowing plaintiff to amend the complaint would be futile.
¶ 6. Plaintiff appeals from that ruling, arguing that the superior court abused its
discretion in denying his motion to amend the complaint. He argues that he cured the standing
defect in his first complaint by alleging in his second that the Board of Education caused the
alleged injury by approving the formation of his school district. Plaintiff further maintains that the
amended complaint alleges an injury because it is unfair to allow the residents of more populous
towns to have more voting power in a school board. As an example of injury, he alleges for the
first time in his reply brief that his school board adopted a motion to “continue exploration and
development of a . . . plan . . . that includes closing Fayston Elementary School,” which he attends.
From this, we are asked to infer that the school board is exploring this action because Fayston
voters have less voting power in the school board than other towns in the district and that if this
action is taken, he will be subject to unequal educational opportunities.1
¶ 7. “Under the rules of civil procedure, leave to amend the complaint ‘shall be freely
given when justice so requires,’ ” and we adhere to a tradition of liberally allowing amendments
to pleadings when opposing parties will not be prejudiced. Colby v. Umbrella, Inc., 2008 VT 20,
¶ 4, 184 Vt. 1, 955 A.2d 1082 (quoting V.R.C.P. 15(a)). But a court may deny a motion to amend
1 Plaintiff does not contend that his district’s school board election system violates the constitutional requirement of one-person, one-vote, but instead rests his case on the contention that it leads to unequal educational opportunity.
3 when, among other reasons, amendment would be futile. Id.; see also Gus’ Catering, Inc. v.
Menusoft Sys., 171 Vt. 556, 559, 762 A.2d 804, 808 (2000) (mem.) (affirming trial court’s refusal
to allow amendment of complaint where amendment would have been futile given substantive
law). Amendment is futile if the amended complaint cannot withstand a motion to dismiss. Prive
v. Vt. Asbestos Grp., 2010 VT 2, ¶ 13, 187 Vt. 280, 992 A.2d 1035 (noting that “the only way to
know whether the . . . motion to amend is futile is to analyze whether plaintiff’s . . . amended
complaint would survive defendant’s motion to dismiss”). We review the superior court’s decision
on a motion to amend for abuse of discretion. Colby, 2008 VT 20, ¶ 4.
¶ 8. Our inquiry is accordingly whether plaintiff’s second amended complaint could
survive a motion to dismiss for lack of standing. We agree with the superior court that plaintiff
failed to satisfy the constitutional standing requirement. We do so, however, on the alternative
basis that he failed to allege an injury in fact. Because we discern no injury, we do not consider
whether causation was adequately pleaded.2
¶ 9. “Vermont courts are vested with subject matter jurisdiction only over actual cases
or controversies involving litigants with adverse interests.” Brod v. Agency of Nat. Res., 2007 VT
87, ¶ 8, 182 Vt. 234, 936 A.2d 1286. One component of this principle is that plaintiffs must have
standing to litigate the action, “that is, they must have suffered a particular injury that is attributable
to the defendant and that can be redressed by a court of law.” Parker v. Town of Milton, 169 Vt.
74, 77, 726 A.2d 477, 480 (1998). This jurisdictional requirement enforces “the separation of
powers between the three different branches of government by confining the judiciary to the
2 Our agreement with the superior court that plaintiff lacks standing is not a full embrace of the court’s reasoning for denying the motion to amend the complaint. As noted, the court dismissed the action because, assuming the existence of an injury, plaintiff failed to allege that the State caused it. In the second amended complaint, however, plaintiff alleged that the State Board of Education caused the alleged injury by approving the formation of his school district with an electoral system that deprived him of equal educational opportunities. The court did not explain why this allegation was insufficient to satisfy the causation prong of the standing requirement.
4 adjudication of actual disputes and preventing the judiciary from presiding over broad-based
policy questions that are properly resolved in the legislative arena.” Id.
¶ 10. To satisfy the constitutional standing requirement, “a plaintiff must allege facts on
the face of the complaint that show (1) injury in fact, (2) causation, and (3) redressability.” Wool
v. Office of Prof’l Regulation, 2020 VT 44, ¶ 10, __ Vt. __, 236 A.3d 1250 (quotation omitted).
The plaintiff “must present a real—not merely theoretical—controversy involving the threat of
actual injury to a protected legal interest rather than merely speculating about the impact of some
generalized grievance.” Severson v. City of Burlington, 2019 VT 41, ¶ 10, 210 Vt. 365, 215 A.3d
102 (quotation omitted). In ensuring that a plaintiff has standing at the pleading stage, we “accept
all uncontroverted factual allegations as true,” “construe those facts in the light most favorable to
the nonmoving party,” and “assume the truth of all reasonable inferences that may be derived from
the pleadings.” Id. ¶ 9 (quotations omitted) (alterations omitted). Finally, the standing inquiry is
a distinct analysis from consideration of the merits of a claim, and we are careful to not conflate
the two. See Wool, 2020 VT 44, ¶¶ 11-12 (holding that petitioner had standing despite failure of
claim on merits).
¶ 11. Here, plaintiff did not allege facts in either complaint to satisfy the injury-in-fact
prong of the standing doctrine. As relevant to the injury question, plaintiff merely alleged that
“[s]ome Vermont towns with comparatively low populations have been rendered too weak to
provide an adequate education to Vermont’s schoolchildren that reside in their towns” and that
“[c]omparatively low school board representation causes comparatively diminished educational
opportunities for the students living in the affected towns.” Plaintiff did not explain how he has
received a different education than any other student in his district or the state—how, concretely,
he has been harmed by his school district’s method of electing school board members.
5 ¶ 12. Plaintiff bases his claim to standing on Brigham. There, students and school
districts brought a claim that the then-existing system for funding public education in the state
resulted in wide disparities in revenues available to school districts and consequent inequality of
educational opportunities. While standing was not challenged in Brigham, “the material facts
[were] not in dispute.” 166 Vt. at 252, 692 A.2d at 387. Under that funding system, school districts
received part of their funding from local property taxes levied by cities and towns. We surveyed
undisputed evidence that there were “wide disparities in student expenditures . . . among Vermont
school districts and that these disparities correlate[d] generally with taxable property wealth within
the districts.” Id. at 255, 692 A.2d at 389. It was also undisputed that the funding disparities
resulted in unequal educational opportunities because “[s]chool districts of equal size but unequal
funding would not have the capacity, for example, to offer equivalent foreign language training,
purchase equivalent computer technology, hire teachers and other professional personnel of
equivalent training and experience, or provide equivalent salaries and benefits.” Id. at 255, 692
A.2d at 390. Such a system deprived Vermont children of their right to equal educational
opportunities under the Education and Common Benefits Clauses. Id. at 268, 692 A.2d at 397.
¶ 13. The problem with plaintiff’s reliance on Brigham is that disparities in education
funding across the school districts in the state is a fundamentally different phenomenon than
disparities in town-by-town representation on a particular school board. That the residents of
Fayston have less voting power in the school district than those of Waterbury does not
automatically mean that Fayston students receive a different education than those of Waterbury.
Plaintiff did not bridge the logical gap between differences in town representation in a school board
and differences in educational opportunities. He did not allege, for example, that he is taught by
less skilled teachers, that he has access to fewer or inferior books, to fewer or inferior computers,
to fewer or inferior foreign language or extra-curricular activities. To be sure, plaintiff did not
6 have to prove an injury at the pleading stage of the litigation, but he did have to allege facts in the
complaint that show an injury in fact. See Paige v. State, 2018 VT 136, ¶¶ 9-10, 209 Vt. 379, 205
A.3d 526. He failed to do this.
¶ 14. By arguing that his district’s school board electoral system is unfair, plaintiff
presents us with a generalized grievance and asks us to do precisely what the standing doctrine
prevents—“presid[e] over broad-based policy questions that are properly resolved in the legislative
arena.” Parker, 169 Vt. at 77, 726 A.2d at 480. Plaintiff would have every school district in the
state adopt an at-large voting system to choose its school board. But the Legislature enacted a
different legislative scheme that gives local education leaders and residents a choice on the matter.
See 16 V.S.A. §§ 706b(b)(9), 706e (outlining certain requirements for election of school board
members without mandating any particular representational method). Absent a properly pleaded
allegation of injury in fact that satisfies the standing doctrine, we have no jurisdiction to review
the Legislature’s choice.
¶ 15. Plaintiff states for the first time in his reply brief that his school board adopted a
motion to “continue exploration and development of a . . . plan . . . that includes closing Fayston
Elementary School,” which he attends. The argument appears to be that his school might be closed
because Fayston has less representation in the school board, and, because his school might be
closed, he will receive unequal educational opportunities. “Our law is clear that issues not raised
in an appellant’s original brief may not be raised for the first time in a reply brief.” Maynard v.
Travelers Ins. Co., 149 Vt. 158, 160, 540 A.2d 1032, 1033 (1987). We are especially reluctant to
review this allegation here because our task is to determine whether the superior court abused its
discretion in not allowing plaintiff to amend his complaint, and plaintiff did not raise this issue in
any of his complaints.
7 ¶ 16. Because plaintiff’s second amended complaint could not survive a motion to
dismiss for lack of standing, the superior court did not abuse its discretion in denying plaintiff’s
motion to amend the complaint.
Affirmed.
FOR THE COURT:
Associate Justice