----- Original Message -----From: [log in to unmask] href="mailto:[log in to unmask]">Jim BarlowSent: Thursday, January 25, 2007 9:17 AMSubject: New Supreme Court Decision on Advisory ArticlesFolks should be aware that the Vermont Supreme Court has issued a decision regarding petitioned advisory articles submitted for inclusion in the warning for town meeting under 17 V.S.A. § 2642(a). Normally we would report on the case in the League's monthly newsletter, but the next edition of the newsletter has already gone to print and the following edition will not be available before the deadline for posting the warning for town meeting.The case is titled Clift v. City of South Burlington, 2007 VT 3. At issue was a petitioned article directing the South Burlington city council to ask state legislators to enact legislation concerning abortions. In affirming the South Burlington city council's authority to refuse to warn this article, the Court stated:
While the City could have warned the advisory article and presented it to the voters, it was under no obligation to do so. To decide otherwise would be to subject the town meeting - a forum primarily for conducting municipal business - to debate on every social issue of interest to voters. Allowing the City discretion to warn advisory articles, such as the one presented by petitioners, furthers the Council's ability to balance the efficient transaction of city business with the provision of a local forum for discussing state and national issues.
The Court found that the petitioned article was outside the purview of the City and its voters, therefore, while the South Burlington city council could have warned the advisory article, it could not be legally compelled to do so.The Clift decision furthers a long line of Vermont Supreme Court cases interpreting 17 V.S.A. § 2642(a) and its predecessor statutes. Since 1969 the Supreme Court has interpreted these statutes to compel legislative bodies to present petitioned articles to voters only when the purpose stated in the petition "set forth a clear right which is within the province of the town meeting to grant or refuse through its vote." Royalton Taxpayers' Protective Ass'n v. Wassmansdorf, 128 Vt. 153, 160 (1969).While arguments have been made that all (or most) advisory articles must be warned, the League has consistently advised members that legislative bodies have discretion under the law to warn advisory articles. At the same time, we have reminded members that voters unhappy with a legislative body's decision not to warn an advisory article could refuse to re-elect those members whom they are unhappy with. Accordingly, a legislative body must always proceed with due caution when considering the decision not to warn a petitioned advisory article. At least two municipalities (Bennington and Brattleboro) have specific charter provisions addressing advisory articles. These should also be consulted and followed.Unfortunately, the decision has not yet been published electronically, but we expect it to be available shortly. If you have questions about the decision, or would like to get a copy of it, please email me at [log in to unmask]. I will be out of the office today to attend a workshop, but will respond as soon as I return.Jim BarlowStaff AttorneyVermont League of Cities and Towns89 Main Street, Suite 4Montpelier, VT 05602(802) 229-9111(800) 649-7915(802) 229-2211 (fax)