STATE OF VERMONT

SUPERIOR COURT Franklin Unit Marilyn Hackett, Plaintiff v. Town of Franklin and Timothy Magnant in his individual and official capacities, Defendants

Vermont Superior Court MAY 2 9 2012 FILED: Franklin Unit

CIVIL DIVISION Docket No. S 77-11 Fc

ORDER ON MOTIONS FOR SUMMARY JUDGMENT This case comes before the Court on the parties' Cross-Motions for Summary Judgment and Plaintiff Marilyn Hackett's Motion to Strike. A hearing was held on February 28, 2012. After reviewing the evidence and arguments presented, the Court finds and holds as follows. Background The facts of this case are largely undisputed. Ms. Hackett lives in Franklin, Vermont and has attended the annual town meeting every year since at least 2000. Hackett Dep. 18:14-18; 28:9-15. For a number of years at the town meeting, shortly after the opening gavel, the Town moderatorDefendant Timothy Magnanthas called a local Christian minister to lead the Town residents in a prayer. Ms. Hackett has objected to the prayer a number of times, sometimes during the town meeting and at other times prior to the meeting. Despite these objections, the prayer continued through the 2011 meeting. It appears that the prayer was not held at the 2012 meeting. Ms. Hackett has participated in and voted at all of the town meetings, with the exception of 2011, when she refrained from voting because she was "discouraged." Hacket Dep. 59:19-24; Pl.'s Response to Def.'s Statement of Undisputed Facts 1173 (filed Jan. 23, 2012). The substance of the prayer has remained largely the same for the past several years: 2008 "Let us pray together. Lord, we thank you for this day as we come together as a community, and as we share this time together, we pray that you would bless each family, each person that serves in our communityour fire department, our rescue service, our school, our teachers. Lord, each one we ask that they beLord, may this day be glorifying to you to help us to do the business in a manner that is worthy of your [kingdom]. In the name of the Father, Son, and Holy Spirit. Amen." Def.'s Statement of Undisputed Facts 38 (filed Dec. 1, 2011).
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Vermont Superior Court MAY 2 9 2012 FILEN Franklin Unit 2009 "Let's just pray together. Father, we thank you for the opportunity to gather for town meeting day and for the business that is discussed or conducted, we ask for your oversight, for your blessing upon us. While we do pray for our whole country today, we pray especially for those who are going through difficult economic times, we ask that you would sustain them. Lord, we thank you for the country [in] which we live, for the freedoms that we have. Lord, we just ask that you would be without [the] whole town, our whole community today. We ask this in the name of the Father, the Son, and the Holy Spirit. Amen." Def.'s Statement of Undisputed Facts 43.
2010 "Let us pray together. Father in heaven, we are so thankful for this day where we can join together as members of one community. We thank you for this town of Franklin, for what it means to each of us. We thank you for the many people who serve in our community; we pray for them. We thank you for our state, our country, and the freedoms that we have. We are so blessed and we give you praise today. Oh Lord, even as we think of the comforts that we experience her[e] at home[, w]e're mindful today of the people of Haiti and Chile who have been devastated by earthquakes, and we pray for them. We ask that peace would prevail throughout our world. And we ask now that you would be with our meeting, that we would conduct our business in a peaceable and a good way. And we ask all this in the name of the Father, the Son, and the Holy Spirit. Amen." Def.'s Statement of Undisputed Facts 61. 2011 "Let us pray together. Father, we are so, so thankful for this day and this opportunity that we have to gather as a community. We thank you for our country, for our state and for this Town of Franklin. Lord, we ask the you be with us today, that you would bless the business that is transact[ed] and that you would draw us together as a community on this day, and we ask this in the name of the Father, the Son, and the Holy Spirit. Amen." Def.'s Statement of Undisputed Facts 65. In March 2011, Ms. Hackett filed a Complaint alleging that the prayer violates Chapter I, Article III of the Vermont Constitution and the Vermont Public Accommodations Act (VPAA), 9 V.S.A. 4502(a). She requested a declaratory judgment, an injunction, compensatory damages, and fees and costs. Legal Standard Summary judgment procedure is properly regarded as "an integral part of the . . . Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.' Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by Rule 56(c)(2)" indicate that "there is no genuine issue as to any material
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fact and that any party is entitled to judgment as a matter of law." V.R.C.P. 56(c)(3). The party moving for summary judgment has the burden of proof, and the opposing party must be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists. Price v. Leland, 149 Vt. 518, 521 (1988). However, summary judgment is mandated where, after an adequate time for discovery, a party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it has the burden of proof at trial. Poplaski v. Lamphere, 152 Vt. 251, 254-55 (1989). Plaintiff's Motion to Strike The Town included with its Motion for Summary Judgment a memorandum by Paul Gillies entitled "Prayer at Town Meeting," which analyzes the history, case law, and conceptual underpinings related to Article 3. Plaintiff objects to this being considered, pointing out that much of it appears to be legal analysis and Mr. Gillies has not entered an appearance in this case. The Town has not opposed Plaintiffs motion, but instead has filed a supplemental brief containing much of the same information. Since Plaintiffs Motion to Strike is unopposed, the Court will grant it. Motions for Summary Judgment 1. Immunity The Town claims and Ms. Hackett concedes that Mr. Magnant has immunity for all the claims against him. Therefore, Mr. Magnant will be granted summary judgment with respect to the claims against him. 2. V.R.C.P. 75 The Town claims that, to raise a constitutional challenge to the prayer, Ms. Hackett's sole avenue is a Rule 75 petition. That Rule provides that: Any action or failure or refusal to act by an agency of the state or a political subdivision thereof, including any department, board, commission, or officer, that is not reviewable or appealable under Rule 74 of these rules or Rule 4 or 5 of the Vermont Rules for Environmental Court Proceedings may be reviewed in accordance with this rule if such review is otherwise available by law. Rule 75 represents the modern equivalent of the extraordinary writs that existed at common law, including mandamus, certiorari, and prohibition. Ahern v. Mackey, 2007 VT 27, 8, 181 Vt. 599 (mem.); see also Reporter's Notes, V.R.C.P. 75 (Rule 75 provides a "procedure applicable whenever . . . review . . . is available as a matter of general law by proceedings in the nature of certiorari, mandamus, or prohibition"). A Rule 75 complaint must be filed within 30 days of the challenge action. V.R.C.P. 75(d). Ms. Hackett filed her complaint on March 1, 2011. Thus, the Town claims that she can only challenge the 2011 prayer.

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The Court disagrees. None of the traditional writs would be appropriate for the present situation. Mandamus is not appropriate. See Chrysler Corp. v. Makovec, 157 Vt. 84, 88 (1991) ("Defendant's petition is in the nature of a mandamus, which is a command from a higher authority to an administrator, executive, judicial officer or inferior tribunal to perform a particular act, to which the party seeking the relief has a clear right." (quotations omitted)); see also 52 Am. Jur. 2d Mandamus 6 (WL updated Feb. 2012) ("A complaint that seeks to prevent, rather than compel, an action is not proper for mandamus, what is really being sought is an injunction; in that case mandamus will not issue."). Neither is prohibition. See Rheaume v. Pallito, 2011 VT 72, 6 ("The function of a writ of prohibition is to prevent the unlawful assumption of jurisdiction by a tribunal contrary to common law or statutory provisions."). The Town is apparently relying on the writ of certiorari. See Petition of Mallary, 127 Vt. 412, 414 (1969) (writ of certiorari is appropriate to review "the judicial action of inferior courts, special tribunals, public officers, and bodies exercising judicial functions"). However, the Town Moderator, in allowing a prayer, is not "exercising judicial functions." See In re D. L., 164 Vt. 223, 230 (1995) (noting "the traditional judicial function of finding facts and applying the law to those facts"). Nor does the Moderator's decision constitute a "quasi-judicial proceeding." See 1 V.S.A. 310(5) ("Quasi-judicial proceeding' means a proceeding which is: (A) a contested case under the Vermont Administrative Procedure Act; or (B) a case in which the legal rights of one or more persons who are granted party status are adjudicated, which is conducted in such a way that all parties have opportunity to present evidence and to cross-examine witnesses presented by other parties, which results in a written decision, and the result of which is appealable by a party to a higher authority."). The Moderator's decision is not a "contested case." See 3 V.S.A. 801(b)(2) ("Contested case' means a proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing . . ."). Nor does (B) applythere were no "parties" to the Moderator's decision; no "party" had the opportunity to present evidence; there was no opportunity for cross-examination of witnesses (indeed, there were no witnesses); the decision did not result in a written decision; and the result of that decision is not appealable to a higher authority. This Court has jurisdiction to hear Ms. Hackett's constitutional claim. The language she cites in Article 3 is self-executing. Chittenden Town School Dist. v. Department of Educ., 169 Vt. 310, 324 (1999). This means that it "support[s] an action against the state or its agents without implementing legislation." Shields v. Gerhart, 163 Vt. 219, 222 (1995). Thus, Ms. Hackett is entitled to sue directly under Article 3. See 4 V.S.A. 31 ("The civil division shall have: (1) original and exclusive jurisdiction of all original civil actions . . . ."). The Town cites language suggesting a Rule 75 appeal is Plaintiff's only remedy. See Coutu v. Town of Cavendish, 2011 VT 27, 11112 ("[A]ppeal under Rule 75 was plaintiff's exclusive remedy with regard to the selectboard's decision."). However, that case cannot be read for the proposition that all action by a government official must be challenged under Rule 75. In Coutu, there was no statute or constitutional provision providing a right to sue and thus the Rule 75 action was the exclusive remedy. Ms. Hackett, however, has the right to sue directly under Article 3.

Vermont Superior Court MAY 2 9 2012

FILED: Franklin Unit

3. Money damages for constitutional claim Although the Court finds that Ms. Hackett is entitled to sue under Article 3, the remedy for this claim is a separate question. See Shields v. Gerhart, 163 Vt. 219,227-28 (1995) ("The fact that the constitutional provision is self-executing means only that the rights contained therein do not need further legislative action to become operative. It does not necessarily mean that monetary damages are the proper remedy for a violation."). Where the Legislature has provided a remedy, courts should not supplement it. See id. at 234-35 ("Where the Legislature has provided a remedy, although it may not be as effective for the plaintiff as money damages, we will ordinarily defer to the statutory remedy and refuse to supplement it."). The Town argues that Rule 75 provides the legislatively granted remedy and thus money damages are inappropriate. However, as discussed, the Court disagrees that a Rule 75 appeal is appropriate in this case. The Town has suggested no other legislatively granted remedy. Thus, the Court will imply a remedy for money damages. See id. ("[I]t may be appropriate to imply a monetary damages remedy to enforce constitutional rights where the Legislature has fashioned no other adequate remedial scheme."). 4. Plaintiff's Article 3 claimCompelled Support Clause Article 3 of the Vermont Constitution provides that "no person ought to, or of right can be compelled to . . . support any place of worship." Plaintiff did not allege a violation of the Compelled Support Clause in her Complaint, but in her Motion for Summary Judgment, Plaintiff alleges that allowing a portion of the town meeting to be devoted to a prayer violates Article 3's prohibition on compelled support for religious worship. See Pl.'s Mot. for Summ. J III(B). Plaintiff appears to believe that the use of time at town meeting for the prayer forces her to support a "place of worship" in the same way that the Town's use of public taxes to support a religious school would. See Chittenden, 169 Vt. 310 (school district tuition-payment policy which allowed authorized tuition reimbursement to sectarian schools without appropriate restrictions violated Compelled Support Clause). The Court finds this analogy inapt and does not believe that the prayer at town meeting compels Plaintiff to support a place of religious worship. The Court will not will extend the boundaries of the Compelled Support Clause in the absence of clear authority for doing so, and Plaintiff has cited none. Cf. Chittenden, 169 Vt. at 324 n.10 ("Numerous courts have held that payment of taxes is the equivalent of 'support.'"). Plaintiff also claims that allowing a prayer to be used at town meeting places the Town's "imprimateur" on the religious faith professed in the prayer. This appears to be an argument under the Establishment Clause of the U.S. Constitution. See Marsh v. Chambers, 463 U.S. 783, 792 (1983) (Establishment Clause of the First Amendment prohibits "symbolically placing the government's official seal of approval on one religious view" (quotation omitted)). However, Plaintiff is proceeding under the State Constitution only. Cf. Chittenden, 169 Vt. at 326 n.12 ("We note, and must respectfully disagree with, the Ohio Supreme Court's recently expressed dictum that the Compelled Support Clause of the Ohio Constitution, which also precludes `compelled support' of 'any place of worship,' is the 'approximate equivalent' of the Establishment Clause.").

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5. Plaintiff's Article 3 claimCompelled Attendance Clause Article 3 of the Vermont Constitution provides that, "no person . . . can be compelled to attend any religious worship ... , contrary to the dictates of conscience, nor can any person be justly deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculia[r] mode of religious worship." Vt. Const. ch. I, art. 3. Ms. Hackett contends that, because of the prayer, she was compelled to attend religious worship and she was deprived of her rights as a citizen on account of her religious sentiments. The Town responds that (1) the invocation did not constitute "religious worship," and (2) she was not compelled to attend the prayer. The Court must therefore interpret the meaning of these phrases. Although there is little case law interpreting this provision of Article 3, see Chittenden, 169 Vt. at 320 ("Our cases have not significantly developed the meaning of the Compelled Support Clause."), the Vermont Supreme Court has provided some guidance. "In construing our constitution, we have available a number of approaches in addition to our own precedents: examination of the text, historical analysis, sibling state constructions of similar provisions, and analysis of economic and sociological materials." Id. As a preliminary matter, however, the Court rejects the Town's suggestion that the Vermont Constitution is generally less restrictive than the federal Constitution on religious issues. The Court acknowledges that there is some language in the case law to this effect. See Vermont Educ. Bldgs. Fin. Agency v. Mann, 127 Vt. 262, 269 (1968) ("[T]he limits of the First Amendment of the Federal Constitution are more restrictive"); Swart v. South Burlington Town School Dist., 122 Vt. 177, 184 (1961) ("In the domain of religious liberty, the resolute history of the First Amendment seems the more demanding."), overruled on other grounds by Campbell v. Manchester Bd. of Sch. Dir., 161 Vt. 441 (1994). However, as the Vermont Supreme Court has noted, these cases are dated. See Chittenden, 169 Vt. at 348 (Johnson, J., concurring) ("Especially in light of the manner in which federal jurisprudence has changed in the thirty-to forty-year period since Mann and Swart were decided, I cannot agree with the proposition that the Vermont Constitution is the more permissive in this area."); see also Campbell, 161 Vt. at 447 n.5 (noting that the language in Mann and Swart suggesting that Vermont constitution was more permissive on religious issues "refer[s] to a First Amendment jurisprudence that has evolved markedly since [Mann and Swart] were issued"). Indeed, the majority in Chittenden expressly stated, "we do not believe we can simplistically state that one provision is always more restrictive of state action with respect to religion than another." Chittenden, 169 Vt. at 323; see also Chittenden, 169 Vt. at 343 ("[T]he United States Supreme Court may well decide that the intervention of unfettered parental choice between the public funding source and the educational provider will eliminate any First Amendment objection to the flow of public money to sectarian education. We cannot conclude, however, that parental choice has the same effect with respect to Article 3."). Moreover, in asserting that Vermont's founders were "somewhat reserved in expression of religious liberty," the Swart Court misinterpreted some of the sources it relied upon. For example, in Swart, the Court discussed A Memoir of Thomas Chittenden by Thomas Chipman, which asserts that the framers of the Vermont Constitution "were fearful that this religious liberty would be somewhat larger than the people of New England had been accustomed. And
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they justly considered that it was necessary to adapt the Constitution to the religious sentiments, habits and customs of the people of the State." Swart, 122 Vt. at 182. However, the Vermont Supreme Court later expressly rejected this language from Chipman as relevant in interpreting Article 3. See Chittenden, 169 Vt. at 334 ("We have noted, however, that the Chipman observation was about the final sentence in Article 3 and not the nonsupport clause."). 1 a. Whether the invocation constitutes religious worship The Court's starting point is that "prayer is the quintessential religious practice." Jaffree v. Wallace, 705 F.2d 1526, 1534 (11th Cir. 1983); see also Marsh, 463 U.S. at 811 (Brennan, J. dissenting) ("Prayer is religion in act. Praying means to take hold of a word, the end, so to speak, of a line that leads to God."); Graham v. Cent. Cmty Sch. Dist. of Decatur County, 608 F. Supp. 531, 535 (D. Iowa 1985) (noting the "undeniable truth that prayer is inherently religious"). However, the Town suggests that the invocation at town meeting is not "religious worship" under Marsh v. Chambers, in which the U.S. Supreme Court held that an opening prayer before a state legislature does not violate the Establishment Clause of the First Amendment. See Marsh, 463 U.S. at 792 ("To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."). The Court in Marsh noted that, three days after the first Congress authorized the appointment of paid chaplains to open each session with a prayer, final agreement was reached on the language of the Bill of Rights. Id. at 787-88. Given this "unique history," the Court did not apply the traditional Establishment Clause test. The Court concluded that, "It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable." Id. at 790. The Court first notes that Marsh was an Establishment Clause case under the First Amendment and therefore does not control the present analysis under the Vermont Constitution. 2
I "Furthermore, even if these statements [in Mann and Swart] were accurate when made, they were dicta, for in each case, the Court went on to treat the questions as matters to be resolved under First Amendment principles alone. Dicta, it need hardly be stated, have no binding precedential effect." Chittenden, 169 Vt. at 348 (Johnson, J., concurring).

2 The Court also notes that it is not clear that the town-meeting prayer would be entitled to the Marsh exception under federal law. Indeed, the Second Circuit recently held that a town-meeting prayer was not entitled to the Marsh exception. See Galloway v. Town of Greece, Docket No. 10-3635cv, 2012 WL 1732787 (2d Cir. May 17, 2012). Also, in the present case, the invocation at issue was clearly sectarian in natureit referred (at least since 2008) to "the Father, Son and Holy Spirit." Def.'s Statement of Undisputed Facts 11138, 43, 61, 65. The Town states that sectarian prayers are permissible under Marsh, but federal circuit courts have not reached a consensus on this issue. Compare Pelphrey v. Cobb County, Ga., 547 F.3d 1263, 1274 (11th Cir. 2008) (sectarian legislative prayers are constitutional "absent evidence that the legislative prayers have been exploited to advance or disparage a religion"), with Joyner v. Forsyth County, NC., 653 F.3d 341 (4th Cir. 2011) (legislative prayers must be nonsectarian). There is language from the Supreme Court itself supporting the view in Joyner. See County of Allegheny v. ACLU, 492 U.S. 573, 603 (1989) ("The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had removed all references to Christ." (citations and quotations omitted)); Marsh, 463 U.S. at 793 n.14 (noting that the minister "removed all references to Christ after a 1980 complaint"). It is currently unclear if sectarian prayers are permissible under Marsh, and the Town is mistaken to suggest otherwise.

Vermont Superior Court MAY 2 9 2012

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See Chittenden, 169 Vt. at 311 (noting that Article 3 "speaks not to establishment of religion"). However, Marsh may still provide useful guidance, and the Town appears to suggest that Marsh implies a legislative prayer is not "religious worship." The Court disagrees that this was the holding of Marsh. Rather, the Marsh Court held only that legislative prayer was not an establishment of religion; the Court did not say that legislative prayer is not religious in nature. See McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 859 n.10 (2005) (citing Marsh as "upholding legislative prayer despite its religious nature" (emphasis added)); Marsh, 463 U.S. at 792 (legislative prayer is not an "establishment of religion or a step toward establishment" (quotations omitted)); see also County of Allegheny v. ACLU, 492 U.S. 573, 595 n.46 (1989) ("The function and history of this form of ceremonial deism suggest that those practices are not understood as conveying government approval of particular religious beliefs." (emphasis added and quotations omitted)). Indeed, the Second Circuit recently found that a prayer at a town meeting violated the Establishment clause. See Galloway v. Town of Greece, Docket No. 10-3635cv, 2012 WL 1732787 (2d Cir. May 17, 2012). In so holding, the court necessarily found that the prayer was religious. See U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion . . . ." (emphasis added)). Thus, although legislative prayers are not understood as "symbolically placing the government's official seal of approval on one religious view," Marsh, 463 U.S. at 792, they still constitute "religious worship." Indeed, if upholding the prayer at town meeting requires denying that it is religious in nature, the Court "suspect[s] that many supporters of [the] prayer would feel that they had been handed a pyrrhic victory." Id. at 811 (Brennan, J., dissenting). The Town appears to suggest that the prayer is not "religious worship" because it occurs at "an annual meeting," presumably in contrast to a church. Def.'s Mot. for Summ. J. at 20. The Court cannot agree. Article 3 prohibits compelled attendance at "any religious worship." Religious worship, of course, is not defined by the building it occurs in, nor by the events that take place after it. The Town's argument might be more convincing under the Wisconsin constitution, which prohibits compelled attendance at "any place of worship." See Wis. Const. art. 1, 18. The Vermont Constitution, however, prohibits compelled attendance at "any religious worship," and the Court is convinced that this is broad enough to include the prayer at
See Scott W. Gaylord, When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer PostSummum, 79 U. Cin. L. Rev. 1017, 1038 (2011) ("To date, however, the circuit courts have not come close to reaching a consensus on the governing Establishment Clause standard in such cases."); see also Galloway v. Town of Greece, 732 F. Supp. 2d 195, 219-38 (W.D.N.Y. 2010) (surveying federal courts on this issue). Moreover, the Marsh exception applies only to "legislative and other deliberative public bodies." Marsh, 463 U.S. at 786. It is not clear that the Town Meeting would qualify as either of these. Since the Marsh Court did not define what constitutes a "legislative body," the Court would look to state law to determine whether the Town Meeting is a legislative body. See Pelphrey v. Cobb County, Ga., 547 F.3d 1263, 1275 (11th Cir. 2008) ("[W]e should look to state law to determine whether each commission is a legislative body . . . ."). In Vermont, a "'Legislative body' means the selectboard in the case of a town . . . .." 17 V.S.A. 2103(17) (emphasis added). Thus, the Town Meeting is not a legislative body. Although the Town Meeting might be considered a "deliberative public body," courts have been reluctant to read this language in Marsh expansively. See Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 380-81 (6th Cir. 1999) ("[I]t does not appear to us that Marsh created a presumption of validity for government-sponsored prayer at all deliberative public bodies."); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 207 (5th Cir. 2006) (quoting Coles); North Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1148 (4th Cir. 1991) (noting that, although Marsh mentioned deliberative public bodies, "The opinion in Marsh clearly focuses on legislative prayer and its unique history." (quotations omitted)). 8

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issue. Nor does the history of prayer at the Franklin Town Meeting imply that the prayers are not "religious worship." First, from the parties' filings, the Court can conclude only that the Franklin Town Meeting has held a prayer since 1947, Def.'s Statement of Undisputed Fact 14, hardly the long-standing tradition at issue in Marsh. See Marsh, 463 U.S. at 792 (noting that legislative prayer had an "unambiguous and unbroken history of more than 200 years"). Although the Town suggests that prayers were held at early town meetings in Boston and New Hampshire, these practices are not helpful in interpreting Vermont's Article 3. Also, while some Vermont towns have used a prayer at their town meetings in recent years, this carries no weight in the Court's analysis. Obviously, the mere fact that an act occurs does not render it constitutional. In addition, while a sermon was given at the 1777 Constitutional Convention in Windsor, Vermont and at many of the early meetings of the Vermont legislature, see Def.'s Supp. Brief (filed Feb. 2, 2012), this does not support the Town's argument. A prayer at a town meeting is fundamentally different from a prayer in a state legislature because the general public participates in a town meeting, rather than merely observing. See Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 382 (6th Cir. 1999) ("School board meetings are therefore not the equivalent of galleries in a legislature where spectators are incidental to the work of the public body; students are directly involved in the discussion and debate at school board meetings."); North Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145 (4th Cir. 1991) ("In contrast to legislative prayer, a judge's prayer in the courtroom is not to fellow consenting judges but to the litigants and their attorneys."). Moreover, the question of whether an opening prayer in the Vermont legislature is permissible under Article 3 is not before the Court and the Court will not rule on that issue. Moreover, even if prayer at Vermont town meetings had a long-standing tradition, the Court is skeptical that this would necessarily render the prayer non-religious. The argument that a religious prayer becomes non-religious through use over time would, strangely, imply that earlier prayers at town meetings did violate the Vermont Constitution, since there would be no extended history to sanitize the prayer. Cf. Sherman v. Comty Consol. Sch. Dist. 21 of Wheeling Tp., 980 F.2d 437, 448 (7th Cir. 1992) (Manion, J., concurring) ("A civic reference to God does not become permissible under the First Amendment only when it has been repeated so often that it is sapped of religious significance. Such an approach implies that phrases like 'in God we trust' or 'under God,' when initially used on American coinage or in the Pledge of Allegiance, violated the establishment clause because they had not yet been rendered meaningless by repetitive use."). The Court rejects the Town's suggestion that the history of prayer at town meeting renders it non-religious and concludes that the prayers at issue constituted "religious worship." b. Whether Ms. Hackett was compelled to attend religious worship Article 3 prohibits a person from being "compelled to attend any religious worship." The Town, looking to the plain meaning of "compel," argues that Ms. Hackett was not compelled because she was never denied physical access to the town meeting; she was never forced to recite

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any words; she was never forced to stand or kneel; and she was never told she must attend the prayer to vote (i.e., she could have left the room during the prayer and returned after the prayer). Def s Mot. for Summ. J. at 19. The Town relies on the definition of compel as "to force by physical necessity or evidential fact." Webster's Third New Int'l Dictionary (1986). However, as the Town itself acknowledges, when looking at the text of Article 3, the Court must avoid "excessive reliance on a plain meaning approach to constitutional interpretation, even if a plain meaning can be found." Chittenden, 169 Vt. at 327. This is because the Court is "trying to make the best sense . . . of an historical eventsomeone, or a social group with particular responsibilities, speaking or writing in a particular way on a particular occasion." Id. Regardless, the Town's definition is one among many, and other "plain meaning" definitions of the term "compel" include "to cause to do or occur by overwhelming pressure"; 3 "to have a powerful and irresistible effect, influence, etc."; 4 and "to necessitate, either by physical or moral force."5 It is clear from these definitions that "compel" is not as restrictive as the Town suggests. Moreover, the Town's narrow reading of the word "compelled" is at odds with Vermont precedent. In 1783, the Vermont Legislature enacted a ministerial act that allowed towns to tax its citizens to build a meeting house and hire a minister if two-thirds of the voters elected to do so. Chittenden, 169 Vt. at 328. A person could avoid the tax only by presenting a certificate signed by a religious leader'stating that the person had different religious beliefs than those of the supported minister and church. Id. The Council of Censors6 declared that the act violated Article 3 because it forced citizens to support religious worship. Id. at 329. The Legislature amended the act in 1801 to make the exemption easier to obtain, and a person could avoid the tax simply by filing a signed statement that he or she did not agree with the religious sentiments of the majority of the town. Id. at 330. Despite the ease of this exemption, the Council of Censors declared that the amended act also violated Article 3. Id. In doing so, the Council necessarily held that the law still compelled people to support a place of worship, despite the fact that there was an easy opt-out. Acting on Council's advice, the Legislature later repealed the act. Id. at 331. The Town suggests that the fact that Ms. Hackett was never forced to recite the invocation or make an overt expression of faith (e.g., standing, kneeling, or bowing her head) implies that there was no compulsion. However, this argument ignores the express language of Article 3, which prohibits, not just compelled worship, but compelled attendance at religious worship. To the extent that the Town is arguing that a prayer is not "religious worship" to those who do not "join in," the Court, like the United States Supreme Court, rejects this argument. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000) (holding that prayer before school
3 MerriamWebster's Collegiate Dictionary Online, wwwanerriam-webster.com/dictionary/compel (last visited March 8, 2012). Random House Dictionary (unabridged ed. 1967) 300. 5 State v. Davis, 256 P.3d 1075, 1079 (Or. 2011) (citing Noah Webster, 1 An American Dictionary of the English Language (1828) (reprint 1970)). 6 "Until 1870, the Vermont Constitution provided for a Council of Censors, an elected body of thirteen that came together every seven years to determine whether the legislative and executive branches of government have assumed to themselves; or exercised, other or greater powers than they are entitled to by the constitution. Although the Council of Censors was an advisory body whose authority came from its position and its persuasiveness, its actions commanded serious respect and often resulted in changes in laws, especially in its early years." Chittenden, 169 Vt. at 329 (citations and quotations omitted).

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football game is unconstitutional; "Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship." (emphasis added)); Lee v. Weisman, 505 U.S. 577, 593 (1992) ("Of course, in our culture . . . remaining silent can signify adherence to . . . . the views of others . . . . There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it." (emphasis added)). The fact that attendance at Town Meeting is, technically speaking, voluntary is likewise not controlling. Indeed, forcing Ms. Hackett to choose between attending religious worship and exercising her right to vote on Town business would appear to violate the express terms of Article 3"nor can any person be justly deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculia[r] mode of religious worship." Cf. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000) ("Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship."); Lee v. Weisman, 505 U.S. 577, 595 (1992) ("Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme."); Doe v. Indian River School Dist., 653 F.3d 256, 279 (3d Cir. 2011) ( "A student wishing to comment on school policies or otherwise participate in the decision-making that affects his or her education must attend these [school-board] meetings. Thus, while such meetings may technically be 'voluntary,' in practice they are not."). The Town suggests that Ms. Hackett could arrive at the meeting after the prayer. The prayer at the town meetings has occured shortly after the opening gavel and, apparently, before any voting takes place. Pl.'s Statement of Undisputed Facts I( 6. Thus, the argument goes, since Ms. Hackett could arrive at the town meeting after the prayer and still fully exercise her right to vote, she was not compelled to attend the prayer. However, again, this would appear to violate the express terms of Article 3. Ms. Hackett has the right to attend the entire town meeting, and Article 3 prohibits a person from being "deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculia[r] mode of religious worship." See also Doe v. Indian River School Dist., 653 F.3d 256 (3d Cir. 2011) ("Simply put, giving a student the option to leave a prayer 'is not a cure for a constitutional violation.") (quoting Lee v. Weisman, 505 U.S. 577 (1992)); Lee v. Weisman, 505 U.S. at 596 ("The essence of the Government's position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction
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is to risk compelling conformity . . . ."); cf. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 312 (2000) (prayer given before football game "has the improper effect of coercing those present to participate in an act of religious worship"). Finally, the Court rejects the Town's suggestion that Ms. Hackett was not compelled to attend the prayer because she could simply ignore it and "follow the wandering of her own imagination." Def.'s Opp. to Mot. for Summ. J. at 27 (quoting Billard v. Bd of Educ., 76 P. 422 (Kan. 1904)). Article 3 prohibits compelled attendance. This means physical attendance, not some metaphysical mental presence. See In re Miller, 2009 VT 36, 17, 185 Vt. 550 (noting the "presumption against statutory interpretations that produce absurd results"). The Court also notes that the case cited by the Town on this issueBillard v. Bd. of Educ., 76 P. 422 (Kan. 1904) (finding no violation of state constitution where public school teacher read Lord's Prayer and a Psalm to students; "The pupils who desired gave their attention and took part, those who did not were at liberty to follow the wandering of their own imagination. The only demand made of them was that during these exercises they should demean themselves in the same orderly manner required during their general studies.")is over 100 years old, is from a different state, and is no longer good law under the U.S. Supreme Court's decision in School Dist. of Abington Tp., v. Schempp, 374 U.S. 203 (1963) (law requiring Bible to be read, without comment, at beginning of each school day violates First Amendment). The Court concludes that Ms. Hackett was compelled to attend religious worship. c. Authority from other states Approximately fourteen states have constitutional provisions that, like Vermont's Article 3, were modeled on the Pennsylvania Constitution. State v. DeLaBruere, 154 Vt. 237 (1990). The Town cites cases from these states analyzing their version of the Compelled Attendance Clause. However, for the reasons discussed, these cases carry little persuasive value. The Pennsylvania Constitution states that "no man can of right be compelled to attend .. . any place of worship." Pa. Const. art. I, 3. In Wiest v. Mt. Lebanon School Dist., 320 A.2d 362 (Pa. 1974), the Pennsylvania Supreme Court analyzed this provision. The Board of Directors of a local school district approved a graduation program that included an invocation and benediction. The Court held that there was no violation of either the First Amendment or Pennsylvania's Section 3. However, this case is of questionable value in light of subsequent U.S. Supreme Court decisions. See Lee v. Weisman, 505 U.S. 577 (1992) (prayer at graduation violated Establishment Clause). Moreover, the Court in Wiest based its result under the State Constitution largely on its analysis under the Federal Constitution, see Wiest, 320 A.2d at 174 ("Our prior discussion is, therefore, equally apposite to this issue."), which is problematic in the present case because the Vermont Supreme Court has resisted attempts to reduce Article 3 to a reiteration of the Establishment Clause and federal law has changed markedly since Wiest was decided. In Conway v. Dist. Bd. of Joint Sch. Dist. No. 6, 156 N.W. 477 (Wis. 1916), the Wisconsin Supreme Court held that a nonsectarian prayer at a graduation ceremony does not compel attendance at a place of worship under article 1, section 18 of the Wisconsin
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Constitution. However, the Wisconsin Compelled Attendance Clause prohibits a person from being compelled "to attend . . . any place of worship," which appears to be narrower than Vermont's Compelled Attendance Clause, which prohibits a person from being compelled "to attend any religious worship." See Wis. Const. art. 1, 18; Vt. Const. ch. I, art 3. Moreover, Conway is a dated case that was decided before the U.S. Supreme Court's major decisions on the Establishment Clause, including Lee v. Weisman, 505 U.S. 577 (1992) (prayer at graduation violated Establishment Clause). Finally, Carden v. Bland, 288 S.W.2d 718 (Tenn. 1956) shares these same weaknesses. In that case, a statute required teachers to read, at the opening of the school day, a selection from the Bible. The Court in Carden held that this statute did not violate either the U.S Constitution or Article 3 of the Tennessee Constitution, which states that "no man can of right be compelled to attend ... any place of worship." As before, Vermont's Constitution appears to be broader, as it prohibits compelled attendance, not just at a "place of worship," but at "any religious worship." Also, Carden is no longer good law under School Dist. of Abington Tp., v. Schempp, 374 U.S. 203 (1963) (law requiring Bible to be read, without comment, at beginning of each school day violates First Amendment). Further, the Carden court noted that the provisions governing religion in the state and federal constitutions "are practically synonymous." Carden, 288 S.W.2d at 721. As noted, however, the Vermont Supreme Court does not view Vermont's Article 3 in this way. 6. Plaintiff's VPAA claim Vermont's Public Accommodations Act (VPAA) provides that, "An owner or operator of a place of public accommodation . . . shall not, because of the . . . creed . . . of any person, refuse, withhold from, or deny to that person any of the accommodations, advantages, facilities, and privileges of the place of public accommodation." 9 V.S.A. 4502(a). "Place of public accommodation" means "any school, restaurant, store, establishment or other facility at which services, facilities, goods, privileges, advantages, benefits or accommodations are offered to the general public." 9 V.S.A. 4501(1). Plaintiff claims that the Town has denied her equal access to the privileges and advantages of Town meeting on account of her creed. First, the Court agrees with Plaintiff that the town meeting is a "place of public accommodation." The town meeting is a "facility at which services . . . , privileges, advantages, [and] benefits . . . are offered to the general public." The right to vote and debate issues affecting the Town fall under this definition. The Court also agrees that the Town is the operator or owner of the town meeting. An "owner" includes any person having a legal or beneficial interest in real estate which gives him or her the right to possession thereof 9 V.S.A. 4501(4). The Town had a beneficial interest in the school where the town meeting was held which gave it the right to possess and make use of the school during the town meeting. The Town is also the operator of the town meeting. See Dictionary. corn, http://dictionary.reference.com/browse/operator (last visited April 24, 2012) (defining "operator" as "a person who manages a working or industrial establishment, enterprise, or system"). However, the Court cannot conclude that Plaintiff was denied any of the services, benefits, etc. offered at the Town meeting. The VPAA is typically applied where a person is
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denied access as a result of disability, see Abdo v. University of Vermont, 263 F. Supp. 2d 772 (D. Vt. 2003) (student with physical disability seeking accommodation at UVM); denied entry to an organization, see Human Rights Comm 'n v. Benevolent and Protective Order of Elks, 2003 VT 104, 176 Vt. 125 (membership denied on the basis of sex); or deprived of a benefit to which the person is entitled, see Washington v. Pierce, 2005 VT 125, 35, 179 Vt. 318 (VPAA applies to student-on-student harassment that is "so severe, pervasive, and objectively offensive that it deprived [the student] of access to the educational opportunities or benefits provided by the school"). Plaintiff was never denied access or entry to town meetingshe has attended every meeting since 2000. She has voted in most of the meetings, and while she claims she refrained from voting in 2011 because she was discouraged about the prayer, the Court does not believe this is sufficiently analogous to the hostile environment in the VPAA "school bullying" cases to go forward. Thus, summary judgment will be granted in the Towns' favor on this claim. 7. Injunction An injunction is an extraordinary remedy, the right to which must be clear. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 212 (2000). To determine whether an injunction is appropriate, the Court must weigh the relative hardships on the parties, looking at the relative convenience or inconvenience, the relative injury sought to be cured as compared with the hardship of injunctive relief. Id. The court must also "consider whether injunctive relief can cure the problem." Swanson v. Bishop Farm, Inc., 140 Vt. 606, 610 (1982), overruled on other grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615 (1983). Having found a violation of Article 3 of the Vermont Constitution, the Court concludes that an injunction is appropriate. The hardship on the Town is smallit can no longer include a prayer in town meetingwhile the hardship on Plaintiff if the Court fails to grant the injunction is greatcontinued violation of her constitutional rights. Nor is the injunction particularly inconvenient (indeed, the Town voluntarily chose not to include a prayer at the most recent town meeting in 2012). The Town is hereby enjoined from including a prayer at its town meetings. 8. Money Damages Plaintiff is requesting money damages for (1) lost income related to preparation of her case; (2) travel expenses incurred in pursuing her case; (3) emotional harm and harm to her dignity. See Pl.'s Response to Def.'s Statement of Undisputed Facts 1185-88 (filed Jan. 23, 2012). The Court will hold a hearing on the amount and kinds of damages that are recoverable. ORDER Based upon the foregoing, it is hereby ORDERED: 1) Plaintiff's Motion to Strike is GRANTED. 2) Defendant Town of Franklin's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with respect to Plaintiff's claims against Timothy Magnant and with respect to Plaintiff's claim under the
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Vermont Public Accommodation Act. The motion is otherwise DENIED. 3) Plaintiff Marilyn Hackett's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The Court issues a declaratory judgment that the Town's practice of including a prayer at its town meetings violates Article 3 of the Vermont Constitution. The Court also issues an injunction prohibiting the Town from doing so in the future. This case will be set for a hearing on the amount and kinds of damages that are recoverable. The motion is otherwise DENIED.

Dated at St. Albans, Vermont this

day of May, 2012.

Honorable Martin M ey Superior Court Judg

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