Planned Parenthood of Vermont, Inc. v. City of Burlington

Peck, J.,

dissenting. I disagree with the result reached by the majority and accordingly I feel compelled to file this dissenting opinion explaining my reasons.

The majority declines to review the provisions of 32 V.S.A. § 3802(4), which, as the opinion points out, exempts from taxation “Real and personal estate granted, sequestered or used for public, pious or charitable uses,” on the grounds that the parties agreed on appeal (the reason for such a concession by the defendant escapes me) that § 3802(4) was applicable, and therefore, without more, the subject property is entitled to an exemption.

In my judgment, the provisions of this statutory subdivision, if addressed, would be dispositive of this case in favor of the defendant. Because the interests of a large group of individual taxpayers, as distinguished from the City of Burlington considered as a legal entity, are being adversely affected by today’s result, I believe the Court should have considered the application of § 3802(4) sua sponte. The failure to do so frustrates the intent of the legislature as this Court construed that intent in Brattleboro Child Development, Inc. v. Town of Brattleboro, 138 Vt. 402, 416 A.2d 152 (1980), and thus frustrates justice under the statute. As any instance of a tax exemption necessarily must, it increases, to a greater or lesser degree, the oppressive and continually increasing tax burden imposed on municipal home owners, businesses, great and small, and others who own real property.

Ordinarily, I would agree that this Court should not consider an issue which is waived by both parties, even though it was raised below, particularly when the interests of the people, other than the litigants, considered as individuals, are not adversely affected. I would agree also that, in rare instances, the law itself may preclude the courts from effecting complete justice. See Roy’s Orthopedic, Inc. v. Lavigne, 145 Vt. 324, 487 A.2d 173 (1985); State v. Fayen, 138 Vt. 545, 418 A.2d 866 (1980). In Fayen, the per curiam opinion noted, with some asperity, that “the ends for which our system of justice was created” had been “thwarted.” Id. at 546, 418 A.2d at 867. In the instant case however, there is nothing in the law which compelled the majority to ignore a valid issue under the controlling statute.

This Court has held that, even when a claim is not made below, if a particular “ ‘question is of such a nature that the present wel*354fare of the people at large, or a substantial portion thereof, is involved . . . the court is authorized in its discretion to direct its attention to the general welfare, rather than the interest of the parties to the immediate cause.’ ” State v. Cain, 126 Vt. 463, 470, 236 A.2d 501, 506 (1967) (quoting 5 Am. Jur. 2d Appeal and Error § 551, at 36). The fact that the defendant’s legal or executive officials made an error in statutory construction, which adversely affects those they represent, is not so irreversibly binding on the courts that no remedy can be provided. If this Court can, in a proper case, consider issues that were not even raised below, id., I am not aware of any obstacle to a review of the § 3802(4) question in this case. To do so would have been in the interests of people who share the onerous tax burden already imposed upon them. In my view, the majority has failed in its ultimate responsibility to do justice to the people of Burlington in refusing to consider the public interest in the instant case.

The comments above would not be warranted if they were no more than an abstract discussion of judicial duties. That is not the case here, for not only should the majority have considered sua sponte the question of whether plaintiff qualified for an exemption under 32 V.S.A. § 3802(4), but the result would have been such a clear reversal that a remand for further proceedings would not be justified; we could have entered judgment in this Court for the defendant. In a legal sense, as this Court has, itself, construed the controlling statute, the plaintiff’s property is not “used for public, pious or charitable uses.” Therefore it is not entitled to an exemption.

It is fundamental to the process of construing statutes granting exemptions from taxation that “existing circumstances” — here, the oppressive and increasing public tax burden — are recognized by the courts as an aid in determining the intent of the legislature. The “application [of a statute] to existing circumstances may be considered.” Notte v. Rutland Railroad, 112 Vt. 305, 308, 23 A.2d 626, 627 (1942). This premise, applied to § 3802(4), provides support for my position here under the additional rule that statutory exemptions from taxation are to be strictly construed in favor of the taxing authority, and against the party claiming the exemption; that is, against the exemption. Broughton v. Town of Charlotte, 134 Vt. 270, 272, 356 A.2d 520, 522 (1976). Doubts are to be resolved against the exemption. Id.

*355The test applied in our prior cases in determining if the use of real property is for a public purpose is whether the service provided by the owner of the property is a service which the municipality would otherwise be called upon to furnish. In other words, whether (in this case) the plaintiff “assume[s] a burden of the municipality to provide any service which either the municipality or the legislature has determined to be an essential governmental function . . . .” Ski-Lari Gymnastics v. City of Rutland, 143 Vt. 294, 295, 465 A.2d 1363, 1364 (1983).

It is too clear to require any extensive discussion that plaintiff does not satisfy this key test. Nevertheless, illustrative of the point is Brattleboro Child Development, Inc. v. Town of Brattleboro, supra, in which this Court affirmed the trial court’s finding that the service provided by the plaintiff corporation in that case did not fall within the meaning of the phrase “public purpose,” even though the benefit to the public as a result of that service was more urgent and immediate than the services provided by the plaintiff in the instant case. The service furnished in the Brattleboro case was day care for the children of working parents. There is a crying public need for such facilities today in cases where both parents must work, and equally so in instances where a single parent is involved.

I do not question that the family planning and related services provided by the plaintiff here are carried out in conformity with the highest standards applicable to such services and are considered desirable by those who use them. Nevertheless, the needs of working parents for some form of extra-familial child care are generally essential to the continuing economic stability and general welfare of the family unit; professional family planning assistance, on the other hand, does not present an equivalent public urgency or immediacy in the same sine qua non sense.

In any case, the defendant city is not required to provide family planning or to offer such programs through any of its agents or facilities. “[P]laintiff has assumed no burden of the municipality which the legislature has determined to be an essential governmental function.” Ski-Lan Gymnastics, supra, at 297, 465 A.2d at 1365 (citing Brattleboro Child Development, Inc., supra, at 406, 416 A.2d at 155).

Finally, in Brattleboro Child Development, we cautioned against intermeddling by the courts in a legislative function: “To do so would impose judicially a theory of socioeconomics not *356sanctioned by the legislature.” Id. at 407, 416 A.2d at 155. However, that too is implicit in the majority decision.

Summarizing the above discussion, I feel, first, that since tax paying property owners of the City of Burlington, as individuals, as well as all of its other citizens, are required to support the extensive services which local government must provide (including police, fire, water and sewer, schools, among many others), the Court should have taken cognizance of the “public use” issue. We should not force the people as a whole to suffer the adverse consequences of tax losses resulting from erroneous decisions by officials when it is in our power to review the issue sua sponte.

Secondly, the services provided by the plaintiff are not “public” within the meaning of 32 V.S.A. § 3802(4) as that statute has been construed by our own decisions in the recent past. The unfortunate “waiver” mistake should not be protected by ignoring it in a case such as this in which the welfare of the people is so clearly involved. By relying on a mere technicality, the majority sanctions a benefit to the plaintiff, to which it is not entitled under the law, at the expense of the public at large. This is result-oriented and contrary to the intent of the legislature and an injustice to the people of Burlington.

I disagree also with the trial court and the majority on the second issue which is raised under 32 V.S.A. § 3832. However, it does not seem necessary to prolong this discussion by an extensive recitation of my reasons. The most egregious fault on the part of the majority lies in its refusal to review the issue of public use. On that question alone I would reverse and enter judgment for the defendant.

I am authorized to state that Justice Daley joins with me in this dissent.