Smith v. Town of East Montpelier ( 2019 )

Smith v. Town of East Montpelier, No. 278-5-18 Wncv (Teachout, J., Mar. 19, 2019).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 278-5-18 Wncv
JEREMY SMITH and ERICKA SMITH
o/b/o ROWEN SMITH
Plaintiffs
v.
TOWN OF EAST MONTPELIER and
BRUCE JOHNSON, Individually and as
East Montpelier’s Municipal 9-1-1 Coordinator
Defendants
DECISION
Defendants’ Motion to Dismiss
Plaintiffs Jeremy Smith and Ericka Smith live in and are taxpayers of the Town of East
Montpelier. Their young son, Plaintiff Rowen Smith, has a serious medical condition that could
require Town-provided emergency medical services (EMS) following a 9-1-1 call. They believe,
however, that the neighboring City of Montpelier can more effectively deliver EMS to their
address due both to the respective locations of the Town’s and the City’s fire departments and
allegedly higher quality of the first responders available from the City. They initiated this
litigation against both the Town and the City claiming an entitlement to EMS services from the
municipality of their choice, the City, regardless that they choose to live in the Town and Town-
provided services are available. In prior proceedings, all claims against the City were dismissed.
Plaintiffs then amended their complaint. The amended complaint adds as a defendant
Bruce Johnson, who is alleged to be the Town’s 9-1-1 Coordinator. They now claim (Count I)
that Mr. Johnson “unlawfully delegated” his “authority” to require the City to respond to
Plaintiffs’ 9-1-1 calls to the Fire Chief of the East Montpelier Fire Department. They also claim
(Count II) that the Town, by not requiring the City to provide EMS to Plaintiffs at their East
Montpelier residence, has discriminated against Rowen in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12111–12213.
The Town and Mr. Johnson now seek dismissal for the following reasons: (1) Plaintiffs
lack standing because there is no injury; (2) any claim against Mr. Johnson can only be brought
against the Town pursuant to 24 V.S.A. § 901(a); (3) municipal 9-1-1 coordinators are shielded
from liability pursuant to 30 V.S.A. § 7060; (4) there can be no viable “unlawful delegation”
claim; and (5) there can be no viable ADA claim.
In dismissing the claims against the City, the Court observed: “In short, Plaintiffs
essentially assert what they view as a moral duty obligating one municipality to freely provide to
the residents of another a service that the other municipality does not see fit to offer, or offer as
effectively, to its own citizens. They have not, however, identified any legal claim by which they
may enforce any such duty.” Decision 2 (Aug. 2, 2018) (emphasis added). The reformulated
claims of the amended complaint suffer the same defect. Plaintiffs have been unable to identify
any legal duty which could be enforced to compel either the Town or Mr. Johnson to do
something that would result in the City, rather than the Town, providing EMS to Plaintiffs at
their East Montpelier residence. The lack of any cognizable legal duty informs all of
Defendants’ dismissal arguments.
The claim against Mr. Johnson
The claim in the amended complaint against Mr. Johnson is that he unlawfully delegated
his “authority,” as Municipal 9-1-1 Coordinator for the Town of East Montpelier, to compel a
different municipality, the City, to provide EMS services to a residence in the Town to a person
who had no interest in complying with that obligation. This claim is predicated on the existence
of a relevant legal duty on the part of Mr. Johnson—he could not have unlawfully delegated
some obligation he had no lawful duty to undertake in the first place. Plaintiffs do not point to
any legal basis for the duty they attribute to Mr. Johnson, however, whether in his capacity as
Municipal 9-1-1 Coordinator, Town Manager, or otherwise. They cannot claim that Mr. Johnson
(or his alleged delegee) has breached some legal duty without cogently asserting the existence of
that duty. Mr. Johnson is entitled to dismissal of this claim. It is unnecessary to address his
other arguments in support of dismissal.
The ADA claim
Plaintiffs’ ADA claim falls under Title II of the ADA, 42 U.S.C. §§ 12131–12165.
According to § 12132, “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” There is no
cogent allegation in this case that Rowen Smith is being denied the benefit of Town-provided
EMS services due to any limitation caused by his disability. There is no allegation that he is
being denied that benefit at all. Rather, his claim is that he would prefer a benefit (EMS services
provided by the City) that he perceives as better that other Town residents do not get. See 1
Americans with Disab.: Pract. & Compliance Manual § 2:20 (“The purpose of ADA Title II is to
ensure evenhanded treatment between the disabled and the able-bodied, not to give disabled
individuals an unfair advantage. . . . The ADA does not require states to provide a level of care
or specific services, but once states choose to provide certain services, they must do so in a
nondiscriminatory fashion. Thus, a state is not obligated to provide new programs or services to
the disabled which it has not previously provided to any group.” (footnotes omitted) (emphasis
added)); Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996) (“The purpose of the Act
is to place those with disabilities on an equal footing, not to give them an unfair advantage.”).
This is insufficient to state a claim for a violation of Title II of the ADA.
It is unnecessary to address Defendants’ other arguments in favor of dismissal.
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ORDER
For the foregoing reasons, Defendants’ motion to dismiss is granted.
Dated at Montpelier, Vermont this ____ day of March 2019.
_____________________________
Mary Miles Teachout,
Superior Judge
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