As Stamford defies state of emergency, Guv claims ‘solid ground’

By Guy Page

Gov. Phil Scott said Thursday at a press conference he and his legal team “feel we are on very solid ground constitutionally” after the Town of Stamford voted Tuesday night to defy the governor’s emergency pandemic orders.

Stamford Selectboard member Dan Potvin confirmed Wednesday the board voted 3-2 on the following 12/29 agenda item:  “Termination of Governor’s Emergency Order pursuant to V.S.A. Title 20 section 13(3) and implementation of local recommendations for safety and protection.”

At issue is a state law that seems to say that municipalities may overrule a governor’s executive order. According to St. Johnsbury attorney Deb Bucknam, “Vermont Statute Section 13(3) of Title 20 provides that the governor “shall” declare the state of emergency terminated in a municipality when the ‘majority of the legislative body of a municipality affected no longer desires that the state of emergency continue within its jurisdiction.’”

Wikimedia Commons

Stamford, Vermont town offices

That doesn’t mean what you think it means, Scott administration legal counsel Jaye Pershing Johnson in effect replied. In an opinion given to Vermont Daily Dec. 9 by Scott press secretary Rebecca Kelley, Johnson said other state laws “clearly prohibit actions inconsistent with the Governor’s general direction and control of the emergency.” In particular she cites:

“20 V.S.A. § 16. Orders, rules and regulations – The towns and cities of the state and other agencies designated or appointed by the governor are authorized and empowered to make, amend and rescind such orders, rules, and regulations as may be necessary for emergency management purposes and to supplement the carrying out of the provisions of this chapter, but not inconsistent with any orders, rules or regulations promulgated by the governor or by any state agency exercising a power delegated to it by him or her. (Amended 1989, No. 252 (Adj. Sess.), § 14.)”

In other words the state’s emergency authority trumps municipalities’, Persing claims.

Not so, Bucknam responded via email with several legal arguments, including:

  • The 13(3) statute is unambiguous and must be allowed to take effect;
  • Use of the words “must” and “shall” make the actions mandatory;
  • Laws must not be construed in such a way as to make them ineffective.

Today, Scott seemed confident his lawyer has the better case. “I heard the Attorney General has weighed in and sent a letter to the town. Our general counsel feels we have nothing to be concerned about,” he said. “Just declaring it (the state of emergency) over doesn’t make it so. We still have an emergency on our hands.”

Minutes of the 12/29 meeting were not available at presstime.

Read more of Guy Page’s reports. Vermont Daily is sponsored by True North Media.

Image courtesy of Wikimedia Commons

18 thoughts on “As Stamford defies state of emergency, Guv claims ‘solid ground’

  1. No Governor Scott, you do not have any sort of emergency on your hands.
    …as you and your medical team very well know, or should know.

    And Stamford is a brave little town quite near me here in W Pawlet, so I intend to visit them soon–without any mask–to congratulate them.

    I WANT TO KNOW EVERY CONNECTION YOUR HAVE OF ANY SORT TO COMMUNIST CHINA, it’s agents or assigns. Kindly direct this inquiry to TJ…..for his opinion.

    D. Morrisseau

  2. Unambiguous language of statute referenced as basis for suit cannot be dismissed imo esp absent a threat to begin with nor is there a historical context. If anything has been proven that it’s that lockdown and restrictions plus masks don’t work if ‘cases’ are rising. States may need to present evidence that these unconstitutional mandates are working.
    And hoping this could lead to SCOTUS challenge resulting in end to Naziesque lockdowns complete with public posting of VT LE ‘snitchline’ to turn in neighbors for LE action and chidren required to turn in parents to government-sponsored authorities – a dealbreaker and gamechanger if there ever was one. The good chancellor complete with mad-scientist sidekick just as the namesake chancellor before him clearly don’t possess a conscience or care about us, our youth or families.

    This may force Chancellor Scott out of hiding place in shadows of executive dictatorship into the light of day to claim what the emergency is and why seizing control of private businesses, placing VTers under house arrest, including violations of mass Covid-testing is necessary – there must be official language as to what a “threat” or “emergency” constitutes and not just a fiat declaration.

    Hiding in shadow of bumbling bureaucrat Levine may not work either if neither can come up with a compelling reason for the imminent threat “VTers” are specifically facing as opposed to the broader populous in remote locations or that the current distancing and guidelines cannot ‘protect’ us.

  3. It’s critical to point out, again, that the complexity of Vermont’s governmental bureaucracy is intentional – as are most governmental bureaucracies. After all, the average person isn’t an attorney, and has little time to consider, let alone understand, the nuances of the laws that govern them. This is, perhaps, why most governments deteriorate into totalitarianism, then anarchy – because the citizenry becomes complacent and accepting of the seemingly benign benefits gifted to them by their representatives (wolves in sheep’s clothing all).

    As George Bernard Shaw said: “Liberty means responsibility. That is why most men dread it.”

    But make no mistake: pay attention now by choice or pay attention later by force. If you don’t elect representation that reflects the axiom; ‘that government is best that governs least’, you will get the tyranny to which you have turned your blind eye.

  4. Interesting article. The silence is deafening……nobody will stand up, defend or even publically debate…

    We have no local control, they have been taking what little we did and stripped us of our powers in every town election for the past 30 years.

    Tut tut say those in Montpelier, stick it they say, we’re part of the NWO and you no longer live in a republic, we’ll do as we please. “Serfs, what do they know”

    • The Weeds Of The Matter:

      If voters want to do something about this tyranny, they can. They just have to elect the right representation in Montpelier – as is the case with virtually any issue in Vermont’s governance that doesn’t offend the U.S. Constitution.

      Under Vermont law, it is a ‘State of Emergency’ that creates our current sticky wicket. What is ‘an emergency’?

      Technically, when it comes to a “…health or disease-related emergency”, it can mean almost anything, depending on who makes the determination. But here’s the deal. It’s NOT Phil Scott who is authorized by statute in this regard.

      Under Vermont statute 20 V.S.A. § 2 Definitions, as used in this chapter: who determines what a ‘threat’ is?
      “…a threat, as determined by the commissioner or designee, to property or public safety in Vermont.
      (2) “Commissioner” means the commissioner of public safety.”

      That would be Commissioner Michael Schirling, Commissioner of the Department of Public Safety – NOT Governor Scott, who appointed him.

      Why is this important?

      Because the sticky wicket rests in the definition of what “all-hazards” means.
      “… any natural disaster, health or disease-related emergency, accident, civil insurrection, use of weapons of mass destruction, terrorist or criminal incident, radiological incident, significant event, and designated special event, any of which may occur individually, simultaneously, or in combination and which poses a threat or may pose a threat,…” – “…as determined by the commissioner or designee, to property or public safety in Vermont.”

      Is that definition broad enough for you?

      The question is: Is the Covid pandemic ‘an all-hazards’ event”? Who makes that decision? Couldn’t any outbreak of a life-threatening disease qualify? Who determines the meaning of ‘life-threatening’? How many people must be affected, or potentially affected?

      And, perhaps more importantly, who in the government accepts responsibility for mistaken judgments that prove to cause harm to the affected population at large? …as opposed to a single affected town like Stamford…. or a single affected individual?

      It’s becoming clear that certain groups (governmental and NGOs) have figured out that these loose definitions open the door to totalitarianism, in which the people have virtually no authority and the State wields absolute control…. with the exception (now debatably so) of our electoral process. For example, California (of all places) has had enough, and they are putting forth a petition to recall Governor Newsome.

      Perhaps because the term of Vermont’s Governor is only two years, unfortunately, Vermont has no recall procedures. But more importantly, no matter on what side of the aisle you are, the totalitarian nature of the poorly worded Vermont statute 20 V.S.A. should be a concern. Hopefully, the Stamford select board will challenge the State’s control (i.e. its Dillon Rule stance) in Federal Court.

    • But Ms. Stone, the only effect this bust has on Vermonters is in protecting the State’s local marijuana growers from competition.

      • I guess you are right Jay.
        So little goes on anymore that is impressive, I thought maybe some encouragement on what appeared to be a job well done might help create more.

    • Off topic Reply Alert: Great catch Laura 😀
      US customs agents find 1,400 pounds of marijuana at border
      December 29, 2020
      HIGHGATE SPRINGS, Vt. (AP) — Customs agents at a U.S.-Canadian border crossing in Vermont seized more than 1,400 pounds (635 kilograms) of marijuana hidden inside kitchen cabinets, U.S. Customs and Border Protection said Tuesday.

      Can’t use Twitter on my phone but can w Firefox on PC.

  5. I am a layman by all means when it comes to reading law, so I have a question to you who are more knowledgeable. 20 V.S.A 16 states that, ‘the towns and cities of the states and agencies designated or appointed by the governor….”. Herein lies my question. Are the Selectmen, in fact, “designated or appointed by the governor”? If they are NOT , then wouldn’t it be true that this statute is NOT applicable to the charges against the town of Stamford, and its Selectmen, providing further proof that the town of Stamford IS within its legal rights to defy the governors state of emergency orders? Furthermore, in my opinion, , Vermont Statute 13(3) of section 20, seems to be extremely cut and dried. There’s no room here for argument and Bucknam’s assessment is as plain as the nose on your face.

    • Silly me! I just answered my own question. I was reading 20 V.S.A incorrectly. towns and cities of the state (along with). the agencies designated and appointed…. “ Ha Good grief I need to stay out of this stuff.Lol. But I was right about my opinion on the Vermont statute 13(3)

      • But wait a minute, after reading Frank’s reply about the legislative branch, I got to thinking, are Selectmen part of that branch? If so then could they technically override the governor with laws they implement for their own town? I am probably really showing my ignorance now!

        • Thanks for comments you’re actually right – not really mixed up just off a few minor deets 😀

  6. City of Montpelier v. Barnett, 191 Vt. 441 (2012).
    • “[T]he power of the municipality is limited to what has been granted by the state. John Forrest
    Dillon, for whom that principle is named, famously described this idea while Chief Justice of the
    Iowa Supreme Court: ‘Municipal corporations owe their origin to, and derive their powers and rights
    wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist.
    As it creates, so it may destroy. If it may destroy, it may abridge and control.’” Id. at 452 (citing City
    of Clinton v. Cedar Rapids & Mo. River R.R., 24 Iowa 455, 475 (1868)).
    • “We have adopted Dillon’s Rule, declaring that a ‘municipality has only those powers and functions
    specifically authorized by the legislature, and such additional functions as may be incident,
    subordinate[,] or necessary to the exercise thereof.’” Id. (citing Hinesburg Sand & Gravel Co. v.
    Town of Hinesburg, 135 Vt. 484, 486 (1977); E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt.
    446, 460-61 (1934)).

    Vermont is a Dillon’s Rule State. Vermonters don’t have ‘local control’, no matter what supporters of the Stamford select board may think about controlling their own destiny. Consider the public-school monopoly, Agency of Education, State Board of Education, and the teacher’s union. When they tell us about the importance of ‘local control’ over our children’s health and education, know that it’s all a myth… not only when it comes to what they may do, but how much money is taken from taxpayers to do it. From healthcare to education, Vermonters should understand the tyranny they face.

    • The Legislative branch has continued their AWOL status – since when does the Executive branch serve as a substitute?

    • Mr. Eschelman rightly points out that Vermont is a “Dillion Rule State”; something that comes as a bit of a shock to every newly elected Selectboard member. In the past the Dillion Rule was mitigated by having the Vermont House Representative coming one from each town no matter what the population. Prior to the change based from town to population to determine representation in the mid-1960’s, Stannard would have the same voting power as Burlington and rural Vermont held a commanding presence in the Statehouse. Nonetheless even after this switch, there was still considerable deference to the idea of local control up until recently. Act 46, the school consolidation bill, was one of the worst instances of top down Montpelier telling local communities what they had to do and recent Climate legislation will likely follow suit.
      Perhaps the best thing that can be done now to have more local accountability is to focus on a suggestion made by Don Turner, the former House Minority leader, to switch from multi member districts in the House and Senate which favor the majority party to single seat districts.

  7. Now, what if there was a war and nobody came? Translation, what if some remote town opened the economy and COVID got no worse? That my friends is the Fuhrer’s greatest fear to expose the plandemic.

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