Burton v. Town of Salisbury

Johnson, J. Taxpayers appeal a decision by the state appraiser ruling that he did not have authority to rule on the constitutionality of an amendment to 32 V.S.A. § 4404(c), and that taxpayers are not entitled to a refund of property taxes paid in the years 1992-1996. The amendment imposed a retroactive change in § 4404(c) that voided a previous order of this Court. We reverse because the legislature’s enactment violates the separation of powers mandated by the Vermont Constitution. [179] This ease arose from a town-wide reappraisal of the Town of Salisbury that took effect in the 1991 tax year. Taxpayers Robert Burton, George McDonough, David Sidoti and forty other property owners located on Lake Dunmore, in Salisbury, Vermont appealed the listed value of their property to the Board of Civil Authority (BCA) pursuant to 32 V.S.A. § 4404. When the BCA failed to comply with the procedures of § 4404(c), taxpayers took their appeal to the State Board of Appraisers (Board).1 In 1994, the Board found that the BCA did not comply with the time requirements of § 4404(c), which outlines specific deadlines for various stages of the appeal. It also found that because taxpayers did not waive compliance with § 4404(c), they were entitled to the rollback penalty. 32 V.S.A. § 4404(c) provided: If the board does not substantially comply with the requirements of this subsection and if the appeal is not withdrawn . . ., the grand list of the appellant for the year for which appeal is being made shall remain at the amount set before the appealed change was made by the listers; except, if there has been a complete reappraisal, the grand list of the appellant shall be set at a value which will produce a tax liability equal to the tax liability for the preceding year. Id. (emphasis added). Because taxpayers had not waived compliance with § 4404(c), the Board applied the rollback penalty applicable under the exception for complete reappraisals to the 1991 tax year and did not proceed with a determination of the merits of taxpayers’ appeal. Taxpayers appealed the Board’s 1994 decision to this Court. In that appeal, taxpayers claimed that they had a right to elect between the rollback penalty in § 4404(c) and an appeal on the merits of the BCA’s valuation to the Board. Principally, taxpayers argued that an appeal on the merits might afford them a three year remedy under 32 V.S.A. § 4468. That section provides that a determination by the Board of the value of the property “shall become the basis for the grand list of the taxpayer for the year in which the appeal is taken and, if the appraisal relates to real property, for the two next ensuing years.” Id. [180] The appeal of the 1991 appraisals was heard by a panel of three justices in January 1996, and a final decision was issued by the panel in March 1996.2 The panel concluded that it need not reach taxpayers’ contention about the election of remedies. Rather, the Court distinguished between two types of penalties within § 4404(c). The first, not applicable in this case, provides for a one-year rollback in most appraisal appeals. See 32 V.S.A. § 4404(c). The second, applicable here, provides for a rollback when there has been a complete reappraisal but does not limit its duration to one year. See id. The Court interpreted this latter provision of § 4404(c) to mean that there is no time limit for the rollback penalty. The panel held that “[i]n this case there was a complete, or town-wide, reappraisal; consequently, the exception in § 4404(c) applies, and there is no time limit to the rollback penalty. Accordingly, the Town must act to alter the 1990 tax liability imposed under § 4404(c).” Shortly after the March 1996 decision was issued, a bill was introduced in the Vermont House of Representatives entitled “An Act Relating to Miscellaneous Tax Changes.” Amid the voluminous and random changes to various parts of the tax code, § 12 sought to amend 32 V.S.A § 4404(c). The amendment added the language “for the year for which appeal is being made” to the description of the rollback penalty applicable when there has been a complete reappraisal. 1995, No. 169 (Adj. Sess.), § 12. In other words, the amendment reversed this Court’s interpretation of § 4404(c) in the 1996 decision. The other relevant part of the House bill was § 27, which specified that § 12 would apply retroactively to January 1, 1991. Id. § 27. Thus, as amended, § 4404(c) would have limited taxpayers’ 1991 appeal remedies to a single year. The bill passed the General Assembly and was signed into law in May 1996. While the 1991 appeal was working through the hearing process, taxpayers filed another appeal, this time contesting their 1994 valuations, and raising the same issues as in the 1991 appeal. Again, the BCA failed to comply with the procedural requirements of § 4404(c). As a result of the identity of the issues, the Town and taxpayers agreed to a stipulation that incorporated the BCA’s record, including its findings and conclusions from the 1991 appeal. The taxpayers then brought this appeal to the next tier of review, which had become the state appraiser. In September 1997, most of the other property owners who had appealed with taxpayers settled [181] the 1994 appeal with the Town. The Town and taxpayers, however, were unable to reach an agreement. On appeal to the state appraiser, the parties agreed that the issues in dispute could be settled on summary judgment. The main issue before the appraiser was the effect of Public Act No. 169 on taxpayers’ claim for repayment of taxes from 1992 to 1996. In November 1999, the state appraiser issued a decision in taxpayers’ 1994 appeal. In that decision, the appraiser held that he did not have authority to rule on the validity of Public Act No. 169, and thus he must assume that the rollback penalty could apply for only one year. The appraiser further ruled that because taxpayers did not appeal their assessments in 1992 and 1993, he did not have jurisdiction over those years. Finally, the appraiser declined to reach the merits of taxpayers’ 1994 appeal because the record on summary judgment was insufficient to rule. It is the decision of the state appraiser in 1999 that is now before us. Taxpayers argue that the retroactive clause of the legislature’s amendment to § 4404(c) violates the separation of powers required by Chapter II, Section 5 of the Vermont Constitution, as well as other state and federal constitutional principles. Because, according to taxpayers, limiting the rollback penalty to 1991 is unconstitutional, their tax liability is governed by our 1996 three justice panel decision. They contend that this Court’s 1996 decision entitles them to repayment of taxes paid in excess of the rollback amount of 1991 for the years 1992 to 1996, and they were not required to file separate appeals for the years 1992,1993,1995 and 1996. The Town counters that the retroactive element of the amended statute is constitutional because it is justified by a rational legislative purpose. The limitation on the rollback penalty is necessary to prevent windfalls to taxpayers when the Town conducts a complete reappraisal. Thus, the Town argues, the rollback penalty should apply only to the year in which the appeal was filed, i.e., 1991. Additionally, the Town urges this Court to overrule our decision in 1996 as inconsistent with earlier precedent. Finally, according to the Town, because 'taxpayers did not file subsequent appeals each year after 1991, their tax liability should remain at the assessed values. There are two provisions of the 1996 act that affect the tax statute at issue in this case. The first is § 12 that changes the relevant language of § 4404(c) to clarify that the rollback penalty, even in the event of a complete reappraisal, shall apply only for one year — the [182] year in which the appeal was filed. This legislative pronouncement expressly contradicts our interpretation of the same statute in our 1996 panel decision. Such an action, however, is entirely within the bounds of the power of the legislature. See Vt. Const. ch. II, § 6 (legislative power over revenue bills); Barnes v. Hall, 55 Vt. 420, 421 (1883) (taxation and collection are purely statutory powers). Our paramount goal in statutory construction is to give effect to the legislature’s intent. Burlington Elec. Dep’t v. Vt. Dep’t of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990). If the legislature disagrees with our reading of its intent, it is free to amend the statute to clarify the issue. Compare State v. Madison, 163 Vt. 360, 658 A.2d 536 (1995), with 13 V.S.A. § 7555a(5).3 The second provision of the 1996 act is more problematic. Section 27 of Public Law 169 (Adj. Sess. 1995) declared that the change to § 4404(c) shall be applied retroactively to January 1,1991. According to the amended act, once the Town violated the procedures of § 4404(c) in the 1991 appeal, taxpayers would be entitled to a rollback penalty for one year only. This provision, therefore, specifically undoes the effect of this Court’s interpretation of § 4404(c) as decided in our 1996 order. In making § 12 of the act retroactive, the legislature implicitly reversed a final judgment from this Court. Such legislation violates the constitutional principle of separation of powers. See Vt. Const, ch. II, § 5 (“The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.”). This principle is well-rooted in our case law. In Bates v. Kimball, 2 D. Chip. 77 (1824), we held unconstitutional a statute entitled “An Act for the Relief of Isaac Kimball.” In that statute, the legislature authorized Kimball to enter an appeal of a judgment entered against him after the statutory time limit had passed. The effect of the act was to “vacaté or annul an existing judgment between party and party,” id. at 83, because it ostensibly authorized an appeal from a final judgment below where no appeal was proper. The Court held that the act treaded on the province of the judiciary becausé the act, and not the courts, determined whether or not to allow an appeal. Id. at 85-86. The legislature does not have the power to grant appeals because “the constitution has expressly forbidden the exercise, by one department, of powers properly belonging to others.” Id. at 86. [183] More recently, the United States Supreme Court addressed a situation similar to the one at bar when addressing the constitutionality of § 27A(b) of the 1934 Securities and Exchange Act. Plant v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Section 27A(b) was passed in reaction to the Court’s decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), which imposed a limitations period on actions commenced to address violations of § 10(b) of the 1934 Act. Congress enacted § 27A(b) to permit reinstatement of those eases that had been dismissed as untimely under Lampf, but that had been commenced before Lampf was decided. The effect of § 27A(b) was to overrule the limitations period imposed by Lampf for those cases that had already been dismissed on those grounds. The Court held that “[b]y retroactively commanding the federal courts to reopen final judgments, Congress has violated” the separation of powers. Plaut, 514 U.S. at 219. The violation, in principle, was similar to the one in Kimball. Congress had directly interfered with final judgments of the judiciary by purporting to allow judicial proceedings where the judiciary had ruled that none was proper. The central flaw in the statutes at issue in both Plaut and Kimball is that the enacting legislatures, either intentionally or not, undid final judgments of the jurisdiction’s highest court. In Plant, the United States Supreme Court emphasized the damage caused to the integrity of an independent judiciary. “When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than ‘reverse a determination once made, in a particular case.’ ... Our decisions . . . have uniformly provided fair warning that such an act exceeds the powers of Congress.” Plaut, 514 U.S. at 225 (quoting The Federalist No. 81, at 545 (J. Cooke ed. 1961)). In Kimball, this Court stressed the harm done to the vested rights of the litigants in these situations. A statute is void when it is “retrospective, virtually vacating the judgment, and divesting the right acquired under it . . . . It is a settled principle of the common law, that a statute shall not have a retrospective operation, so as to take away a vested right.” Kimball, 2 D. Chip, at 89. In both cases, the holding was clear: the legislative branch may not overturn final decisions of the judiciary with statutory enactments, whether they are specific to an individual case (Kimball) or of general effect (Plaut). [184] Section 27 of the 1996 act in this case does the very same violence to this underlying principle. Our panel decision of 1996 expressly held that there was no time limit for the application of the rollback penalty for taxpayers’ 1991 appeal. Thus, at the time of that decision, taxpayers had a vested right to a rollback penalty for excess taxes paid in 1991, and they were entitled to continue that rollback until the Town remedied their assessments. The legislature’s attempt in § 27 to apply the one year limit to the rollback penalty to taxpayers’ 1991 appeal undoes a final determination of this Court and divests taxpayers of a vested right. Whether the 1996 panel decision was wrongly decided is immaterial. “The issue here is not the validity or even the source of the legal rule that produced the. . . judgments, but rather the immunity from legislative abrogation of those judgments themselves.” Plaut, 514 U.S. at 230. The 1996 decision conclusively determined the rights of the parties for the 1991 appeal. The legislature, if it disagreed with our interpretation of § 4404(c), was entitled to clarify the statute in question, which it did. The legislature may not, however, reach backwards with that statute and undo the Court decision that announced the disfavored statutory interpretation. We hold, therefore, that § 27 of Public Law No. 169 violates the separation of powers required by Chapter II, Section 5 of the Vermont Constitution. Having determined that the retroactive provision of § 27 is unconstitutional, we turn to the question of which years the taxpayers are entitled to a refund. The 1996 decision held that the applicable rollback penalty had no time limit and concluded that “the Town must act to alter the 1990 tax liability imposed under § 4404(c),” which the Town did not do until 1996. The taxpayers, therefore, argue that they are entitled to this rollback for the years 1992 to 1996. The state appraiser, however, held that the taxpayers were not entitled to a refund for the years 1992,1993,1995, and 1996 because they had not appealed their taxes for those years.4 [185] Indeed, to limit taxpayers’ relief to those years in which they filed an appeal would be consistent with the statutory scheme for grand list appeals. Two methods for relief are envisioned by the statute. When a taxpayer initiates an appeal, the BCA must address that appeal within certain time limits. Those procedures are laid out in § 4404(c). If the BCA does not comply with those procedures, then § 4404(c) also sets forth the rollback penalty mechanism to ensure that the taxpayer pays tax based on the previous year’s valuation. At this point, because the taxpayer has received relief, the tax appeal is dead. The taxpayer may then refile the appeal in each subsequent year. Multi-year relief is appropriate only under 32 V.S.A. § 4468. That section states that an appraisal fixed by the state appraiser shall become the basis for tax for the year of the appeal and the next two years. Id. The multi-year relief envisioned in § 4468 applies only once the tax appeal has made it all the way through the appeal process and a decision has been reached on the merits. If, on the merits, the state appraiser fixes an appraisal, only then is the taxpayer entitled to the three-year remedy of § 4468. Taxpayers’ decision not to appeal in 1992, 1993, 1995 and 1996 seems to have been based on their reliance on the position they took in the original appeal of the Board’s decision. Taxpayers argued then that they should be able to choose between the rollback penalty, ending the appeal, and a decision on the merits, yielding three year relief. Appealing as they did in 1991 and 1994 indicates that taxpayers believed that ultimately they could choose the multi-year remedy of § 4468 over the limited rollback penalty. As the statutes indicate, the remedy is not a choice for the taxpayers, but rather is determined by the procedural posture of the appeal. [186] Nevertheless, the 1996 panel decision controls this case, and as such the rollback penalty applicable to the 1991 appeal has no one year limit.5 To hold that taxpayers are not entitled to relief for those years in which they did not renew their appeal would render our 1996 decision meaningless. In other words, under the state appraiser’s view that taxpayers were required to file an appeal each year, our 1996 holding that the rollback provision has no time limit would have virtually no effect. If taxpayers had to renew their appeal every year to get the benefit of the rollback penalty, then the actual effect on taxpayers is no different from the legislature’s retroactive amendment, limiting the rollback to one year. Limiting taxpayers’ relief in our ruling today would deprive taxpayers of the very vested rights granted to them by the 1996 decision that the legislature unconstitutionally took away. We cannot hold the legislature’s action unconstitutional, but give it effect nonetheless. For 1992 and 1993, therefore, taxpayers are entitled to the same rollback penalty they received in 1991.' Taxpayers did renew their appeal in 1994 and so failure to refile, by itself, would not have barred taxpayers from receiving the rollback penalty for that year. In 1994, however, unlike 1991, the parties waived compliance with § 4404(c).6 Taxpayers made the [187] deliberate choice not to avail themselves of the rollback penalty and instead sought to pursue the merits of the appeal. Taxpayers cannot pursue both the merits of the appeal and retain an entitlement to the rollback penalty. Such a posture would allow taxpayers to choose between the rollback penalty and a merits determination — precisely the goal they pursued in the 1991 tax appeal. Preserving this choice, taxpayers would face no consequences from waiving compliance with § 4404(c). If they win on the merits, then taxpayers would be taxed on a reduced value, and if they lose on the merits, then they would still get the benefit of the rollback penalty. The 1996 decision must be applied in concert with a statutory scheme that contemplates two separate remedial options such that when taxpayers initiated a new round of appeals and sought a determination of their appeal on the merits, they could not do so from the comfort of believing that they were already entitled to the rollback penalty.7 Therefore, taxpayers are not entitled to any rollback penalty for 1994. What they are entitled to is a hearing on the merits of their appeal and a determination of their property value. The state appraiser did not reach the merits of the 1994 appeal because he found the record insufficient. Remand is appropriate so that the parties can have a full hearing on the merits of taxpayers’ appeal. Finally, as for the years 1995 and 1996, a merits hearing on the 1994 appeal will presumably lead to a determination of the value of the property. At that point, “[t]he appraisal so fixed by the director or court shall become the basis for the grand list of the taxpayer for the year in which the appeal is taken and, if the appraisal relates to real property, for the two next ensuing years.” 32 V.S.A. § 4468. As [188] discussed above, taxpayers are not entitled to the rollback penalty once they elected to go forward on the merits of the 1994 appeal. Thus, no rollback penalty stemming from the 1991 appeal is appropriate for either 1995 or 1996 because of the intervening waiver of the rollback penalty in 1994. Reversed and remanded for proceedings not inconsistent with this decision. Footnotes [1] Prior to 1996, appeals from the BCA were decided by a three person board. In 1996, the legislature replaced the board with a single state appraiser. See 32 V.SA. § 4465. [2] The full history of that decision is complicated, and irrelevant to this appeal. [3] As 1 V.S.A. § 213 makes clear, however, the legislature may not enact statutes that “affect a suit begun or pending at the time of their passage.” [4] The dissent claims that taxpayers are barred from relief for 1992,1993,1995, and 1996 because they failed to comply with the objection requirement of 32 V.S.A. § 5292. The dissent, however, misreads our precedent on the objection requirement of § 5292. In Hojaboom v. Town of Swanton, 141 Vt. 43, 442 A.2d 1301 (1982), we held that § 5292 applies only when a taxpayer questions the validity of a tax, not, as in this case, the assessment of property. Hojaboom, 141 Vt. at 49, 442 A.2d at 1304. There the taxpayers challenged their property assessment and were granted rollback relief pursuant to § 4404(c). We rejected the Town’s contention that the taxpayers were required to comply with § 5292. “The plaintiffs . . . attacked the Board’s findings as insufficient under 32 [185] V.S.A. § 4404(c). Neither the validity of the tax nor the validity of the actions of the listers or selectmen in assessing such tax were contested .... Therefore the plaintiffs were not required to comply with the filing procedure of § 5292(a).” 141 Vt. at 49-50, 442 A.2d at 1304. In arguing that taxpayers in this case ought to have complied with § 5292, the dissent fails to distinguish between rights and remedies and the actions needed to preserve those rights and remedies. That tajqpayers appealed assessments that did not reflect the rollback penally does not change the fact that the ease originated as an assessment case, not a validity case. The remedy specified by § 4404(c), namely that the tax amount would be based on previous liability rather than previous assessment, does not alter the fundamental nature of the challenge. Compliance with § 5292 stems from the nature of the right asserted, not the ultimate remedy given. The mechanism for applying the rollback penalty when there is town-wide reappraisal focuses on previous liability for practical purposes — that method is the only one that will ensure that taxpayers pay no more than the previous year. [5] The dissent is incorrect that this issue has already been decided in Spears v. Town of Enosburg, 153 Vt. 259, 571 A.2d 604 (1989), because that ease involved a different part of the statute (§ 4404(c)), and a different type of reappraisal. In Spears, the taxpayer was appealing from the reappraisal of his property, not a town-wide reappraisal as in this case. When the BCA failed to comply with 32 V.S.A § 4404(c) in Spears, the statute states that “the grand list of the [taxpayer] for the year for which appeal is being made shall remain at the amount set before the appealed change was made by the listers.” 153 Vt. at 261, 571 A.2d at 605; 32 V.S.A. § 4404(c) (emphasis added). The statute, however, continues: “except, if there has been a complete reappraisal, the grand list of the [taxpayer] shall be set at a value which will produce a tax liability equal to the tax liability for the proceeding year.” 32 V.S.A. § 4404(c) (emphasis added). Thus, the interpretation in Spears limiting relief to one year is entirely consistent with the plain language of that part of the statute. The statute setting forth the remedy for a town-wide reappraisal, however, contains no such limiting language. Spears, therefore, cannot control this case. [6] The dissent distorts our holding in Villeneuve v. Town of Cambridge, 148 Vt. 15, 527 A.2d 659 (1987). Contrary to the dissent’s assertion, Villeneuve did not establish that one cannot waive compliance with § 4404(e) by “pursuing a statutory appeal through the BCA and state Board... in the same administrative proceeding.” 173 Vt. at 194-95, 790 A.2d at 407-08. Rather, Villeneuve merely held that in that particular case, the plaintiff did not waive compliance with § 4404(e). 148 Vt. at 16, 527 A.2d at 660 (“There was no waiver of that remedy in this matter.”) (emphasis added). In that case, the taxpayer was pursuing the rollback penalty through the hearing before the Board of Appraisers, but [187] on appeal to this Court, the taxpayer requested a merits determination for the first time. In our opinion, we cited the taxpayer’s testimony before the Board as evidence that he had been requesting the rollback penalty. Id. at 17,527 A.2d at 660 (quoting the taxpayer as saying: “So for that reason there [failure to comply with § 4404(c)], according to the statutes, my land should go back at the fair market value of 1983.”). Here, as the dissent acknowledges, taxpayers did waive compliance with § 4404(e). There is no assertion that taxpayers are attempting to waive their right to the rollback penalty for the first time before this Court, as in Villeneuve. [7] We do not disagree with the dissent’s interpretation of how the remedial scheme of § 4404(c) ought to operate. The dissent,, however, refuses to acknowledge the import of our 1996 panel decision. Notwithstanding our present interpretation of the statute, we cannot ignore the mandate of the 1996 decision for these taxpayers. For better or for worse, that decision held that there was no limit to the rollback relief for taxpayers’ 1991 appeal until the Town remedied their tax liability. The dissent’s position would deny taxpayers the relief to which they were entitled by the decision.