As the Vermont Federation of Sportsmen's Clubs (VTFSC) is a Plaintiff in the High-Capacity Magazine Ban lawsuit that is currently in Washington County Superior Court, the VTFSC would like to provide interested parties with an update of where this case stands.
As you may be aware, the High-Capacity Magazine Ban was a piece of S.55, which Governor Scott signed into law on April 11th 2018 as Act 94. One week later - the VTFSC was a primary mover in filing a CIVIL (not criminal) Challenge against JUST the Magazine Ban portion on April 18, 2018 stating the ban was unconstitutional in regards to the Vermont Constitution (not the Federal Constitution).
In considering how to fight this egregious piece of legislation, the first battle would be in Superior Court, in this case Washington County Superior Court. Beyond that first battle however, the VTFSC was certain of one thing: No matter who won in Superior Court, the case would, in all likelihood, be appealed by the losing party to the Vermont Supreme Court. If the VTFSC lost we would appeal; if the State lost the VTFSC was confident that they would appeal, so either way this case was eventually going to go before the Vermont Supreme Court.
Make no illusions: This is, and will be, a LONG FIGHT.
Knowing that, the strategy of our attack was simple: Of all the various parts of S.55 / Act 94, the High-Capacity Magazine Ban portion appeared to be the easiest one to show as being unconstitutional. The plan then was to attack JUST THAT ONE PIECE, such that we might get a favorable ruling concerning laws that impinge on the Vermont Constitution. We could then hopefully take that decision and use it against other portions of Act 94. Start simple, stay focused, get a favorable decision, and then extend that decision to other infringements.
With the advent of a case from southern Vermont where an individual was caught violating the new High-Capacity Magazine Ban law, things got complicated quickly as our case is a Civil action and the other case is a Criminal action. As a Criminal matter, the other case quickly moved to the Supreme Court where it sits currently.
On July 25th, the State Motioned to Stay (i.e. put on hold) our case pending the outcome of the other Criminal case. We responded to against their motion on August 7th; the State then responded to our response on August 13th; Judge Teachout of Washington County Superior Court then DENIED their motion to Stay on August 27th. This meant our case was still alive and would move forward.
On September 10th however, the State requested that the Superior Court Reconsider the previously denied motion to Stay in Superior Court. We responded to their motion to Reconsider on September 27th; the State then responded to our response on October 8th, with Judge Teachout of Washington County Superior Court then again DENIED their motion to Reconsider the Stay on October 29th.
Despite the Superior Court's denial of the motion to Stay, and despite the Superior Court's denial of the Request to Reconsider a Stay, the State Appealed the Superior Court's denial to the Vermont Supreme Court on November 1st. However, when the Superior Court denied the Motion to Reconsider, one of the two reasons given was that the State's Request to Reconsider did not occur within the 14-day limit. This was an apparent error by the Court, as the Request to Reconsider apparently was filed properly on the 14th day.
The Vermont Supreme Court remanded the case back to Washington County Superior Court to consider the merits of defendant's timely filed request for permission to appeal the denial of their request for a stay.
Judge Teachout again DENIED the stay, stating that a factual record needed to be created by adversarial discussion (arguments pro and con).
The State then appealed that denial to Superior Court, however the Supreme Court upheld the Superior Court's decision to deny as being within their discretion, thereby allowing the Superior Court Case to move forward.
In the meantime, and as a result of judicial rotation, Judge Teachout was replaced by Judge Tomasi as the judge presiding over our case in Washington County Superior Court.
Our counsel, in conjunction with Assistant Attorney General, filed a Renewed Joint Motion to Appeal on Report, with both parties arguing that the current Covid pandemic has imposed impediments to conducting and completing discovery such that the renewed appeal has increased force. Essentially, both us and them agreed that this case should be moved to the Vermont Supreme Court.
On May 13th 2020, Judge Tomasi reviewed the Joint Appeal, and then ordered that the following question be forwarded to the Vermont Supreme Court: "Does 13 V.S.A. § 4021 violate Chapter 1, Article 16 of the Vermont Constitution?"
At this point, our case is now before the Vermont Supreme Court for further handling. It must be noted however that the Vermont Supreme Court retains the authority to reject this Report if it concludes that additional factual development in Superior Court is necessary.
For now however: Our case is before the Vermont Supreme Court.
The first link below is a PDF version of the statement you are reading. The second is a timeline of the activities of this lawsuit to date, and the third is the Court Docket record, also in PDF form.