Vt. Fed. Sportsmen v. Birmingham, No. 224-4-18 Wncv (Tomasi, J., May 14, 2020).

[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.]

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 224-4-18 Wncv

Vermont Federation of,

Vermont State Rifle & Pistol,

Powderhorn Outdoor Sports,

John Fogarty,

Samuel Frank,

Plaintiffs

v.

Matthew Birmingham,

T.J. Donovan,

Sarah George,

William Porter,

Defendants

Opinion and Order on Motion for Permission to Appeal Under Vt. R. App. P. 5.1

This matter has a robust procedural history. The case concerns the 

constitutionality of 13 V.S.A § 4021, which limits the size of the magazines that can 

be used in firearms. The State moved to dismiss, and the Plaintiffs moved for 

summary judgment. The Court denied both motions. It concluded that it would not 

decide the case on so-called “legislative facts” but would require the parties to 

develop a factual record on which the constitutional claim could be adjudicated. At 

around the same time another action, arising in Bennington County—State v. 

Misch, 173-2-19 Bncr—was decided and appealed to the Vermont Supreme Court. 

That decision concluded that Section 4021 is constitutional. 
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The parties filed a joint motion for permission to appeal. For similar reasons 

as noted in the denial of the earlier motions, the Court denied that request as well. 

Despite the happy unity of opinion among the parties at that point, they did not 

seek review in the Supreme Court of the denial of the request for interlocutory 

appeal. Vt. R. App. P. 5(b)(7).

As an alternative to appeal, the State also sought a stay of this matter 

pending resolution of the Misch matter. The Court denied the request without 

elaboration. The State sought reconsideration of the denial of the stay request, and, 

in the alternative, sought permission to appeal the denial under Vt. R. App. P. 5.1. 

The Court denied reconsideration, again, indicating its belief that development of a 

factual record in this matter would be important to decide the issues presented. It 

denied the request to appeal as being untimely. 

The State proceeded to seek review of the denial in the Supreme Court. The 

High Court concluded that the State’s request for permission to appeal was not 

untimely. It remanded to this Court to consider the State’s request to appeal this 

Court’s denial of the request for a stay. 

In light of the foregoing, it is worth noting what is not before the Court. The 

Court is not tasked with determining whether to grant permission to appeal the 

merits of the constitutional issue under Appellate Rule 5, nor is it being asked to 

determine whether to stay this matter. The sole question sub judice is whether the 

Court’s earlier denial of the request to stay should be deemed a collateral final order 

under Vt. R. App. P. 5.1.
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Under that Rule: 

[T]he superior court may permit an appeal from an interlocutory order 

or ruling if the court finds that the order:

(A) conclusively determines a disputed question;

(B) resolves an important issue completely separate from the merits of 

the action; and

(C) will be effectively unreviewable on appeal from a final judgment.

Vt. R. App. P. 5.1(a)(1).

The State’s argument is straightforward: the denial of the stay was 

definitively decided by the Court and confirmed on reconsideration, it is a matter 

separate from the merits, and it cannot be reviewed upon later appeal. The State 

further contends that the equities of the case also favor allowing it to seek a stay 

from the Supreme Court. It maintains that there is a strong likelihood that the 

Misch appeal will decide or, at least, clarify the constitutional issue, that forcing the 

parties to engage in costly and lengthy discovery could amount to a significant 

waste of both public and private resources, and that engaging in summary 

judgment and trial practice in this matter could also amount to a waste resources, 

including judicial resources. For their part, the Plaintiffs maintain that it is 

possible that the Misch case could resolve through a plea agreement short of a 

decision and that delaying resolution of this case impacts their constitutional rights. 

The State is correct that the decision denying the requested stay appears to 

meet the standards set out in Rule 5.1. The same argument, however, could be 

made with regard to any decision regarding a request to stay proceedings. The 
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Court does not believe Rule 5.1 envisioned that such procedural rulings would 

customarily fall within the scope of collateral final order appeals. See Charles 

Wright, Arthur Miller & Edward Cooper, 15A Fed. Prac. & Proc. Juris. § 3911.4 (2d 

ed. 2019) (“Similarly plausible arguments could be made—usually without 

success—that various procedural devices [including stays] or substantive doctrines 

are intended to protect against the burdens of trial.”) [hereinafter Fed. Prac. & 

Proc.].

In any event, even if the stay decision technically meets the components of 

the Rule, the Court still has discretion as to whether to allow the appeal. Rule 5.1 

was specifically amended to make clear that courts “may” permit appeals of 

collateral final orders. Vt. R. App. P. 5.1, Reporter’s Notes—1990 Amendment. In 

making that determination, the Court is guided by the following: 

While we set forth specific criteria without which a collateral order will 

not be reviewed by this Court, overriding these threshold criteria is our 

need to balance the possible loss of important rights “against this 

Court’s policy of avoiding piecemeal review.” 148 Vt. at 292, 532 A.2d 

at 562. Lafayette should not be read as an addendum to the Vermont 

Rules of Appellate Procedure, creating a virtual entitlement to review 

of collateral orders. Lafayette offers appellate redress in the small 

number of extraordinary cases where the normal appellate route will 

almost surely work injustice, irrespective of this Court’s final decision. 

Petitions like those at bar would convert the extraordinary into the 

ordinary and hamper not only the work of this Court, but the orderly 

processes of trial courts and administrative bodies as well. Lafayette

announced a procedure that will be available when strong need is 

demonstrated. But it must not be seen as a commonplace alternative 

to normal appellate review under our rules.

In re Maple Tree Place Assocs., 151 Vt. 331, 332–33 (1989); see Fed. Prac. & Proc. § 

3911.4 (collateral final appeal available concerning stays “on showing special 
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justification”); Rivere v. Offshore Painting Contractors, 872 F.2d 1187, 1190 (5th Cir. 

1989) (allowing appeal of order staying benefit payments as collateral final order).

Under the unique circumstances of this case, the Court believes the denial of 

the request to stay constitutes a “special justification” that warrants appeal under 

Rule 5.1. The Misch litigation appears to be on all fours with the present case and 

the briefing has already begun. It is highly likely that the Court’s ruling will 

resolve this case. Alternatively, the Court’s ruling would clarify the areas where 

factual development may be necessary. The Court agrees that pursuing unbridled 

discovery while Misch is pending could easily result in significant—and 

unnecessary—consumption of private, public, and judicial time and resources. 

No doubt, Plaintiffs’ claims of potential constitutional injury are not 

insignificant. On the other hand, however, Plaintiffs agreed to a stay of discovery 

earlier in the litigation and jointly sought an appeal of this proceeding to the 

Supreme Court. Had that request been granted, the High Court ultimately may 

have concluded that a factual record needed to be developed and remanded the case 

back to this Court. That, too, would have resulted in a delay in concluding these 

proceedings. 

In light of the foregoing, the Court grants permission to appeal its decision to 

deny a stay under Rule 5.1. Certainly, if Plaintiffs maintain their position, they 

may seek dismissal of the appeal under Rule 5.1(d). But, granting permission to 

appeal allows the Court having jurisdiction over Misch and this matter the 
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opportunity to consider both actions and make decisions with full knowledge of 

both. 

Further, in order to give life to the discretionary appeal allowed in this order, 

the Court will also issue a temporary stay of this proceeding with the following 

exception: the Court will hold a discovery conference to determine whether there 

may be exceptional circumstances—for example, the declining health of a witness—

that might warrant targeted and limited discovery to go forward while the appeal is 

pending. 

Dated this __ day of December 2019 at Montpelier, Vermont.

_____________________________

Timothy B. Tomasi,

Superior Court Judge