                                        ENTRY ORDER

                                            2020 VT 27

                          SUPREME COURT DOCKET NO. 2019-373

                                    FEBRUARY TERM, 2020

 Vermont Federation of Sportsmen’s Clubs et al. }       APPEALED FROM:
                                                }
                                                }
   v.                                           }       Superior Court, Washington Unit,
                                                }       Civil Division
                                                }
 Matthew Birmingham et al.                      }       DOCKET NO. 224-4-18 Wncv

                                                        Trial Judge: Mary Miles Teachout

                         In the above-entitled cause, the Clerk will enter:

        ¶ 1.   In this interlocutory appeal, we review the trial court’s order denying a stay.
Plaintiffs brought this case to challenge the constitutionality of a state statute banning large-
capacity magazines—the same issue presented in a separate criminal appeal currently pending
before this Court. Defendants moved to stay the trial court proceedings in this case until this Court
resolves the appeal in the separate criminal case, and the trial court denied defendants’ motion.
We affirm.

        ¶ 2.   The challenged statute prohibits the possession, transfer, sale, or purchase of “large
capacity ammunition feeding devices,” defined as magazines, belts, or similar devices that can
accept more than ten rounds of ammunition for a long gun, or more than fifteen rounds of
ammunition for a hand gun. 13 V.S.A. § 4021 (a), (e). In their complaint, plaintiffs challenge this
statute under Chapter I, Article 16 of the Vermont Constitution, which states in part “[t]hat the
people have a right to bear arms for the defence of themselves and the State.”

       ¶ 3.     Plaintiffs include two nonprofit organizations that promote hunting and competitive
shooting, a business that sells firearms and related products, and two individuals. Defendants
include the Director of the Vermont State Police, the Attorney General of Vermont, and several
county state’s attorneys.

        ¶ 4.   Defendants filed a motion to dismiss, and plaintiffs filed a motion for summary
judgment, both arguing that they were entitled to judgment as a matter of law. The trial court
denied both motions, stating, “Both parties would have the court rule on their arguments without
a factual record meaningfully tested by the adversarial process. The court declines to do so. A
factual record developed by the adversarial method will provide a firm foundation for resolution
of the important legal issue presented by this case.”
        ¶ 5.     Before discovery was complete in this case, this Court accepted an appeal in State
v. Misch, docket no. 2019-266, reporting for review the question of whether 13 V.S.A. § 4021 was
unconstitutional under Article 16. The parties in this case filed a joint motion for appeal on report
of the same question, arguing that “it is appropriate to report this action to the Supreme Court now
to allow it to take advantage of the unique perspective and robust briefing that will be presented
by the parties in this case.” At the same time and in the alternative, defendants moved to stay
further proceedings in this case pending resolution of the appeal in Misch. Defendants argued that,
because the cases present identical legal issues, it is unnecessary for the parties and the court to
expend significant resources conducting discovery and potentially a trial in this case. Plaintiffs
opposed the motion to stay, arguing that the stay should only be granted if the court granted the
joint motion for appeal.

        ¶ 6.   The court denied both the joint motion for appeal on report of the constitutional
issue and defendants’ motion for stay.1 In its denial of the joint motion for appeal, the court wrote:

                The result of certifying the requested question would be that the
               Supreme Court would be asked to decide a major issue under the
               Vermont Constitution with no factual basis as it relates to the
               interests of the parties in this case. The Bennington case [Misch]
               has its own separate factual context, which is quite different than
               that reflected in the pleadings in this case. In this case the facts are
               not yet sufficiently developed for purposes of analyzing a
               constitutional issue, and certifying a simple conceptual question
               would be to deprive the Supreme Court of a factual basis on which
               to base a decision in this case.

The court issued a separate entry regarding the motion for stay, which does not include any
separate explanation.

        ¶ 7.    Defendants moved to reconsider the court’s denial of their motion to stay, and in
the alternative moved to appeal that order. See V.R.A.P. 5.1(b)(2). The trial court reconsidered
and again denied the motion to stay. It referred to its reasoning regarding the joint motion for
appeal on report, and stated that “a stay of the case would delay the development of the factual
record that would be needed as a basis for a legal decision.” We accepted defendants’ collateral
final-order appeal to determine whether defendant’s motion to stay was properly denied.2



       1
           At oral argument, plaintiff suggested that we should remand for reconsideration of the
parties’ joint motion for interlocutory appeal. The decision on the joint motion for interlocutory
appeal on report was not challenged by either party. We therefore decline to address it.
       2
           The trial court initially denied as untimely defendants’ motion to appeal as a collateral
final order the court’s denial of a stay. On appeal of that ruling, this Court concluded that the
motion for collateral final-order review was in fact timely, and remanded for the trial court to
consider the merits of the motion. On remand, the trial court granted defendants’ motion for
collateral final-order appeal pursuant to Vermont Rule of Appellate Procedure 5.1.


                                                  2
        ¶ 8.   “A stay in this context is a suspension of proceedings until a specified event occurs
in another case. It is in the nature of a continuance.” In re Woodstock Cmty. Trust, 2012 VT 87,
¶ 36, 192 Vt. 474, 60 A.3d 686 (quotation and citation omitted). We review the trial court’s denial
of such a motion to stay for abuse of discretion and will overturn it “only if the discretion is
exercised on grounds clearly untenable, or to an extent clearly unreasonable.” Id. ¶ 36 (quotation
omitted). In this case, the court’s initial decision on the motion for stay contained no explanation
of the grounds for its decision. However, it remedied this lack of explanation when it reconsidered
and again denied the motion for stay.

        ¶ 9.    The trial court’s rationale for denying the stay was that factual development was
needed for its resolution of this case and should not be delayed. That reasoning was consistent
with its decisions on the motion to dismiss, the motion for summary judgment, and the joint motion
for appeal. We cannot conclude that the trial court’s decision was an abuse of discretion.

        ¶ 10. Where there is a possibility that a stay will damage someone else, the party seeking
the stay “must make out a clear case of hardship or inequity in being required to go forward.”
Woodstock Cmty. Trust, 2012 VT 87, ¶ 36 (quoting Landis v. N. American Co., 299 U.S. 248,
254-55 (1936)). The trial court must weigh the parties’ competing interests with this standard in
mind.

       ¶ 11. In this case, defendants put forward sufficient evidence to support a stay. They
argued that it was likely (though not certain) that Misch would be decided before this case and
would resolve the central issue in this case; that the harm to plaintiffs arising from the delay of a
stay was speculative; that moving forward with the case would cost defendants significant time
and expense; and that the stay would preserve judicial and public resources. An order granting a
stay would have been within the trial court’s broad discretion.

        ¶ 12. However, the trial court was also within its discretion in denying the stay. Plaintiffs
asserted that their constitutional rights are being violated every day the statute remains in effect,
and identified examples of financial harm to them due to the high-capacity magazine ban. They
also pointed out that there is no guarantee the Misch appeal will be finalized before the trial court
resolves this case, or that the resolution of that case will definitively resolve this one. In addition,
it was not “clearly unreasonable” for the trial court to conclude that plaintiffs would be damaged
as a result of the stay and that defendants had not made out a “clear case of hardship or inequity”
that outweighed the harm to plaintiffs. Woodstock Cmty. Trust, 2012 VT 87, ¶ 36 (quotation
omitted).

       ¶ 13. Defendants argue that they are entitled to a stay under a five-factor test articulated
by the Southern District of New York. The five factors include:

               (1) the private interests of the plaintiffs in proceeding expeditiously
               with the civil litigation as balanced against the prejudice to the
               plaintiffs if delayed; (2) the private interests of and burden on the
               defendants; (3) the interests of the courts; (4) the interests of persons
               not parties to the civil litigation; and (5) the public interest.




                                                   3
Kappel v. Comfort, 914 F. Supp. 1056, 1058 (1996) (quotation omitted). We have not held that
Vermont courts are required to apply this five-factor test. However, even if applied, this test would
produce similar results to the balancing of interests described in Woodstock Community Trust.
Plaintiffs have asserted interests in avoiding prolonged economic losses and constitutional harms.
It was not an abuse of discretion for the court to conclude that none of the factors asserted by
defendants—including litigation costs to the State and judicial economy—outweigh plaintiffs’
interests. The trial court was within its discretion to deny defendants’ motion.

       Affirmed.

                                                 BY THE COURT:



                                                 Paul L. Reiber, Chief Justice

   Publish
                                                 Beth Robinson, Associate Justice
   Do Not Publish

                                                 Harold E. Eaton, Jr., Associate Justice


                                                 Karen R. Carroll, Associate Justice


                                                 Dennis R. Pearson, Superior Judge (Ret.),
                                                 Specially Assigned




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