Thursday, January 5, 2017

In The Name Of The Court

Turner v. Shumlin, 2017 VT 2 (also, 2016 VT 135, 2016 VT 136, and 2017 VT 1)

By Elizabeth Kruska

No, you may not appoint a Vermont Supreme Court Justice where there is no vacancy.

In a 21-page per curiam decision (including a 2-page footnote!) grounded in the Vermont Constitution, the Vermont Supreme Court unanimously decided that under our state constitution, the now-former governor could not make an appointment to replace soon-to-be-former Associate Justice Dooley when the latter leaves his position on March 31 of this year.

Let’s back up. Way back in 1968 the legislature created a Constitutional Commission to address how judicial appointments were made. Up to that point, the legislature was charged with the duty of electing justices for vacant judicial seats. The Commission recommended changes that were ultimately adopted in 1974. From that point forward, the process was that upon a vacancy, a nominating board would recommend candidates to the Governor. The Governor would then appoint someone from that pool of candidates. In the case of a Supreme Court justice, the Senate approves the nomination and the person becomes a Supreme Court justice. This was the process for certain other appointments that required advice and consent of the Senate, and with the 1974 amendment made it the process for the Supreme Court, as well. This two-step process took politics out of the appointment procedure, since it requires not only a nomination but also a confirmation. Read the long footnote. It’s very good.

Sunday, January 1, 2017

Calendar Magic

Barron v. Menard, 2016 VT 123

By Elizabeth Kruska

David Barron is a guest of the State at one of our fine penal institutions. Back in October of 2015, he was with a group of other guests being escorted to the facility’s kitchen. As the group walked past a certain employee, Mr. Barron became agitated and started making some threats. The alleged threats were sort of along the lines of, “You make sure he’s never around me. I’ll beat him up.” This came with a gleam in his eye and a clench to his fists.

Another corrections officer was with the group and overheard Mr. Barron. She reported him, and he was subject to disciplinary action. Disciplinary actions in the jails often work as a package deal. Mr. Barron not only got to go before a hearing panel, but he also got to move to a segregation unit within the facility.

In our hustle-and-bustle life, it’s probably tempting to think, “yes, I could stand to spend some time segregated from pretty much everyone for a few days.” And you’d be right. But you don’t really want to spend that time in the segregation unit of a jail. It’s loud. It can be violent. It’s full of already-pissed off people who are now even more pissed off because they’re in a worse part of a place that already is generally terrible.

Saturday, December 24, 2016

Presumptive Bail

State v. Kane, 2016 VT 121

By Amy E. Davis

Hell hath no fury like a woman denied bail. In 2014, Defendant pled guilty to custodial interference and was sentenced to 2-5 years, all suspended except one year. In August 2016, her probation officer filed a probation violation complaint alleging that Defendant had failed to meet with her PO, notify her PO of a change in address, obey a curfew, etc. Also, Defendant had made some statements to an Easter Seals worker to the effect of, “What happened with Jody Herring is understandable.” (I assume most of our reader base also reads the news, so I won’t tell that story here). Defendant also made some suicidal statements to the Sheriff’s department.

The next day, Defendant was arraigned on the probation violation complaint where the State requested she be held without bail pending a revocation hearing. The State argued that she was a risk of flight and posed a risk of harm to herself and to the community. Defendant, however, claimed that she was attempting to comply with her probation conditions, and she had always attended court, so she was not a risk of flight. The court ordered her held without bail.

On September 1, 2016, the Chief Justice issued an unpublished entry order affirming the trial court’s decision to hold Defendant without bail. The order stated that a probationer does not have a right to bail, so release is subject to the court’s discretion. Defendant asked the entirety of the SCOV to review her denial of bail.

Sunday, December 18, 2016

Give Me One Reason, Or Two (Part Three of a Collection of Entry Orders in Three Acts)

State v. Breer, 2016 VT 120 (mem.)

By Elizabeth Kruska

“As a probationer, he’s not entitled to bail as a matter of right” is a phrase I have heard at least a thousand times in making bail arguments in probation violation cases.

Harley Breer was on probation for some felonies stemming from some charges filed in 1999. Then he got charged with more offenses in 2011, as well as some violations of probation and was held without bail. While pending trial, he got charged with more offenses, including 2 counts of sexual assault, violations of a restraining order, and violations of conditions of release, in 2012. The cases moved forward, and in 2014 he moved for a bail hearing. The trial court held a hearing over the course of three days.

The trial court ruled that Mr. Breer should continue to be held without bail for two reasons. First, he still had the probation violations pending. By statute there are certain times when a trial court should set bail in probation violations. This wasn’t one of those circumstances. Second, the trial court found that in the new criminal matters, he was facing life imprisonment and the evidence of guilt was great. The court also noted that Mr. Breer was a flight risk.

You’re Not Supposed To Do That (Part Two of a Collection of Entry Orders in Three Acts)

State v. Lyford, 2016 VT 118 (mem.)

By Elizabeth Kruska

There’s such a thing as an interlocutory appeal. You get to do this only in certain circumstances. And to get to be able to do it, the trial court has to give permission. If the trial court gives permission at the wrong time, you get what happens here.

Ms. Lyford was charged with a crime. She filed a motion to suppress certain evidence in her case. The motion was denied, so she sought interlocutory appeal. The trial judge granted her request, and off the file went to the Vermont Supreme Court.

SCOV said, oops, this shouldn’t be here. A criminal defendant can only take interlocutory appeal on a motion to suppress if he or she has first entered a conditional guilty plea. Ms. Lyford had not done a conditional guilty plea prior to seeking permission to appeal. So, it’s dismissed, as having been improvidently granted.

Staycation (Part One of a Collection of Entry Orders in Three Acts)

In re Petition of Vermont Gas Systems, 2016 VT 132 (mem.)

By Elizabeth Kruska

Vermont Gas wanted to condemn a horizontal easement through Geprags Park and construct an underground pipeline. Park users asked the Public Service Board for a stay, halting the project pending litigation. Vermont Gas appealed.

SCOV looked at the factors needed for such a stay. First, there has to be a likelihood that the party asking for the stay will prevail on the merits. Second, the court must consider irreparable injury to the moving party, then also the threat of irreparable injury to the nonmoving party. Last, the court considers the public good.

The Public Service board had granted the easement condemnation and allowed the project to go forward. It took evidence and learned that the impact on Geprags Park would be fairly limited, and would not disrupt above-ground recreation.

Grownups Not Being Grownups

Wener v. Wener, 2016 VT 109

By Elizabeth Kruska

It cannot be said too often: grownups can choose to be awful or irritating to one another, but when it has a bad or potentially bad impact on kids, it has to stop. Fortunately, that’s why we have courts; they make decisions when people can’t anymore. And that’s the case with Mr. and Mrs. Wener (Mom and Dad). The Weners have a son, who happens to be autistic—which here happens to be a relevant fact—and they got divorced.

For a while after the divorce, it appears that the Weners could get along and were able to co-parent their son fairly well. Then they couldn’t, and they couldn’t get along, and they couldn’t agree on things. Initially, they both lived in the West Rutland area and split their time with their son 43/57 (Dad/Mom). Then Mom said, “Yeah, so, I’m moving to South Burlington and kiddo is going with me and I’m enrolling him in school there, so there.” Dad said, “Au contraire.” Dad filed a motion to amend parental rights and responsibilities and parent-child contact. The trial court held a hearing over the course of two days and awarded custody to Dad.

The court looked at the fact that Son was well established in his school and community and felt it was important for him to stay there. The court also took note that both parents seemed unable to communicate anymore, especially given Mom’s seemingly unilateral decision to pick up and move far enough away that it would require a change in schools and a change to mid-week visits.

Saturday, December 17, 2016

Police Petition Problems?

In re Petition of New England Police Benevolent Association, 2016 VT 67

By Andrew Delaney

As best I can tell, a group of law-enforcement officers want some representation from their ranks at the collective-bargaining table and this ain’t the first time they’ve gone for it and been shot down.

The New England Police Benevolent Association (NEPBA) filed a petition for election of reps from among a group of law-enforcement officers (F&W, DMV, and DLC), currently represented by the Vermont State Employees’ Association (VSEA) and the Non-Management Unit (NMU). Excuse me—I’ve got a sudden hankering to go eat a bowl of alphabet soup.

The first petition was filed by VSEA in 2011. The idea was to remove the officers from the non-management bargaining unit and put them in their own independent bargaining unit. After two days of hearings, the Board tossed the petition. The reasoning was that the new unit could result in over-fragmentation, which would make effective representation more difficult. The Board also found the officers hadn’t pursued many of the issues they wanted addressed, and that the proposed unit would unduly complicate regular negotiations. VSEA didn’t appeal.

Judicial Burn Notice

In Re J.W., 2016 VT 78

By Amy E. Davis

[Author’s note: this post is dripping with more-than-usual sarcasm because it helped me cope with this case.]

The court adjudicated JW as CHINS because Mom could not adequately protect him from Dad if JW went back to Mom. Dad appeals saying the court erred in taking judicial notice of his criminal records and filings from a relief-from-abuse order against him. Dad also says the findings do not support the conclusion that JW was a kid in need of care or supervision.

JW was born in 2012. In May 2015, the Department for Children and Families (DCF) filed a Child In Need of Supervision (CHINS) petition, and JW went into temporary DCF custody. Some allegations included that Mom and JW were homeless, Dad was incarcerated, Dad had history of domestic violence against Mom, Dad had been substantiated for sexual abuse, Dad had been charged and convicted of prohibited acts for groping a juvenile, both parents had substance abuse use issue, etc. etc. There’s just a whole bunch of bad stuff in the petition.

Saturday, December 3, 2016

What is ‘Reasonable Doubt,’ Alex? No, Seriously. What is it?

State v. Levitt, 2016 VT 60

By Andrew Delaney

Mr. Levitt got convicted of simple assault and was put on probation. He appeals his conviction and most of his probation conditions. Ah—another probation-conditions appeal. We’ve already made the eleventy-billionth joke more than once, but why not make it again? There’re a lot of probation-condition cases, mm-kay?

Mr. Levitt was tried for simple assault in front of a jury. The judge’s reasonable-doubt instruction—paraphrased here with my patented bare-minimum-and-potentially-inaccurate system—was: “Nothing in life is 100% certain. ‘Beyond a reasonable doubt’ means that you’re convinced of it with great certainty.” Probably not the greatest instruction, but no objection was made, and the jury came back with a guilty verdict.

There was a sentencing hearing and the State argued for two weeks in the pokey. The defense went with a fine or suspended sentence. The judge went with a short suspended sentence, twenty days of work crew, and a fine. So the trial court placed Mr. Levitt on probation—‘cause that’s what you do with a suspended sentence—and imposed “standard conditions A through N, and also condition P.” The judge didn’t bother naming or describing those conditions, which are reproduced in the opinion if you’re truly curious, but boil down to—again using my patented system—the PO will be your babysitter; you can’t do stuff without permission; and if your PO tells you to do stuff you better do it—also, no drugs, no booze (or no excessive booze), no being violent, and no threatening people. Of course, there’s more to it than that, but that’s the basic gist.