Saturday, July 30, 2016

Solar Split

In re Rutland Renewable Energy, LLC, 2016 VT 50

By Andrew Delaney

Here we have the Town of Rutland (Town), five adjacent landowners (neighbors), and Rutland Renewable Energy, LLC (RRE) duking it out over a certificate of public good (CPG) for a 2.3 megawatt solar facility. The Town and neighbors say the Vermont Public Service Board (PSB) screwed up when it concluded that the project wouldn’t unduly interfere with orderly development and wouldn’t have an unduly adverse impact to aesthetics and gave RRE the CPG.

Let’s grossly oversimplify ‘cause that’s kinda what we do here. RRE filed a petition to put in a solar facility in Rutland. Neighbors ranged from about 150 feet away to 500 feet away. The neighbors and the Town did not like the idea of the solar facility up in the ‘hood. There are some wetlands on the proposed project site and the parcel is classified as “industrial/commercial” on the Town’s Future Land Use Map. The project includes almost 550 solar panels and accompanying inverters and transformers, plus a perimeter fence, a new curb along one of the roads, and new access areas and extension of existing access areas.

The PSB granted neighbors and the Town permissive intervention, assigned a hearing officer, and had a hearing. The Town and neighbors took particular issue with: (1) whether the project would unduly interfere with the orderly development of the region; (2) whether the project would have an undue adverse effect on aesthetics; and (3) whether the project would have an undue adverse effect on historic sites. The hearing officer took evidence and found that the criteria for a CPG were met provided that certain mitigation measures were put in place—more on that later.


Concord Gen. Mutual Ins. Co. v. Gritman, 2016 VT 45

By Elizabeth Kruska

Back in the spring of 2009, a bunch of kids in Ludlow did what kids in towns full of second homes will sometimes do—they went to an empty vacation house to hang out. Some empty vacation houses also have attractive nuisances, like swimming pools, or in this case, an outdoor fireplace. I have always admired outdoor fireplaces, and thanks to this opinion, I now know the name for an outdoor fireplace is chimnea.

Anyway, the kids – and I use the word “kids” loosely—these are young adults, probably in their late teens or early twenties, saw the chimnea on the deck and thought exactly what you would expect, “let’s build a fire!” Because the hanging out included drinking beer (the quantity of which is somewhat disputed) and smoking weed, a couple conclusions were made. First, it’s fair to say that judgment was at least a little bit impaired, and second, there were plenty of lighters available for starting the fire in the chimnea.

So, the kids set about finding some brush and sticks and whatnot for the fire. They put the tinder in the chimnea and someone lit it, although it’s really not clear whose lighter started the fire. The fire got going, and there was apparently testimony at trial that the fire was hot enough that people had to back away from the fire. Eventually, the kids decided to put out the fire by putting some dirt on it, and pouring beer on it. Various kids left at different times.

Domestic Assault is never Simple (or is it)?

State v. Bean, 2016 VT 73

By Ember S. Tilton

The State charged defendant with domestic assault. Defendant lived with the complaining witness at a residential facility. Defendant was apparently schizophrenic. The complaining witness testified at trial that he kicked Defendant's hand and said something to the effect of defendant "needed a kick in the ass." The next thing complaining witness knows it's lights out. A staff member testified that defendant dropped the complaining witness with one blow. The State rested.

Now, defendant argued that they were not really "household members" as the statute for domestic assault required. See they each had their own rooms and it was more like a boarding house or a hospital or something. The State agreed and asked the Court to proceed on a simple assault charge. Defendant agreed that simple assault was a lesser-included offense but that it was a bit late in the game to be adding a second charge. Over defendant's objection, the judge gave a simple-assault instruction and defendant was promptly convicted by the jury.

Now, defendant appeals his conviction. He asks the Supreme Court to reverse the trial court's ruling claiming that it couldn't be simple assault, because the elements of the crime are different. Specifically, Defendant points to the word "willfully." This is because Simple Assault must be done willfully, meanwhile Domestic Assault can be done "purposely." SCOV is not entirely convinced. According to them, (and your humble blogger agrees) these words are used interchangeably. 

Sunday, July 10, 2016

Connecting Conditions

State v. Cornell, 2016 VT 47

By Andrew Delaney

Probation conditions have to be reasonably related to the conviction. It wasn’t always like that from a practical perspective, but the SCOV has recently put its foot down.

Mr. Cornell is back on his conditions for another round. The first time, the trial court imposed a bunch of conditions but Mr. Cornell didn’t know what they were until he got a list post sentencing. There was an appeal and a remand. When Mr. Cornell objected to the conditions, the trial court said, more-or-less, you don’t get to object at this point. Another appeal and remand later, and Mr. Cornell ended up with another set of conditions. On this round, he appeals six probation conditions ordered by the sentencing court.

Mr. Cornell was convicted of lewd and lascivious behavior with a twelve-year-old boy in 2013. He was sentenced to some prison time and some probation time. After the procedural wrangling referred to above, the trial court eventually imposed twenty-one probation conditions, including, over defendant's objections, that: (1) he reside or work where his probation officer approves; (2) attend counseling programs ordered by his probation officer; (3) refrain from violent and threatening behavior; (4) avoid areas where children congregate; (5) his probation officer have warrantless search and seizure privileges; and (6) he is banned from home computer and internet usage.

Saturday, July 9, 2016

Extensions & Excuses

Puppy in Civil Procedure 
Clark v. Baker, 2016 VT 42

By Andrew Delaney

This is an appeal dealing with whether stuff was filed in time. This is like a civil-procedure thrill ride. Please don’t take my sarcasm the wrong way—civil procedure is very important stuff and I sincerely wish that I had paid a lot more attention and played a lot less Yahoo Pool during civ pro in law school. I probably could’ve saved myself a lot of CLE and self-study time later on.

There are two sets of medical defendants in this medical malpractice and wrongful death case. The SCOV helpfully christens them the Baker defendants and the Hospital defendants. Both sets of defendants filed motions to dismiss on the basis that plaintiffs failed to serve process in a timely manner. The trial court denied the motions and both defendants appeal. The Baker defendants’ pitch is that the trial court’s enlargement of time expired before the Baker defendants were served. The Hospital defendants go with a plaintiffs-failed-to-file-the-signed-waiver-in-time argument. Both camps appeal from the trial court’s conclusion that it could retroactively grant a motion for enlargement of time and extend the time-period for service after the running of the statute of limitations based on excusable neglect.

Let’s find out what happened.

Questionnaire Quandry

State v. Anderson, 2016 VT 40

By Elizabeth Kruska

I was all charged up that this was another probation condition case, and it kind of is but it kind of isn’t.

Mr. Anderson was convicted in 2003 of sexual assault on a minor. He received a sentence of 19-20 years to serve, all suspended but 11 years. This means he would serve eleven years in jail and then be released on probation. If he were to violate his probation, the balance of his sentence could be imposed, less any credit. One of his conditions of probation was that he had to do the sex offender treatment program while in jail.

So, he gets to 2014 and entered the program (this wasn’t clear, but it is probably when he was eligible to begin the program based on the length of program clinically indicated and the portion of sentence he had remaining). He was suspended from it on June 10 for failing to admit responsibility for his actions. The suspension period was 90 days, and in order to get back in to the class, Mr. Anderson had to do a questionnaire consisting of five questions. He had to turn in the questionnaire no later than a week before the end of the suspension period. I took a look at the 2014 calendar, and it looks like the 90 day period would have been up on September 8. If he had to turn in the questionnaire no less than a week before the expiration of the 90 day period, that would be September 1.

Monday, July 4, 2016

Partners in Tax . . . Or Not

Tax. Tacks. Get it?

Citibank, N.A. v. Department of Taxes, 2016 VT 69

By Elizabeth Kruska

Sears, as you may know, is (well, was) a big retailer where people could buy all sorts of stuff ranging from socks to tools to, in some instances, charming houses. This was back in the days of yore, which, in this instance, means “pre-internet.” I do not believe you can buy a bungalow house on Amazon. You can buy mayonnaise on Amazon, which falls under the category of “things you can do, but probably shouldn’t for lots of reasons.” I don’t know if you could buy mayonnaise by mail from Sears. The catalog was something like 600 pages, so probably.

Sears also has a credit card. Without going through the history of the American credit card, it’s fair to say Sears (and some other major retailers) now have their cards serviced through a major bank or lender rather than running the credit show themselves. Here, Citibank teamed up with Sears to operate Sears’s credit cards.

If all works according to plan, a consumer who makes a purchase with a credit card pays his or her bill. The purchase price includes sales tax, which is due to the state, and which the company has to pay, regardless of whether or not the consumer pays his or her bill. This leads to a situation where there could be bad debts owed by consumers, but an outstanding tax bill from the company to the state.

Modification Motions

In re I.B., 2016 VT 70

By Elizabeth Kruska

For anyone who doesn’t practice in juvenile court, this case is sort of a blip on the radar. For those of us who spend some (read: a lot of) time in juvenile court, this clears up what might have been a question.

Also, one thing I noticed is that this case took place over the span of the first three years of this child’s life. Three years, to someone who is only three, is a lifetime. Unfortunately, we have so very very many juvenile cases in Vermont that sometimes this happens.

On with the show.

Sunday, June 19, 2016

Assistant Aggravation

Burlington Admins’ Assoc. v. Burlington Bd. of School Comm'rs, 2016 VT 35

By Amy E. Davis

The issue in this case centers around whether an arbitrator acted in “manifest disregard of the law” when it concluded that Nicolas Molander, acting as interim assistant principal, was not entitled to contractual and statutory protections applicable to “regular” assistant principals. Molander and the Burlington Administrators’ Association (“the Association”) challenge the trial court’s conclusion that it had no authority to review the merits of an arbitrator’s ruling.

The undisputed facts include the following: the Assistant Principal at Burlington High School (BHS), served as Interim Principal for different schools in the district from 2010 to 2013. While the Assistant Principal was gone, BHS teacher Molander served as Interim Assistant Principal. Each school year produced a new contract for Molander to that effect. In April 2013, the Assistant Principal left his position for a new permanent position at a different school.

The school district started hiring to fill the vacancy, as well as a second assistant principal position that became open due to a retirement. The search committee interviewed five candidates, including Molander, and recommended that Molander receive one of the appointments. In May 2013, the superintendent stopped the process due to some community concerns about a lack of diversity with the candidates. Molander took another one-year contract as Interim Assistant Principal at BHS for 2013 to 2014. The selection process started again in 2014 with a larger pool of candidates. Molander received high marks and the Superintendent recommended him for a position. The Director of Diversity, Equity, and Employee Relations made a contrary recommendation. The committee ultimately did not hire Molander.

Saturday, June 18, 2016


SynEcology Partners, L3C v. Business RunTime, Inc., 2016 VT 29

By Elizabeth Kruska

The best word in this opinion is “animadversion,” which I looked up, and which the nice people at Merriam-Webster define as “a critical and usually censorious remark” or an “adverse criticism.” Pretty strong language, but that’s what happens sometimes when the court gets irritated. Irritated enough, in fact, to dismiss a case as a discovery sanction.

This was a little hard to follow. SynEcology was a software company founded by Grossman and Conde. They then sold the assets of the company to Kinney, who, I guess, continued to run the company as SynEcology. Grossman and Conde formed a new software company called Business RunTime.

In August of 2011, SynEcology sued RunTime, Conde, Grossman, and two former SynEcology employees for various claims, including fraud, theft of intellectual property, industrial sabotage, and several others. Discovery went on for two and a half years. Finally, RunTime filed a motion for contempt, sanctions, attorney fees. The trial court’s response was to dismiss SynEcology’s complaint. SynEcology appealed, and SCOV affirms.