Sunday, August 7, 2016

Change of Plans

Gould v. Town of Monkton, 2016 VT 84

By Elizabeth Kruska

Mr. Gould owns or owned some property in the town of Monkton and had ideas about how he’d like to subdivide and develop the lots. I’m not sure how long he had the land, exactly what his plans were, or how much work he had put in to making those plans a reality, but he’ll need to have a change of plans.

Let’s back up. The Town of Monkton had some zoning regulations that had been kicking around since 1978. As someone who is also of a 1978 vintage, I see no problem with this. But apparently the town thought the old regulations and their subsequent amendments needed some revamping. The opinion suggests this overhaul had been in the works for several years, and finally got replaced in 2012.

The town’s planning commission held a public meeting in late 2011 on the new regulations, which they called the Unified Planning Document (UPD). After it was approved at the planning commission level, the UPD was sent to the town. At this point—between the times the planning commission approved the document, but before the town formally voted on it—the town reviewed all new building applications under the guidelines of the UPD, not under the guidelines of the older zoning regulations.

Curtilage By Any Other Name Is Constitutional

State v. Koenig, 2016 VT 65

By Amy Davis

This case focuses on a motion to suppress evidence that ultimately lead to a DUI conviction. State Police received a tip about some problem driving in Bethel. The caller gave the vehicle’s license plate number, which the police used to find the registered owner and her address. The trooper parked outside of the residence which consisted of a single-story structure and a garage-like structure open on one side and without doors, making the inside completely visible from the street.

The trooper saw the identified vehicle parked in the garage. He observed two entrances to the building—one on the left that he believed was the entrance to a business, and one on a shared wall, which he believed was the entrance to a residence. The trooper approached the entryway inside the garage area. As he approached the entrance, he observed the vehicle, and some damage to the front-left fender and driver’s side mirror.

Defendant opened the door and identified herself. After some field sobriety exercises and a breath test, the trooper arrested the Defendant on suspicion of DUI. Defendant was arraigned, requested a timely civil suspension hearing, and filed a motion to suppress in the civil and criminal cases, and a motion to dismiss in the civil case. 

Multiple Bites of the Apple

Deutsche Bank v. Pinette, 2016 VT 71

By Thomas M. Kester

Albert Einstein is (allegedly) credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.” This is such a hackneyed quote and reminds me of vaudeville’s approach to comedy. Oliver Wendell Homes Sr.,1 in The Autocrat of the Breakfast-Table (1858), offers—in my opinion—a more discerning (and amusing) explanation: “Insanity is often the logic of an accurate mind overtasked. Good mental machinery ought to break its own wheels and levers, if anything is thrust among them suddenly which tends to stop them or reverse their motion. A weak mind does not accumulate force enough to hurt itself; stupidity often saves a man from going mad.”

“Hey, Tom, what’s the point?” Simply to elucidate that humans are creatures of habit and habit is repetitive, and the vast majority of humans are not insane (albeit we all have our eccentric moments). Who hasn’t explored couch cushions multiple times for one’s key in an almost Sisyphean fashion, knowing you came up empty handed just moments before? Maybe it’s chaos theory, self-doubt, or, because you threw the keys across the room, only Schrödinger and Heisenberg can locate them. Like the great Fonzie, perhaps we also believe that the jukebox will start only after the perfect maneuver is executed. We just need a little more time.

Speaking of time, it’s time to visit the instant case’s topics: real estate transactions and pleadings. On the surface they appear mundane, repetitive, and mainly involve paper pushing. Under the water, these monotonous actions harbor legal benefits. They can provide predictability, ease of process, and, besides, who wants to deal with pedantic legal requirements? If you don’t believe me (or want some reading material that will put you to sleep) I implore you to look up “common law pleading” and “code pleading”—both historically used in American court systems—to understand why “notice pleading” is the preferred method in civil procedure. This case illustrates that doing the same thing over and over again may not—at least after a bit—give you the desired results you wanted (I’m sure there is a Rolling Stones reference that I could throw in here).

Monday, August 1, 2016

Blinded by the Light

State v. Howard, 2016 VT 49

By Elizabeth Kruska

How many times has this happened to you? You’re driving at night. It’s dark. You’re minding your own business and paying attention to where you need to go. Then, all of a sudden, some jackpot decides he’s going to ride up on your bumper and tailgate you for what feels like forever. Oh, and of course, said jackpot: (a) has a vehicle that sits higher than yours, so the headlights shine directly onto your mirror; or (b) has his highbeams on; or (c) both. This really grinds my gears.

It also bothered Mr. Stephen Howard, who had the same situation happen a couple summers ago. The only way he could figure to get the lights out of his eyes was to move over. This caught the attention of a Trooper, who pulled over Mr. Howard, assuming him to be impaired. Mr. Howard ultimately got charged with a DUI, but challenged the reason he was stopped, saying that the Trooper really didn’t have a good reason to stop him. The trial court held a hearing, and agreed the Trooper didn’t have a legitimate reason for the stop. The State appeals.

SCOV agrees with the State, and reverses and remands the matter.

Sunday, July 31, 2016

Extracurricular Activities

State v. Graham, 2016 VT 48

By Andrew Delaney

Ms. Graham was charged with three counts of sexual exploitation of a minor. Here’s the thing: generally, in Vermont, 16 is the age of consent (one can also marry one’s cousin legally in Vermont but that’s a topic for another day). That means that if a 17-year-old high school student and a 25-year-old college student want to date, and, ahem, other stuff, it’s not a problem. But there’s an exception. And that’s when the older person is four years or more older and “in a position of power, authority, or supervision” over the sixteen-to-eighteen-year-old minor. This applies to teachers, camp counselors, and others—the statute is fairly broad. But what happens on summer break in a school-year-only-contract situation?

Beginning in 2012, Ms. Graham was employed on a school-year basis by Chittenden South Supervisory Union (CSSU) as a paraeducator and then for the next two years as a program assistant. She worked with K.S., the alleged victim, in a school program during the 2013-14 school year, and in May 2014, her supervisors told her she couldn’t work with him anymore because she “was spending an inappropriate amount of time with him to the detriment of the other students in the program.” So K.S. was transferred to another program. Ms. Graham no longer had supervision over him.

It’s important to note here that Ms. Graham’s employment was always on a school-year basis. She did not have a summer position, nor did she have any supervisory role over students in the summer of ’14.

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.