Friday, November 21, 2014

Slut Shaming: Don’t Do It

State v. Groce, 2014 VT 122

By Elizabeth Kruska

Sometimes SCOV takes an entire paragraph to call out some bad behavior. This is one of those times. Good on you, Chief Reiber. It’s not cool to call someone a slut. Just don’t do that. Don’t.

The thumbnail version of the story is this. Complainant (not Slut, as perhaps the State’s Attorney would prefer she be called) and her boyfriend Jason went out for drinks in downtown Rutland, and then ended up at a party at the home of some friends. Complainant and her boyfriend got into an argument because he was talking to other people at the party. He decided to cool off and walked home, leaving her there.

After he left, she went into a bedroom and made some phone calls, and then fell asleep. Her story is she woke up later to find a man who she did not know, performing oral sex on her. According to her she got up, ran into another bedroom and told the people at the party what happened. Then she got a ride home and her boyfriend took her to the police station and the hospital.

Friday, November 14, 2014


Kevin Barrup (Marilyn Barrup, Intervenor) v. Tammy Barrup, 2014 VT 116

By Elizabeth Kruska

Normally, we pare down the case name to its bare necessities, but with this case the long form seemed, you know, appropriate.  Now, before anyone makes a “meddling mother in law” or “helicopter parent” comment, let’s start with Justice Skoglund’s concurring opinion to explain why we even are where we are.

It’s really really rare that a third party can intervene in a divorce case. Generally speaking, spouses have the right to fight their own battles when they get divorced. If courts let third parties in as intervenors with any regularity, already-acrimonious situations could get completely out of control with all sorts of third parties wanting to get involved, court-wise. Justice Skoglund made a nice 5-point test to help figure out if someone could properly intervene in a divorce.

Even then, if a third party can intervene, it doesn’t mean they should or that the court should let them. The scope has to be really narrow and really limited. If a third party has a property right that is somehow going to be infringed upon as a result of a divorce order, then it is possible the third party could intervene to make sure his or her property rights are preserved. Due process and all that good stuff.

Sunday, November 9, 2014

Duty to Defend

State of Vermont v. Prison Health Services, Inc., 2013 VT 119

By Elizabeth Kruska

On August 14, 2009, a young woman reported to serve a jail sentence at Vermont’s correctional facility in Swanton. On August 16, 2009, she died. It came to light that she had a medical condition that required her to have potassium supplements, and that she didn’t get them while incarcerated.

This case isn’t exactly about that, though. It’s about whether Prison Health Services (PHS), the contract health provider in 2009 has a duty to defend the State in the lawsuit that followed, relative to this young woman’s death. The trial court said no. SCOV disagreed.

Here’s why. Vermont has some prisons within the State. When people are imprisoned, they’re in the custody of the State. The State has the duty to provide appropriate shelter, nutrition, and care for those people. Just because people ended up in jail for whatever reason doesn’t mean the State can mistreat them when they’re there. The shelter part is easy; Vermont owns the prisons and maintains them (I’m sure to what degree would be debated by those who’ve spent time there, but that’s not really the point here). The nutrition part isn’t that hard, either (ditto). The care part gets a little tricky, though.

Sunday, November 2, 2014

Indemnity, Insurance, Interest, Interest on Interest, and Iffy-ness

Town of Ira v. Vermont League of Cities and Towns, 2014 VT 115

By Andrew Delaney

You can smell dusty law books when you read this opinion. It even feels a little like law school. Let me break it down for you.

Town bought a policy from its insurer, which covered, among other things, embezzlement by town employees. The policy coverage limit was a half-mil. As it turns out, a 2009 audit showed that the long-term elected town treasurer had embezzled over $300K, and the lost interest on that was figured at $346.4K. So town gets a judgment against treasurer just north of a $1.1M (there were other things goin’ on for those keeping score at home).

When town put in a claim with insurer, insurer paid, but paid only the amount actually taken, not the interest. Town sued for the difference and the trial court—on cross motions for summary judgment—held that the town could recover lost interest in addition to the amount actually embezzled. Town’s argument was that the policy should cover the “time value” of the money taken and the trial court agreed. The trial court figured that got to the policy limit, and kind of booted town’s claim for audit and attorney’s fees, town’s bad-faith claim, and insurer’s counterclaims to recoup already paid sums.

Monday, October 27, 2014

Bail, Briefly

State v. Campbell, 2014 VT 113 (mem.)

By Andrew Delaney

Those of you that read a lot of SCOV opinions know all about the “rocket docket” opinions. (This is also a sure sign that you need to get out more.) They’re usually written by a three-justice panel and emblazoned across the top there’s a big ol’ warning that reads: “Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.” Yep, it’s in italics too. Now, when I saw that the SCOV had begun this opinion by citing an unpublished memorandum opinion, I had a “gotcha” moment. I looked up the opinion, and lo and behold, it’s a four-justice opinion with the warning conspicuously absent. So there goes my whole goose-gander analogy.

At any rate, Mr. Campbell was on probation, got charged with violating it, and went directly to jail. He did not pass GO; he did not collect $200. He was held without bail. Though his merits hearing on the violation began a few weeks later, it didn’t finish and the continuation of the hearing was scheduled out about a month-and-a-half later. Mr. Campbell filed a motion to review bail in the meantime and the trial court more or less said, “Nope, already explained all that at arraignment. And the motion doesn’t change anything.”

Errors: Sometimes They’re Harmless

State v. Wilt2014 VT 114

By Elizabeth Kruska

On the day after Christmas in 2011, Maureen Wilt invited her neighbor over for dinner. They cooked, they had wine, they ate, and when they were done, Mr. Neighbor (we don’t know his name) went on his merry way back home. Then Maureen called up another friend of hers, maybe around 8:00. The facts of this are a little confusing, but it seems like Maureen wanted to go visit the friend but he didn’t want her to come over. She showed up anyway, knocked on the door, and somehow ended up falling down a flight of stairs, hitting her head, and becoming unconscious. The friend, Mr. Rondeau, asked his son to call 911I’d assume because there was an unconscious, bleeding lady in his basementand before help arrives, Maureen gets up and drives away. Mr. Rondeau thought her driving seemed fine.

If I may interjectunconscious and bleeding while lying at the foot of a flight of basement stairs seems a little inconsistent with competent driving ability a few moments later. I’d have been concerned with that, but perhaps they weren’t able to stop her from driving. I don’t know.

Tuesday, October 21, 2014

What We Talk About When We Talk About Due Process

Hogaboom v. Jenkins, 2014 VT 11

By Andrew Higley

In the most recent installment of delinquent-tax-sale gone wrong, SCOV makes sure to put the “due” in “due process.” The question in this case is the classic procedural conundrum of how much process is due. The Court’s answer: quite a bit. SCOV held that when a notice of tax sale is sent with return-receipt requested, and is returned to sender unclaimed, due process requires a little extra push in order to be sufficient. Also, that process is due before the tax sale itself, and not anytime before the ultimate transfer of title. Result for the unfortunate buyers in this case: instead of getting a bargain-basement deal, plaintiffs bought themselves a lawsuit.

Deprivation by the State of a person’s life, liberty, or property requires due process, which even property owners who don’t pay taxes are entitled to. The reason? Evade the taxman long enough, and a town can sell your property through an auction to satisfy any delinquencies, a.k.a. "tax sale." In a case of great significance to these sales, SCOV set out to answer, how much process is the defendant due? And, when is it due? 

Sunday, October 19, 2014

In Burlington, Vermont, Single-Family Dwelling Lot Subdivides You

Regan v. Pomerleau, 2014 VT 99

By Christopher A. Davis

Landowner wishes to add apartment to single-family home in Burlington, as well as subdivide the property into two lots. Predictably, lots of folks get upset about it, cases proceed to both Chittenden Civil Division and the Environmental Division, courts say, “You’re good, go for it,” everyone is still upset, appeals follow to the SCOV, SCOV says “Nah, you’re still good, go for it.” The end.

But let’s dig deeper for purposes of this qualifying as a helpful summary. Overlake Park Development Corporation creates the lot at issue in 1955. In 1961, the lot is sold to DeForest Reality with a covenant restricting use to “one dwelling for a single family dwelling unit.” By its terms, covenant expires in 1995. In 1965, DeForest sells lot in question to the predecessor-in-interest of landowner (let’s call landowner “applicant” from now on). In 1987 applicant purchases home and lot.

Friday, October 17, 2014


State v. Felix, 2014 VT 68

By Elizabeth Kruska

If cleanliness is next to godliness, then truthfulness must be right up there, too. When witnesses go to court to testify they raise their right hands and swear to tell the truth, so help them God.

All we have when witnesses swear to say what’s true is their oath that what they’re saying is true. But sometimes witnesses don’t exactly have truth-telling as a high priority. (Ha! Puns! See below.) You see, people will sometimes choose to say something other than what’s true if it means serving his or her own ends. How many kids have told their parents they’re going to the library when they’re really off to do something infinitely more fun? (Answer: all of them)

Sometimes the truth is far more serious though, like in a felony trial when the only people who know what happened are the defendant and a witness. That’s what happened in this case.


CitiFinancial, Inc. v. Balch, 2013 VT 86

By Elizabeth Kruska

As mundane as a mortgage feels, it’s a big responsibility. It’s the securing of debt to land. Land is expensive because it’s finite. In the wise words of Tony Soprano, “God ain’t makin’ any more of it.” Not everybody can pay the full amount of the purchase price in cash, so they’ve got to borrow money from a bank. If they can’t repay the money, the bank can come in and foreclose on the land.

Sometimes people who have land or who want land also have guardians to help with their affairs. SCOV takes a pretty clear stand in saying that the Vermont guardianship statutes are a bit of a mess. They use the word “hodgepodge.” That can’t be good. We had some statutes, and they got revised, but that might have made things more confusing. There’s also a rogue outlier guardianship statute about mortgages that’s not even in the same chapter.

The long and short of it, though, is that a guardian is charged with the duty to act in the ward’s best interest (I know it’s called a “person in need of guardianship” now, but that’s too long to type and “PING” seems confusing when “ward” is the word we all already know). The guardian’s powers are set forth by the probate court. They can be limited to certain powers or they can include a whole range of powers. The point is that the powers are specified by the court and tell the guardian what he or she is allowed to do. Or not do.