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.

Waste Not, Forfeit Not

Mongeon Bay Properties LLC v. Malletts Bay Homeowner’s Association, 2016 VT 64

By Thomas M. Kester

“Liquid sunshine” can dampen anyone’s camping spirit. 

Allan Sherman waxed that while, “Camp is very entertaining,” the truth was, “They say we’ll have some fun if it stops raining.” So while everyone is soaking in the serene environment, lakefront property is continually embroiled with a fearsome foe hidden in plain sight: H2O. Because an Act 250 permit application to drain Lake Champlain for “erosion control measures” wouldn’t hold much water, that means a long-term battle plan is required for littoral property (and, I imagine, even if you tried for a permit, like an algae bloom, an ocean of red stuff would stand in your way). You must vigilantly (and proverbially) “put one’s finger in the dike” before things snowball. Who must do what and the ramifications that flow therefrom are the questions the SCOV examines in this case.

Here is the sweet and condensed version of the facts: there are over twenty-five camps within the Mallet’s Bay Homeowner’s Association (“Association”) and ten of them “are situated immediately on the shore of Lake Champlain at the eastern edge of Malletts Bay, all perched above a twenty to twenty-five foot embankment.” The Association entered into a ground lease, whereby (over time) the Mongeon Bay Properties (“MBP”) solely owns all the land and leases the land to the Association for a yearly fee.

Sunday, November 20, 2016

Whose Line is it Anyway?

I'm Mr. Seagull and I neither
approve nor disapprove of this summary. 
I'm just a bird with an expression that 
vaguely resembles the famous 
McKayla Maroney shot from 2012
State v. B.C., 2016 VT 66

By Andrew Delaney

Once a criminal defendant has been found incompetent or insane, what’s the State’s Attorney’s role in the case, if any? 

This is kind of a weird appeal. It stems from the State’s Attorney’s attempt to be heard on motions for continued treatment after mental-health orders had expired. It’s kind of a “we’re not-done-with-you-yet!” appeal. But the SCOV, in proper judicial fashion, says, “Oh, we’re done.” 

DH was charged with simple assault on a police officer and resisting arrest. After DH’s competency and sanity was evaluated, the parties agreed that he was insane at the time of the offense and to a 90-day order of non-hospitalization (ONH) under this statute (subsection 17 if you’re curious). Because a personal injury was involved, there had to be a hearing before DH was discharged from the care and custody of the Commissioner of Mental Health. 

Saturday, November 19, 2016

It’s Raining, It’s Pouring . . . Is The Old Culvert Diverting?

Regan v. Spector, 2016 VT 116

By Thomas M. Kester

The issue in this case is surface-water redirection. There is a hillside dissected by two roads and property lots below the top road are owned by the Regans and Spectors (Regans live on the easterly side and Spectors live on the westerly side). Culverts play an integral role in this story. Of particular note is culvert #7: a 15" culvert that carried water from above the top road, under it, and then drained below the top road, and was repositioned in 2004 and again in 2008. There are also culverts #5, 6, and 8, as well, but #7 is the important one.

The Spectors purchased three lots in 1992 that were off the top road and later became their residence. In 1992, as well, culvert #7 “was a fifteen-inch culvert that carried storm water from a portion of the hillside above . . . [the top road], under the [top] road, and on the wooded hillside below.” In 1996, the Spectors sought a permit for a driveway that was at the location of culvert #7 and the Town required the Spectors to help pay for enlargement costs of the 1992 culvert. Spectors wanted to move culvert #7 further uphill but the town road commissioner was concerned that it would increase the flow of storm water.

In 2004, the Spectors applied for a home-build permit from the town that planned for a driveway access close to culvert #7. The town road commissioner “dug out a box ditch from the outlet of culvert #7 for several feet in an easterly direction. It sent the flow of water from culvert #7 towards the east approximately fifteen feet, at which point the water was free to run in sheets down the hillside,” and “when the Spectors built their driveway close to culvert #7, they placed a culvert in the box ditch and covered it with gravel for the driveway to run over it. The result was that water from above . . . [the top road] flowed through culvert #7 into the box ditch and then turned at almost a ninety-degree angle to proceed through the culvert under the Spectors’ driveway toward the east for a distance of fifteen to thirty feet.” 

Saturday, November 12, 2016

A Rose by Any Other Name . . .

Chandler v. State, 2016 VT 62

By Andrew Delaney

“Would smell as sweet,” Shakespeare wrote. And this case also teaches us that creative labeling cannot change the nature of a thing. For example, just because we describe this blog as “witty,” does not make it so.

Mr. Chandler’s “Petition for Extraordinary Relief” was dismissed by the trial court. When the SCOV puts quotes around the name of the filing itself, it’s a safe bet that this is not going to end well. Essentially, the trial court tossed Mr. Chandler’s filing because in its view, the petition raised claims already decided in a previous post-conviction-relief (PCR) proceeding.

The SCOV begins by noting that this is round four of Mr. Chandler’s appeals of his conviction. Mr. Chandler was convicted of impeding a public officer—a felony—when he confronted a firefighter responding to a reported brush fire on his property. His conviction was affirmed in an unpublished opinion (which I tirelessly tracked down for you). He filed a PCR on ineffective-assistance-of-counsel grounds, arguing that a fee dispute and other deficiencies meant that his conviction was unlawfully obtained. The trial court got rid of that case, reasoning that Mr. Chandler was done with his sentence, so the thing was moot. The SCOV reversed, reasoning that the case wasn’t moot, and sent it back for a decision on the merits.


Flanagan v. duMont (Flanagan), 2016 VT 115

By Elizabeth Kruska

The facts of this post-divorce action remind me of pulling on a loose thread and then everything unravels. I think Weezer put it best when they sang, “If you want to destroy my sweater, hold this thread as I walk away.”

Flanagan (Husband) and duMont (Wife) were married and then divorced. They partly negotiated a divorce agreement, but had to have a contested hearing regarding some other issues. The appeal in this case has to do with a few provisions in the final order.

The first issue is the marital home in Stowe. The house was awarded to Wife, free of any marital interests of Husband. Wife was ordered to refinance the loan on the house within about a year, and if she couldn’t do that, she had to sell the house at a price that was agreeable to both she and Husband. Since they were jointly on the mortgage, if Wife fell behind and failed to make a payment, Husband was authorized to make the payment, but could then offset that against what he owed Wife for maintenance and support. Seems reasonable so far.

Saturday, November 5, 2016

Early Deeds Done Incomplete

Khan v. Alpine Haven, 2016 VT 101

By Thomas M. Kester

Bill Cosby in Himself (1983)1 has this bit where he recounts preparing his children’s breakfast all by himself and:
The child wanted chocolate cake for breakfast! How ridiculous! ... And someone in my brain looked under chocolate cake and saw the ingredients: eggs! Eggs are in chocolate cake! And milk! Oh goody! And wheat! That's nutrition! 
The joke being that breakfast is the most important meal of the day and selectively viewing the chocolate cake’s constituent parts may bring about the (albeit wrong) conclusion that serving a piece of cake is appropriate breakfast food—even with grapefruit juice on the side. I thought of this joke when I read this case, as I saw the same type of scenario presented (sans chocolate): Can constituent and fragmented portions contained in various deeds be combined to create a palatably distinct legal entree or do these deed provisions retain their original flavors because ingredients were omitted that prevented the provisions from being able to gel and coalesce? In other words: If I have some combination of chocolate cake ingredients in my kitchen does that mean I actually have (or should view their collective culinary potential as) chocolate cake?

Alpine Haven is a subdivision in the Towns of Montgomery and Westfield. For over thirty years, certain Alpine Haven chalet/lot owners (Plaintiffs) have “asserted that their property is not part of a CIC [“common interest community”] and that they were not required by their deeds to be AHPOA members” (“AHPOA” being the Alpine Haven Property Owners’ Association, Inc. (Defendants)). While Plaintiffs acknowledge they are obligated to pay certain costs, they argue that “they should not have to pay AHPOA for special assessments, annual meeting costs, insurance, road expansion or improvements, or any other AHPOA expenses not specified in their deeds.” AHPOA argues that Alpine Haven is a preexisting CIC, and that Plaintiffs cannot exit the AHPOA and disregard their unit-owner obligations including paying AHPOA-assessed fees.

Sunday, October 23, 2016

Disputing a Duplex

In re Burns Two-Unit Residential Building, 2016 VT 63

Then thing I find most curious about this opinion is how nineteen neighbors got involved in a renovations dispute and the first neighbor who complained isn't one of them. 

The Burnses own a two-unit residential building in Burlington. Nineteen of their neighbors appeal an Environmental Division decision that the neighbors’ the-Burnses-converted-their-home-to-a-duplex-without-a-permit claim was precluded by a previous decision. The neighbors argue that the earlier decision wasn’t made by the Burlington zoning administrator like the applicable statute requires. The neighbors further argue that they were entitled to notice and an opportunity to be heard on the prior decision and that they’re entitled to a determination by the Environmental Division about whether the Burnses’ other sans-permit modifications violated the zoning ordinance.

The Burnses bought the place in January 2014. The property-transfer tax return says “multi-family dwelling”; the purchase-and-sale agreement says “lot of land with a two unit apartment building,” and the former owner and the Burnses later executed an addendum saying that the property “had been continuously used as a ‘duplex/multi-family dwelling’ since 1967.”

Saturday, October 22, 2016

Sufficient Supervision?

In re PRB File No. 2016-042, 2016 VT 94

By Andrew Delaney

Every once in a while, the SCOV likes a professional responsibility board (PRB) decision so much that it publishes it as a SCOV opinion. This leads to me making the same Beyoncé-says-put-a-ring-on-it joke ad nauseam. Wuh uh oh uh uh oh oh uh oh uh uh oh.

Respondent is licensed in both of the twin states. He focuses on transactional law. While he was working for a firm, he hired a non-lawyer assistant to work for him. She’d previously worked for his wife and done a good job. She seemed smart and capable, so when respondent started his own firm, he took her with him.

While with the old firm, the employee hadn’t handled the accounts. But at the new firm, she did. Respondent made the deposits himself and confirmed they were recorded in QuickBooks. But employee did most of the other stuff—for example, she opened the monthly statements and reconciled the accounts.

Something tells me this is not going to end well.

Thursday, October 20, 2016

Rate Increase Rules

In re MVP Health Insurance Company2016 VT 111

By Elizabeth Kruska

You know what’s an enormous mess? Health insurance. I like to think I’m a smart person. I am completely confounded by health insurance. I suspect I am not alone.

Here’s what I think happened here. The Green Mountain Care Board (GMCB) is Vermont’s administrative agency charged with allowing/disallowing health insurance companies to provide certain policies in Vermont. GMCB also has to approve rates and any changes in rates. GMCB is supposed to review those filings and allow or disallow the rates and increases. There is a statute that enables GMCB to act, and requires that GMCB determines whether rates are affordable, whether they promote quality care, whether they protect solvency of the insurer, and if the rates are fair. There are timetables for filing, since if there is an issue, it has to be sorted out in a timely way. Insurance companies need to know if they can continue doing business in Vermont, and policyholders need to know if they need to find different coverage.

MVP, a health insurance company, provides health insurance via an association for farmers called Agri-Services. GMCB disallowed a rate increase filed by MVP for the Agri-Services policy. MVP appealed, arguing that it’s an unconstitutional delegation of power for an administrative agency to be able to allow or disallow rate increases. MVP also argued that GMCB didn’t make proper findings to support its conclusion of disallowance. They made a final argument regarding erroneous interpretation of the statute, but SCOV doesn’t even get that far because it reverses based on improper findings.