Husband Fails to Convince Court to Terminate Spousal Support to Permanently Disabled Ex-Wife

by Elizabeth Catlin

Mayville v. Mayville, 2010 VT 94.

In what is likely a familiar scene in family courts around the country these days, an ex-husband, who was laid off from his job, sought to terminate the spousal maintenance payments he was obligated to make under a court order resolving his divorce.  In this case, husband and wife had been married for twenty-seven years before their 2003 divorce.  During the entire period of their marriage, wife suffered from a permanent disability that prevented her from working at all, and husband worked for IBM.  The 2003 court order resolving the divorce split husband’s pension in half between husband and wife, and obligated husband to pay wife $3,000 per month in spousal maintenance until he turned sixty-five years old.  When husband learned that he was losing his IBM job, he moved to terminate his spousal maintenance obligation.

The Road Foreman Not Taken: Selectboard Comments Continue to Cost Town Plenty

by Daniel Richardson

Spooner v. Town of Topsham, 2010 VT 71.

From the foot-in-mouth case files comes the Town Selectboard of Topsham, which found itself in hot water in selecting a new road foreman. Following a public meeting at which the Board announced its decision, two out of the five members of the Selectboard spoke to a journalist covering the event to say that the Board made its decision based on age. One went so far as to say that the Board wanted to hire “someone young who would be around for awhile.”

At this time, we ask those members of the plaintiffs’ bar who are reading this entry to close their mouths and stop drooling on the keyboard.

Thus James Spooner, a candidate for the position who was not hired and who was older than the person hired, filed suit under the Vermont Fair Employment Practices Act for age discrimination.

Age Ain’t Nothin’ but a Number: Qualified

by Andrew Delaney

Badgely v. Walton, 2010 VT 68

When Vermont State Police officers George Badgely and Ruth Whitney reached age 55, they were involuntarily retired under 3 V.S.A. § 459(a)(2). They brought a claim against the Department of Public Safety in Windham Superior Court, arguing that their involuntary retirement violated the Common-Benefits Clause of the Vermont Constitution. The lower court initially found that sovereign immunity barred a damages claim, held a bench trial on the remaining claims, and found for the Department of Public Safety.

On appeal, Badgely and Whitney argued that the mandatory retirement age, as well as the public-safety-officers exception to Vermont’s Fair Employment Practices Act (21 V.S.A. § 495f), violates the Common-Benefits Clause of the Vermont Constitution.

Not so, sayeth the Court. It notes that “the primary justification for the mandatory retirement policy is maintaining public safety.” After a discussion of the parties’ respective expert witnesses’ testimony, we are treated to a short refresher course on rational-basis review under the United States Constitution. If you skipped reading Murgia or Vance in con law, here is a chance to catch up.

Second Circuit Rules Vermont's Vanity-Plate Scheme Unconstitutional

Byrne v. Rutledge, No. 07-4375-cv
(2d Cir. Oct. 8, 2010)

Forget what you vaguely remember about free expression and recall the maxim that the law gravitates toward rational results (outside of ERISA and the Eleventh Amendment). Now read the following fact pattern and guess as to whether what is described complies with the First Amendment’s guarantee of free expression:

A state permits individuals to purchase vanity license plates for a fee. Vanity plate applicants must propose the seven-character number and letter combination that they wish to appear on their plate, but the combination may not touch upon certain subjects, including religion or any deity. Applicants must support their proposed combination with a signed statement attesting to the meaning that the proposed plate has to them; this statement and the gut instinct of line-level DMV clerks will be used to determine whether the plate references religion or a deity. Applicants who propose combinations that look religious, such as STJOHN, PSALM, SINNER, and BUDDHA, but who swear that the meaning is not religious, will receive their desired plates. Applicants who propose combinations that look meaningless – such as BVM22 and JMJ1 – but who swear that the meaning is religious, will not.

Deliverance II: Dueling Attorney's Fees

by Jennifer McDonald


Kwon v. Eaton, 2010 VT 73 (mem.).

The Court was asked in this appeal to determine: (1) whether a party may obtain an award of attorney’s fees where the party satisfies its burden of proof but does not obtain an award of net damages and (2) whether an award of attorney’s fees is reasonable if it is greater than the award of damages.

The underlying litigation arose out of a dispute over unpaid rent.  Tenants in this case were 6 college students who signed an agreement to rent Landlord’s house in Burlington.  The parties agreed that during the summer of 2007 Landlord would renovate the apartment during the college recess.  Prior to the start of the school semester, it became clear that renovations would not be complete in time.  Tenants were given the option to either: (1) stay at a nearby inn at Landlord’s expense or (2) stay at a friend’s house and receive $39 per day rebate from Landlord.  Under either option, Tenants were required to continue paying rent in full.

Over the course of the fall school semester, Landlord unsuccessfully attempted to collect unpaid rent from Tenants and eventually terminated the tenancy on December 15.  Landlord brought litigation to collect the unpaid rent and Tenants counterclaimed for (1) breach of lease; (2) breach of warranty of habitability; and (3) violation of Vermont’s Consumer Fraud Act.

No Participation, No Appeal

By Gavin Boyles

In re Verizon Wireless Barton Permit, 2010 VT 62


Verizon applied for conditional use approval to install two telecommunications facilities in the town of Barton. A hearing on the applications was held on April 27, 2008, and no party other than Verizon appeared. The Barton Zoning Board of Adjustment (ZBA) unanimously approved the applications on May 29, and the zoning administrator issued the permit on June 5, 2008. That same day, neighbors opposed to the project, asserting that they had received no notice of the applications, sent a letter to the ZBA expressing opposition to it. On June 30, 2008, the neighbors attempted to appeal to the Environmental Court.

They were rebuffed. Verizon moved to dismiss the appeal on several grounds, including that the neighbors had not “participated” before the municipal panel. See 24 V.S.A. § 4471(a). The Environmental Court granted Verizon’s motion. Neighbors appealed, asserting first that their letter to the ZBA and a phone call to the zoning administrator satisfied § 4471(a), and second, that they had standing under the “procedural defect” and “manifest injustice” provisions of §8504(b) even if they failed to participate before the ZBA. Three Justices sided with Verizon. Judges Davenport and Crawford (sitting by designation) dissented.

The majority concluded, as to the first question, that § 4471(a) allows appeals only by those who “participate” while the town’s deliberative process is still ongoing. Because the neighbors “did not appear at the ZBA hearing and did not submit any information at that time,” they had not participated and could not appeal under that section. As to the second question, the majority affirmed—as a matter of discretion—the Environmental Court’s decision that the neighbors had failed to “affirmatively claim and satisfy the burden of establishing party status with a motion filed with the notice of appeal.”

The Superior Court Judges sitting by designation disagreed forcefully, averring that the court’s ruling was “plainly” not “reasonable from the perspective of fairness and consistent with our policy of protecting the rights of those who represent themselves in court.” The dissent was premised in large part on the undisputed fact that neighbors had not received written notice of the applications. “The trial court’s ruling here was the functional equivalent of a default judgment for applicant based upon what amounted to a harmless procedural omission,” Judge Davenport wrote.

The Street Lawyer: Don't Pull the [Well-Tailored] Wool Over Us!

The Street Lawyer is the Cultured Barrister’s necessary counterpart. Offering a viewpoint sometimes at odds with CB’s, the Street Lawyer takes a no-nonsense approach to the realities of law practice. Sometimes cynical, usually irreverent, and occasionally serious, the Street Lawyer welcomes your feedback.

I distinctly remember the day I went for my student-loan exit interview. It was a beautiful day on campus: the sun was shining, the birds were chirping, the trees were coming to life after the long winter, there was a soft breeze at my back. I walked into the loan officer’s temporary on-campus office smiling.

The loan officer seemed like a kindly older man. He was balding a bit, wore ill-fitting glasses, and seemed somewhat scattered as he shuffled through papers to find my information. I sat down in the chair he indicated with an absent-minded brush of his hand and said, “So what’s my monthly payment?”

Smiling—I will always remember that he was smiling—he said, “Oh, about [more than I’ve ever made in a month in my life].”

Note that I have not edited out the amount he spoke for your benefit; I am just trying to avoid getting charged with obscenity for putting it in print. Obscene might be too mild a word. And I am sure my alma mater’s admissions office would not appreciate such disclosure.  

Suddenly this kindly old man looked different—as if he had grown horns, a tail, and a little goatee right before my eyes. You know that old saw: “Don’t shoot the messenger”? Well, if I had had a firearm . . . .  

“Ha ha,” I said nervously, “You know I don’t have a job, right?”

“Well,” he said, “There are options . . .” He then proceeded to tell me about some Ponzi schemes involving student loans, how much I might be able to get for my first-born child, and where I could sell organs on the black market. He also told me how I could reduce my monthly payment by about six bucks by doing an “extended” repayment plan. Eventually, the buzzing in my head drowned him out and I went into a state of semi-catatonic shock.

You might be chuckling, but the amount of money it takes to become a lawyer these days is staggering. While the economy has tanked, the price of a legal education has soared. At least the student-loan people are not sending out “enforcers” to bust kneecaps—yet. I would encourage anyone thinking about going to law school to think long and hard about it before enrolling. By your third year, you might be contemplating knocking over the local bank to pay off your loans. These are not good thoughts to have. Besides, you will have to knock over more than one bank. They just do not keep that kind of cash lying around. 

Several people believe that all lawyers are well to do. They tend to forget that some lawyers—new lawyers especially—have crushing student loan debt, cannot find jobs, and are struggling just like everyone else.

So, while Cultured Barrister is busy picking out brand-spanking-new overcoats and Brooks Brothers suits (and using obnoxious words like “sartorial” when he means “clothing”), some of us are saving up for . . . our student-loan payment. Like CB, however, we do need professional clothes. So while your paycheck is too small to even get you onto the mailing list at Armani, here are a few practical ways to save money in that department.

Kohl’s is a decent store. If you are patient enough, and willing to sort through the gaudy yellow-and-black-checked golf shirts and fitting-room castoffs on the clearance rack, you can usually find what I like to call “grown-up clothes” at very-affordable prices. A good tactic is to look for a concentration of 90%-off clearance stickers, yell “Fire!” and, in the confusion that follows, calmly pick through the items, placing the nice stuff in your size in your cart. Of course, this can also be accomplished without yelling “Fire!” but what fun is that?   

Thrift shops can be alright too. I used to be mortified that I might be seen in a thrift shop with my mother when I was a kid. Now, I have no issue with shopping in thrift shops. “Vintage” clothing shops are all the rage these days. Vintage clothing shops are just higher-priced thrift shops. The better choice is probably the shop that is honest about what it is. Thrift shops, incidentally, are great places to find overcoats.  

—The Street Lawyer

Cultured Barrister: Sartorial Style, Part 1—The Overcoat

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloguing the matters that young attorneys are likely to be confronting as they begin their professional ascent.  The CB is meant to begin a conversation and rarely will claim the final word.  If you agree or disagree, the Cultured Barrister and the other readers of this blog want to hear from you.



I distinctly remember that fall day as a first-year associate when I opened the closet for something to wear over the Brooks Brothers suit that I had purchased as a trophy of a successful job search.  In my hall closet, there were several fleece vests and pull overs, a windbreaker, and a barn coat.  I opted for the latter and left with the tails of my suit jacket peeping out from the bottom of a tan jacket originally purchased for and carrying the scars of a long-since abandoned career in landscaping.  I looked like a farmer going out to bury his mother.

The problem that many of us face at the beginning of our legal career is that we do not have the clothes.  Sure there are a few of us, who like Gay Talese, had tailors for parents who left us with racks of hand-tailored suits.  But the rest of us start at the bottom, slowly accumulating the shirts, suits, and matching ties or scarves and necklaces while ditching the crimson satin shirts and off-the-rack casual skirts that defined our undergraduate sense of elegance.  We adopt the uniform of the attorney: dark suits of conservative cut, white or blue shirts and ties for men, a simple blouse for women.  This is changing, but slowly.  When asked most judges and older attorneys will point to the dress code above as the model and the aspirational norm.

Because it is one of the more expensive items and because most associates start in the late summer, the overcoat is often the last item added to the wardrobe.  But two realities of practicing in Vermont always make this purchase inevitable: winter and rain.  The aforementioned Brooks Brothers suit was almost ruined a month before the barn coat fiasco when a late-afternoon rainstorm coincided with a hearing at the courthouse down the street.  Only the numerous alcoves along the way saved what is still a significant investment of wool and Canadian thread.

So what should we wear to not only cover ourselves and our suits, but to look less like a funereal farmer or soaked solicitor?

Let us start at the beginning.  The overcoat is intended as the outermost garment in formal dress.  A true overcoat extends past the knee.  By definition, a Peacoat is not an overcoat.  It is too short.  A good overcoat is made of heavy material, like fur or wool.  A good overcoat is a single color with black, blue, camel hair, and brown being the most common and traditionally acceptable.  Very few of us can carry the fur coat look without being mistaken for a French–Canadian Fur Trapper.  Although I have it on good authority from Middlebury that it can be done with panache.

Like most innovations, the overcoat owes a large debt to the military.  Napoleon popularized the overcoat during his 19th century winter campaigns and the tradition carried through Europe until World War II with the introduction of the field coat and Denison Smock.  This includes one of the few positive contributions of the first World War, the Trench Coat.  That coat is one of the more difficult looks to pull off.  Unless you occupy a smoky, black and white world or solve crime with batman, the trench coat may have to wait.  

The modern overcoat is the descendent of several variations that have held sway over the past two hundred years of fashion.  These including several caped versions known as the Great Coat, the Inverness Coat and the Ulster Coat.  None of which are appropriate for court unless your opponent is Moriarty.  Others include the Frock Overcoat, the Redingote, the Paletotcoat, the Paddockcoat, the Chesterfield Coat, and the Covert Coat.  Only the last of these is really still worn by people outside of Carnaby Street or PBS dramas.

What should you look for in an overcoat?  Fortunately, nearly every retailer of men and women's business wear carries a version of the modern overcoat.  The rule of thumb is conservative.  Dark colors are best, followed by the brown and tans.  Elegant, simple cuts of good fabric with quality stitching will serve you better than a two-for-one deal.  For everyone's sake, avoid tweed.  An overcoat should last for years and if cared for, it becomes an heirloom that your children will eventually give to a thrift store where some unknown future hipster will revive it in the most ironic manner possible.  But who cares? You will be dead by then.

The point is that an overcoat is an investment.  A classic cut will weather time and fickle fashion better than a more-stylish cut.  Just ask your mother to pull out her denim acid-washed jacket from her Def Leppard roadie days.  A good overcoat is a purchase that you should only make once, which is a long time to live with regret.

But what about rain?  A wool Overcoat is no greater protection from a downpour and highly impractical in a summer shower.  The conventional wisdom is that a lightweight, water-resistant version of the overcoat is the appropriate option.  But that is bunk.  Formal raincoats, like trenchcoats, are creatures of the past—exercises in kitsch that look dated and are impractical, like rubbers over wingtips—Rod Stewart notwithstanding.  The success that outdoor gear companies have had wedding technology to design means that the most practical raincoats—i.e., coats with hoods, waterproofing, and effective, zipper closures—are found at North Face, EMS, or similar outfitters.  The comparison is not even close, and the culture reflects it.  While most lawyers have an overcoat for the winter, most of those same lawyers have a Lowe Alpine shell or Mountain Hardware parka for the other three seasons.  This is perfectly acceptable.  They are stylish, practical, and in Vermont, where one is never far from the trailhead, ubiquitous.

For these reasons, it is better for a young lawyer to sink the wad on the winter overcoat, and then splurge on a high-tech shell that she can use on the weekends as well as the commute.  Both are costly and both will last for years.  One offers more gravitas, but the other gives us spirit and hope, perhaps a sign that we are not lean solicitors who exist only to break seals in empty rooms.

—the Cultured Barrister

The Definitive Article Fails to Exempt Insurance Company from Duty

Northern Security Insurance, Inc. v. Stanhope, 2010 VT 92

The Court affirmed the Washington Superior Court’s decision finding that Northern Security Insurance Company owes a duty of coverage to the insureds.

This dispute is the result of events that occurred at Rose Perron’s day care business in the early 1990s. During the time that Rose Perron had homeowner’s insurance through Northern, her son Kyle, age 8 to 11, repeatedly sexually abused two children who attended the day care. After initial lawsuits were filed, two additional claims were made by other families who also claimed Kyle sexually abused their children. Northern refused to provide coverage for the Perron family, alleging that Rose falsely stated on the policy application that she was not conducting business on the premises, and the injuries were intended and/or expected. The Washington Superior Court disagreed.

The first issue of contention was whether or not Rose Perron’s misrepresentation voided the coverage for the rest of the insured. The lower court found that the policy was void as to Rose, but there was no evidence that that Kyle or Rose’s husband Steven had any knowledge of the misrepresentation. As a result, the “innocent co-insured” doctrine provided that Kyle and Steven were owed coverage by Northern. Northern disputed this finding, suggesting that the language in their policy differed from precedent because the word “the” was used instead of “an.” The Court spent little time wrapping its brain around that one, as Northern forgot to raise this issue at the trial court, and as such, did not preserve it for review.

Northern also disputed that they had the burden to prove the injuries caused by Kyle were intended or expected, and that this should be reviewed by a subjective rather than an objective standard. The Court agreed with the lower court, citing precedent which stated that once the insured has made out a “prima facie case for coverage by producing evidence of the harm,” the insurer then has the burden to prove that the harm was “intended or expected.”

Northern also lost on its argument that the jury instructions should have incorporated an objective rather than a subject standard, i.e., that Kyle knew or had a reason to know that his actions would cause harm. The Court had plenty of precedent, both in-state and from other jurisdictions, to shoot this argument down. At the heart of the cited precedent is the reasoning that a subjective standard would “deny coverage for injuries negligently or foreseeably caused, rather than intended, and thereby defeat the very risk for which the insured contracted.” As such, it was up to the jury to decide, based on circumstantial evidence, whether Kyle knew that his actions would cause harm. However, had Kyle been an adult during these incidents, intent would be inferred.

Finally, Northern disputed the lower court’s ruling to sustain the defense counsel’s objections to a statement by Northern’s attorney during rebuttal argument. The objectionable mini-tirade included statements such as, “[t]his is an eleven year old boy who is sexually mature, who’s got sexual experience. He knows what he’s doing,” and “let’s talk about common sense if an eleven year old boy is vaginally penetrating a four year girl. Are we saying that’s not harmful? That’s not injurious?” Northern argued that this ruling prevented them from arguing that harm could be inferred from the circumstantial evidence, but the Court found that Northern made this argument repeatedly during trial and provided ample evidence on this front. As the Court stated, “if the jury was ultimately unpersuaded by the argument, it was not the result of trial court error.”

—Christine Mathias

State Gets Taken to the Cleaners with Discovery Snafus

State v. Howe Cleaners, 2010 VT 70

Once upon a time in Barre, there was a dry cleaner, who like many in the trade, did not necessarily follow the best practices when it came to disposing of its incredibly dangerous and deadly toxic chemicals.  But what is a little illegal dumping among friends, eh paisano?  Needless to say, the owners of Howe Cleaners are long since gone, dead in early graves or enjoying their ill-gotten, pollution-fueled profits on some beach in the Bahamas. 

Instead we have the baker, the banker, and the defunct pizza-bread maker.  These three entities took ownership of the building/toxic waste dump over the past ten years, and they are the entities that the state sought to stick with the large bill it incurred cleaning the site. 

The State brought an action under the Vermont Waste Management Act (VWMA) (10 V.S.A. § 6615) and under a common law theory of public nuisance to recover from the new landowners.  The VWMA allows the State to seek recovery from owners up the chain of title who took ownership of the property after the site had been contaminated.  The statute is a strict liability provision that tracks the Federal Government’s CERCLA regime, but not too closely, as the majority in this case finds. 

Before the parties were able to reach any of the nitty-gritty of their claims, they began duking it out over depositions and the finer points of discovery procedure.  Banknorth began with a motion for summary judgment designed to flush out the State’s evidence, followed by a notice of deposition under Rule 30(b)(6), which names a governmental agency but allows the agency to designate a deponent.  The State refused.  Banknorth sought a motion to compel, and the State, a protective order. 

In June 2006, the trial court rejected the State’s arguments and granted Banknorth’s motion to compel.  But the parties headed to mediation.  Once mediation failed, Defendants Banknorth and Fiore, the pizza-maker, served a “re-notice of deposition” on the State.  The notice was sent on October 10th and the depositions were scheduled for November 1st.  Five days before the depositions, the State filed for a second protective order and notified the Defendants that it would not attend.  Defendants attended a very brief deposition on November 1st, most of which was no doubt spent planning the motion for sanctions that followed.  In May of 2007, the trial court sided with Banknorth and Fiore, and precluded the State “from using at trial evidence that should have been provided in accordance with the court’s June 2006 order.”  This order effectively shut down the State’s case against Banknorth, and one swift summary judgment motion later, the case against Banknorth and Fiore was dismissed. 

On appeal, the State argues that the trial court erred in applying “litigation-ending sanctions” under Rule 37 without evidence or findings that the State acted in bad faith.  The State argued that the trial court had failed to make any findings of this nature before it made a ruling that effectively shut down the State’s case by not allowing it to put on evidence concerning the release or potential release of toxic material during Banknorth’s ownership.  The Court was unmoved by this line of argument.  The Court ruled that the trial court did not actually dismiss the case; it simply took away the State’s (best and only) evidence. 

The gasp you heard was from our staff logician who seems to be rolling on the floor in some type of fit.  Pay no heed to him as he is not a member of the bar.

The Court continues.  Not only was the sanction not explicitly final, but the whole reason it had a final, completely detrimental effect on the State’s case was because of the State’s faulty strategy.  This will take a minute to unpack.  Pour yourself a glass of limoncello, put on your favorite Brubeck album, and hang in there. 

When Banknorth made its first motion for summary judgment, it raised the issue of whether any releases occurred during its tenure with the property.  This timing issue is a part of the VWMA and an issue on which the State has the burden of proof at trial.  In responding to the motion, the State proffered only general evidence that the trial court noted met its minimum burden of production but little else.  Aha, says the Court, this is your mistake.  If only you, State, had produced more specific evidence at the first motion for summary judgment, then you could have used it later after the sanctions had issued.  Or as SCOV’s staff logician has helpfully reduced down its essentials: if the State had released the information it considered outside the scope of discovery before Banknorth requested it and the State sought to protect, then it could have used that information after its renewed objections were struck down and sanctioned.  This is otherwise known as Lubnitz’s Gambit or “Quit before You Begin.”

The State makes one more argument that the trial court’s dismissal failed to take into account the limitation of the Rule 37 sanction, which the State contended would have allowed the earlier evidence in and required the trial court to distinguish what it was and was not considering as the basis for the dismissal.  The Court disagrees and in applying the “We Gave You the Lemmons, You Make the Lemmonade” Rule, puts it back on the State to have come up with the distinctions in the Rule 37 order to provide proof to defeat Banknorth’s motion.

So far so unified for the Court in its opinion, but the next issue about the diligent owner defense divides the Bench 3-to-2.  The question for the Court is whether Fiore, who bought the property from Banknorth for $2,000 below its assessed value, should be on the hook under the VWMA.  Fiore argued, and the trial court accepted, his diligent owner defense, which says that if an owner acts in a reasonable manner, takes reasonable steps, and still remains unaware of the pollution, then she is off the hook.  In this case, the question is whether Fiore can claim the defense for relying on an environmental Phase I assessment that Banknorth had commissioned, which everyone by the time of trial agreed was faulty, negligent, and more useless than a chocolate teapot. 

For the majority, the issue is not whether Fiore can claim the diligent owner defense for relying on the Phase I study, but whether he was objectively reasonable in light of the totality of the circumstances.  Three justices find that he was.  Their reasoning is that Fiore had no outward evidence to determine that there was pollution on the site, and that it was reasonable to rely on a Phase I Environmental Report.  The majority declines to assign blame to Fiore simply because the report has proven to be completely wrong.  The report read well, and Fiore, who is not a trained environmental engineer, was reasonable to rely on it.

For Justice Johnson, the answer is no.  Fiore used the report and effectively adopted it.  He must, therefore, live or die by the report as his own.  It is a simple issue of agency.  The environmental company was the agent and Fiore was the principal.  The environmental company messed up the study and report.  Fiore stands in the agent’s shoes and has to take responsibility for the unreliable study.  Later, he can sue the company and pass along the costs if a judgment attaches.  But it is strict liability, and a lot of people like him get hurt simply by standing in someone else’s shoes.  Justice Johnson would remand and, without further showing, reject Fiore’s diligent owner defense .

Chief Justice Reiber suggests a different tack.  He believes that the Phase I Environmental Report, while flawed, may be some proof of diligence, but that its weight and ultimate validity is the province of the fact finder to determine.  Being a strictly factual issue, the Chief would reverse the grant of summary judgment and remand the issue back to the trial court for a hearing.

Not to remain fractured, the Court comes back together for the final issue concerning whether the State has another cause of action against Fiore for common law public nuisance stemming from a plume of pollution that has extended hundreds of feet from the site into the area’s groundwater.  The Court finds that this general interest in protecting groundwater is not enough to support a public nuisance claim, which requires a showing that the contamination affects a general public.  The Court suggests that the State is simply trying to re-package a VWMA claim under another name, but it stops short of denying that such parallel claims can exist and rules against the State for failing to present a prima facie case.  The dismissal is affirmed.

On a somewhat related note, there is a great parcel in Barre available for immediate development.  Call B. Sorrell for additional details and MLS number.

—Daniel Richardson

I Drive the Line

State v. Marshall, 2010 VT 81

After an evening out—no doubt reading books to blind shut-ins at a local nursing home—Defendant headed into Berlin from Barre on Route 302 where a Berlin Police Officer began to follow.  As the Officer noted in his later testimony, he followed Defendant for about a mile of unexceptional driving before Defendant's tires crossed the double yellow center lines on a curve in violation of Vermont's "drive to the right" law.  The Officer pulled Defendant over for this traffic violation and after detecting signs of intoxication arrested and processed Defendant for DUI. 

On a motion to suppress, the trial court focused on the Officer’s testimony, which stated that Defendant’s car crossed the center line but which could not pinpoint whether it was two-hundred feet or five feet over the center line or whether the violation occurred for three seconds or for two minutes.  Given the discrepancies in both distance and time, and the difference each version represented (one being a serious violation, the other a nominal transgression), the trial court granted the motion to suppress and dismissed the DUI charge. 

On appeal, the Court takes the opportunity to revisit its relatively extensive case law concerning the right of law enforcement officials to stop a car for any infraction of the motor vehicle code—including but not limited to loud mufflers, missing mirrors, burned out lights, or minor infractions of the “drive to the right” statute.  Therefore, whether the Officer observed Defendant crossing the line for five seconds, two minutes, or taking a drive in Merry Ole England, the resulting right to pull Defendant over was the same. 

Thus, the trial court erred in suppressing evidence of DUI since the variation in the Officer’s testimony was meaningless.  Any distance that Defendant crossed over the center line constituted a violation that authorized the Officer to pull the car over and talk to Defendant long enough to get hit by the waves of Jim Beam fumes pouring out of the car.

Justice Skoglund, joined by Justice Johnson, is not so sure.  She points out in her dissent that the trial court did not find that Defendant had crossed the yellow line but to prove that the State had presented an untrustworthy witness.  The trial court’s citation of the Officer’s varying testimony was not to prove that Defendant crossed the line, but that the Officer did not know what was going on since his testimony varied so widely.  Under the deferential standard applied to trial court findings, Justice Skoglund believed that the variation and lack of credulity in the Officer supported the motion to suppress, and that the majority had missed the boat on this all together.  Short of a third vote, however, means that this view will have to sit at the back of the opinion.

—Daniel Richardson

Much Ado about Tires

Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82 (mem.)

Junkyards have long been strange beasts under Vermont law, and they just got a little bit stranger.

Appellant owned a junkyard in Milton that operated under a certificate of approval from the town Zoning Administrator from 1974 through 2001.  He allowed his location approval to lapse in 2001, but subsequently settled some other affairs with the town and reapplied for location approval in 2008.  Due to a change in the statutes since 1974, he now had to apply to the Selectboard rather than the Zoning Administrator.  Alas, poor junkyard operator.

The unwitting Board conducted what many readers will recognize as a typical meeting of a small-town Selectboard: they introduced the question at hand, they let everyone in the room say their piece without limitation and without objection or application of any rule of evidence or procedure, and then rendered a decision based on fairly vague standards of unclear origin.  The trial court, nonetheless, chose to review the matter “on the record.”

The controversy before the Supreme Court in this sui generis appeal—the statute has since been amended to vest jurisdiction over junkyard appeals in the Environmental Division and to require de novo review—was whether the Selectboard’s decision should be reviewed de novo or on the record.  The Chittenden Unit of the Superior Court, having chosen the latter, determined that there was “some rational basis” for the Board’s denial of the application. 

The junkyard owner contended on appeal that the trial court’s review should have been de novo as in an appeal of a typical municipal zoning decision, and as the subsequent statutory amendment mandated for junkyard-siting decisions.  The Supreme Court disagreed in a split decision, with Justices Skoglund and Burgess joining in a blistering dissent.

The majority concluded, in essence, that a Selectboard exercising authority under a broad statutory mandate that is silent about the standard of review must do nothing more than act in good faith and in a manner that is “not capricious.”  The majority further appeared to imply that the courts should defer to the selectboard’s familiarity “with the interests of their community” and noted that such bodies are “best equipped to make decisions on local matters, such as location of a junkyard, that will have an immediate effect on the municipality.”

Thus, the majority had no trouble affirming.  Findings had been made that approximately tracked the rather vague statutory criteria, which include protection from “unfavorable effect[s]” on the “clean, wholesome and attractive environment” and “general welfare of . . . citizens.”  In finding against the landowner, the Board had found among other things that landowner had too many tires, his hours were too long, there were “concerns” about arsenic levels in water despite an expert’s testimony that the arsenic was naturally occurring, and that a large pile of tires posed a public health risk.  The majority affirmed under the extremely deferential standard noted above, finding that there was at least some support in the proceedings below for each negative finding.  One could read the majority opinion and be forgiven for thinking that the appeal was from an august, detached body with long expertise in evaluating junkyard applications and entitled to deep deference.

The dissent, by contrast, begins thusly:

It was a shouting match.  Apparently there were local scores to settle.  Audience members questioned one another, talked over evidence, and interrupted the Selectboard members.  Doors were slammed and petty grievances were aired.  No “witness” was sworn in.

Thus, in short, “the trial court was not presented with an agency action, as we have generally understood that term, nor did the underlying proceedings bear the hallmarks of an administrative adjudication to which we afford deferential review.”   The dissenting Justices noted that this decision was simply nothing like the sorts of agency decisions that are traditionally entitled to deference, and if anything should be reviewed with more care than a zoning board’s decision under a zoning ordinance.  Instead, the dissenters contend, the majority “created a too-subjective-to-review standard for the aesthetic considerations uniquely within the selectboard’s competence” and then used it to review a proceeding that “failed to satisfy even minimal standards of due process.”  For the dissenters, the entire underlying proceeding was a melee of interpersonal grudges that lacked even the basic forms of due process and thus demanded a more precise and careful review by the trial court.

This opinion—which curiously issued with an unattributed majority but avec dissent with named author—may have far-reaching but, so far, uncertain effects for attorneys representing clients before selectboards in matters that are ancillary (or prerequisite) to related state permitting proceedings.

—Gavin Boyles

Court Issues Wake Up Call on VRE 605

State v. Gokey, 2010 VT 89

            Defendant was convicted by a jury for lewd and lascivious conduct with a child.  He appealed the  conviction on the grounds that trial court judge abused her discretion in deciding that he was competent for trial by (1) conducting ex parte conversations; (2) violating Vermont Rules of Evidence 605—prohibiting a judge from testifying at trial over which she is presiding; (3) violating the Code of Judicial Conduct.  In a divided opinion, the Vermont Supreme Court reversed and remanded.

           
            The relevant facts are as follows.  Defense counsel raised concerns that her client did not feel well and could not concentrate at trial.  The trial was suspended until the following day so that defendant could be examined by medical personnel.  The next day, defendant reported feeling sleepy from his medication and defense counsel noted serious doubts about whether the trial could proceed.

            After questioning defense counsel about defendant’s medical history, the judge called a bench conference with defense counsel, the prosecutor, and the officer who had transported defendant to court.  At the conference the judge stated that she wondered whether defendants’ health problems/sleepiness was real.  She questioned the officer, who reported defendant was fine in the car.  The judge eventually allowed a thirty minute continuance and reminded counsel and the jury that she “questioned the veracity of all of this.”

            During the recess, the judge contacted Walgreens pharmacy to speak with a pharmacist she did not know in regards to defendant’s medication.  The pharmacist advised her that defendant’s behavior was not consistent with the side effects of the medicine.  The judge then called two transport officers into her chambers to question them about defendant’s behavior the previous day.  The judge recounted these conversations on the record and then noted that based on “everything I’ve heard, I believe . . . [defendant] is malingering . . . .”  The prosecution and defense were then provided an opportunity  to question the officers.  The pharmacist was not in court.

            This case represents the first time the Vermont Supreme Court has ever found a violation of V.R.E. 605.  In doing so, the Majority applied a broad view of Rule 605 that the Rule is not limited to statements formally given from the witness stand.  Instead, the judge acted as a witness by conducting ex parte communications with the officers and the pharmacist. This type of outside research and off-the-record fact finding is precluded by Rule 605.  The Majority also found that the judge’s actions violated the Code of Judicial Conduct and defendant’s due process rights were violated by being denied the opportunity to confront the pharmacist or put on evidence following the officer’s testimony.  Because of the nature of V.R.E. 605, the Court finally found that no objection had to be made to preserve the issue and Defendant did not have to show prejudice resulting from the violation. 

            Although it noted that the judge’s behavior was unorthodox, the dissent argued that the Majority’s overly broad application of Rule 605 was contrary to the plain language of the Rule that “a judge sitting at the trial may not testify in that trial as a witness.”  In the dissent's view, the trial court judge had acted aggressively on the issue but had not crossed the line into testimony.

—Jennifer McDonald

A Defendant by Any Other Name . . .

State v. Arrington, 2010 VT 87

The Court affirms Defendant’s conviction of sale of cocaine, conspiracy to sell cocaine, possession of cocaine, and possession of marijuana, upholding the trial court’s denial of Defendant’s motion to suppress evidence following a warrantless arrest. 

Defendant was arrested based on tips provided by an informant.  The informant gave up this information after the police found $2,200 in cash, a digital scale, and a bag of crack on her.  She claimed the drugs were not hers, but belonged to “Chris.”  She said she was going to meet “Chris” in Rutland to exchange more drugs and money, so the police had a detective accompany her.  “Chris” showed up at the predicted time, and the informant identified his car.  The officer and informant pulled up beside him, and the informant confirmed his identity.  Shortly thereafter, an unmarked police cruiser stopped his car, and informant again identified Defendant as “Chris.”  At the station, “Chris”’s actual name was revealed, along with marijuana and cocaine. 

Defendant moved to suppress the evidence, claiming violations of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution, as well as Chapter I, Articles 10 and 11 of the Vermont Constitution, and V.R.Cr.P. 3.  The trial court was unconvinced and determined that the Police had probable cause to make the arrest, however.

The Supreme Court reviewed the lower court’s findings of fact for clear error.  The Court noted that the constitutionality of a warrantless arrest is based on the “information possessed by the police at the time of initial detention.” The Court is highly deferential to the findings of the lower courts when those findings are based on witness testimony and the trial court has observed the witness and evaluated his or her credibility.  Here, the informant had described Defendant’s car and predicted when Defendant would arrive. The Court determined that the informant did provide the police with information which identified Defendant and predicted his behavior.  Further, the fact that the informant only knew Defendant as “Chris” did not destroy her credibility, as apparently “Chris” is a street name in these parts.   

Then, the Court reviewed the trial court’s legal conclusions de novo.  In determining whether the police had probable cause for the arrest, the Court examined whether the information known to the officer at the time was sufficient to “lead a reasonable person to believe that a crime was committed and that the suspect committed it.”  When an informant is involved, the Court utilizes the two-prong test from Aguilar v. Texas, 378 U.S. 108 (1964). 

Despite the fact that the U.S. Supreme Court has abandoned the Aguilar–Spinelli two-pronged test in favor of the “totality of the circumstances” test articulated in Illinois v. Gates, 462 U.S. 213 (1983), Vermont has stuck with the older test for cases decided under the Vermont constitution.  The first prong looks at the informant’s basis of knowledge, while the second analyzes the informant’s credibility.  Because the informant’s information was based on first-hand experience in selling drugs in Rutland, the Court found that the informant had a sufficient basis of knowledge.  As for the second prong, the Court noted that informant had stacks of cash and drugs, and accurately described Defendant’s vehicle and predicted his arrival time.  These facts led the Court to conclude that the informant was credible. 

The Court also pointed out that the statements provided by the informant implicated herself as well as Defendant, meaning that she could be vulnerable to more serious charges such as conspiracy to sell or deliver drugs as opposed to mere possession.  The Court concluded that this increased informant’s credibility.  However, Defendant argued to the contrary, that the informant knew the courts would be more lenient with her if she ratted out someone else.  The Court disagreed: if it turned out the informant’s information was inaccurate, the Court noted, informant would have been in an even worse position, and the informant therefore had every incentive to provide accurate information.  

In light of the upcoming Columbus Day weekend, watch out for any guys named “Chris” along Route 7 offering to take you to new worlds.

—Christine Mathias 

Motorized Wheels Keep on Turning

State v. Hughes, 2010 VT 72 (mem.)

On a particularly slow Saturday night in Bennington, Defendant and two friends got the bright idea to go down to Price Chopper, buy cigarettes, and ride away on the motorized shopping carts that the store provides to elderly, the disabled, and the morbidly obese.  After joy riding around the parking lot, Defendant and friends took the carts onto the street, down a path, over a pedestrian bridge, and into a river.  Total loss: three motorized carts worth about $1,191 apiece; Grand Theft Auto it is not.

Defendant was charged with grand larceny (13 V.S.A. § 2501) because each cart had a value over $900.  Defendant was found guilty and joint and severally liable for the damage, sentenced to 16–28 months and ordered to pay restitution of $3,573.

On appeal, Defendant raised two claims.  First, he argued that the restitution statute does not allow for joint and several liability.  Therefore, he can only be liable for the cart he actually drove into the river.  Second, he argued that the State failed to show that Price Chopper was uninsured on the loss since Price Chopper were intentionally self-insured for any damages below $350,000. 

The Court reviewed the first claim under a standard of sound discretion.  They noted that neither the restitution statute, 13 V.S.A. § 7043 nor its underlying reasoning excluded joint and several liability.  7043 limits recovery of damages to those that the State has established a direct causal nexus to restitution.  In this case, Defendant had openly and casually taken credit for trashing the carts as part of a joint activity and a joint decision making process.  Because the charges stemmed from the theft of three carts and their loss, and because the mischief stemmed from a common activity, the Court affirmed the award and the application of joint and several liability. 

The Court saw more of a challenge in Defendant’s second line of attack.  Essentially, Defendant made an argument that Price Chopper pays less for insurance because of its higher deductible.  These savings were then pocketed by Price Chopper as a kind of self-insurance fund to pay for losses under the policy threshold.  Not too shabby for a punk said the Court, but the statute makes no such fine distinction, and neither will the Court.  Uninsured losses are simply those not covered by a third-party insurance company or some-type of formal insurance pool.  No policy, no pool, no coverage.  End of story. 

No such thing as a free joyride.

—Daniel Richardson

Public Records Request Provides Pit Stop for Speeding Lawyer

Shlansky v. City of Burlington, 2010 VT 90

What happens when a lawyer gets pulled over for a speeding ticket?  If you are like Plaintiff, you start with a public records request for:

[T]wenty-one items, including: documents related to plaintiff’s traffic ticket; documents about speed recording devices; the citing officer’s employment history and performance records; engineering studies and history concerning the speed limits on Route 7 and elsewhere in Burlington; and documents governing general police procedures as well as more specific protocols for stopping vehicles and issuing tickets.

Then you make the same request with the judicial bureau.  When the bureau denies your discovery request, and the City asserts a litigation privilege over the public records request, you file a parallel civil suit alleging that the City has violated the public records law, and request a stay on your speeding ticket case to litigate whether the City improperly withheld documents. 

So went Plaintiff’s case until it skidded to a halt at the trial court.  The lower court granted the City’s summary judgment motion and dismissed Plaintiff’s voluminous public records requests on the basis that the circumstances and facts showed that Plaintiff only sought this material to defend and delay his traffic ticket case.  Therefore, 1 V.S.A. § 317(c)(14), the litigation exemption applied.  In other words, public records laws cannot be used as an alternate route around discovery rule roadblocks. 

Not so fast, says the Court on appeal, the whole point of section 317(c)(14) is to put a hold on public records request during litigation when the documents are “relevant to litigation to which the public agency is a party of record.”  Thus, the outcome of the document request is dependent upon the definition of “relevant,” which is defined differently than under the Rules of Evidence.  Although documents must still be pertinent and “at issue” in the underlying litigation, documents that may have been ruled outside of discovery may be included.  The exemption does not give the trial court leave to stoplight any request made by a party simply because that party was in litigation with the Agency.  In fact, the identity of the requestor cannot be used as the basis for determining relevance or denying documents under Section 317(14).  Finberg v. Murnane, 159 Vt. 431, 437, 623 A.2d  979, 983 (1992)  Looking under the hood of the trial court’s decisions, the Court indicated it found the lower court’s methodology lacking some horsepower.  Striking down Plaintiff’s requests because he probably wanted them to defend and delay his speeding ticket might hold for more specific documents relevant to Plaintiff’s specific traffic stop.  But the Court waived a yellow flag for its application to withhold more general documents that might be “relevant” within the meaning of section 317(c)(14). 

On that note, the Court remanded the case back for additional findings consistent with its framework of “at issue” relevance.  The strong suggestion is that the City will have to tune up its position to establish this exemption for the more general information.  To drive this point further home, the Court uses ¶ 12 to honk the horns of strong public interest in access, the role of a public officers as “trustees and servants” of the public interest, and open government being much better than “Old World Tyranny.”  (Cue all-male chorus humming the Battle Hymn of the Republic.)

At the end of the decision, the Court took two more laps to address the Plaintiffs issue of penalties and the delay of the speeding ticket.  First, the Court peels away from Plaintiff’s argument that he is entitled to waiver or damages from the City’s failure to comply with his requests in a timely manner.  The Court notes that 1 V.S.A. § 318 provides for a short timeline, which is more of a suggestion than a deadline, and then “deemed denied” result if the request is not timely fulfilled.  Requestors like Plaintiff may grieve if they are unhappy. 

Finally, the Court chides the judicial bureau for continuing the speeding ticket hearing while the civil case was running.  Such a decision, says the Court, “is wrong.”  Speeding tickets are summary and expedited proceedings.  The cases run, and if parties want to object they will have to do so directly.  So get a move on. 

A handy chart comparing the amount of money spent on this case in comparison to Plaintiff’s speeding ticket was not provided with the opinion.

—Daniel Richardson

Please Fence Me In

Beldock v. Town of Charlotte, 2010 VT 74.

The Town of Charlotte inherited a landfill and a right-of-way from Shelburne, which obliged Charlotte to maintain a fence and gate system along the right-of-way.  This obligation came by way of a 1965 private deed in which Shelburne purchased land and a right-of-way from the Plouffe with a covenant to maintain and operate a fence and gate system.  In 1996, the Plouffe constructed a multi-part deal that did the following: 1) On March 29th, Plouffe sold the 184.7 acres to Plaintiffs, except for a 10-foot wide strip next to Charlotte’s 50-foot wide right-of-way; 2) On April 16th, he accepted the return of the fifty-foot right-of-way from Charlotte; and 3) On April 15th, he deeded a 60-foot right of way back to the Town.  No explanation was given for why Plouffe dated the last two out of order.

Plaintiffs, who purchased part of the remaining land from Plouffe, sought to enforce the 1965 fencing and gate covenants, but Charlotte refused.  A lawsuit followed and summary judgment for the Town came shortly after that. 

On appeal, the Court ruled that the 1996 deeds merged the right-of-way and negated the 1965 fence and gate covenants. The deed to Charlotte failed to restate them and left the new right-of-way unencumbered.  Appellants argued that the gate obligations were implicit and that the agreements were ambiguous.  The Court rejected the argument and ruled that the language of all of the deeds was clear and straightforward.  This was bolstered by both the circumstances of the transaction and language that indicated an intention to “clarify access easements related to said land.”  

The Court’s analysis took into account the fact that Plouffe’s transfer to Plaintiffs and to and from the Town occurred as part of a single transaction and that each document used the term “even date,” which means “same date” to indicate that all three of the 1996 transactions were part of one and the same event.  The nature of the transfer required the property to merge in the hands of Appellant for one brief instant, and in that (imaginary legal fiction) moment, merger occurred and all of the covenants and encumbrances were dissolved.  Then time, presumably, sped up again, the bullets passed by Neo, and the newly created easement went forth without the history or baggage of its ancestors.  The Court also applied this reasoning to dismiss Plaintiffs’ claim that they were not bound by the April deeds because they were not parties or signatories to the Town deeds. 

In the end, because of the unified nature of the transactions, the language of clarification, the existence of the merger, and the lack of any clear language indicating intent to preserve the gate and fence easement, the Court concluded that the obligations were extinguished and affirmed the trial court’s decision. 

Just your average run of the landfill case.

—Daniel Richardson

Green Thumbs Down on Dope Defense

State v. Thayer, 2010 VT 78

In the summer of 2003, Defendant, whom the Court recognizes as a Master Gardner, began growing marijuanna to treat her son who was battling leukemia.  After the first son passed away in 2005, Defendant continued cultivating the crop to treat her younger son who was also experiencing significant health issues.

In 2007, Defendant was charged with knowingly and unlawfully cultivating marijuana in violation of 18 V.S.A. § 4230(a)(4).  She appealed the trial court’s denial of her motion for a jury instruction on necessity, asserting that she used the marijuana solely to treat her younger son’s terminal kidney failure. 

The trial court denied Defendant’s motion for a necessity instruction on the grounds that (1) she failed to establish a prima facie case on every element of necessity, and (2) a statute precluded the defense.  Defendant sought and was granted permission to file an interlocutory appeal.  The Vermont Supreme Court affirmed in a divided opinion,, holding that defendant’s evidence was insufficient for a reasonable juror to find that the third element of the necessity defense had been satisfied.  The Court did not address the remaining elements.  

Whether Defendant’s criminal act is justified by necessity ought, in almost all cases, to be a question of fact for the jury.  Defendant need only make a minimal, prima facie showing to be entitled to a necessity instruction.  The third, and dispositive element as far as the Court was concerned, is governed by Defendant’s reasonable belief that she had no opportunity to avoid the injury without doing the criminal act. 

The majority’s reasoning boils down to this:  Defendant could not have “reasonably believed that she had no opportunity to alleviate her son’s symptoms without committing the outlawed act . . . .”  The majority rested its conclusion in part on the fact that Vermont’s medical-marijuana law was passed in 2004, three years before the conduct at issue in this case, and yet Defendant had made no effort at all to comply with it and thereby avoid “committing the outlawed act” of growing marijuana outside its strictures.

This decision could mean further erosion of the necessity defense. Chief Justice Reiber’s dissent, in which Justice Johnson joins, is forceful on this point.  He notes that “[a]t the heart of the necessity defense is a difficult value judgment.”  That value judgment has traditionally been a question for the jury, which the dissent argues should be the case here where the Defendant has shown a compelling and sympathetic purpose for breaking the law.  Finally, the dissent notes the irony in the majority’s reasoning is that “a statute that aimed to decriminalize certain uses of medical marijuana has effectively criminalized defendant’s actions in this case.”

—Jennifer McDonald

Wethink the Lady Doth Grieve Too Much

In re Grievance of June Rosenberg, 2010 VT 76

Between 1993 and 2005, June Rosenberg was a part-time psychology professor at Lyndon State College.  In 2001, Rosenberg filed her first grievance against the Vermont State Colleges, alleging that Lyndon State had improperly assigned a summer course to a less-senior faculty member.  Rosenberg won, and taught the course Rosenberg v. Vt. State Colleges, 2004 VT 42 (Rosenberg I). The following fall, perhaps to avoid further allegations of assigning Rosenberg too few courses, Lyndon State gave her a schedule that required Rosenberg to be on campus three to four times per week rather than the once per week she was accustomed to.  That, grieved Rosenberg, was too many employment obligations, and furthermore, Lyndon State had imposed them to retaliate for her 2001 grievance.  In a 2-1 decision, the Board agreed with Rosenberg.  But her victory was short-lived.  The Supreme Court reversed, Rosenberg v. Vt. State Colleges, 2004 VT 42 (Rosenberg II), holding that there was no evidence of either retaliatory motive or suspicious timing, and thus no violation of the labor relations act.

After the “too-few” summer of 2001 and the “too-many” fall of that year, Lyndon State got Rosenberg’s course load just right for three years, until the fall of 2005.  However, “tensions appeared to be building between grievant and employer” during that time. 

Rosenberg was assigned no courses for the spring of 2006, and she has not been assigned to teach a single course since.  She has filed three more grievances against the Vermont State Colleges (Rosenberg III–V), culminating in a fourth grievance underlying this appeal.  All four more or less alleged that Rosenberg had been excluded from teaching certain courses for reasons that were impermissible under the collective bargaining agreement.  The current dispute arose when Rosenberg’s request to teach an introductory course and two other courses was denied in the fall of 2008.  Rosenberg grieved the decision, alleging that she should have been assigned the courses because she was senior to the faculty who were assigned the courses.  She also alleged that she was being discriminated against for filing so many grievances.  The Labor Relations Board disagreed, and Rosenberg appealed, but to no avail: the Supreme Court unanimously affirmed the Board’s decision.

Rosenberg’s problem before the Labor Relations Board and on appeal was essentially a failure of proof.  She did not show that she would have been assigned the introductory course even if the more-junior faculty member had not.  Nor had she shown that the collective bargaining agreement required seniority to trump other considerations.  In fact, the Court found that seniority was to rule the day “only when all of the other factors ‘are deemed to be equal.’” 

Finally, she had not introduced any evidence from which the Board or the Court could infer that the college had an unlawful motive (i.e. her penchant for grievance-filing) in not assigning her more courses.  As the Court articulated, Rosenberg’s burden was to “show that her protected activity was a motivating factor in the employment decision at issue.”  Lyndon State’s knowledge of Rosenberg’s history of grievances was simply not enough.  She needed to show some nexus between the protected activity (grieving) and the employment decision (not to assign her classes).  Without such evidence, Rosenberg could not meet her burden as a matter of law. 

—Gavin Boyles

Court Issues Rote Smackdown on Prior Statement Challenge

State v. Spooner, 2010 VT 75

The most interesting question raised by this appeal may be “Why wasn’t it on the rocket docket?” 

Defendant was charged with aggravated sexual assault on a child under eighteen years of age.  13 V.S.A. § 3252(d).  The victim was his stepdaughter, who was less than twelve years old.  After a jury trial in which certain recordings of the stepdaughter’s prior statements were played, defendant was convicted.

Defendant raised three claims on appeal:

1)                  that the court erred by admitting the victim’s recorded statements during the State’s case-in-chief under VRE 804a when the statements were really offered as corroborative evidence and should have been analyzed under VRE 801(d)(1)(B);

2)                  that the court violated the Vermont Rules of Evidence by not allowing the defense to cross-examine the victim after her recorded statements were played; and

3)                  that the court violated the United States and Vermont Constitutions by not allowing the defense to cross-examine the victim after her statements were played.

The Court rejected all three claims of error and affirmed the conviction.  The defense simply could not surmount the double problem that none of the claims were preserved at trial and only one of them was contrary to an express rule of evidence.

As to the first claimed error, the Court noted that, in enacting VRE 804a, the Legislature “intended that a child victim’s corroborative statements would be admissible, whether or not they met the requirements of Rule 801(d)(1)(B).”  The Court had already ruled in State v. Gallagher, 150 Vt. 341, 344 (1988), that the child victim’s testimony in the State’s case-in-chief did not preclude the later use of the child’s recorded statements under 804a.  Thus, the trial court “did not err in admitting recorded statements to buttress [the victim’s] live testimony.”

On the second claim, the Court held that defense counsel had actually stipulated at trial that she did not need to recall the victim: defendant had the opportunity to recall [the victim] but chose to play the tapes instead.”  Accordingly, the Court concluded that the issue was not preserved and thus would not be reviewed at all.

The third claim was likewise unpreserved but, being a constitutional claim, was reviewed for plain error.  See V.R.Cr.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).  The Court concluded, however, that it was not plain error (if error at all) to admit, upon the parties’ stipulation, videotaped rather than live testimony.  See also State v. Koveos, 169 Vt. 62, 67 (1999).

This is a five-Justice opinion that would have been right at home on the rocket docket.  None of the claims required anything beyond straightforward application of settled law, and two of the claims were unpreserved.  Which raises a question—is the rocket docket overused or underused?

—Gavin Boyles

Look Away: Court Finds Gross Negligence In A Momentary Diversion

State of Vermont v. Cherish A. Carlin, 2010 VT 79 (mem.)

  

On April 18, 2009, Defendant was driving her car on Route 5 in Dummerston, Vermont when she began scanning her dashboard GPS for a place to eat.  While her attention was diverted, Defendant’s car swerved onto the shoulder of the road for approximately two seconds where it struck and severely injured a bicyclist.  After police and paramedics arrived on the scene, Defendant admitted her inattention, which was confirmed by a driver traveling directly behind Defendant’s vehicle.

As a result of her actions, the Windham State’s Attorney charged Defendant with gross negligent operation of a vehicle pursuant to 23 V.S.A. Section 1091(b).  This statute defines gross negligence as “conduct which involve[s] a gross deviation from the care that a reasonable person would have exercised in that situation.”  

Defendant moved to dismiss the charge on the grounds that the State did not establish a prima facie case that her behavior amounted to gross negligent operation.  The trial court granted Defendant’s motion finding that although she did not pay attention to the roadway, her conduct only “amounted to a mere momentary distraction while driving.”  Despite the State’s further evidence, including Defendant’s excessive speed, the GPS’ warning not to use the device while driving and the responding officer’s opinion that Defendant was grossly negligent, the trial court upheld its decision. 

On appeal, the Court highlighted that while momentary inattention by itself is normally insufficient to warrant gross negligent operation, such inattention may be enough to allow a jury to find gross negligence if it occurs in a place where there is a great potential for immediate danger.  The Court emphasized that such rulings, as a matter of law, are difficult because of the importance each situation’s particular facts and circumstances play in determining the degree of negligence.  In this case, the Court found that a jury could have concluded that the timing of Defendant’s decision to take her eyes off the road at the same moment that she was closing in on a bicyclist in front of her was “a gross deviation from the care that a reasonable person would have exercised in that situation.”  Thus, it was error, based on the State’s evidence to dismiss the charge under § 1091, and the Court remanded for further proceedings. 

With the evolution of future technology, the Court will likely be faced with deciding many more cases involving the charge of gross negligent operation.

This may also put a crimp in any plans by automakers to replace the front windshield with a video screen.  

—Danielle Pennetta