Tuesday, November 30, 2010

Cultured Barrister: Lush Life

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloging 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.

With the oncoming Christmas season, there are the inevitable firm parties, dinners, and social events.  Though we pale behind Atlanta, D.C., and some of the more-sociable bar associations, there is still some sense of holiday decorum. And good cheer to be found in the form of an open bar manned by a surly fellow forced to wear a Kris Kringle hat.  At these events, the young associate often "distinguishes" himself or herself by one of two maneuvers.

The first maneuver is to stick with the old familiar—the associate may choose a bottle of Long Trail, a Magic Hat, or if he is feeling brave, a can of PBR.  He may feel confident in this choice of a standby and be able to judge his consumption quite well.  Still, the primary impression left by a man in a suit holding a can of PBR is "Do you think TKE will ask us to pledge?"

Or, nervous about being in a professional gathering, the associate switches to red wine, usually a merlot. After all, isn't wine the classy alternative to beer?  Being new to the perils of red wine (and somewhat thirsty) the associate quickly quaffs three glasses in a row and finds herself soused before the second wave of appetizers appears.  When she makes her way to the senior partner, she is close to killing a bottle, and suggests that the partner accompany her snowboarding this winter because she was the snowboard team captain at the University of New Hampshire and they kicked Dartmouth's tail.  Of course, this was long after the senior partner was captain of the Dartmouth ski team.  Of course.

Monday, November 29, 2010

A Little Bit for Play


State v. Delaoz, 2010 VT 65.

The facts of Defendant’s unlucky arrest are as follows.  On July 13, 2007, a police officer responded to a report of a person screaming and found Defendant, and two other individuals, who admitted they were responsible for the noise.  The officer asked for the individuals’ names, to which Defendant, whose name is really Jorge Delaoz, responded with a fake name.  Unfortunately for Mr. Delaoz, the fake name was that of an individual with an extraditable warrant in Florida.  Whoops.

As the officer confirmed the warrant, Defendant dropped a dollar bill folded into a small pouch directly in front of the officer, which the officer immediately recognized as a pouch used to carry illegal drugs.  Again, Whoops.  When asked what was in this pouch, Defendant responded, “a little bit for play.”  Defendant’s remark did little to diffuse the situation.  When asked again, Defendant responded, “coke.”  One fake name and pouch of cocaine later, Defendant was arrested, handcuffed, and subsequently searched.  This search produced another bag of cocaine, marijuana, and an object in Defendant’s underwear.  When questioned about this object, Defendant responded that it was “a little more coke.”  Whoops.

Tuesday, November 23, 2010

Anger Management

Bombard, Jr. v. Dep't of Labor, 2010 VT 100 (mem.).

A public service announcement from SCOV this week: if your boss tells you that he wants to climb a tower and shoot a hundred people, you might want to tell another manager about it.  But whatever you do, don’t just run for your life—at least not if you want unemployment benefits.  Because if you decide to quit before you give the higher-ups a chance to “rectify the situation” you’re going to be out of luck proving that you left with good cause.

In this denial-of-benefits appeal, an employee at an Essex auto parts store argued that he had good cause to quit after the manager shared his mass-killing fantasy.  The previous week, the same manager had spent a day on the phone with his wife, shouting, throwing things around the store, and driving off a few times for good measure.  For whatever reason, the employee just didn’t feel comfortable tapping his manager on the shoulder to ask him to simmer down.  Instead, he left a voicemail for the regional manager.
          

At the Dark End of the Street


Schonbek, Trustee of the Isaiah 61 Foundation v. Chase, 2010 VT 91
  
Plaintiff owns a building on Cherry Street in Burlington.  As part of the City’s fire code requirement, Plaintiff was required to find a second egress away from the building in case of fire or other building-evacuating-disasters.  The egress had to be at least fifty-inches wide.  The problem was the two alleys leading out the backdoor of Plaintiff’s restaurant either end at a fence or narrow to a point of 29 inches.  The good news, at least Plaintiff thought, was that both areas are owned and controlled by the same owner.  Prior to litigation, Plaintiff approached Defendant about opening up their fences to him to help him meet code.  Defendant agreed for the low, low price of $20,000 and a revocable easement.  Plaintiff balked.  Instead, Plaintiff installed an internal second egress and filed a lawsuit against Defendant for violating a prescriptive easement right by refusing to take down its alley blocking fence. 

Killer Fails to Establish Diminished Capacity


State v. Williams, 2010 VT 83.

On a lovely summer’s day in 2006, Defendant went on a bloody rampage at two residences and an Essex elementary school that left two dead and two critically wounded.  Defendant failed to kill himself in an attempt at the end of his spree, and he failed to shoot or harm his girlfriend, the apparent target.  Defendant was taken into custody almost immediately thereafter.

Defendant was charged with first-degree murder for the two victims that were killed.  He was charged with attempted first-degree murder and attempted second-degree murder for the others.  At trial, Defendant’s attorneys did not contest the facts of the murder or Defendant’s guilt, but they plead diminished capacity and moved to suppress all of Defendant’s statements made in custody based on the argument that the Miranda warning was delivered too late.

Pick Your Friends Wisely


Lussier v. Bessette, 2010 VT 104

Almost exactly five years ago this day, Rene Lussier, Anthony Bessette, and Adam Reed were hunting with their pal Collin Viens. The group was hunting on Rejean Lussier’s land, which included both woods and fields. Rejean Lussier was sitting in his parked tractor, although it seems that no one walked in his area or was aware that Rejean was out in the field, sitting in the tractor. Rene, Anthony, and Adam were flushing game out of the woods toward a field by walking as a group in a line through the woods. Collin—approximately ten minutes ahead of the others—sat at the edge of the field, rifle in hand waiting for the game to run out of the woods. 

According to the opinion, Collin Viens had no hunting license,* though his friends apparently did not know this. His friends did know that he had passed a hunter safety course and obtained his Hunter Education Certification. Given what happened next, how Collin passed a hunter safety course is anybody’s guess. According to one version of the story, Collin mistook the tractor for a coyote. What actually seems to have happened, though, was that Collin, while sitting in the field waiting for his friends to flush out game, had his rifle to his shoulder, his safety off, and started to look through his scope. To everyone's loss, he saw the tractor and either accidentally or intentionally shot it. His shot hit the tractor and killed its occupant, Rejean Lussier. Collin was convicted of involuntary manslaughter and that conviction was affirmed in 2009.    

Up the Creek with a Paddle

By Gavin Boyles

State v. Brown, 2010 VT 103

This opinion answers one question: is the fact that defendant used a paddle to discipline a child admissible at his trial for sexually assaulting her?

The state introduced the paddling evidence to rebut defendant’s contention that the child’s three-year delay in reporting the assault reflected her tendency to lie.  The state countered that such delays are common in child sexual-assault cases, particularly when the perpetrator inflicts other violence on the victim.  Among other things, the state elicited testimony from several witnesses that defendant had paddled the victim and her sister.

Tuesday, November 16, 2010

Mo’ Money Mo’ Problems


In re Willey, Administrator, 2010 VT 93 (mem.).

In this case, the SCOV ruled that only the probate court has jurisdiction over settlement proceeds after they are distributed, and that the superior court erred in retaining control after final judgment was entered.  

The facts that led to the $900,000 settlement in this case are simple and sorrowful.  Grandmother Julie Willey’s daughter died in a car accident on the way home from a pub while the daughter’s friend was at the wheel with a .18 blood-alcohol concentration.  Grandmother was appointed by the probate court to serve as a financial guardian for the daughter’s two-year old child.  Grandmother filed a dram shop and wrongful death action on behalf of herself and her daughter’s estate, which then settled for the above-mentioned six-digit figure.

Thursday, November 11, 2010

Child Abuse and Neglect Registry 001

In re M.G. and K.G., 2010 VT 101

By Elizabeth Catlin

We have here the third case in two weeks regarding the state child abuse and neglect registry.  In terms of aiding the learning process, I believe the SCOV would have done better to issue this case first because it goes to an even more basic element of the process than “Child Abuse and Neglect Registry 101” (aka In re R.P. and B.P., 2010 VT 96) and “Child Abuse and Neglect Registry 202” (aka In re R.H., 2010 VT 95).  Here in Child Abuse and Neglect Registry 001, the Human Services Board learns the same lesson that the SCOV taught the Department of PATH last week in In re McNally, 2010 VT 99:  a recitation of the evidence presented by one of the parties is not the same thing as making your own findings of fact. 

As usual, the facts of this case are the opposite of uplifting.  The parents of a one-year-old and a three-year-old child got busted with all the makings of a meth and ecstasy lab in their basement.  In addition to the drug bust, parents were investigated by the Department for Children and Families (DCF) for putting their children at risk of harm.  Unsurprisingly, DCF concluded that the parents had put their children at such a risk and informed parents that their names would be added to the child abuse and neglect registry.  Parents went through the various stages of appeal (refer to Child Abuse and Neglect Registry 202 if you want to know all about the registry and the appeals process—it is a long process, with many steps, and many bureaucrats—it might be like going through the 5 phases of grieving, or all 9 levels of hell, or even the 12 steps for addiction recovery).

Court Gives the Sad Saga of Miller-Jenkins a New Chapter

by Daniel Richardson

Miller-Jenkins v. Miller-Jenkins, 2010 VT 98 (mem.).

In yet another installment of what has to be the most public custody proceeding in Vermont, the SCOV rejected arguments made on behalf of a mother fighting a trial court order transferring custody of the child to her former spouse. 

The facts of this case are well known, but are worth a brief review, if only because the emotional intensity of this case can sometimes obscure the more bread-and-butter legal issues driving things.  In 2000, Lisa and Janet Miller-Jenkins came to Vermont and obtained a civil union, which gave legal status to their same-sex union.  They then returned to Virginia where they decided to have a child.  They selected a sperm donor, and decided Lisa was to carry the baby.  Nine months later, Lisa gave birth to a happy, healthy baby, known to the public as IMJ.  The new family moved in 2002 to Vermont where they lived for 17 months before the couple split.  Janet helped Lisa and IMJ move back to Virginia and maintained contact.  In November 2003, Lisa filed a pro se divorce complaint in a Vermont state court to dissolve her civil union.  Although not stated in the opinion, this action was driven in part by Lisa’s newly resurgent Christian faith and decision that she was no longer a lesbian. 

Art Center Fails to Pick a (Tax-Exempt) Winner

Vermont Studio Center, Inc. v. Town of Johnson, 2010 VT 59
The Vermont Studio Center, Inc. (VSC) is a non-profit organization that runs an artists’ residency program at it facilities in Johnson, Vermont.  The main users are artists, writers, photographers, and printmakers.  Because of limited funding and space, the Center can only accept 612 residencies each year from out of 2000 applicants.  The general public is free to apply, but the applications, which include a portfolio, resume, and reference components are reviewed by a jury that selects the best and offers positions to individuals who must then pay to enroll.  VSC claimed exemption from property taxes under 32 V.S.A. § 3802(4), which exempts real estate put to public use.  To be entitled to an exemption under this provision, an owner must show, in part, that the primary use of its property directly benefited “an indefinite class of persons who are part of the public,” and also conferred “a benefit on society as a result of the benefit conferred on the persons directly served.”  Am. Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 110, 557 A.2d 900, 904 (1989).

Wednesday, November 10, 2010

Court Chides Commissioner for Failure to Make Findings


McNally v. Dept. of PATH, 2010 VT 99

The Vermont Supreme Court’s Opinion in this case boils down to a simple warning for decision makers: “a recitation of evidence in findings is not a finding of the facts.”  And if you can’t get the factual findings done right, then at least apply the law correctly. 

This opinion followed Claimant’s appeal from a decision by the Commissioner of Labor denying her workers’ compensation benefits.  The Vermont Supreme Court remanded the case on the basis that the Commissioner failed to make findings and her conclusions were at odds with, or at least ignored aspects of, governing law.

Tuesday, November 9, 2010

Failure to Chug-a-Lug Dooms DUI Case


State v. Burgess, 2010 VT 64.

If I am ever called upon to train police in DUI stops, the first bit of advice I will give is this: No matter what, if you are planning on having a stopped driver exit for a sobriety test, always write in your notes that the car reeked of alcohol.  You don’t have to get hit with a cloud of fermented hops and barley, but you do have to smell it.  If you write it down, the SCOV will never overturn your justification for an exit order. 

Such was certainly the case in the present appeal.  Defendant was heading home after an evening amongst friends when he was pulled over by a state trooper for speeding.  He also decided that Defendant had not reacted quickly enough to his lights or pulled over far enough onto the shoulder and approached the car with a suspicion of DUI.  Sure enough, the Officer sensed a gentle breeze of alcohol emanating from the car where Defendant sat alone with his two friends, Unopened Beer in the Cup Holder and Unopened Beer in His Jacket.  Officer asked Defendant if he would mind exiting the vehicle and performing a few feats of physical skill.

I Do Declare! And the Declaration Controls.


Madowitz and Kohl v. The Woods at Killington Owners’ Association, 2010 VT 37.

Condo developers in Killington began constructing and selling units in the 1980s.  Under the law at the time, purchasers were entitled to an equal share of the common area in accord with the number of owners.  Since future development was anticipated, the developers needed permission from the homeowners, so they slapped it into the declaration of condominium language that promised the developers a power of attorney.  Unfortunately for the developers, they also stuck language into the buyers’ individual deeds indicating that power of attorney was limited and would expire at the end of ten years.

Backstabbers (What They Do!)


J.A. Morrissey, Inc. v. Smejkal, 2010 VT 66

I imagine Justice William Shakespeare beginning his opinion in this case along the following lines:

Look no farther to see the sad tragedy that struck the house of Smejkal.  Once a prince of construction under the Queen of Morrissey, Lord Smejkal plotted with Lady Smejkal to discredit the throne, take the riches of the kingdom, and establish a new order where all could come for quality construction services.  But alas, good Sir Gannon of the Rose firm hath persuaded this bench and the jury below that the actions of Lord Smejkal are at odds with our laws and jurisprudence.  Therefore, we must award the fruits of justice to Queen Morrissey and restore her crown.  Thus spaketh, the Court.

I realize that my imaginary justice does not speak in the proper iambic pentameter.  Just work with me.  Law school ground the poetry out of him. 

All Fired Up and Nowhere to Go


Demar v. Dept of Labor, 2010 VT 69 (mem.).

In an appropriate tale for our times, Claimant worked as director at a day care center as “director” and teacher for $12.75 and hour.  At forty hours a week, claimant’s base pay was approximately, $26,520.  You see where the big money is in this state—childcare, Ben, childcare.  In 2009, the toilet-flush in the economy hit the day care center’s fan, and claimant’s wages were reduced to $10.50 an hour and 36 hours a week.  That translates out to annual base salary of $19,565 or the equivalent of a 24% pay cut.  As the SCOV majority notes in its decision, claimant would have been justified in leaving at that point, and would have been eligible for unemployment, which given the steep reduction would have made some sense—or at least calls to mind the Bob Newhart line about how he quit his job as clerk in the unemployment office making $55 a week once he learned that weekly unemployment benefits were $45 a week, and he “only had to come in to the office one day a week to collect it.”

Monday, November 8, 2010

The Street Lawyer: Smile, It’s Good for what Ails Ya’

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.

As I sit here enjoying a lukewarm bowl of ramen noodles and a cold Fresca at ten in the evening, I am struck with a nagging thought: What the hell have I done with my life?

This is a recurring theme. I have these sorts of thoughts at various times, sometimes more than once a day. For example, I might have this thought when my client—the one with 4 DUIs, a couple sexual assault convictions, an arson conviction, and more minor infractions than I can count without an abacus—wants to know why I have not made any headway on his latest charges. “What ‘m I payin’ you for, boss?” he might ask.

Groping Grandpa Gets Reprieve: Miranda Violation Requires Suppression

by Andrew Delaney

State v. Muntean, 2010 VT 88

From the dysfunctional-family-from-hell case files comes the Court’s latest ruling on when police custody begins and Miranda warnings are required. The Court affirms the trial court’s suppression order finding that defendant was in police custody during an interview. Buckle up folks—it’s going to be a bit of a bumpy ride.

In late 2007, State Police began investigating defendant for molesting his daughters when they were children, and more recently, for molesting his grandsons. Both defendant’s adult daughters told a detective that defendant had molested them when they were children, and two grandsons recounted recent sexual abuse. On January 2, 2008, the detective requested that defendant come into the Rutland State Police Barracks for an interview. No subject was mentioned, but the interview was arranged for the next day to accommodate defendant’s schedule, and defendant agreed to it.

Thursday, November 4, 2010

Child Abuse and Neglect Registry 101



The issues in this Supreme Court decision are narrow and relate only to Human Services Board procedure, not the underlying substance of this child-protection-registry case.  The case began with a determination by the Department for Children and Families that parents R.P. and B.P. should be placed on the child protection registry for placing their children—four young daughters—at risk of harm by knowingly allowing the children to have contact with a convicted child sex abuser over an extended period of time.  Parents sought administrative review of DCF’s determination, which involved a reviewer examining the case and holding a conference with parents and their attorney.  The reviewer upheld DCF’s decision.  Parents then appealed this decision to the Human Resources Board (Board).

Child Abuse and Neglect Registry 202


                                      
The State of Vermont — via the Department for Children and Families — maintains a registry of people about whom it has substantiated reports of child abuse or neglect.  The registry is not wholly public but is available to entities that serve children and vulnerable adults, to aid them in making hiring decisions.  DCF is required by statute to place a person on the registry when it has substantiated a report that he or she placed a child at “substantial risk of harm.”  Before being placed on the registry, however, one may contest DCF’s substantiation decision at a hearing before a neutral administrative reviewer with no prior involvement in the case.  That decision, in turn, may be appealed to the Human Services Board.  And that decision can be appealed to the Vermont Supreme Court.  It’s like baklava, but with appeals instead of delicious layers of phyllo dough.

Wednesday, November 3, 2010

Cultured Barrister: Herbie Hancock as a Primer to Modern Jazz

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloging 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.

You are a young associate.  You are trying to impress your partner.  She comes in from a night at the Hopkins Center and starts in about the Chucho Valdes show.  After a ten minute description where your comments are politely ignored or shut down, you understand the following:

(1)  Chucho appears to be a Cuban Jazz Musician but not of the Ricky Ricardo school of Babalu.

(2)  His style is elegant and rhythmic, but you are not clear whether he plays the piano or congas.  You are 93% sure it is the piano.

(3)  He quotes from several other musicians.  This is apparently a good thing and something that jazz players do without forming big air quotes during the performance.

(4)  No singing was done at this show.

(5)  You may have dropped a few notches on that partnership track.

Fickle Fate Fingers Driver for DUI

by Andrew Delaney
 
State v. Young, 2010 VT 97

You cannot make this up. Listen. One night last summer, Defendant was driving home after an evening of drinking when a car came up behind him rather quickly. Not wanting to raise his profile, Defendant took his first right onto a side street to lose the potential tailgater. The car followed him. Defendant took his next right. Still the car followed. Defendant turned into a driveway. And yes, the car followed him. Defendant rolls down his window to apologize for turning in what seems to be the other car’s driveway and discovers that he has pulled into the driveway of an off-duty police officer returning home with his cruiser who proceeds to process him for DUI.

Monday, November 1, 2010

Don’t Push the Red Button! (It’s a $2,000 Fine for Criminal Contempt)


In re Pannu, 2010 VT 58

For some people, being told that you are not allowed to do something only makes you want to do it more.  That certainly seemed to be the case with Attorney Jasdeep Pannu, who was found in criminal contempt after violating a clear order from the trial court.  On appeal, the Vermont Supreme Court agreed that Pannu’s willful disobedience warranted the $2,000 fine for contempt.