Monday, September 19, 2011

A Vermont Common Law

Editor's Note: Vermont Legal Historian Paul Gillies has volunteered from time-to-time to contribute summaries of some more noteworthy historical cases to our blog.  Common law is the term used to describe legal precedent that comes strictly from case law and prior decisions.   Today Paul presents us with the case that first recognized that Vermont had established its own common law, which marked both a legal and historic milestone for the relatively new state..


Matthews v. Hall, 1 Vt. 316 (1828)

            Vermont adopted the common law, “as it is generally practiced and understood in the New England states,” in 1778, by an act of legislation.  In 1787, under the leadership of Nathaniel Chipman, the General Assembly enacted “so much of the common law of England as is not repugnant to the Constitution or to any act of the Legislature of this State.”  The act went to require Vermont courts to be guided by all English statutes passed before October 1, 1760 in interpreting that common law. 

Friday, September 16, 2011

Return to Dogpatch

By Nicole Killoran

State v. Thompson, 2011 VT 98 (mem.).

Today’s case in part stems from our sister state’s refusal to allow a known child molester back into its neighborhoods.  Defendant Thompson, a Massachusetts resident, engaged in some inappropriate touching of his cousin’s buttocks (is there any other kind amongst cousins in this post-Lil’ Abner world?) while on a ski trip in Vermont.  In order to downgrade the charges from felony to misdemeanor, Defendant entered into a plea agreement with the State.  At the change-of-plea hearing, the parties agreed that Defendant could reside in Massachusetts during his probation, so long as Massachusetts probation officials agreed.  Defendant was sentenced to one-to-twelve months, all suspended, and placed on probation with various conditions, some specific to his status as a sex offender. 

The Fellowship of the Twelve: One Challenge to Rule Them All

By Michael Tarrant
State v. Bol, 2011 VT 99

Ah, the fun of jury draw day.  The sights!  The smells!  The Court Carnies!  It is a most festive time indeed, where certain fortunate members of the community lucky enough to have received their notice of jury duty joyfully file into the courtroom—each one full of hope and anticipation that the lawyers will pick them to serve.  Unfortunately for wannabe jurors, the journey to joining the Fellowship of the Twelve is fraught with peremptory peril.  Lawyers on each side can each eliminate up to six of them on nothing more than a hunch.  As the Eagles would say, “No reasons asked.  No reasons told.” 

Well, that is unless you’re cut solely for your race.

Thursday, September 8, 2011

Update on Status and Farewell to Two Pillars of the Judicial Community

Greetings and Salutations Dear Reader(s)!

If you have been following our blog in the past few weeks, you should notice that we have come a long way to catch up with the SCOV's very productive output this summer.  As of today, our humble blog has summarized all of the Vermont Supreme Court's opinions and published entry orders since July 1, 2010. This is quite an achievement and one that I think has been far more intensive than any of us who contribute to the blog realized when we started this project, nearly a year ago.  Thanks go out to all of you reading and for the great feedback and support you have given us over the past year both on-line and in-person.

We would also like to take a moment to congratulate and fete two giants of the Vermont judicial community who have stepped down from office this past week to begin what we hope will be an exciting new phase in their lives.

Associate Justice Denise Johnson is not only the first female member of the Vermont Supreme Court, but she has throughout her lengthy tenure been one of the Court's jurisprudence heavyweights, who brought a philosophy and view of the law that has had a large role in defining the direct of Vermont law for the past three decades.

Anyone who has been on the receiving end of her line of questioning at oral argument knows first hand the type of intellectual acumen Justice Johnson brought to the bench.  Her replacement has large shoes to fill and a high bar to meet to equal these contributions.

Environmental Court Judge Merideth Wright also retired this past week after a long and storied career.  Judge Wright over the past twenty-plus years worked tirelessly to create, fill, and establish the Environmental Court system as a formal, judicial process over what had always been a notoriously difficult and diverse area of law.

Her legacy is an entire division of the judiciary, not to mention a long trail of decisions and rulings, that have, in large part, shaped and defined the process for land use permitting, process, and enforcement that all of us follow in this state.  Judge Wright's savy and fortitude created a court that while subject to criticism has done more to normalize and professionalize the law of land use than nearly any other action outside of Act 250.

Congratulations to both and consider---just consider---contributing to SCOV Law now that you are looking at more free time in your schedule!

You’re Ouster Here


Whippie v. O’Connor, 2011 VT 97 (mem.).

Marriage brings many benefits to the couples that take the plunge.  Some of these benefits are obvious, but many are not.  One of the biggest benefits is that marriage requires the parties to be fair to each other when they divorce or split up.  Family law is different from civil law because family relationships are different from friendships, business partnerships, and nearly every other relationship we form in our lives. 

An Incidental Kidnapping


State v. Jones, Jr., 2011 VT 90 (mem.).

From the Truman Capote files comes a story of home invasion, violence, and kidnapping.  To the benefit of everyone, though, the victims in today’s case suffered a much more mild fate than Kansas’ Clutters. 

Geologic Litigation


Bostock v. City of Burlington, 2011 VT 89 (mem.).

The point that Charles Dickens drove home in Bleak House to the point of absurdity was this: litigation can last forever and consume everyone involved.  On this first point, let me submit today’s case as Exhibit A of a decades-in-the-making litigation.

Battle Beyond the Experts


Houle v. Ethan Allen, Inc., 2011 VT 62 (mem.).

Workers’ Compensation is to tort law as fat-free vanilla frozen yogurt is to triple chocolate mocha caramel fudge ripple ice cream. 

Workers’ Compensation is the great societal compromise.  Employers insure workers for injuries and do not ask too many questions about why or how it happened, and workers forgo their right to sue employers for dangerous, negligent, or mildly unsafe conditions.  But a good dispute is not hard to find.  Workers’ Compensation cases still go to litigation, but they tend to revolve around their own universe of issues, such as whether a given injury was work related or just part of the body’s natural breaking down before our eventual and mutual deaths. 

Taking Out the Garbage


State v. Boglioli, 2011 VT 60 (mem.).

Okay readers, here is your free criminal law tip of the day!  When you have been bullied by your neighbor for several years to the point where you fear for your safety, you still should not carry a pistol with you when you take out the garbage. 

Short Cuts


Nordlund v. Van Nostrand, 2011 VT 79.

Land use law—that is the law behind zoning, act 250, and most building permits—gets a bad rep.  For developers any regulation is a bad thing and the wails from a builder who is forced to attend multiple DRB hearings only to have his plans modified . . . well, it is enough to break your heart.  Environmentalists have the same complaint from the opposite end of the spectrum.  “They don’t enforce ‘em like they used to.”

To the Victor, the Attorney’s Fees (Sometimes)

By Nicole Killoran

McNally v. Dep’t of PATH, 2011 VT 93 (mem.).

Remember our coverage of the gripping story of the “snow-shoveling incident” that came out last Fall?  No?  In case you’ve forgotten, the SCOV remanded a workers’ compensation decision to the Labor Commissioner, after chiding the Commissioner for making inadequate findings and conclusions, and for misapplying the law.  Today’s case is the second iteration of this controversy and considers whether Claimant McNally may recover costs and attorney’s fees for prevailing in her appeal.

Friday, September 2, 2011

To PBT or not to PBT? That is the Question

State v. Kinney, 2011 VT 74


A jury convicted Mr. Kinney of his third “drivin’-while-imbibin’” charge as well as attempting to elude a police officer.  He appealed, arguing: (1) that the trial court erred in admitting his refusal to take a preliminary breath test (PBT); (2) that during closing argument, the prosecutor interjected his personal opinion and commented on Mr. Kinney’s failure to testify; and (3) that the evidence was insufficient to convict.  The SCOV affirmed.