Friday, September 28, 2012

The Case of the Chief and the Missing Overtime



Turnley v. Town of Vernon, 2012 VT 69.

Today’s case is a basic employment law issue wrapped in a coat of municipal law. 

Plaintiff was hired to be chief of police in 2006 for the Town, a small, sleepy hamlet in the southeast corner of the state on the New Hampshire and Massachusetts borders, not known for anything in particular

Plaintiff was paid a salary and held the position for three years.  At the end of that time, Plaintiff sued the Town for back pay.  Specifically, he claimed that he was due approximately 1335 hours of overtime for the hours he regularly worked above and beyond the normal 40-hour work week.  Town denied the claim, and Plaintiff filed his action.

Down the Memory Hole


By Nicole Killoran

In re Guardianship of A.S., 2012 VT 70 (mem.).

As you might imagine, being a developmentally disabled adult trying to gain some modicum of independence is a difficult and sensitive process.  Today’s case shows us that it can be equally complicated trying maintain control over the records evaluating your disability.

Our story revolves around A.S., who went through special education in primary and secondary school, and was placed in an involuntary guardianship (with her parents as guardians) when she turned eighteen in 2003.  At the time, A.S. did not have the option for a voluntary Guardianship as the law did not allow someone with mental and developmental disabilities to seek a voluntary guardianship.  In 2010, however, the Legislature amended the guardianship statutes to allow it, and A.S. sought to “amend” her guardianship to be voluntary.

Monday, September 17, 2012

General Aggravation



State v. Bourn, 2012 VT 71.

When the first sentence of a decision includes the words “an incident where he pointed an unloaded muzzleloader toward two police officers who were attempting to remove him from a home” you know it’s going to be an interesting read. 

Defendant was convicted of two counts of aggravated assault stemming from that incident.  He appeals with a twofold argument: first, that the charge of aggravated assault with a deadly weapon requires proof of specific intent to threaten and the trial court erred when it refused to give such an instruction, and second, that same intent may be negated by diminished capacity.  The SCOV agrees with Defendant that Vermont’s aggravated assault statute requires specific intent, and reverses.

The story begins with Defendant, his brother, and their buddy drinking and hanging out at the buddy’s house.  According to the buddy, at one point Defendant got very upset and began arguing with his brother.  Defendant became more or less “hysterical.”  Police officers, who I’ll call Toody and Muldoon (no idea about real names—but this sounds better than Officer 1 and Officer 2) came to the residence.  Defendant yelled obscenities and claimed that he was being deployed and was going to die “over there” . . . but Defendant isn’t and never has been in the military. 

Stand Down



Franklin Co. Sheriff’s Office v. St. Albans City Police Dept., 2012 VT 62.

Sometimes an entire case revolves around a single philosophical concept.  This is what makes the law difficult because legal concepts can be hard enough to grasp when they are tied to concrete examples.  But when a court asks, “What is Unfair Competition?” it might as well say, “What is air?” because the answers to both tend to be equally esoteric and unsatisfying to the idle examiner who wants to wrap her arms around more than a concept. 

Today’s case has three such key concepts:  1) Legal Standing; 2) Predatory Pricing; and 3) Public Entities.  Trying to define all three as well as explain their interplay is critical to unpacking the SCOV’s decision, but doing so is subtle work that is akin to parsing air with a knife.

A Quick One (While the State’s Away)



State v. Bresland, 2012 VT 75 (mem.).

Let us, like the SCOV in this case, be brief. 

Defendant was charged with three crimes following a traffic stop: DUI (third offense), refusal to take a breath test, and driving with a suspended license. 

The arresting officer submitted a sworn statement providing testimony and basis for probable cause for each element of the three crimes.  At Defendant’s initial arraignment, though, the trial court found that the State lacked probable cause for the second charge, refusal to take a breathalyzer.  The trial court gave no explanation for its ruling but dismissed the charge.

Friday, September 14, 2012

Il Buono, Il Brutto, e Il Esentato (The Good, The Bad, and The Exempted)



Galloway v. Town of Hartford, 2012 VT 61.

As the title says, today’s case is a three-way split concerning the application of the law enforcement exemption to the Vermont Public Records Act.  In an unusual split, we have a plurality opinion formed by two justices; a concurrence joined by two more; and a lone dissenter knocking the whole decision.  Lump on top of that the fact that two of the four members making up the majority were superior court judges specially assigned to the case, and you have a recipe for a Mexican Judicial Standoff.

So how did we end up here with a SCOV opinion that is the legal equivalent of three gunslingers in the middle of a Confederate Graveyard?

As usual, the answer starts with an unresponsive naked man found in the bathroom of a house.

All Vote And No Action


By Nicole Killoran

In re Rumsey, 2012 VT 74.

If you’ve been paying attention to political rhetoric lately, particularly with regards to recipients of welfare and social security benefits, you might assume that getting on the dole is as easy as panhandling on a busy street corner.  The reality is, qualifying for government assistance usually involves struggling to convince someone deep in the administrative state that you are truly in need of help, and appealing a denial until someone agrees with you.  As today’s decision also demonstrates, sometimes those busy bureaucrats just can’t be bothered with the details of your case, though for today’s applicant it happened to worked in her favor.

Some Things Never Change . . . Never



Vt. Golf Assoc. v. Vt. Dept. of Taxes, 2012 VT 68

Benjamin Franklin once said, “But in the world, nothing can be said to be certain, except death and taxes.”  Today’s case is no exception.

Here are the basics.  Plaintiff Association is in the business of sponsoring golf tournaments throughout the State of Vermont.  Would-be golfers pay the Association an entry fee for sponsored tournaments and Association then pays green fees to the hosting golf course.  It all seems relatively straightforward.  But the Tax Department put the Association in the rough when it audited the Association for tax years 2001 through 2008 and determined that the Association owed some green fees of its own—namely unpaid sales and use taxes on previously collected entry fees.  

Following the audit, the Association began collecting and remitting sales taxes, under protest, to the Tax Department.  The Association also requested a hearing to contest the Department’s conclusion that these taxes were due in the first place.  A hearing was subsequently held and the Commissioner of Taxes determined that the entry fees were indeed subject to taxation.  

No surprise here.  Death and taxes, people, those are the only two sure things.

Monday, September 3, 2012

An Unreasonable Petition


By Nicole Killoran

In re Kirby, 2012 VT 72.

Today’s case is a post-conviction review decision.  As regular readers may remember, post-conviction review occurs after a criminal is convicted and sentenced and has exhausted all of his or her appeals.  Post-Conviction Review (or PCR as those-in-the-know call it) is an appeal to the superior court seeking relief from an error in the underlying process.  At a PCR hearing, the Petitioner (who is usually incarcerated) will argue that he or she received ineffective assistance of counsel, did not knowingly waive his or her rights, or possesses new evidence showing innocence.  What a Petitioner cannot do is re-try the original criminal case.

The old saw is that a defendant is entitled to a fair trial, not a perfect one.  PCR is the way we test the fairness portion of that proposition.  Ask John Grega if it works.

Say what you will



State v. Reid, 2012 VT 65

This appeal focuses almost solely on whether the time, content, and circumstances of a child-victim’s statements provided substantial indicia of trustworthiness.  The SCOV holds that the statements and circumstances in this case do, and affirms Defendant’s conviction for aggravated sexual assault. 

Briefly, the six-year-old child-victim in this case made statements to friends and neighbors, was subsequently interviewed by a DCF investigator and police officer, and also made statements at the hospital to a Sexual Assault Nurse Examiner (SANE).   The State gave notice that it intended to introduce several of the victim’s statements into evidence pursuant to Rule of Evidence 804a, and the trial court held a pre-trial hearing on the admissibility of the statements.

Unannounced Guests



Chickanosky v. Chickanosky, 2012 VT 52 (mem.).

Welcome back to the parties in today’s case.  They were last featured in an appeal from a year ago concerning the Father’s impending, post-divorce move to Missouri.  At that time, the SCOV affirmed the family court’s award of sole legal rights and responsibility to the father but granted summers to mother along with the right to see daughter if mother ever happened to find herself in Missouri.

As before, the central issue in today’s case is the incompatible love that the parents have for their child and the on-going difficulties arising from this conflict. 

Sunday, September 2, 2012

Well I Never!



Shaddy v. Brattleboro Retreat, 2012 VT 67

Most of us do not make it through elementary school without getting caught, at least once, with our hand in the cookie jar. Whether we are busted with the cookie firmly in our grasp or with only the aroma of freshly-baked, chocolate chips emanating from our breath, our reprieve will often depend more on what we say and how we say it—even more than the evidence mom can clearly perceive.

Blame it on a mother’s unconditional love, classic denial, or that second glass of wine she chugged just before you hopped off the bus, but if there is any rational explanation for your otherwise indisputable wrongdoing, she will want to accept it as true.