Monday, December 10, 2012

New Frontiers



Hemond v. Frontier Communications of America, Inc., 2012 VT 94 (mem.).

To truly under understand why defendants fought against the action and took the appeal, read this summary, and then read the last line of the published decision.

Here are the facts, Defendant and its predecessor corporation owned a number of transmission lines.  In 2002, it undertook the reconstruction of a substation in Richford.  As part of this work, Defendant redesigned and installed Switch 14E.  At the time, Plaintiff was employed by Defendant as a lineman, albeit not from Wichita.

Hold Me



State v. Steuerwald, 2012 VT 98 (mem.).

If this blog teaches you anything it is (hopefully) this: that the practice of law rarely looks like what you see in the media.  No telegenic lawyers pushing for justice and fundamental human rights against a system that is still sorting out the essential constitution from mere politics.  No screaming, over-the-top litigators telling the system that “it’s outta order.”

No, there is nothing like that in the day-to-day practice.  Instead, it is a bunch of (mostly) well-intentioned attorneys trying to make the best arguments in favor of their client’s interest and a court system that is simply trying to get it right. 

But every now and then there is a case that shows the drama of the law and the pathos of life wrecked upon the shores of the legal system.

[Re]Coupon Taxes



World Publications, Inc. v. Vermont Dept. of Taxes, 2012 VT 78

Today’s case concerns the amount of taxes a free newspaper must pay for the coupon section that it offers to readers as a monthly special. 

That’s right, it is a tax appeal case, and the question at the heart of it all is this:

When you break down a newspaper into its component parts, does it include a once-a-month coupon book? 

“No, no it doesn’t,” says the SCOV. 

Back to My Little Grass Shack



State v. Shepherd, 2012 VT 91.

Today’s case involves restitution in a criminal matter that divides the SCOV on the issue of what constitutes a material loss from a crime.  Due to the extreme nature of the crime as well as the expansive, but logically connected remedy, this case has the potential, as the Dissent warns, of opening a new era in expanded restitution awards or, as the majority asserts, to simply be a legal cul de sac of little value beyond its own fact-specific outcome.

Here are the facts.  Defendant was hired by victim’s family to take care of victim, a minor, and his brother, who has autism and a kidney disorder that keeps him in constant pain.  Mom has fibromyalgia and was unable to care for her sons.  Defendant, exploiting his situation, sexual abused and assaulted the victim numerous times over a two-month period.

The Development Next Door



In re Woodstock Community Trust and Housing Vermont PRD, 2012 VT 87.

There ought to be a name for this kind of case because its type is common event in land use law.  Calling it BANANA-NIMBY as one contributor has suggested may capture some of the feeling, but it does a disservice to both sides and to the totally committed nature of the litigation.  Appeals of this ilk are not simply protective actions by a neighbor trying to protect her view or a favored open field.  It is a primal scream that expresses outrage across the spectrum.  It says that this project not only offends me, it offends the Town, our community, the land use laws of this state, the zoning practices of the past fifty years, private property boundaries, and the common decency we expect in Vermont. 

In short, an appeal like this one is absoluter kreig.  Neighbors opposing the development at the heart of today’s appeal have filed multiple lawsuits, attended countless zoning meetings, have retained a cadre of expert witnesses, and have likely spent more hours trying to stop this project than you can imagine.  In this respect, NIMBY or like terms are not accurate.  These neighbors have looked at the proposed development and have come to believe that something foul lies at its heart, and they have pledged time and fortune to see that it does not come to pass.

Wednesday, December 5, 2012

Having a Party

The Young Lawyers Division is having a holiday party in Rutland!


That's right!  Vermont's YLD is hosting its First Annual Holiday Party! 


The event is Thursday December 13, 2012 from 5:15-7:15 PM at Table 24 which is located at 24 Wales Street, Rutland Vermont, http://www.table24.net.


There will be complimentary hors d'oeuvres and a cash bar.  


All attorneys and legal professionals are welcome for conversation and holiday cheer.

Time Has Come Today



Vt. Human Rights Commission v. State of Vt. Agency of Transportation, 2012 VT 88.

It seems appropriate to start off today’s summary with a shout out and congratulations to Robert Appel, the now-former Executive Director of the Vermont Human Rights Commission and lead counsel for Appellants in today’s case. 

For those not familiar with the VHRC or Mr. Appel, the Commission is an autonomous agency in state government that protects individuals from discrimination.  Whether that discrimination is from the state or a private actor or whether it is employment, accommodation, or housing discrimination, the VHRC is charged with investigating, prosecuting, and ending such practices.  And for the past eleven years the face of the VHRC has been Mr. Appel. 

House Poor



In re Clifford, 2012 VT 95.

The facts of this case are simple and elegant.  Applicant sought long-term home health care benefits under Vermont’s Choices-for-Care program, which Medicaid funds through the state. 

Like most Medicaid programs, Choices is income and asset sensitive.  That means an applicant must show that she is below a certain income level and does not have valuable assets on her books. 

As with all things legal, there are exceptions to certain income and certain assets.  In particular for this case, the rules allow an applicant to exclude the value of her home, related outbuildings, and surrounding contiguous property. 

Somebody Else’s Mess



In re Crannell, 2012 VT 85.

Whew!  Talk about a mess!

Petitioner was originally convicted of murder in 1995.  He lost his appeal in 2001 and filed a Post-Conviction Relief Petition that same year.  Eleven years later, he appears before the SCOV trying to clarify the preliminary issue of securing counsel to review, draft, and litigate his petition. 

Think of it this way, 92% of PCR cases are resolved within 3 years of their filings.  The remaining 8% are finished shortly thereafter.  Petitioners’ case has continued nearly four times as long, and he has not passed Go.  Hell, he has not gotten past Baltic Avenue.  As the concurrence notes, Petitioner likely has the oldest pending civil case in the entire state.

Tuesday, December 4, 2012

Sheet Stains Tell No Tales



In re Wiley, 2012 VT 76.

One of the main beneficiaries of DNA science in the last 30 years has been the criminal justice system.  As the testing becomes better, more widely available, and more reliable, the question of whodunit is more and more likely to have a solution.

The effectiveness of DNA evidence has not only been a prospective boon to current defendants, but it has proven to be a holy grail for those who claimed to be wrongly convicted and seek exoneration.  One need only quickly browse the Innocent Project and other, similar organizations to see that DNA testing of old evidence is a vital method of correcting flawed verdicts.

As a result of such work, many states, including Vermont, have adopted Innocence Protection Acts (IPA) designed to provide convicted felons with access to DNA testing.  The balancing act here lies between giving convicts meaningful access to DNA (and potentially exoneration) and not merely making this another wild goose chase for inmates that have no chance at proving their innocence but have every incentive for requesting such procedures. 

Monday, December 3, 2012

“Dead” DataMaster Delivers Defendant



State v. Spooner, 2012 VT 90

One of the most-amusing parts about this case is how it starts its path through the judicial system.  Just before midnight, Defendant gets stopped after ignoring a “Road Closed—High Water” sign and crossing a flooded roadway.   

Now I don’t know about you, dear reader, but a sign like that is a challenge to someone like me.  Some people might say that’s because I’m a moron, but “some people” is downstairs reading a book after the kids have gone to bed and can’t hear me muttering—so there.

Stop! (In the Name of Ownership)



State v. Edmonds/State v. Cobb, 2012 VT 81.

Today’s case seems like the response to a cocktail party question: Can a police officer pull a car over if the computer says the owner’s licensed is suspended?

The answer, not too surprisingly, is yes.