Thursday, January 31, 2013

Blown Away



In re Joint Petition of Green Mountain Power Corp., 2012 VT 89.

Today’s case is one of the first in what will likely be a series of cases sparked by the spate of wind turbine construction throughout Vermont by various utilities and private companies.  As we have previously seen, challenges to overturn the decisions of the Public Service Board face an uphill battle, and today’s case is no exception.

This is because the Board is really a quasi-adjudicative body.  It is primarily a regulatory agency, and as such, its decisions are given deference by the SCOV, who is usually more than happy to leave the policy or fact-finding portions of the decision intact short of overwhelming evidence to the contrary. 

In theory this is neither good nor bad.  We expect administrative proceedings to be different—a little stilted, and focused on a particular area of specialization. 

In practice, this framework tends to favor the developers of projects who gain a great deal of experience and sophistication before the Board and as a result are able to navigate its regulatory process better than the random opponent who may or may not have competent counsel.  On top of this is the traditional regulatory problem of proof.  Often the burden of proof falls upon the applicant to show no harm will come from a project, but with Board matters, the issue is public good. 

Wednesday, January 30, 2013

Home Sweet Home State



In re C.P., 2012 VT 100.

Perhaps one of the most sensitive and human questions of law the legal system must address is whether to terminate rights of parents to their children.  The ability of parents to make decisions about the upbringing of their children is a fundamental right that the United States Supreme Court believes is protected under our federal Constitution.  The decision to revoke that right is thus not one that can be taken lightly.

The sad fact is, occasionally the biological urge of our species to reproduce results in a child whose parents simply cannot provide, despite their best intentions.  Today’s case questions whether a Vermont trial court properly exercised its jurisdictional authority to determine the life of a toddler with disabled parents.

Tuesday, January 29, 2013

Confronting Neighbors (and Witnesses)


By David Rangaviz

State v. Tribble, 2012 VT 105

Criminal decisions are, very often, exercises in line drawing.  In this exercise, rules are highly fact-specific.  Change just one fact, and the outcome can easily turn with it.  Because no two cases are ever identical, each new one demands that a court constantly re-examine its earlier rules and either (a) re-draw the line to accommodate the new case, or (b) keep the line unchanged and explain why.

In today’s decision, the SCOV, with considerable help from the SCOTUS-above, opted to re-draw a few pivotal lines in the areas of the right to confrontation, self-defense, and the diminished capacity defense.  In the process, the Court reversed a murder conviction.

But we are getting ahead of ourselves.  First, the facts.

Thursday, January 10, 2013

The Big Thaw

Greetings VBA Members and True Believers:

It is that time of year again when a gust of warm weather raises its head and reminds us that winter is not forever and that sugaring season is in sight.

What better way to celebrate a sudden outbreak of spring than to pack up and go further North!

That is right, it is time again for the Young Lawyers Division's Annual Mid-Winter Thaw in Montreal,

This year the featured guest is Anne Galloway, the founder and publisher of Vermont Digger, which among other good qualities generously cross-posts our blog.

If you have never been to the Thaw, then your life is not complete.

Urbane surroundings, plentiful CLEs, and a chance to mix it up with the stars of the Bar.  Who could ask for anything more?

Here are the details.

Book your spot now!

Thursday, January 3, 2013

“Lots” of Litigation



In re Estate of Maggio, 2012 VT 99

This case seems complicated at first, but it can be broken down into two primary sets of issues.  The first set of issues concerns whether certain evidence is admissible; the second set of issues concerns how the Uniform Partnership Act (UPA) applies to a Connecticut partnership that held property in Vermont, when one partner has died. 

But if you like complicated . . . the instant case stems from a quiet-title action, which morphed into an ancillary intestate estate proceeding, followed by a superior court appeal, which went one way when appellant thought it should’ve gone another. 

Confused?  If you’re not, I am.  Let’s go through it a little bit slower.

To Protect and Seal



In re Essex Search Warrants, 2012 VT 92.

The vast majority of the SCOV’s day-to-day business involves the rather dry business of writing judicial opinions on clinical and esoteric questions of law.  Over time, the consumption of these materials can lead one to believe that the entire process of justice is as boring as the questions of procedure that seems to endless emerge from the incessant appeals.  But once a session the SCOV seems to spit out an opinion, which proves that the Court and its honorable authors are not mere judicial automatons stuck in an anonymous paper chase, but fiery individuals possessed of wry humor and no small amount of literary knowledge.

Today’s case bears such fruit.  It involves a fractured SCOV, a whodunit mystery—the facts of which lend themselves quite nicely to a conversation on Sherlock Holmes—and an exchange of quotes between the dissent and the majority.  But, dear Watson, let us begin with the basics as the game is afoot.