Friday, April 26, 2013

April Departures

As has become a tradition at our blog, let us take a moment to congratulate and honor the most recent member of the SCOV to announce his retirement.

Justice Brian Burgess has announced his retirement effective August 1, 2013.  Justice Burgess was appointed in 2005 by Governor Jim Douglas and prior to that he had a long and distinguished career on the trial bench.

Justice Burgess has brought a sharp wit and sense to the SCOV, and his opinions as well as dissents are characterized by clear writing, solid logic, and the lived-in knowledge of statutory law that only comes from years of working it out in the trial courts.  Whether you agree or disagree with Justice Burgess, you can count on the fact that his position will be well-reasoned and articulate.

On a more personal level, Justice Burgess has represented the bench and our state in the best tradition of Vermonters.  He has for many, especially young attorneys, been approachable, open, and generous with his time and advice.

What more could anyone ask from a justice?

We wish Justice Burgess well in his retirement and thank him for his years of service.

---And we ask him to just remember if he gets bored to consider a regular column at the SCOV Law Blog.

We'd be happy to publish it!

You’ve Been Warned


By David Rangaviz

State v. Brooks, 2013 VT 27

With the tragic events in Boston, the eyes of the country have turned toward Miranda.

Miranda, as I summarized in a previous post, requires police to read a series of rights (“you have the right to remain silent, you have the right to an attorney … etc.”) to a suspect in custody, and then obtain a knowing and voluntary waiver of those rights, before any interrogation can proceed.  Of course, police can still question a suspect without providing the warning, but any incriminating statements made during that interrogation will later be inadmissible in court.  To obtain a useable confession, Miranda warnings must be given and the rights described therein, waived.

The surviving suspect in the Boston Marathon bombing was not initially read this warning.  It has led to a significant amount of press coverage of something called the “public safety exception,” under which police can engage in a limited unwarned interrogation when confronted with an imminent threat to public safety and still have the resulting statements be admitted.  (More detail on the origin and doctrine underlying the public safety exception can be found here and here.)

Independent Elections


Trudell v. State, 2013 VT 18

The lesson of today’s case is that the Vermont legislature, like Lucy with the proverbial football, can change the rules of an election and pull the “football” at the last minute—or as in this case a year before. 

The moral of today’s case is that while you may have a federal argument to prevent Lucy from pulling the football, don’t forget to bring the Vermont constitutional argument too.  And if you do, then argue it—really argue it.  Like this guy argues. 

Otherwise, it is AAUGH and a flop on your back.

In other words, if Lucy can’t move the football under the Vermont Constitution, then you really need to tell the SCOV why.  Or you may end up, in addition to the flop, on the receiving end of a double bench-slap from the SCOV.     

Thursday, April 18, 2013

[S]low Rider


Fagnant v. Foss, 2013 VT 16

This case is about a slow bump-and-grind . . . and some serious whiplash injuries . . .



—With automobiles, that is . . . in a low-impact, rear-end collision.


In more-legal terms, this case is about how foreseeability relates to proximate cause when duty and breach have been established. 

The short answer is that it generally doesn’t. 

Sunday, April 14, 2013

The Thing I Cannot Get



State v. Casey, 2013 VT 22

No frills, philosophical introductions, or lengthy explanations for today’s case.  It is a piece of shopcraft, the law’s version of boilermaking.  So in that spirit let’s get to the heart of things and see how it is done.

Defendant and his girlfriend were charged with multiple counts of aggravated sexual assault.  The opinion never details the facts from which these charges stem, but there are enough details and references to glean that these were horrible acts and likely involved the girlfriend’s daughter.  The trial court, quoted in paragraph 5 goes the Lovecraft route and repeats the word “shocking” to summarize the cumulative horror of the evidence in the case. 

Saturday, April 13, 2013

Decisis Unchained


By David Rangaviz

State v. Snow, 2013 VT 19

The law of sexual assault has come a long way.

At common law—which basically means “back when Americans spoke with British accents”— a rape or sexual assault conviction required that the perpetrator used force or threatened the use of force.  Rape was “carnal knowledge of a woman forcibly and against her will.”  Sexual assault by coercion, deceit, or (most relevant for today’s case) taking advantage of the unconscious was not necessarily a crime.

Today, however, most American states define sexual assault by the absence of consent.  In other words, the burden has shifted.  Originally, the victim basically had to prove that force was used.  Today, the burden is on the perpetrator to prove that he or she acted with consent.

Today’s case is a reaffirmation of that rule.

This is what we in the game call “progress.”

Pop-Up Pop



Columbia v. Lawton, 2013 VT 2

Any bleary-eyed parent, awakened by her child’s cries in the middle of the night, has no doubt come to the hard-won realization that being a parent is more than simply contributing genetic material.  It is a series of sacrifices and steady work that yields a relationship with a budding person.  It is not easy going, but it is consistently and deeply rewarding.

Growing up as children of the first large wave of divorce in the 1970s, many of us had a name for those fathers who had made their biological contributions and then split the scene before this work began—sperm donors. 

Interestingly enough, the law recognizes this distinction between a parent who is so by virtue of his role at conception and a parent who becomes one through the dedicated work of caring for and raising the said by product of the former.  In an ideal situation these people are one and the same, but this is SCOV Law, and the ideal is rarely seen.

Thursday, April 11, 2013

Job Control



State v. Freeman, 2013 VT 25

Most criminal cases end in a plea bargain.  That’s simply a fact.  Why these cases settle rather than going to trial is an interesting mixture of strong evidence of guilt, fear of going to trial (and the resulting consequences), lack of resources, and the ability to strike a good deal.

Yet, just because the State and defendant strike a deal does not relieve the trial court of the obligation to scrutinize the deal.  It also does not foreclose the defendant’s ability to challenge all or some portion of the sentence on appeal.  Plea bargains, while voluntary, must be entered into knowingly and willingly.  The trial court must interview the defendant before accepting the plea bargain to make sure that the Defendant knows what she is accepting and to make sure it is a voluntary deal.  Failure to do so can result in a plea agreement being set aside on appeal and a defendant freed of an involuntary bargain.

The same largely goes with sentencing.  Often parties will agree to an overall guilty plea (defendant pleads guilty to three out of six charges and the remaining are dismissed) with an agreed sentence period, but they will leave some of the terms open for the trial court or the probation officer to add and recommend. 

The Nuclear Option



In re Investigation into General Order 45, 2013 VT 24 (mem.)

File this one under yet another attempt to shut down Vermont Yankee.

Petitioner is a coalition of anti-nuclear activists seeking closure of Vermont’s infamous nuclear facility on the banks of the Connecticut. 

As you may have heard, Vermont Yankee and its owner, Entergy, are not exactly getting along with the State of Vermont.  Last year, Entergy sued the State in federal court and won an injunction that prevented the State or anyone else from shutting down the plant based on the Vermont legislature’s vote to shut it down.  That decision is on appeal, but the district court’s broadly worded injunction remains in place.

This ruling, though, did not relieve Entergy from the obligation to seek a new Certificate of Public Good from the Public Service Board, and Entergy has dutifully applied for the renewal, or as the State calls it—Round 2. 

You Have Been Served



Welch v. Welch, 2013 VT 20

This is quickie from the SCOV that answers a burning question: do you have to personally serve an order on a party in a family law case before you file a motion for contempt?

I know.  I know.  The question has kept you up for weeks too, right?

Well, rest easy group.  The SCOV is here with a definitive answer.  

Tuesday, April 9, 2013

Sizing Up the Situation



State v. Dunham / State v. Tatham, 2013 VT 15

Last week, we opined about the nature of DUI law and the reasons why so many DUI cases are vigorously challenged despite the relatively simple and straightforward nature that such crimes are detected.  This week brings an exception that almost seems to prove the rule (until it doesn’t).

Defendants in each of the consolidated cases were driving late at night.  The first was driving on U.S. Route 5 near the intersection with Lake Morey Road (Trivia Note: this close to where a pivotal scene from the 1983 Robin Williams/Walter Matthau vehicle, The Survivors, was filmed).  The second was in Bradford.

In both cases, the Defendants drove past state troopers who because of circumstances could not get a clear target with their radar but who observed the Defendants driving at speeds that the troopers assessed to be well above the speed limit.  In both cases, the troopers gave pursuit, stopped the vehicles to warn them about speeding, detected alcohol emanating from the vehicle and eventually processed them for DUI.

Thursday, April 4, 2013

Take It Away



In re O’Meara, 2013 VT 17 (mem.)

Give this to the lawyers.  We don’t mess around when it comes to discipline.  When one of our members is caught doing something wrong, our professional conduct boards are not known for their great sympathy.  In fact, every state bar in this country employs a staff of lawyers whose sole job it is to investigate and prosecute allegations of misconduct and ethical violations. 

Anyone who has been on the wrong end of such a discipline investigation can tell you that these people take their job seriously and the resulting call is hardly a clubby or chummy visit from a fellow barrister here to set you straight.  It is an eye-opening experience, during which you are quickly aware of how much is at stake.  Let’s just say it is kind of like a being pulled over by a state trooper who just noticed your N.W.A. bumper sticker and backseat bong collection. 

Or so I have been told.

Tuesday, April 2, 2013

Failed Foreclosure by Fiat



Prue v. Royer, 2013 VT 12

Friends don’t let friends run dive bars.  Also, listen to your realtor when she tells you to talk to a lawyer.     

The Prues and Royers were friends.  It’s safe to assume that’s past tense.  The Royers owned a bar called the Brewski Pub.  In ’99, the parties began discussing the possibility of the Prues purchasing or taking over the operation of the bar.  The Prues did take over operation of the bar and the parties signed an agreement, which was basically a form-purchase-and-sale agreement modified to the point of no return by the parties and the Royers’ real-estate agent. 

The agent encouraged the parties to have a lawyer draft the proper documents.  When the parties did not, the agent wisely included a hold-harmless clause in the contract.  The SCOV explains: “As the events unfolded, it became clear that the parties should have listened to the real estate agent.”

Drawing Things Out



State v. Gentes, 2013 VT 14 (mem.)

It is no secret that a large number of criminal defense attorneys make their money representing people in DUI cases.  Murders and serious crimes are (thankfully) rare, and to make a regular salary, the defense bar must represent those unlucky and numerous individuals who have decided to take the car for a spin after an evening of tippling. 

The result is that this relatively minor area of the law receives an unusually high level of scrutiny because there is a substantial class of attorneys who have a strong self-interest in creating such challenges.

To be clear, DUIs are not minor.  The statistics largely speak for themselves, and they show that drunk drivers pose a serious risk to the public and that a generation of tough enforcement has led to safer streets and fewer fatalities. 

But the process of stopping, collecting evidence, and processing a DUI for trial is not rocket science or highly creative police work.  Unlike many homicides, for example, the police always have a suspect, and they almost always catch this suspect in the middle of the crime.  Often the car is littered with a treasure trove of circumstantial evidence.  Given such advantages, it would seem ridiculous that there would be the massive number of challenges or a substantial body of aggressive litigation on these issues.