tag:blogger.com,1999:blog-81106390029332289712024-03-13T08:42:04.323-04:00SCOV LawThe Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.Daniel Richardsonhttp://www.blogger.com/profile/14370460563783593796noreply@blogger.comBlogger1170125tag:blogger.com,1999:blog-8110639002933228971.post-43749537176616273042024-03-09T12:54:00.001-05:002024-03-09T18:25:03.562-05:00What's the "use"? March 8, 2024<p></p><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqZ9un4AY-97AF_esFX38CuCpZHZlrfLF5r9qpeZtDvUrEqpaimrjkI4hOfaS68biKmBdDHNp9FiBQ8jlE-WGui4L7emkJJNKfL_rlv7yU6xWyJZHTYPtp5QivSuLBkIHXWih3B9Br2wi7sqYDpt8u6P6LKxtFPDQf26EkNTz1SOdzR48sN8ftj2x3RX0/s640/todo-list-297195_640.png" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="640" data-original-width="464" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqZ9un4AY-97AF_esFX38CuCpZHZlrfLF5r9qpeZtDvUrEqpaimrjkI4hOfaS68biKmBdDHNp9FiBQ8jlE-WGui4L7emkJJNKfL_rlv7yU6xWyJZHTYPtp5QivSuLBkIHXWih3B9Br2wi7sqYDpt8u6P6LKxtFPDQf26EkNTz1SOdzR48sN8ftj2x3RX0/s320/todo-list-297195_640.png" width="232" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Don't deposit the check!</td></tr></tbody></table>By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a><p>This week's opinion explores whether depositing a check for a partial payment constitutes "acceptance and use" of payment for purposes of barring a challenge to necessity of the taking or the public purpose of a highway project. I swear I was trying to simplify there, but I'm not sure I made it. It's not quite a have-your-cake-and-eat-it-too situation, but the phrase does come to mind. </p><p>The State of Vermont is reconstructing the I-89 interchange at Exit 16. In connection with this project, it determined it needed to take some land. It brought condemnation proceedings, which are required when those with property interests don't agree to the taking. In this case, those proceedings ultimately shook out so that two such entities were entitled to payment (I'm simplifying). The <a href="https://legislature.vermont.gov/statutes/section/19/005/00506">statute</a> governing the proceedings provides that "use and acceptance" of a payment doesn't foreclose damages arguments, but does bar challenging necessity and public purpose determinations. After the trial court found that the State was entitled to condemnation, the State made payments. Defendant one put a payment in its operating account, and a couple months later, put the amount in a trust account and sent the State a check for the same amount. The State sent the check back. Defendant two deposited a couple checks. The trial court granted summary judgment to the State, reasoning that there was acceptance and use of payments (partial or not) and that the defendants no longer had the right to challenge the necessity or public purpose of the project. </p><p>Defendants appeal arguing, in a nutshell, that depositing a check that is not spent does not constitute use and acceptance of the funds, and further, that it can't constitute acceptance and use because the State didn't pay the whole bill (both entities have more coming and intend to reject the payments). SCOV does not agree, reasoning that the partial acceptance and use of the funds creates a bar under the statute. And that brings us to the real question on appeal: whether <i>depositing</i> a check is "use" in this context. SCOV reasons that it is, explaining, "The payee’s account balance is altered 'by means of' the payment. The payment itself is 'expend[ed] or consume[d]' because the check, once deposited, is no longer a negotiable instrument. Thus, an interpretation of § 506(c) under which depositing a check is one 'use' of a payment is consistent with the plain and ordinary meaning of the term." SCOV "checks" the box and affirms. <i>Agency of Transportation v. Timberlake Assoc., LLC</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-059.pdf">2024 VT 14</a>.</p><p></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-54227001896007102562024-03-02T20:31:00.000-05:002024-03-02T20:31:11.607-05:00FEMA Means "February-March"<div class="gmail_default"><span style="font-family: inherit;"><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhalEfzTgOF5sGhGRoX0TBLF9FrZRC0iGg8TohWJbGQIuoojGW-BEwrry6C6pnkZcxij7lZLiUUiLvKTrLSrdONDFMNpGnrdO6CAHQWNQnx4OgOMfkyMiA7_K0u6wy3h7uDs27xU4pPQorX65cLKNxkObMJ-C21UV7Slrl89JX_JekIEjfEsgSNEj_ZyuE/s1157/scov2.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1157" data-original-width="1107" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhalEfzTgOF5sGhGRoX0TBLF9FrZRC0iGg8TohWJbGQIuoojGW-BEwrry6C6pnkZcxij7lZLiUUiLvKTrLSrdONDFMNpGnrdO6CAHQWNQnx4OgOMfkyMiA7_K0u6wy3h7uDs27xU4pPQorX65cLKNxkObMJ-C21UV7Slrl89JX_JekIEjfEsgSNEj_ZyuE/s320/scov2.jpg" width="306" /></a></div>By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a> </span></div><div class="gmail_default"><span style="font-family: inherit;"><br /></span></div><div class="gmail_default"><span style="font-family: inherit;">On February 26, 2024, SCOV issues a published Entry Order on a hold-without-bail case. This one is a little different because the State is appealing the trial court's decision to let someone out on bail. Defendant is charged with accessory after the fact to murder. The State argues that this is a crime of violence (a necessary element for a hold-without-bail order). The trial court and SCOV disagree. Even if the State ultimately has to prove a violent act, the accessory-after-the-fact charge does not include violence as an element. SCOV affirms the trial court. <i>State v. Bulson</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo24-041.bail_.pdf">2024 VT 15</a> (mem.)</span></div><div class="gmail_default"><span style="font-family: inherit;"><br /></span></div><div class="gmail_default"><span style="font-family: inherit;">On March 1, SCOV issues two opinions. </span></div><div class="gmail_default"><span style="font-family: inherit;"><br /></span></div><div class="gmail_default"><span style="font-family: inherit;">First, we have a case dealing with contempt and fines in a zoning-enforcement action in the environmental division after landowner "repeatedly failed to comply with prior orders." Landowner appeals, arguing constitutional violations, among other things. SCOV agrees with Town that landowner's arguments are impermissible collateral attacks and affirms. <i>Pawlet v. Banyai</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-231.pdf">2024 VT 13</a>. </span></div><p><span style="font-family: inherit;">Second, we have a case about standing. A grant got awarded and one of the applicants didn't like that. So the applicant filed suit against lots of governmental and nongovernmental entities. Ultimately, the trial court dismissed the suit, reasoning that applicant lacked standing to bring the claim. SCOV, without too much fanfare, affirms. Because applicant has no legal right to the grant money, there's no actual harm, and thus, no standing. The trial court got this one right. <i>Housing Our Seniors in Vermont, Inc. v. Agency of Commerce & Community Dev.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-127.pdf">2024 VT 12</a>. </span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-34023664655080225902024-02-25T13:24:00.000-05:002024-02-25T13:24:16.834-05:00The February 23, 2024 Bunch<p style="text-align: left;"><span style="font-family: inherit;"><span style="font-size: 12pt;"></span></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiGCN5KrQqg4Xy7-ikTXxzIyoFwc0Z8eoI8SNRZg-fT4lDdEbD_ijzWo02AQ5idGbuuCkB-_8ME8Zl-PunZzEWurq5GaMzjGsRIILi17yuDHmj6ty3QEjYJB2JOPznUjk97UjxkyjYQsYKmF9_FSh6C29OFRGvXEt0kCr83wBZpmjeH8Ky4p_jv3UL4c-U/s1200/SCOV.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="886" data-original-width="1200" height="236" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiGCN5KrQqg4Xy7-ikTXxzIyoFwc0Z8eoI8SNRZg-fT4lDdEbD_ijzWo02AQ5idGbuuCkB-_8ME8Zl-PunZzEWurq5GaMzjGsRIILi17yuDHmj6ty3QEjYJB2JOPznUjk97UjxkyjYQsYKmF9_FSh6C29OFRGvXEt0kCr83wBZpmjeH8Ky4p_jv3UL4c-U/s320/SCOV.jpg" width="320" /></a></span></div><p style="text-align: left;"><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="font-size: 12pt;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a></span></span></span></p><span style="font-family: inherit;">Three opinions this week. First,
we deal with whether <a href="https://casetext.com/rule/vermont-court-rules/vermont-rules-of-civil-procedure/vii-judgment/rule-59-new-trials-amendment-of-judgments">Rule 59</a> can save a possible pleading deficiency. Here,
SCOV says “yes.” This case is about an airport, so naturally, we’re going to
link to a <a href="https://www.youtube.com/watch?v=vz32NNMpuW0" style="font-size: 12pt;">punk-rock cover</a><span style="font-size: 12pt;">
of John Denver’s classic </span><i style="font-size: 12pt;">Leaving on a Jet Plane</i><span style="font-size: 12pt;">.</span><i style="font-size: 12pt;"> </i><span style="font-size: 12pt;">Plaintiff-developer’s
EB5 breach-of-contract case was dismissed by the trial court. After the trial
court dismissed the case, the trial court closed the file. Plaintiff moved for
reconsideration and permission to file an amended complaint. The trial court
denied the motion and considered the matter closed. Plaintiff appeals, SCOV
reverses, and we’re back to the beginning. We’ll see what happens next. </span><i style="font-size: 12pt;">Stowe
Aviation, LLC v. Agency of Commerce & Community Development</i><span style="font-size: 12pt;">, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-311.pdf" style="font-size: 12pt;">2024
VT 11</a><span style="font-size: 12pt;">. </span><span style="font-size: 12pt;"> </span><span style="font-size: 12pt;"> </span><span style="font-size: 12pt;"> </span><span style="font-size: 12pt;"> </span></span><p></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">Next is an undue-influence case. The
majority concludes that beneficiary’s $40K-to-buy-the-house bequeath from testator
was a result of undue influence and that the trial court was correct to void
that provision. The evidence at trial showed that beneficiary was buying things
with testator’s money and withdrawing, literally, buckets of cash from the ATM
in the time leading up to testator’s death. SCOV reasons there was a reasonable
inference that if testator knew what beneficiary was doing, beneficiary would
have been cut out of the will immediately. So, this one gets affirmed. Justice
Carroll dissents and points out that no matter what one might think of beneficiary’s
behavior, on the law, it’s not a clear establishment of grounds to void the
will. Logically, the point is well-taken, but in application, it’s unlikely to
carry the day. <i>In re Crofut</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-011.pdf">2024
VT 8</a>.</span></span></p>
<p style="height: 0px; text-align: left;"><span style="font-family: inherit;"><span style="font-size: 12pt;">Rounding out this week is a criminal matter. When SCOV underlines “in
addition” on the first page of the opinion when describing one’s claims, one is
not going to have a good time. Defendant appeals the denial of his motion for
acquittal, certain conditions of probation, and the jury charge. SCOV affirms.
At trial, defendant was convicted on two-out-of-three counts stemming from an
incident where he choked complainant and, when she got away and was trying to call 911, threw a knife down the hallway at her
sticking the handle into the wall. He’d been drinking. Before the case went to
the jurors, defendant tried to get a self-defense charge and argued the
evidence didn’t support his conviction but to no avail. On appeal, he argues
that the no-booze-to-the-point-of-interference-with-work-and-family and his
no-deadly-weapons probation conditions are also in error. None of it goes very
far. Defendant tries to slice the bologna pretty thin when he argues that he
couldn’t have <i>threatened </i>his girlfriend with a deadly weapon because he
threw it <i>at her back </i>down the hallway. This goes, as you might have guessed,
absolutely nowhere. Next, because the self-defense thing doesn’t get raised, it
doesn’t get addressed. And finally, SCOV reasons, the probation conditions are
reasonably related to the offense. <i>State v. Phillips</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-334.pdf">2024
VT 10</a>. <br /></span><br /></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-78795524347274131942024-02-17T11:42:00.008-05:002024-02-17T11:45:40.132-05:00Weekly (No, Really) Update: February 16, 2024 Decisions<p style="text-align: left;"><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgP3-pvi02Yp6Fh56nqE6IFqyBW9YH7yS4Oq04GzTUQWtTan4-OQxnNj7KVufTr_Q4rNu_Y-9Ye9fZsrFBfcOfHI6im6nqclB3wSl8-Ylkxmu3fjTTtEcE4WWp7YzJ9iO934uQoXH4pun4qt5kVxRc4nQmT8RKHk5SWF3y5mtq1vwJY5UwwndyqNeYO_sk/s947/Groundhog%20Day%20Meme.png" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="685" data-original-width="947" height="231" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgP3-pvi02Yp6Fh56nqE6IFqyBW9YH7yS4Oq04GzTUQWtTan4-OQxnNj7KVufTr_Q4rNu_Y-9Ye9fZsrFBfcOfHI6im6nqclB3wSl8-Ylkxmu3fjTTtEcE4WWp7YzJ9iO934uQoXH4pun4qt5kVxRc4nQmT8RKHk5SWF3y5mtq1vwJY5UwwndyqNeYO_sk/s320/Groundhog%20Day%20Meme.png" width="320" /></a></span></div><span style="font-family: inherit;"><div><span style="font-family: inherit;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a></span></div><div><br /></div>I know what you're thinking.</span><p></p><p style="text-align: left;"><span style="font-family: inherit;"><i>Didn't he say he was going to keep up with posts this year? Been at least a month. So much for </i>that <i>idea!</i></span></p><p style="text-align: left;"><span style="font-family: inherit;">There actually hasn't been anything issued since January 19, 2024. I swear I am not making this up. Yesterday, however, SCOV issued four opinions and I've painstakingly dissected, um, I mean, I've written some probably mostly accurate words about those four decisions below.* </span></p><p style="text-align: left;"><span style="font-family: inherit;">First, we have a challenge to
Vermont’s recently enacted </span><a href="https://legislature.vermont.gov/statutes/section/17/051/02537a" style="font-family: inherit;">vote-by-mail
statute</a><span style="font-family: inherit;">. The trial court concluded that
plaintiff lacked standing to bring the claim because he did not—and could
not—show that he’d been injured in fact. On appeal, SCOV is noncommittal about
whether plaintiff has standing but assuming that he does, SCOV reasons that he
still needs to plead a problem with a particular election. And since that didn’t
happen here, no case. SCOV affirms the dismissal on alternate grounds. <i>Paige
v. State</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-251.pdf">2024
VT 7</a>.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Second, we have an interesting
statute-of-limitations question. It’s not one I’ve run across before. If a
child is born during a marriage, there’s a <a href="https://legislature.vermont.gov/statutes/section/15C/004/00401">statutory
presumption</a> that the kid is of the marriage. If a <i>challenge</i> is to be made
to that presumption, it needs to be made within two years. The Office of Child
Support (OCS) made a challenge after that time limit expired but argued it was
in the best interests of the child to proceed. This is not the best procedural
argument. Long story short: neither the family division magistrate, the family
division judge, nor SCOV take the bait. The case gets dismissed and double
affirmed. <i>Booker v. Thomas</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-207.pdf">2024
VT 9</a>.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Third, we venture into the
criminal realm. Defendant—being 20 years old—planned to meet up with a 15-year-old
girl in the middle of the night at her grandparents’ trailer. He brought a gun
for some reason and tried to hand it to her when he climbed in through the
window at 2:30 a.m. They had sex until they heard voices outside her window.
Defendant hid and eventually left after first refusing to leave. Ultimately, defendant
was convicted of sexual assault and carrying a weapon while committing a
felony. He was given a sentence of five-to-life. On appeal, he challenges the
sufficiency of the evidence, jury instructions, and probation conditions. SCOV affirms
both convictions without much fanfare. On the probation conditions, however,
SCOV reverses three: (1) a condition prohibiting contact with anyone under the
age of 18 when the presentence investigation mentioned females not males; (2) a
condition authorizing defendant’s probation officer to order “any programming”
in the mental health context; and (3) a similar condition in the sex-offender-treatment
context. SCOV reasons that these conditions are too broad and—since the state
agrees—sends these three conditions back to the trial court for reworking. <i>State
v. Lafayette</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-106.pdf">2024
VT 6</a>.</span></span><span style="font-family: inherit;"> </span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Fourth and finally, we have
another criminal case. At first glance it seems simple. Defendant was first
arrested and charged more than nineteen years ago. He was then found
incompetent more than fifteen years ago. The trial court found that the state
had an obligation—and failed—to reevaluate defendant’s competency to stand
trial and therefore dismissed on speedy-trial grounds. But a three-justice majority
reasons that because the only reason for the delay is defendant’s incompetency,
the case should be reinstituted and remands to the trial court. Justice Waples,
joined by specially assigned Judge Morrissey, dissents. The dissent does not
agree that the sole reason for delay is defendant’s incompetency and reasons
that the state had an obligation to bring the case to trial and to reevaluate
defendant’s competency at some point in the last, you know, twenty years. <i>State
v. Armstrong</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-050.pdf">2024
VT 5</a>. </span></span></p><p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;"><span style="mso-spacerun: yes;">*No guarantees whatsoever. Period. </span></span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-31406742049170011082024-01-20T16:23:00.002-05:002024-01-20T16:41:48.205-05:00January 19, 2024: I See What You Did There<p style="text-align: left;"></p><div class="separator" style="clear: both; text-align: left;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjukKXLAMOGshMb623KevBoCThw3YDRXfMGTu9qTijeIgiMZsQFGFISONkRTi8aZ0brDqy_hRs0Itw00216yC7O5J0xhfOZJG0FGaOBYm_K2IutU6tWu_MbZ_uw8I6HV__XvR1GGBs03ZSuFQX8WmprlnRiOmyyiytIcwQAgsY8mE8c_cVuoY7Yhbd8HH4/s340/IMG_1238.heic" style="clear: left; display: inline; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="340" data-original-width="326" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjukKXLAMOGshMb623KevBoCThw3YDRXfMGTu9qTijeIgiMZsQFGFISONkRTi8aZ0brDqy_hRs0Itw00216yC7O5J0xhfOZJG0FGaOBYm_K2IutU6tWu_MbZ_uw8I6HV__XvR1GGBs03ZSuFQX8WmprlnRiOmyyiytIcwQAgsY8mE8c_cVuoY7Yhbd8HH4/s320/IMG_1238.heic" width="307" /></a></div><p style="text-align: left;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a></p><p style="text-align: left;"><span style="font-family: inherit;">This week’s case is primarily about non-witness
identification from video and stills. </span></p><p style="text-align: left;"><span style="font-family: inherit;">Some dude robs a convenience store in Highgate
wearing a hoodie, beanie, and mask. He tells the clerks he has a gun. It might
be Mark Zuckerberg for all we know at this point. There’s video of the event. The
clerks can’t identify him. Enter a Vermont-State-Police-generated Facebook post
and a person who recognizes defendant’s distinctive eyes and things start to
focus. The defendant’s PO and a manager of a sober house also identify
defendant. The police officer in charge of the case then starts interviewing
defendant’s family members and several recognize defendant as the person in the
stills and video. After they identify defendant, the officer shows them a
picture of defendant to make sure they’re talking about the same person. She
doesn’t, however, instruct them not to talk with each other about it.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">So, defendant—who has a felonious
history—gets charged with assault and robbery with a deadly weapon with a habitual
offender enhancement. He moves to suppress the family identifications from the
video and stills on the grounds that the interviews were unreasonably
suggestive. The trial court doesn’t bite and after an evidentiary hearing
denies the motion.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">At trial, defendant moves for
acquittal but the trial court denies it, finding that the state adduced
admissible evidence meeting all the elements of the offenses. The state asks
for a lesser-included charge on the assault and robbery—sans weapon—and gets it
with no objection from the defense. The jury acquits on the with-a-deadly-weapon
front, but convicts for assault and robbery and habitual offender. At
sentencing, the trial court mentions plea deals often get lesser sentences in
the context of finding that defendant wasn’t taking responsibility for his misdeeds.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Defendant appeals, arguing that
the trial court should’ve suppressed the out-of-court identifications, should’ve
granted his motion for acquittal, and ought not have punished him for exercising
his right to a trial. On appeal, SCOV reasons that the identifications were not
overly suggestive. While SCOV acknowledges that the family members knowing that
others had potentially identified defendant already is “not ideal,” it’s not
fatal because the circumstances don’t “give rise to a very substantial
likelihood of irreparable misidentification.” SCOV accordingly punts on defendant’s
state-constitution-based argument about non-police-created suggestiveness—that due
process applies regardless.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On the denial-of-acquittal front,
SCOV doesn’t make any surprise moves. There was evidence. It tended to show
guilt. No error denying the motion.</span></p>
<p style="height: 0px; text-align: left;"><span style="font-family: inherit;">Finally, SCOV takes up the vindictive-sentencing issue. SCOV
reasons that there was no vindictiveness evident here. First, the court sentenced
defendant to less than the maximum and less than the State asked for. Next,
SCOV reasons that the majority of the trial court’s statements at sentencing
were focused on legitimate sentencing considerations. The comment about plea deals—in
context—simply was in reference to defendant’s refusal to take responsibility
(and that’s a legit sentencing consideration). SCOV finds no abuse of
discretion in sentencing and affirms. <i>State v. Bockus</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-275.pdf">2024
VT 4</a>.<br /><br /></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-37623299349752209952024-01-14T14:30:00.003-05:002024-01-14T14:30:24.919-05:00Jerry O'Neill, 1946 - 2023<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQYwAdSFJ0ZgAbuiNYCsOpNGdeWn1aGLkXy7vpFEOTyPXv-LPkCc-lVva3OVe168dKq7NK9QAZPLvYXYX_yAn2nX7stMeZPbGStG_SQgtdAqI-0YtfnH8saYintZ9SID5vSKJW9MMblma_PjV2d5p8jfqZrZ4DymiJ8hoUvqAe7VMQVuPumxZaS6w-RRw/s504/oneill_jerome_img_2510.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="504" data-original-width="400" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQYwAdSFJ0ZgAbuiNYCsOpNGdeWn1aGLkXy7vpFEOTyPXv-LPkCc-lVva3OVe168dKq7NK9QAZPLvYXYX_yAn2nX7stMeZPbGStG_SQgtdAqI-0YtfnH8saYintZ9SID5vSKJW9MMblma_PjV2d5p8jfqZrZ4DymiJ8hoUvqAe7VMQVuPumxZaS6w-RRw/s320/oneill_jerome_img_2510.jpg" width="254" /></a></div>We don't typically post obituaries on this blog. And maybe this is something else, but we usually don't post that type of<span style="font-size: 16px;">—this type of</span><span style="font-size: 16px;">—thing either. </span> <p></p><p>But Jerry O'Neill was, in my opinion, a titan of Vermont law and somebody who merits remembering. Besides, it's not like anyone can stop me. </p><p>I first met Jerry over the phone when I was a baby lawyer doing something dumb (and humorous) and my at-the-time boss called Jerry up for some advice on speakerphone. Jerry chuckled at my antics and gave me some good advice that I followed. The crisis<span style="font-size: 16px;">—</span>or more accurately, potential crisis<span style="font-size: 16px;">—</span>was averted. Before he ever met me in person, Jerry was mentoring me. </p><p>Jerry always gave me good advice. And I asked plenty of stupid questions. But Jerry was always kind, generous, and helpful (I almost wrote "to a fault" here but that idiom doesn't quite fit because it's who Jerry was). I can't count the times that Jerry helped me with things over the years. He was a huge resource in several of my professional roles. And the only thing he would ever say about it was that it was his small way of repaying all the people that had helped him throughout his career. Jerry was, as someone noted yesterday, "The most humble trial lawyer<i> </i>I've ever known." </p><p>My relationship with Jerry wasn't personally close. We didn't socialize outside of work, but I still considered Jerry a friend and a mentor. I attended his celebration of life yesterday<span style="font-size: 16px;">—one can <a href="https://www.youtube.com/watch?v=wRflwn4WevY">watch that here</a></span><span style="font-size: 16px;">—</span>and it was moving to me to hear how Jerry was kind, generous, and helpful in his personal life too. Jerry wasn't perfect, but he was a great human being and he will be missed by so many.</p><p>Jerry didn't like when things went too long. He had a particular look and I can see it in my mind's eye now. So that's all I'm going to say here. I hope there's a good wine list up there, Jerry, and a very knowledgeable sommelier. I'm going to miss you. </p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-40129832286839314802024-01-14T13:48:00.005-05:002024-01-14T13:48:35.506-05:00January 2024: Week Two<p><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgLGsO7eSub4YRAekOUOQ6JF7Obgd07qTdy_Z40ByGunWaz_I3vdtyExm10WfEL1xXT7Ipgw_Cm4Hxd1SlJl6yC3_1cnAbuAnWOeiflMzFHXlLg-L7KC44jdtZ0uHZqXXpjSQzaDRie0e1T6nsGhJnbEFQW2HTmDFSX5A7-egNDheUqmluDjBHaVj7KI-E/s1162/mr-rogers.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1162" data-original-width="1063" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgLGsO7eSub4YRAekOUOQ6JF7Obgd07qTdy_Z40ByGunWaz_I3vdtyExm10WfEL1xXT7Ipgw_Cm4Hxd1SlJl6yC3_1cnAbuAnWOeiflMzFHXlLg-L7KC44jdtZ0uHZqXXpjSQzaDRie0e1T6nsGhJnbEFQW2HTmDFSX5A7-egNDheUqmluDjBHaVj7KI-E/s320/mr-rogers.jpg" width="293" /></a></span></div><span style="font-family: inherit;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a></span><p></p><p><span style="font-family: inherit;">So far, so good. Maybe I'll keep the blog reasonably updated this year. Time will tell.</span></p><p><span style="font-family: inherit;">Two opinions issued January 12. </span></p><p></p><p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">First, we have an appeal from a Vermont Public Utility Commission
(PUC) order approving a contract for the purchase of out-of-state renewable
natural gas under <a href="https://legislature.vermont.gov/statutes/section/30/005/00248">this
statute</a>. Vermont Gas Systems, Inc. (VGS) entered a contract to purchase
landfill gas from a NY landfill and asked the PUC to approve the contract.
Petitioner, a VGS ratepayer, intervened to protect against rate increases for
an energy source that presented no environmental benefit.<span style="mso-spacerun: yes;"> </span></span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">The PUC approved the contract, reasoning that the plan for the
contract would reduce greenhouse gas emissions and comply with the Vermont
Global Warming Solutions Act of 2020 (GWSA). I won’t dive into the procedural
and factual history other than to say a hearing officer made findings in favor
of the contract, which the PUC more or less adopted and upheld.</span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">Petitioner appeals, arguing that the emissions-reductions findings
aren’t supported and that the contract doesn’t comply with least-cost planning
principles.</span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">SCOV notes that it generally gives PUC decisions deference.
Because petitioner’s primary arguments—according to SCOV—are that the findings
aren’t supported by the evidence—it characterizes its review as “narrow and
restricted.” With this backdrop, it’s no surprise that SCOV ultimately affirms.
This opinion is worth a closer look if you’re dealing with any issues involving
the GWSA or least-cost planning principles. There’s a topical discussion of
both. And that’s why we include the link. <i>In re Vermont Gas Systems, Inc.</i>,
<a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-084.pdf">2024
VT 2</a>.<span style="mso-spacerun: yes;"> </span></span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">Our second opinion this week deals with a no-stalking order. Plaintiff and
defendant own neighboring property and live across from one another on a
private road. The parties settled a prior adverse-possession action by
defendant by agreement at mediation. But that wasn’t the end of it. Plaintiff
testified that defendant has threatened her on several occasions, and one time
slapped her across the face and knocked her cellphone out of her hand.
Defendant testified that plaintiff drives a small ATV along the property line,
honking and shouting. The trial court concluded that this was “apparently just
to annoy” defendant. They both accused the other of “shouting, making obscene
gestures, and taking surreptitious photographs.” Mr. Rogers would be appalled.</span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">The incident that led to the no-stalking order in this case
involved an arborvitae bush planted on defendant’s property but allegedly
encroaching on plaintiff’s property, and some not-very-neighborly-not-very-neighborly-at-all
behavior surrounding it. I won’t give a play-by-play account, but if this were
a Reddit thread, I think it’s safe to say it would get an ESH tag. Ultimately—and
this was on camera—“defendant shook and grabbed plaintiff while ‘screaming at
her in an enraged manner with profanity-laced language.’” The trial court
concluded that regardless of why, defendant did assault plaintiff twice—that
these constituted “threats” under the statute—and that plaintiff was entitled
to a no-stalking order under <a href="https://legislature.vermont.gov/statutes/section/12/178/05133">the statute</a>.</span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">Defendant appeals, arguing that the trial court erred in finding
the altercations were “threats” under the statute and that his conduct in
defending his property was constitutionally privileged. SCOV reasons that the trial
court was justified in considering that two physical incidents as “threats”
under the statute, despite defendant’s arguments to the contrary. SCOV also
reasons that defendant’s defense-of-property argument doesn’t apply in the
context of the anti-stalking statute, making a distinction between purely
statutory and the common law. SCOV holds that “the common law
defense-of-property privilege is not a defense to a civil stalking order,” but
still drops a footnote explaining that, while it may not be applicable as a
discrete defense, such evidence may be relevant for other purposes. In the end,
SCOV affirms. <i>Haupt v. Langlois</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-221.pdf">2024
VT 3</a>. <o:p></o:p></span></span></p><br /><p></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-8422724537337356742024-01-14T11:25:00.002-05:002024-01-14T14:33:29.365-05:00January 2024: Week One<p style="text-align: left;"><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZ_GNaCUP7HLpxsV3uQg7Wmqayy2-yRCktAqcBIJif0kgw9bx3l8vcrM-5q7Qikq33_vIaGhozDEvKRmJAw1FIImtZi9Pqw9THVx1B75CegqylbSb9NVybJQqMlC5n98hS7Te1ocOVprjZiX3fvyFYxxpcKF5bb_HwyUzAB6Naj1lWEoYFKC2jGA6pU_I/s564/new%20year.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="564" data-original-width="564" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjZ_GNaCUP7HLpxsV3uQg7Wmqayy2-yRCktAqcBIJif0kgw9bx3l8vcrM-5q7Qikq33_vIaGhozDEvKRmJAw1FIImtZi9Pqw9THVx1B75CegqylbSb9NVybJQqMlC5n98hS7Te1ocOVprjZiX3fvyFYxxpcKF5bb_HwyUzAB6Naj1lWEoYFKC2jGA6pU_I/s320/new%20year.jpg" width="320" /></a></span></div><span style="font-family: inherit;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a> </span><p></p><p style="text-align: left;"><span style="font-family: inherit;">Once again, <i>this year </i>I'm going to try to keep this blog updated regularly. No promises. Work happens. Trials happen. But I'll make an effort. </span></p><p style="text-align: left;"><span style="font-family: inherit;">One case from SCOV on </span>January<span style="font-family: inherit;"> 5, 2024. It’s about plea negotiations in
criminal cases and what constitutes ineffective assistance of counsel in that
realm. Petitioner was charged with a sexual-assault-on-a-minor charges that
carries a 25-to-life mandatory minimum. The state made an offer for a plea to a
lesser charge of aggravated sexual assault with a ten-to-life sentence, split
with five years to serve. His first lawyers discussed the plea deal and he
rejected it. But they apparently didn’t talk about the mandatory
25-year-mandatory-minimum if convicted of the charged offense. </span></p><p style="text-align: left;"><span style="font-family: inherit;">Petitioner hired
another lawyer. On the way to a jury, “[P]etitioner’s defense suffered several
setbacks, which the PCR court found left petitioner with ‘virtually no chance
of being acquitted at trial.’” Briefly, </span>motions<span style="font-family: inherit;"> to suppress weren’t granted (or
filed) and petitioner’s expert was limited in testifying. On the morning of
trial, the state renewed its offer, but the PCR court found that petitioner’s
lawyer didn’t tell petitioner that the deal was in his best interests—and
didn’t explain the mandatory minimum risk of conviction. And petitioner
eighty-sixed the deal.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Can you guess what happened next? Here’s a hint: the jury wasn’t
out very long. Petitioner filed a PCR petition and the PCR court found that the
second attorney’s assistance <i>was </i>ineffective <i>and </i>prejudicial as
to the plea offer but that given petitioner’s repeated post-conviction claims
of innocence, false confessions—that he’d be committing perjury by pleading
guilty—and the like, it was unlikely that the trial court would have accepted a
guilty plea. Thus, the PCR court dismissed petitioner’s petition. Petitioner
appeals.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">The SCOV majority concludes that the PCR court was required to
confine its inquiry to the information available at the time of the potential
plea, and not to consider petitioner’s post-conviction refusal to admit guilt
in determining whether the trial court would have accepted the guilty plea. Is
there more to it? Sure, but that’s the gist.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Justice Eaton—joined by Justice Carroll—dissents. He reasons that
petitioner’s second attorney’s counsel was not ineffective, and even if it
were, it’s doubtful that petitioner would’ve accepted the plea anyway, so
petitioner fails to demonstrate meaningful prejudice. From the dissent’s
perspective, a defense attorney is not ineffective for failure to “sell” a plea
deal to a client. <i>In re Kolts</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-097.pdf">2024
VT 1</a>. </span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-7271684446115006772024-01-14T11:10:00.001-05:002024-01-14T11:10:26.683-05:00Half of August and the Rest of 2023<p style="text-align: left;"><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg4QCH5IPkQOYoe3sDTtdow99w5KVpWkHSGnH4NbFnSTd_Y34lIR-9W5DerPp9ZWiOT0B9sqqportHFWH0uSZWHoGzBT4VryNqI2dK0nCFggY-vRGQj5_zz2O9dc_u4laOIwKy3xkHDx1gsrPm_g-WBCRgKVvPkaGC8Arzavy9gCf_EGlx-D5Rg4yckQoM/s782/Fix%20it%20Meme.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="782" data-original-width="637" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg4QCH5IPkQOYoe3sDTtdow99w5KVpWkHSGnH4NbFnSTd_Y34lIR-9W5DerPp9ZWiOT0B9sqqportHFWH0uSZWHoGzBT4VryNqI2dK0nCFggY-vRGQj5_zz2O9dc_u4laOIwKy3xkHDx1gsrPm_g-WBCRgKVvPkaGC8Arzavy9gCf_EGlx-D5Rg4yckQoM/s320/Fix%20it%20Meme.jpg" width="261" /></a></span></div><span style="font-family: inherit;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a></span><p></p><p style="text-align: left;"><span style="font-family: inherit;">Yesterday, someone asked an innocent enough question: "Does anyone update this blog anymore?" and I was reminded of the meme featured to the left of this post (or maybe the top of it if you're on a phone, I don't know). </span></p><p style="text-align: left;"><span style="font-family: inherit;">I have excuses. Generally, I would have at least attempted to post these short summaries monthly, but life was busy and then I caught a mysterious virus at the beginning of November. That microscopic organism managed to keep me out of the office and in bed for the majority of two months. Last week was my first full-time week back in the office since the beginning of November. </span></p><p style="text-align: left;">"But, Delaney," you might say, "Why didn't you post anything in September or October?" And I might tell you to mind your own business. </p><h3 style="text-align: left;">November-December 2023</h3><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">We'll start with the November-December-laid-up-in-bed collection. SCOV, luckily for my purposes, did not issue
<i>too </i>many opinions during my mystery illness and convalescence. But there were
enough opinions issued during November and December that I’m going to be even
more brief than usual. Briefer than usual? Less words. I will be using less
words. </span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On November 9, 2023, a lone opinion on the nuances of sentence
reconsideration. Here, Mr. Rodriguez was given a sentence much closer to what
the state asked for than what he asked for. The trial court, importantly,
considered some uncharged prior incidents of violence that the complaining
witness testified about, finding that those incidents had occurred by a
preponderance of the evidence. On appeal, Mr. Rodriguez argues that the court
shouldn’t have considered the uncharged incidents, should have considered his COVID-era
incarceration conditions, and should have placed more weight on mitigating
factors. The standard of review for sentence reconsideration—or denial
thereof—is abuse of discretion. Any guesses as to what SCOV does? This one gets
affirmed. <i>State v. Rodriguez</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-260_0.pdf">2023
VT 59</a>.</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On December 1, SCOV issued three criminal-law opinions. SCOV first
explains that if a jury finds that you severely beat up your neighbor who was
attempting to record a fight between you and your pregnant ex-girlfriend and
“disappear” the cell phone the neighbor was using to record, your convictions
for aggravated assault, attempted domestic assault, assault and robbery, and
obstruction of justice are probably going to stand. And to warrant a “voluntary
intoxication” instruction, you need a little more than the ex-girlfriend saying
you were “pretty drunk,” especially if you’re on camera (another camera, not
the neighbor’s) looking in control of yourself. <i>State v. Taylor</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-211.pdf">2023
VT 60</a>.</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Next, SCOV explains that when a defendant stipulates that the
evidence of guilt is great, and the presumption that the defendant be held
without bail applies, the trial court has a whole lot of discretion in deciding
whether to allow bail. Here, the trial court didn’t allow defendant to be
released on bail and a three-justice panel finds no abuse of discretion. <i>State
v. Blaisdell</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo23-374.pdf">2023
VT 62</a> (mem.)</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Rounding out December 1 with another hold-without-bail decision,
SCOV explains that even if the trial court references ol’ Rule 60(b), but gives
a full review of bail anyway, then the trial court doesn’t abuse discretion
under the bail statutes. Not a lot more to it than that, but you can always
click the link if you’re curious. <i>State v. Brown</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo23-364.pdf">2023
VT 61</a> (mem.)</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On December 8, we have a case dealing with Rule 75 (review of
governmental action) and a school district asking the civil division to stop
the Human Rights Commission from investigating a complaint made by a student’s
mother. The civil division found that the school district had failed to state a
claim and dismissed the complaint. The school district appeals and SCOV
affirms, mostly on—you guessed it—discretionary grounds. Not the same type of
discretion as in bail appeals but close enough in the sense that it resolves
the case. <i>Maple Run Unified School Dist. v. Vt. Human Rights Comm’n</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-058.pdf">2023
VT 63</a>.</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On December 15, we get what I’m dubbing the
“pay-your-share-of-the-private-road decision.” In a nutshell, plaintiffs own
“five of seven lots served by Purple Mountain Road,” and filed a declaratory
judgment asking the court to declare that the owners be required to pay for the
portion of the road that services the lots based on distance from the public
road. I have no idea—and I’m way too lazy to figure out—what that would look
like in this situation. Both sides moved for summary judgment and the trial court
sided with the defendants, reasoning that maintenance costs should be shared
equally among lots. Plaintiffs appeal, arguing that the trial court should have
gone with the prorated-by-distance-from-the-public-road scheme proposed by them
and that the trial court failed to consider important material facts. The
majority affirms, reasoning that the trial court’s
all-parties-have-full-access-to-the-entire-road-and-y’all-pay-the-same-per-lot
analysis was supported by the record and the law. Justice Cohen dissents
because while he agrees on the governing law, he believes there’s a genuine
dispute of material fact as to what benefit each party gets from the road.
Justice Cohen would reverse and remand for further proceedings. He acknowledges
that everything might land in the same place, but opines that it’s premature to
do so on this record. <i>Rawley v. Heymann</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-003.pdf">2023
VT 64</a>.</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On December 21, SCOV issued an opinion that—and fair warning, I’m
being flippant here—a juvie jail is pretty much a group home. There’s a lot
more nuance to it (isn’t there always?), but that framing amuses me. The
Newbury Developmental Review Board denied a zoning permit for a proposed
juvenile-detention facility with an exemption from conditional-use review <a href="https://legislature.vermont.gov/statutes/section/24/117/04412">under this
statute</a> as a “residential care home or group home” because it found that
the proposed facility was more akin to a detention facility and would place the
community at risk. That, my friends, is a <i>way</i>-too-long sentence. DCF and the landowner
appealed to the Environmental Division and the Environmental Division reasoned
that the proposal did fall within the exemption. So, a community group and the
town appeal. On appeal, the majority runs through the definition of “group
home” and disability (a required element) under the statute, concluding that
the landowner is entitled to the permit and the Environmental Division got it
right on summary judgment. Justice Carroll dissents, reasoning that these are
not matters to determine on summary judgment and that the record needs further
development. <i>In re Vermont Permanency Initiative, Inc.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-324.pdf">2023
VT 65</a>.</span></p><p style="text-align: left;">
</p><h3 style="text-align: left;"><span style="font-family: inherit;">September-October 2023 </span></h3><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On Friday, October 27, SCOV issued
one case. It also snuck in an entry order on Monday, October 23. We’ll go sorta chronologically
and start with the E-to-the-O. That’s so bad. I’m going to leave it.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">The entry order deals with whether a non-attorney guardian can act
on behalf of a ward as a <i>pro se</i> litigant. SCOV analyzes the issue and
concludes that a non-attorney guardian can’t do such a thing, but doesn’t end
it there. SCOV gives the guardian 60 days to hire an attorney “or else” (the
appeal will get dismissed). <i>Estate of Snelgrove v. Leblanc</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo23-309.pdf">2023
VT 58</a> (mem.)</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">The case for October 27 is an appeal from the Public Utilities
Commission’s (PUC) denial of Allco Renewable Energy Limited’s run at a
certificate of public good (CPG). Something about the acronyms in these cases
makes me think that they’d read well over a Dr. Dre beat. But I—as I so often
do—digress. Allco is on its third trip to the SCOV. Since 2015, Allco has been
trying to get a CPG. At one point it had one, but that got reversed on the idea
that the town not opposing the CPG is <i>not </i>equivalent to the project
complying with the town plan. This particular go-‘round is based on the PUC’s
most-recent denial-on-remand of a CPG. Allco argues that the PUC had to issue a
proposed decision before denying the CPG. SCOV reasons that the circumstances
requiring that approach—a majority of the commissioners not having participated
in the decision or having read the record—doesn’t apply here. Allco also makes
arguments about procedural defects (that the PUC went outside the record for
evidence without notifying the parties, gave post-hoc reasons for denying the
CPG without an additional hearing, and so on), improper findings and weighing
the evidence, and even throws a constitutional argument in for good
measure—that the PUC’s application of the applicable statutes was unconstitutionally
vague and standardless, thus violating petitioner’s due process and equal
protection rights. None of these arguments gain any traction with SCOV, however, and
SCOV affirms. <i>In re Apple Hill Solar LLC</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-286.pdf">2023
VT 57</a> (<i>Apple Hill III</i>). </span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"> </span><span style="font-family: inherit;">Two opinions issued on Friday, October 13th.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">The first opinion deals with an appeal from a relief-from-abuse
order. Defendant was served with paperwork the day before the hearing. He
showed up to court and the judge asked him if he needed a lawyer. Defendant
said he’d tried to get hold of one, wasn’t successful, and was okay with
proceeding because he had “enough to prove” he wasn’t stalking the plaintiff.
Oh man, I’ve heard this song before—many times. Long story short, defendant
managed to get a RFA order issued against him. He hires a lawyer and appeals,
arguing due process violations and other things, none of which get him very far
at all. SCOV affirms without plaintiff even participating in the appeal. <i>Poss
v. Alarie</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-103.pdf">2023
VT 55</a>.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Next up is an appeal from summary judgment for a defendant in a
slip-on-a-dangerous-sidewalk case. The only
issue on appeal, however, is whether plaintiff is entitled to pierce the
corporate veil of the adjacent landowner to get at the sole owner’s personal
assets. Here, SCOV holds that there must be some evidence of disregard for the
corporate form—gross intermingling, fraud, etc.—before the piercing starts. In
this case, SCOV reasons that plaintiff didn’t come forward with any evidence of
such shenanigans and so that’s it. This one also gets affirmed. <i>Doherty v.
Town of Woodstock</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-129.pdf">2023
VT 56</a>. </span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Nothing for September 15th or the 22nd, but one opinion September 29th.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">This is a CHINS case with a rare reversal. I say “rare” because
often SCOV will uphold the trial court’s CHINS (child in need of supervision)
findings.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Not this time.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">There were reports of domestic violence at mom and dad’s household
and that the kids were all exposed to it. Mom had two kids from a prior
marriage and two kids with her current husband. DCF got involved and the kids
were taken into temporary custody. At the merits hearing, the trial judge
reasoned that the court’s job was to determine whether the allegations were
true and whether there was any reason under the statute that the kids shouldn’t
return home.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">And here’s where SCOV says the case went off the rails.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">See, the standard the trial judge applied to the merits was the
standard for a temporary care finding, not merits. At merits, “the court was
required to determine whether the children were without proper parental care
necessary for their well-being at the time the petition was filed.” SCOV
reasons that this alone might be grounds for reversal, but that it doesn’t need
to go there because the trial court’s merits finding wasn’t supported by the
evidence. SCOV points out that “the court did not find that [dad] was violent
or threatening toward any of the children or that he directly placed any child
in danger.” And that there “was also no evidence that the children lacked basic
necessities, medical care, or education, or that conditions in the home were
unsanitary or unsafe for the children.” Because the merits finding was based
primarily on the general—and nonspecific—finding that domestic violence in the
home is harmful to children (something that SCOV acknowledges may very well be
true), without any expert testimony or basis for the court to take judicial
notice as to <i>these</i> kids, SCOV reverses.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">SCOV also takes up a collateral issue of disclosure of certain
unredacted DCF records to dad and his attorney. In a nutshell, the trial court
ordered the records turned over to dad without making a required need-to-know
finding. SCOV also reverses that order and orders the records be returned. <i>In
re A.O.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-124.pdf">2023
VT 54</a>.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">No cases issued September 1st, but four cases issued on Friday,
September 8.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Family law goes first. Husband and wife owned a marina on the
Connecticut River. They split up and the court put a value on the property and
said one could buy the other out by notification and payment of $25K up front
with the rest to follow. Wife got first option. None of wife’s deadlines were
met, due at least in part to motions and appeals. But husband did send a notice
and check within his timeframes (and followed up after SCOV finished the first
round). Wife eventually tried to exercise her option (after husband had already
presumably exercised his). When the trial court eventually found that wife had
waived her option and husband had exercised his, wife appealed. On appeal, SCOV
reasons that automatic stays aside, nothing extends the deadlines in an
underlying order. SCOV affirms the trial court’s decision. <i>Thurber v.
Thurber</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-051.pdf">2023 VT 53</a>.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Next up we have a probation violation and revocation appeal nearly
20 years after the fact. Defendant was convicted of second-degree murder in
1987 and sentenced to 17-to-life. In 1999, defendant was released on probation
and racked up violations over the next few years. In 2004, the trial court
found that defendant had committed three violations of probation, revoked
probation, and imposed the original life sentence. In 2018, defendant filed a
PCR, got some traction, and got permission to appeal the 2004 violations and
revocation. On appeal, SCOV affirms the violation findings but remands on the
revocation. The takeaway here is that relying on prior criminal history in
deciding to revoke probation can constitute plain error. A revocation must
focus on the relationship between the original conviction and the intervening
behavior. Here, the trial court went back further and speculated that defendant
could have been charged with first-degree murder. The court also opined that
defendant’s history was troubling. SCOV finds plain error, noting that the
court went back to when defendant was 11 years old and talked about defendant’s
“life pattern” in imposing the life sentence. SCOV sends the case back to the
trial court for a new probation-revocation hearing. <i>State v. Wheelock</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-231.pdf">2023 VT 52</a>.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Third in this week’s lineup is a case about defamation and
Vermont’s anti-SLAPP (SLAPP=Strategic Lawsuits Against Public Participation) <a href="https://legislature.vermont.gov/statutes/section/12/027/01041">statute</a>. Plaintiff
sued VT Digger for articles it wrote about his disputes with the speaker of the
Vermont House. VT Digger filed a motion to dismiss. The judge told plaintiff to
make a more-specific statement of his claims. Plaintiff filed something but it
wasn’t that much more specific. VT Digger then filed a special motion to strike
under the anti-SLAPP statute. In a nutshell, when a plaintiff sues over alleged
damages due to a defendant’s exercise of free speech in a public forum—like a
news article—the defendant can file a special motion that requires the
plaintiff to show that there wasn’t any legitimate purpose to the defendant’s
exercise of free speech and plaintiff suffered actual injury. If the defense
wins that motion, it gets costs and attorney’s fees. Here, the trial court
found that plaintiff hadn’t alleged any false statements defendant made about
plaintiff, and thus that plaintiff had failed to state a claim. The trial court
dismissed the case and denied the anti-SLAPP motion as moot. Plaintiff appeals
and VT Digger cross appeals. SCOV affirms the dismissal but remands on the
denial of the anti-SLAPP motion. Plaintiff valiantly but unsuccessfully argues
that the article were hate-motivated acts based on plaintiff’s mental
disabilities. SCOV doesn’t go for it. This case reminds me of <a href="https://www.youtube.com/watch?v=7hx4gdlfamo">this song</a>. <i>Wolfe v. VT Digger</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-222.pdf">2023 VT 50</a>.</span></p>
<p style="text-align: left;"><span style="font-family: inherit;">The last case for September 8, 2023, is a termination of parental rights
case, with a complicated procedural history. I’m not going to recount it other
than to say that—according to the trial court’s findings—mom has some issues
with mental health and substance abuse and dad floats in and out of the kids’
lives. Mom also has four other kids in addition to the two here, none of which
are in her custody. Over the course of proceedings, the trial court found a
newborn and older child in need of supervision and transferred the kids to DCF
custody. Eventually, the court terminated both parents’ residual parental
rights based primarily—though far from exclusively—on the court’s view that
parents would not be able to resume care for the children within a reasonable
time. Parents filed a post-judgment 60(b)(6) motion based on ineffective
assistance of counsel. The trial court denied the motion, reasoning that even
assuming that parents have a constitutional right to effective assistance of
counsel in CHINS cases and that right was violated (a finding the court did not
make), it would not change the case’s outcome. Parents appeal. The opinion is
somewhat lengthy, but ultimately, SCOV reasons that the trial court’s approach
was largely correct and under the circumstances, parents’ rights were properly
terminated. <i>In re K.G.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-120.pdf">2023 VT 51</a>. </span></p><h3 style="text-align: left;"><span style="font-family: inherit;">The Last Half of August or Thereabouts</span></h3><p style="text-align: left;"><span style="background-color: white; color: #222222; font-family: inherit;">Three cases issued the week of </span><span style="background-color: white; color: #222222; font-family: inherit;">August 18, 2023 (no opinions issued the week of August 25).</span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">First up, we have a partition action over 100-acre parcel. Briefly, </span><span style="background-color: white; color: #222222;">defendant's family co-owned the parcel for a long time and defendant </span><span style="background-color: white; color: #222222;">improved the property with acquiescence and no contribution from plaintiff.</span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Plaintiff obtained a half interest in the land in the 1970s for $5,000. When </span><span style="background-color: white; color: #222222;">plaintiff filed for partition, the parties waived commissioners (if you're </span><span style="background-color: white; color: #222222;">familiar with partition, the <a href="https://legislature.vermont.gov/statutes/fullchapter/12/179">statutory process</a></span><span style="background-color: white; color: #222222;"> is a bit </span><span style="background-color: white; color: #222222;">complicated and can involve the appointment of three neutral commissioners </span><span style="background-color: white; color: #222222;">to divvy up the property), and had a bench trial. Plaintiff proposed a </span><span style="background-color: white; color: #222222;">division that would give him roughly two-thirds of the property and </span><span style="background-color: white; color: #222222;">defendant the rest and most of the buildings. The way I read it, plaintiff </span><span style="background-color: white; color: #222222;">suggested the court give him the outer circle and defendant the inner </span><span style="background-color: white; color: #222222;">circle. The court reasoned that the plaintiff's proposal didn't make sense </span><span style="background-color: white; color: #222222;">and further reasoned that with offsets and such, defendant should keep the </span><span style="background-color: white; color: #222222;">property and buy out plaintiff to the tune of just south of $64K. Both </span><span style="background-color: white; color: #222222;">parties appealed and </span><span class="il" style="background-color: white; color: #222222;">SCOV</span><span style="background-color: white; color: #222222;"> kicked it back because the trial court had ordered </span><span style="background-color: white; color: #222222;">a buyout but hadn't made the necessary determination that the "property </span><span style="background-color: white; color: #222222;">could not be divided without great inconvenience to the parties." </span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Without </span><span style="background-color: white; color: #222222;">much more in the way of hearings or evidence, the trial court issued largely </span><span style="background-color: white; color: #222222;">the same order (but with the required finding). Plaintiff appeals again, </span><span style="background-color: white; color: #222222;">arguing the trial court messed up when it-he says-put the burden on the </span><span style="background-color: white; color: #222222;">parties to suggest possible splits; determined splitting the property up </span><span style="background-color: white; color: #222222;">would be greatly inconvenient for defendant but didn't make a determination </span><span style="background-color: white; color: #222222;">as to plaintiff; and that the latter finding wasn't supported by the </span><span style="background-color: white; color: #222222;">evidence. </span></span></p><p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">These arguments don't make it past the abuse-of-discretion </span><span style="background-color: white; color: #222222;">threshold. </span><span class="il" style="background-color: white; color: #222222;">SCOV</span><span style="background-color: white; color: #222222;"> reasons that trial courts may decline to order </span><span style="background-color: white; color: #222222;">partition-in-kind (dividing the property itself) if it will cause "great </span><span style="background-color: white; color: #222222;">inconvenience"</span></span>—<span style="background-color: white; color: #222222; font-family: inherit;">a term not defined in the statute</span>—<span style="background-color: white; color: #222222; font-family: inherit;">to one of the parties. In </span><span style="background-color: white; color: #222222; font-family: inherit;">other words, the court doesn't need to find great inconvenience for every </span><span style="background-color: white; color: #222222; font-family: inherit;">party involved. </span><span class="il" style="background-color: white; color: #222222; font-family: inherit;">SCOV</span><span style="background-color: white; color: #222222; font-family: inherit;"> also does not find the burden-on-the-parties argument </span><span style="background-color: white; color: #222222; font-family: inherit;">persuasive because the parties waived commissioners and needed to support </span><span style="background-color: white; color: #222222; font-family: inherit;">their positions with evidence. Lastly, </span><span class="il" style="background-color: white; color: #222222; font-family: inherit;">SCOV</span><span style="background-color: white; color: #222222; font-family: inherit;"> reasons that the trial court's </span><span style="background-color: white; color: #222222; font-family: inherit;">decision was, in fact, supported by the evidence. <i>Bruner v. Gee</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-042.pdf">2023 VT 49</a></span><span style="background-color: white; color: #222222; font-family: inherit;">.</span></p><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Next is a somewhat-complicated legal-malpractice action that boils down to a </span><span style="background-color: white; color: #222222;">failure-to-attempt-to-settle claim and a Consumer Protection Act (CPA) </span><span style="background-color: white; color: #222222;">claim. The case is premised on <a href="https://vtdigger.org/2016/12/16/scov-law-blog-determining-responsibility-la nd-leased/">this underlying case</a></span><span style="background-color: white; color: #222222;">, involving an ultimately successful bid to terminate long-term </span><span style="background-color: white; color: #222222;">leases for breach of a maintenance provision in the lease. There's an LLC </span><span style="background-color: white; color: #222222;">owner and a now-defunct homeowner's association involved. I won't go too far </span><span style="background-color: white; color: #222222;">into detail on this one other than to say that the trial court found for </span><span style="background-color: white; color: #222222;">defendant on all counts on summary judgment for lack of proximate cause</span></span>—<span style="font-family: inherit;"><span style="background-color: white; color: #222222;">the </span><span style="background-color: white; color: #222222;">trial court concluded that plaintiffs could not show that the case would </span><span style="background-color: white; color: #222222;">more-likely-than-not have settled on appropriate terms and thus could never </span><span style="background-color: white; color: #222222;">bring it to the finish line. </span></span><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;"><br /></span></span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">On appeal, </span><span class="il" style="background-color: white; color: #222222;">SCOV</span><span style="background-color: white; color: #222222;"> does conclude that the </span><span style="background-color: white; color: #222222;">lack-of-proximate-cause finding controls the legal-malpractice case. </span><span class="il" style="background-color: white; color: #222222;">SCOV </span><span style="background-color: white; color: #222222;">holds that "to recover for a lost opportunity to settle, a plaintiff must </span><span style="background-color: white; color: #222222;">prove by a preponderance of the evidence (1) that but for the defendant's </span><span style="background-color: white; color: #222222;">negligence a settlement would have occurred and (2) the probable terms of </span><span style="background-color: white; color: #222222;">that settlement." Because the CPA claim</span></span>—<span style="font-family: inherit;"><span style="background-color: white; color: #222222;">that a partner in the firm made </span><span style="background-color: white; color: #222222;">misleading statements about his involvement and the association relied on </span><span style="background-color: white; color: #222222;">those statements</span></span>—<span style="font-family: inherit;"><span style="background-color: white; color: #222222;">doesn't require proximate cause, however, </span><span class="il" style="background-color: white; color: #222222;">SCOV</span><span style="background-color: white; color: #222222;"> reverses and </span><span style="background-color: white; color: #222222;">remands on the CPA claim. Is there more to it than that? No doubt. But you </span><span style="background-color: white; color: #222222;">gets what you get. <i>Mansfield v. Heilmann, Ekman, Cooley & Gagnon, Inc.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-301.pdf">2023 </a></span><span style="background-color: white; color: #222222;"><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-301.pdf">VT 47</a></span><span style="background-color: white; color: #222222;">.</span><br style="background-color: white; color: #222222;" /><br style="background-color: white; color: #222222;" /><span style="background-color: white; color: #222222;">Finally, defendant appeals trial convictions for "aggravated sexual assault </span><span style="background-color: white; color: #222222;">of a victim under the age of thirteen, and . . . lewd and lascivious conduct </span><span style="background-color: white; color: #222222;">with a child." To quote </span><span class="il" style="background-color: white; color: #222222;">SCOV</span><span style="background-color: white; color: #222222;">, "This case has a long and complex history."</span><br style="background-color: white; color: #222222;" /><span style="background-color: white; color: #222222;"><br /></span></span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Defendant was convicted in 2011 of two counts of aggravated sexual assault </span><span style="background-color: white; color: #222222;">for digitally penetrating his daughter and her at-the-time-ten-year-old </span><span style="background-color: white; color: #222222;">friend. His convictions were affirmed on speedy-trial grounds. But in 2018, </span><span style="background-color: white; color: #222222;">defendant prevailed in a postconviction-relief proceeding and got an order </span><span style="background-color: white; color: #222222;">for a new trial. The case eventually went to trial in 2021 after extensive </span><span style="background-color: white; color: #222222;">motion practice. Defendant represented himself. And while I don't mean to be </span><span style="background-color: white; color: #222222;">flip about it, we know how that turned out. On appeal, defendant argues that </span><span style="background-color: white; color: #222222;">the trial court erred in admitting evidence of prior bad acts, not curing </span><span style="background-color: white; color: #222222;">testimony that went outside the pretrial ruling's specific parameters, and </span><span style="background-color: white; color: #222222;">in giving a jury instruction that failed to cure the prejudice caused by the </span><span style="background-color: white; color: #222222;">outside-the-lines testimony. There's more.</span></span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;"><br /></span></span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Defendant also argues that his </span><span style="background-color: white; color: #222222;">statements to the police should be suppressed because he was either in </span><span style="background-color: white; color: #222222;">custody or the statements were not voluntary (some of them were suppressed, pretrial). </span><span style="background-color: white; color: #222222;">He argues that an amendment to the charges shortly before trial </span><span style="background-color: white; color: #222222;">disadvantaged him because the amendment involved a different state of mind </span><span style="background-color: white; color: #222222;">for which he didn't have sufficient time to prepare. Finally, defendant </span><span style="background-color: white; color: #222222;">argues that the trial court erred when it overruled his objection relating </span><span style="background-color: white; color: #222222;">to certain testimony at trial from the state's expert about his expert.</span></span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;"><br /></span></span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">Nothing gets traction with the </span><span class="il" style="background-color: white; color: #222222;">SCOV</span><span style="background-color: white; color: #222222;"> but there is an interesting page-ish </span><span style="background-color: white; color: #222222;">about what's expected of a pro se litigant in the context of appellate </span><span style="background-color: white; color: #222222;">review (spoiler alert</span></span>—<span style="background-color: white; color: #222222; font-family: inherit;">there's not a whole lot of leeway). </span><span class="il" style="background-color: white; color: #222222; font-family: inherit;">SCOV</span><span style="background-color: white; color: #222222; font-family: inherit;"> finds no </span><span style="background-color: white; color: #222222; font-family: inherit;">abuse of discretion in admitting the prior bad acts to show a pattern of </span><span style="background-color: white; color: #222222; font-family: inherit;">behavior toward the victim. Similarly, </span><span class="il" style="background-color: white; color: #222222; font-family: inherit;">SCOV</span><span style="background-color: white; color: #222222; font-family: inherit;"> concludes that defendant didn't </span><span style="background-color: white; color: #222222; font-family: inherit;">preserve his objection to the scope of the prior-bad-acts testimony (he </span><span style="background-color: white; color: #222222; font-family: inherit;">asked a question on cross that essentially nullified any objection he might </span><span style="background-color: white; color: #222222; font-family: inherit;">have had), that defendant also did not preserve his objection to the jury </span><span style="background-color: white; color: #222222; font-family: inherit;">instruction, and that none of this ventures into plain-error territory. On </span><span style="background-color: white; color: #222222; font-family: inherit;">defendant's argument that he was in custody and statements to law </span><span style="background-color: white; color: #222222; font-family: inherit;">enforcement should have been suppressed, </span><span class="il" style="background-color: white; color: #222222; font-family: inherit;">SCOV</span><span style="background-color: white; color: #222222; font-family: inherit;"> concludes that defendant's</span></div><div><span style="font-family: inherit;"><span style="background-color: white; color: #222222;">briefing is inadequate. On the involuntariness-of-the-stateme</span><wbr style="background-color: white; color: #222222;"></wbr><span style="background-color: white; color: #222222;">nts front, </span><span class="il" style="background-color: white; color: #222222;">SCOV </span><span style="background-color: white; color: #222222;">reasons that there was no coercion and that this is not a situation where </span><span style="background-color: white; color: #222222;">police tactics overcame the defendant's will. An aside, make your clients </span><span style="background-color: white; color: #222222;"><a href="https://www.youtube.com/watch?v=d-7o9xYp7eE">watch this video</a></span><span style="background-color: white; color: #222222;"> if they're </span><span style="background-color: white; color: #222222;">even considering talking to the police. The late-amendment argument gets </span><span style="background-color: white; color: #222222;">about a paragraph of this-is-not-really-an-issue language. And finally, </span><span class="il" style="background-color: white; color: #222222;">SCOV </span><span style="background-color: white; color: #222222;">reasons that the trial court did not abuse its "considerable" discretion in </span><span style="background-color: white; color: #222222;">allowing the state's expert to opine that defendant's expert's testimony </span><span style="background-color: white; color: #222222;">about a record was false. This one gets affirmed. <i>State v. Menize</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-217.pdf">2023 VT </a></span><span style="background-color: white; color: #222222;"><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-217.pdf">48</a>.</span></span></div>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-57486354155523633992023-08-12T09:38:00.001-04:002023-08-12T09:38:37.780-04:00Huh? Is it August Already? <p><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiWZr367EywAUS8qZEml3RvF_CoIz13ydqhVEIdnfrEoHs0dQbfASjJrXYpXiQE8ahIjGUJ6Lbxcg14OdF4hwXbrKuaE-qvQl3QwnbdIrQgD0ZuXy82PefRbHamFlJH--v1DO1ZnrcebLF3DxPDPrdeCZg-xuNQe7y45N2-KilpaHJ0UbhxLqvy1-CdQGA/s1200/august-meme-funny.jpeg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="1200" data-original-width="1200" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiWZr367EywAUS8qZEml3RvF_CoIz13ydqhVEIdnfrEoHs0dQbfASjJrXYpXiQE8ahIjGUJ6Lbxcg14OdF4hwXbrKuaE-qvQl3QwnbdIrQgD0ZuXy82PefRbHamFlJH--v1DO1ZnrcebLF3DxPDPrdeCZg-xuNQe7y45N2-KilpaHJ0UbhxLqvy1-CdQGA/s320/august-meme-funny.jpeg" width="320" /></a></span></div><span style="font-family: inherit;">By <a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/">Andy Delaney</a></span><p></p><p><span style="font-family: inherit; font-size: 12pt;">Well, the building may have been closed due to the flooding, but SCOV
didn’t stop writing. Three opinions Friday, August 4, and one entry order on
Thursday, August 3.</span></p><p>
</p><p class="MsoNormal"><span style="color: black; font-size: 12pt;"><span style="font-family: inherit;">We’ll start with that entry order. In a nutshell, this case is
about remedies and mootness. Landlord filed suit for ejectment. The trial court
granted tenants motion to dismiss. Landlord appeals but—and here’s the twist—in
between the notice of appeal and filing their docketing statement, tenants
moved out. Because landlord had sought only ejectment and because damages in
this context are derivative of ejectment, once landlord got his relief
(possession of the premises), the case became moot. SCOV concludes that the
case is moot, no exception applies, and dismisses the appeal. <i>Handy v. Fiske</i>,
<a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-353.pdf">2023
VT 46</a> (mem.)</span></span></p>
<p class="MsoNormal"><span style="color: black; font-size: 12pt;"><span style="font-family: inherit;">The first opinion for the week is about ethical representation.
Respondent did some work for client at client’s son’s direction. Respondent
didn’t discuss anything with client but had her sign estate-planning documents
that created all kinds of issues. Turns out that client was suffering from
Alzheimer’s and dementia. But respondent acted on behalf of client at son’s
direction without having any real conversations with his client. I would say
the moral of this story is “know your client.” The professional responsibility
board found that respondent had violated several ethical rules and ordered a
five-month suspension. SCOV reviews on its own and says, “Nah. A year is more
appropriate to protect the public.” And that’s what happens. <i>In re Manby</i>,
<a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-265.pdf">2023
VT 45</a>. </span></span></p>
<p class="MsoNormal"><span style="color: black; font-size: 12pt;"><span style="font-family: inherit;">Next, we jump into the family law fray. Husband and wife entered
into a prenuptial agreement in the ’80s . Then, in the ’90s, husband’s plumbing
business got into trouble, wife went to work for the business and helped
rebuild and improve the business, and husband kept the money, controlled the
finances, and kept shoveling profits into his personal investments. Things went
well and after selling the business, the family (the parties had one daughter)
started traveling and living off the interest on investments. In the meantime,
however, the parties did nothing that they were supposed to with the prenuptial
agreement. It lived in a drawer, forgotten like a microwave manual. When the
parties got divorced, husband dragged it out of the drawer and tried to enforce
it. Wife said it was unconscionable. The trial court looked it over and
reasoned that the parties had waived the prenup and divided property
accordingly. It also imposed a condition on husband doing family therapy before
increasing time with daughter. Husband appeals. He argues that the prenup is
good and that the family division overstepped when it ordered therapy. SCOV
finds no error. It reasons that the parties failed to follow nearly every
provision of the prenup. SCOV also concludes that the trial court’s imposition
of family therapy was not an abuse of discretion given the findings below. <i>Rock
v. Rock</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-259.pdf">2023
VT 42</a>.</span></span></p>
<p class="MsoNormal"><span style="color: black; font-size: 12pt;"><span style="font-family: inherit;">Lastly, for this week, we have a public-records appeal. The
dispute arises from a government watchdog group—Energy Policy Advocates—seeking
public records from the State. The AG’s office withheld certain documents under
the “work-product doctrine and attorney-client privilege.” As is common in
these circles, that denial led to litigation (four suits, in fact, later
consolidated to one). The AG moved for summary judgment and the trial court
partially granted the motion, though it did order certain agreements be turned
over to plaintiff. Plaintiff moved for attorney’s fees on grounds that it had
substantially prevailed, and the trial court ordered partial fees while doing
an Oprah-esque “everybody substantially prevails!” kinda thing. Both parties appeal—plaintiff
arguing that the trial court should have turned over more documents, abused
discretion in not ordering an in-camera review of certain docs, and more, and
the AG arguing that plaintiff shouldn’t get any attorney’s fees at all because
it didn’t substantially prevail. On appeal SCOV affirms the trial court’s
handling of the document requests but reverses the attorney’s fees award on the
basis that plaintiff did not substantially prevail (SCOV notes that if
plaintiff had prevailed, it wouldn’t be appealing on so many grounds). <i>Energy
Policy Advocates v. State</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-202_0.pdf">2023
VT 43</a>. </span></span></p>
<p class="MsoNormal"><span style="color: black; font-size: 12pt;"><span style="font-family: inherit;">SCOV issued one opinion on July 21st and one opinion on the 28th.</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black; font-size: 12pt;">We’ll start with the July 21 opinion. Defendant’s 14-year-old
daughter accused him of sexual assault. The police asked daughter if there
might be any DNA evidence at the family home. Daughter supposed there probably
was in her room. So, while dad and dad’s wife were at the arraignment, daughter
went to the family home with the cops and DCF and they eventually searched a
trash can where they found some DNA evidence. The trial court denied
defendant’s motion to suppress and to dismiss for speedy trial rights.
Defendant was convicted of sexual assault of a child. Defendant appeals. SCOV
affirms. On appeal, SCOV reasons that daughter had authority to consent to the
search. Defendant’s speedy-trial rights weren’t violated (In the totally
unsurprising news department: COVID seems to have changed the traditional
analysis here). SCOV affirms. <i>State v. Boyer</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-275.pdf"><span style="font-size: 12pt;">2023 VT 40</span></a><span style="color: black; font-size: 12pt;">.</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black; font-size: 12pt;">This 28th’s opinion is about divorce, access to public records,
and ex-parte RFA filings. After moving to modify parent-child contact, father
found out about mother’s ex-parte applications for RFAs on behalf of their
children. So father wanted to see copies of those unsuccessful ex-parte
applications. The trial court allowed father access to the orders denying the
applications, but not the underlying complaints and affidavits. Father appeals.
On appeal, SCOV frames it thusly: “The only issue before us is whether father
should have been granted access under the Public Access Rules to mother’s ex-parte RFA complaint and affidavit.” SCOV reasons that father does not get the
ex-parte applications under a plain reading of the rules (despite father’s
public policy arguments about a defendant’s right to access to allegations
against him) when an application is denied by the trial court. SCOV further
reasons that father’s other arguments (under family procedure rules) for access
are not preserved. <i>Phillips v. Phillips</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-249.pdf"><span style="font-size: 12pt;">2023 VT 44</span></a><span style="color: black; font-size: 12pt;">. </span></span></p><p></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com2tag:blogger.com,1999:blog-8110639002933228971.post-15336819336890638012023-07-16T11:58:00.004-04:002023-07-16T11:58:53.088-04:00June and Half of July<p style="text-align: left;"></p><p class="MsoNormal"></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEguLDGnx6Z5qB58jOvzf9g0Z5Tn_1la258pINzXe6aKqkivPwL8LdxRdjnNZcixwM3C4rb9Jk3u67tQrbO6SYSYQ5ZIZRCrTQQvg2YACdl73K8CBKQ4sNAW24wtrXEs8jbPg3gCQcUHA0uGi1fRn7ff20QhOJcaWeyZVjvzTPRD-1DcL21pBUossphncog/s720/hey-june-meme-720x720.jpeg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="720" data-original-width="720" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEguLDGnx6Z5qB58jOvzf9g0Z5Tn_1la258pINzXe6aKqkivPwL8LdxRdjnNZcixwM3C4rb9Jk3u67tQrbO6SYSYQ5ZIZRCrTQQvg2YACdl73K8CBKQ4sNAW24wtrXEs8jbPg3gCQcUHA0uGi1fRn7ff20QhOJcaWeyZVjvzTPRD-1DcL21pBUossphncog/s320/hey-june-meme-720x720.jpeg" width="320" /></a></div>What a week, huh? Check on your neighbors. <o:p></o:p><p></p>
<p class="MsoNormal">Somehow, SCOV issued an opinion this past Friday. There were
two opinions and a published entry order on July 7th. We’ll start with those.<o:p></o:p></p>
<p class="MsoNormal">First up is a weird procedural scenario. A gentleman goes to
trial, is found guilty, and then the court dismisses the case for speedy-trial
violations. Huh? The state appeals and SCOV reverses, reasoning that although
COVID-related delays are attributable to the state “we will accord those delays
very little weight in this case.” SCOV reasons that the bulk of the delays were
for “normal” or “neutral” reasons. SCOV also reasons that defendant’s assertion
of his speedy-trial right wasn’t <a href="https://www.youtube.com/watch?v=JWV_zMaQFEw">aggressive enough</a>.
Finally, SCOV also reasons that defendant never established actual prejudice in
this case. Ultimately, while SCOV finds the 45.5-month delay significant, it
also concludes that the factors do not weigh in defendant’s favor and reverses
and remands. <i>State v. Labrecque</i>, <a href="https://www.vermontjudiciary.org/media/16112">2023 VT 36</a>.<o:p></o:p></p>
<p class="MsoNormal">Next up, we have an evidentiary case about foundation for
admission of a blood test in a civil-suspension proceeding. You might think
that this would go the state’s way as so many of these things do. You’d be
wrong. Here, because the only thing is a throwaway line in a form affidavit,
SCOV concludes that there was insufficient evidence to establish that the blood
sample was taken in accordance with DPS rules. No adequate foundation, no
admission of the blood test results, and defendant wins—reversed and remanded
for entry of judgment in favor of defendant. <i>State v. White</i>, <a href="https://www.vermontjudiciary.org/media/16113">2023 VT 38</a>.<o:p></o:p></p>
<p class="MsoNormal">Our third case—the entry order—for last week is simple
enough. Disbarred in New Hampshire? Also disbarred here. No details other than
that. <i>In re Wellman-Ally</i>, <a href="https://www.vermontjudiciary.org/media/16114">2023 VT 41</a> (mem.)<o:p></o:p></p>
<p class="MsoNormal">This week’s opinion is primarily about what constitutes
eluding in the context of DUI on an electric scooter. Defendant was convicted
of felony DUI4 and eluding a police officer based on an incident where a police
officer saw defendant on a sidewalk with an electric scooter and approached
defendant. Defendant appeared to be impaired. When the officer turned around,
defendant took off on his scooter. Police officer later tracked down defendant.
Bottom line is that officer saying “hang tight” on the sidewalk (and defendant scooting
away—pun totally intended) doesn’t meet the <a href="https://legislature.vermont.gov/statutes/section/23/013/01133">elements
of the eluding statute</a>. SCOV reasons that “because defendant did not fail
to bring his vehicle to a stop when signaled to do so by an enforcement
officer, the State cannot prove defendant violated the statute.” There are some
evidentiary and <i>voir dire</i> arguments covered in this case as
well, but none of them get defendant any relief. Oddly enough, there’s no
discussion of whether an electric scooter is even a motor vehicle. I feel like
this case could make a great sitcom episode. <i>State v. Colehamer</i>, <a href="https://www.vermontjudiciary.org/media/16126">2023 VT 39</a>.<o:p></o:p></p>
<p class="MsoNormal">On to the wrap-up for June. There were two opinions on
Friday, June 30th, and—do not ask me how because I swear they weren’t there
last time I checked—two opinions on the 16th of June.<o:p></o:p></p>
<p class="MsoNormal">We’ll start with the older opinions.<o:p></o:p></p>
<p class="MsoNormal">First we have a juvenile case. This is a CHINS-B or lack of
proper parental care case. Based on one incident of physical punishment
(dragging the kid by the arms), the trial court concluded that the child was
without proper parental care. SCOV reverses, noting that the trial court’s
finding “stretches the CHINS-B definition too far.” It’s possible something
else might hold up in this scenario, but not CHINS-B. Could I say more? Yes.
Will I say more? Nope. Here’s the link. <i>In re J.N.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op23-017.pdf">2023
VT 34</a>.<o:p></o:p></p>
<p class="MsoNormal">Next up, we have a real dog fight. Husband and
wife—well, <i>ex</i>- husband and wife—got divorced and the family
division awarded the family dog, Zola, to wife. Husband appeals, arguing that
he got cut off at the hearing and the trial court’s analysis about Zola was
faulty. The majority affirms, reasoning that there were no errors. Justice
Cohen and Waples dissent, reasoning that the trial court exceeded the scope of
its authority in considering best-interests factors. The dissent would reverse
and remand for findings consistent with the permissible dog-division factors. I
do note that the majority says the dissent “strays” and I’m not sure if that’s
an intended pun or not. I know I’d have a hard time not sneaking puns in on
this one. Probably a good thing I’m not a SCOV law clerk. <i>LaRivere v.
Shea</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-097.pdf">2023
VT 33</a>.<o:p></o:p></p>
<p class="MsoNormal">Moving onto the past week, we begin with a worker’s comp
opinion that asks the question whether a statute shifts the burden for covering
lost wages from a prior to current employer is constitutional. The answer? It
is, at least according to SCOV. Not a whole lot to see here, folks. <i>Mahmutovic
v. Washington County Mental Health Services, Inc.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-323.pdf">2023
VT 37</a>.<o:p></o:p></p>
<p class="MsoNormal">Our final opinion for June is a 38-page romp through solar
contracts and land purchases that my gnat-like attention span can’t handle.
Here’s the upshot: some of Mr. Beldock’s claims—and a defendant’s
counterclaim—shouldn’t have been dismissed on summary judgment because
questions of material fact exist. Same on an unjust enrichment claim. Is that a
thorough and complete analysis of the issues in this case? Not even close. But
you gets what you get. <i>Beldock v. VWSD, LLC</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-086.pdf">2023
VT 35</a>.<o:p></o:p></p>
<p class="MsoNormal">Our June 9 opinion is straightforward. The bottom line is
that if the legislature wants to get rid of the statute of limitations (SOL)
for a civil claim—as it did with child-sex abuse claims—then it can do so.
Defendants have no vested right in a SOL defense. Plaintiff filed a suit after
the legislature removed the SOL, as alluded to above, for child sex abuse.
Under previous iterations of the SOL, the case would have been time-barred
because the events alleged happened in 1983 and retroactivity previously ended
at 1984. Defendants moved to dismiss, arguing that the retroactivity violates
due process under the Vermont Constitution. The trial court denied the motion
and defendant filed an interlocutory appeal. On appeal, SCOV cites to a handful
of cases from the 1800s—the ones that had the reporter’s name in the cite—and
distinguishes a case from Utah that came to a different conclusion. Ultimately,
SCOV reasons that the legislature gonna legislate and that SCOV ain’t gonna
interfere with this one because civil “defendants have no vested property
interest in the expired limitations period.” <i>A.B. v. S.U.</i>, <a href="mailto:https://www.vermontjudiciary.org/sites/default/files/documents/op22-200.pdf">2023
VT 32</a>.<o:p></o:p></p>
<p class="MsoNormal">June 2 was another one-opinion week. This time, we’re
dealing with employment law and discrimination and retaliation. Plaintiff filed
suit against their former employer, the University of Vermont Medical Center.
Plaintiff worked in the histology laboratory and was a senior <a href="https://www.nsh.org/about/about-histotechnology/why-histotechnology">histotechnologist</a> (the
link is in case you’re like me and don’t know what that means without a quick
search). Anywho . . . plaintiff had some medical issues during their seventeen
or so years working at UVM and received some leave and accommodations for those
medical disabilities. Eventually, in 2017, plaintiff ended up with a new
supervisor from the ranks and there was some new tension in that relationship
from the change in the dynamic. Plaintiff also had some issues with a senior
coworker. There were performance issues and emails and such about those.
Plaintiff reasoned that the discipline and their lower review ratings were for
their disability and their race. Shortly—a few months—after raising these concerns,
plaintiff was terminated. The trial court found that plaintiff had failed to
make out a prima facie case for disability discrimination but that the timing
of the firing—shortly after plaintiff complained of racial
discrimination—established a prima facie case for retaliation. But the trial
court also concluded that employer had given legitimate nondiscriminatory
reasons for termination and plaintiff had failed to show that those reasons
were false. Accordingly, the trial court granted summary judgment to defendant.
Plaintiff appeals.<o:p></o:p></p>
<p class="MsoNormal">On appeal, SCOV reasons that the trial court got it right.
While plaintiff was able to meet the relatively light burden of showing facts
that permit an inference of retaliation, employer was able to give legitimate
nondiscriminatory reasons for termination. At that point the burden shifted to
plaintiff to prove that employer was lying about those reasons, and well,
plaintiff wasn’t able to do that. As always, there’s a lot more to it than
that, but I’m tired and sick of writing so “you get what you get and you don’t
get upset.” The trial court gets affirmed. <i>Hammond v. Univ. of Vt. Med.
Ctr.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-197.pdf">2023
VT 31</a>.</p><p></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com1tag:blogger.com,1999:blog-8110639002933228971.post-60105219137596763022023-05-28T13:20:00.005-04:002023-05-28T13:20:56.334-04:00Cyclic Update: The Month of May<p><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4Jv46yq6LnCQOOQGB6-d6Bh6GaQqDIKfxqWa97I8ZrbElxwFV0nvnv6t42Us--jURPyYbRRThpSqV-eUjN6NJmYgqJDwI749zXMCq2AR_AAh-IypZXWJ1F0eNW6WhKYhyrd9wQEdbUwsbNAhaxF0AyyAIWYG8Ok_2e-i8ovnu_Fm6y97Sdg-DGNvf/s610/its-gonna-be-may-somethin.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="406" data-original-width="610" height="213" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4Jv46yq6LnCQOOQGB6-d6Bh6GaQqDIKfxqWa97I8ZrbElxwFV0nvnv6t42Us--jURPyYbRRThpSqV-eUjN6NJmYgqJDwI749zXMCq2AR_AAh-IypZXWJ1F0eNW6WhKYhyrd9wQEdbUwsbNAhaxF0AyyAIWYG8Ok_2e-i8ovnu_Fm6y97Sdg-DGNvf/s320/its-gonna-be-may-somethin.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">It's an old meme but it checks out</td></tr></tbody></table>Since April 22, things have been relatively quiet. </span></p><p></p><p class="MsoNormal"><span style="font-family: inherit;"><a name="_MailEndCompose"><span style="color: black;">One opinion Friday, May 26. The short version is the controversy is moot
and that’s the end of the story. The in-between is interesting though. Once
upon a time (August 2020), the Vermont Journalism Trust (VJT) sought—via a
public records request—emails from the former secretary of the Agency of
Commerce & Community Development relating to the Jay Peak EB-5 scandal. The
State denied the request, citing the Public Records Act’s litigation exception.
Litigation eventually ensued. Some records got turned over because they—in the interim—became
no longer subject to the litigation exception having been produced in another
case. Other records continued to be withheld. VJT moved to compel and require
the State to produce a <i>Vaughn </i>index. A <i>Vaughn </i>index is more or
less a privilege log. The parties tussled about that. The trial court denied
the motion to compel and VJT appealed. Eventually, due to ancillary circumstances—the
withheld documents being turned over in the other case mentioned above, specifically—the
State turned everything over to VJT while this appeal was pending. The State
then moved to dismiss the appeal as moot. SCOV agrees that the appeal is moot
and that no exceptions to mootness apply. There’s some discussion about the
potential for future shenanigans (“future shenanigans” is a well-known
exception to the mootness doctrine also known as the
capable-of-repetition-yet-evading-review exception), but SCOV concludes that’s
not the case here. Nothing affirmed, nothing reversed—appeal dismissed. <i>Vermont
Journalism Trust v. State</i>, </span></a><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-081.pdf"><span style="mso-bookmark: _MailEndCompose;">2023 VT 30</span><span style="mso-bookmark: _MailEndCompose;"></span></a><span style="mso-bookmark: _MailEndCompose;"><span style="color: black;">.</span></span></span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">Two published entry orders and two
opinions over the previous week. We’ll start with the May 15<sup> </sup>entry
order.</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">Mr. Muxlow would like to be on home detention. The </span><a href="https://legislature.vermont.gov/statutes/section/13/229/07554b">home detention statute</a><span style="color: black;"> requires a
review if DOC files a report that says home detention is appropriate. Here, DOC
did not file such a report (it did not recommend home detention) and the trial
court did not hold a review hearing. Mr. Muxlow appeals, arguing that the court
can’t delegate to DOC and that the court has to hold a hearing. <i>Au contraire</i>,
says SCOV. “No such report,” no need for the trial court to review. <i>State v.
Muxlow</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo23-118.pdf">2023 VT 27</a><span style="color: black;"> (mem.)</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">On May 17, 2023, SCOV issued a somewhat-cryptic entry order
suspending (by stipulation) an attorney’s Vermont license. Reading between the
lines, it appears that there are concurrent disciplinary proceedings in NH,
which may result in disbarment. If so, disciplinary counsel is supposed to file
a copy of such an order. <i>In re Wellman-Ally</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo23-164.pdf">2023 VT 28</a><span style="color: black;"> (mem.)</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">On Friday May 19, SCOV issued an opinion that includes the quotes—and I
swear I am not making this up—“when he cheats on me and I don’t pull up to the
bitch$ house and dr@g her by the sc@lp cuz ik where she rests her head every
night” and “If you send nudes to a man with a girlfriend, expect that shit to
get leaked. Expect that shit to get leaked. No shame on my end for leaking your
shit.” This is a TikTok stalking case and it makes me feel old. The short
version is that two teenage former best friends appear to be fighting over a
boy (not to be too flip, but given his alleged behavior, including cheating
five times on the poster-of-TikToks, <i>why </i>is an appropriate question here
but I digress . . . .) and one of the girls is posting allegedly threatening
things on the social-media platform TikTok. I am doing everything I can here
not to write this entire summary in internet slang . . . FRT. At any rate, one
of the girls’ moms filed an anti-stalking case against the offending poster.
The trial court found that the conduct did not rise to the level of staking and
dismissed the complaint. Plaintiff appeals. SCOV concludes that the trial court
was correct that defendant’s actions, though disturbing and inappropriate, did
not rise to the level of a “course of conduct” necessary to establish stalking
under the statute and prior precedent. SCOV affirms. <i>Morton v. Young</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-199.pdf">2023 VT 29</a><span style="color: black;">.</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">Our other May 19 opinion is also a stalking case. This one takes place in
the physical world and involves an adult shooting off a gun on his vacant lot
as well as playing a game call of a rabbit in distress. Once again, I swear I
am not making this up. In this case, three of the neighbors (plaintiffs) got
temporary orders against stalking directed at defendant. They all stipulated to
one-year-no-findings orders. And then plaintiffs wanted to renew and modify, so
there was a hearing. This opinion also has some very colorful quotes. You can
read them yourself at the link. In the end, the trial court modified and
extended the anti-stalking orders, including prohibitions on defendant singing
and using a megaphone and shooting off guns on his vacant lot. Look, I realize
this may all sound a bit bizarre but it will make sense if you read the
opinion. Defendant appeals, raising arguments stemming from the first two
amendments to the constitution. (An aside: constitutional arguments always make
me think of </span><a href="https://www.youtube.com/watch?v=nMvARy0lBLE">this video</a><span style="color: black;">). SCOV is not
swayed. SCOV rejects defendants arguments and affirms the trial court. <i>Swett
v. Gates</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-143_0.pdf">2023 VT 26</a><span style="color: black;">.
<o:p></o:p></span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;">One opinion May 5, 2023. We’ll call it a “typical”
environmental-division-enforcement action for context. Once upon a time in
2004, an LLP (Sisters and Brothers Investment Group, or SBIG) bought a gas
station—a nonconforming grandfathered use—with a number of parking spots. The
parking spots were s’posed to be used in connection with the gas station. At
some point SBIG started renting out a small number of parking spots privately
(this was a no-no). In 2017, the gas station closed and SBIG started using it
exclusively as a private parking lot (this is an unpermitted nonconforming
use). Well, the neighbors and the City of Burlington didn’t like any of this
stuff and the city sent SBIG a notice of violation. One wrinkle here is that
the day before the sale to SBIG back in ‘04, the prior owner of the property
had entered an agreement with the city to cure a bunch of zoning violations.
So, city sends SBIG a notice of violation, SBIG appeals to the DRB, and the DRB
finds a violation with the change in use. The DRB specifically “did not
address” the 2004 agreement. SBIG does not appeal. </span></p>
<p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">Flash forward and the city files an enforcement action against
SBIG. After a one-day trial, the environmental division found that SBIG was in
violation had not made any attempts to cure the violations. The environmental
division also found SBIG in violation of the 2004 agreement and handed down a
hefty fine of just south of $67K. SBIG appeals.</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">On appeal, SCOV is unsympathetic to SBIG in most regards. SBIG
didn’t bother with fixing the violations—it didn’t appeal them either—and on
appeal, SCOV is not about to undo the unappealed violations or the trial
court’s findings that SBIG was in violation for over two years. Where SCOV does
have some sympathy for SBIG is with the findings of violations of the
2004 agreement. The agreement was with the prior owner and there was no
evidence introduced that SBIG “knew or should have known” about it.
Accordingly, SCOV reverses and remands for a recalculation of fines without
considering violations of the 2004 agreement. <i>Burlington v. Sisters and
Brothers Investment Group</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-194.pdf">2023 VT 24</a><span style="color: black;">. </span></span></p><p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">That's it. See you next month. Maybe. </span></span></p><p></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-4529885364055474272023-04-22T11:28:00.002-04:002023-04-22T11:28:47.874-04:00IDK Monthly? Update<p><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiFmvtUu-PhtkOM6Ts_nMDOJ8mpL9oqeXhMVPIB_CW4rqd2J9vs4gZTzlovze83gXTqimdILUw3IzOJoZ0IS2z208lRnMtg61kNwAz4Euxfwrl09UULyGQaqY4H9G7huALDvcHclvT9ppaWyE3HtxZZGNgRfmPdcZ0NwUDHVKWVi37l76kCQfNwPcO-/s1200/daylight-saving-time-memes-2-1-1572626030728%20(1).jpg" imageanchor="1" style="clear: left; display: inline !important; float: left; font-family: inherit; margin-bottom: 1em; margin-right: 1em; text-align: center;"><img border="0" data-original-height="628" data-original-width="1200" height="167" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiFmvtUu-PhtkOM6Ts_nMDOJ8mpL9oqeXhMVPIB_CW4rqd2J9vs4gZTzlovze83gXTqimdILUw3IzOJoZ0IS2z208lRnMtg61kNwAz4Euxfwrl09UULyGQaqY4H9G7huALDvcHclvT9ppaWyE3HtxZZGNgRfmPdcZ0NwUDHVKWVi37l76kCQfNwPcO-/s320/daylight-saving-time-memes-2-1-1572626030728%20(1).jpg" width="320" /></a>Look, it's been pretty quiet for the last month-ish so my slackery is somewhat mitigated. You get what you pay for here. Here's the rundown for the since-St.-Paddy's-Day opinions. </p><span style="font-family: inherit;">One case this week. Bankruptcies can complicate
legal proceedings. In this case, plaintiff filed a medical negligence suit
against Springfield Hospital and Emergency Services of New England for a missed
diagnosis. When Springfield Hospital filed for bankruptcy, the trial court
issued an order dismissing plaintiff’s case without prejudice. The dismissal
order gave the parties ten days to object and listed five potential events that
plaintiff could—within thirty days—use to reopen the case without charge by
filing a “Request to Vacate Dismissal and Reopen the Case.” The bankruptcy case
was closed in July 2021. In October 2021, plaintiff moved to reopen the case
arguing that, technically, none of the five listed events had occurred and even
if one had, she should be excused from the thirty-day time limit because
defense counsel hadn’t given timely notice of the closure. Plaintiff also
argued that the dismissal order wasn’t valid in the first place because only
one of the defendants had filed for bankruptcy. The trial court granted
plaintiff’s motion, noting that there was no legal or equitable basis to
dismiss the case simply because one of the defendants had filed for bankruptcy
and that it had only intended to stay the case, not dismiss it. Defendants moved
for reconsideration. The trial court denied defendants’ motion but allowed the
defense to file an interlocutory appeal.</span><div><span style="font-family: inherit;"><br /></span></div><div><span style="font-family: inherit;">Here’s where it gets a little strange. SCOV doesn’t
necessarily decide whether the dismissal order was valid or not in the first
place, though it notes that plaintiff did not object nor did she appeal. SCOV
reasons that the trial court <i>could </i>issue the dismissal order in the
first place but doesn’t reach the question whether it was proper or an abuse of
discretion. Ultimately, SCOV concludes that the trial court abused its
discretion because it had no legal basis to vacate the dismissal and reopen the
case—either under the 2019 dismissal order or Rule 60(b)—and reverses the trial
court’s vacation of the dismissal order because, according to SCOV,
“[P]laintiff’s own lack of diligence, not the 2019 dismissal order or
defendants’ conduct, is the reason for her situation.” I’m not sure I agree,
but that’s the way SCOV puts it. <i>Hill v. Springfield Hospital</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-154.pdf">2023
VT 23</a>. </span><span style="font-family: inherit;"><o:p> </o:p></span><div><p style="text-align: left;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEghnZZAKLc3CvvAXAL9kWIk3rx_0nIDY_pP9BoFo8kzdE7XClCuGjODhD6qm7oHxT9wCgi6fPJIk9gdbORT4zQYnI_3cio5lVd32DdT5VQLQWM27aQbH3wnnbTDK72Otlk-7vJVkWGHp3TVgDL4xFRzhE8p4nHIQn5nlbJDDTlOi9DrkxLyfJAQMIQk/s360/yute.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="360" data-original-width="315" height="275" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEghnZZAKLc3CvvAXAL9kWIk3rx_0nIDY_pP9BoFo8kzdE7XClCuGjODhD6qm7oHxT9wCgi6fPJIk9gdbORT4zQYnI_3cio5lVd32DdT5VQLQWM27aQbH3wnnbTDK72Otlk-7vJVkWGHp3TVgDL4xFRzhE8p4nHIQn5nlbJDDTlOi9DrkxLyfJAQMIQk/w241-h275/yute.jpg" width="241" /></a></p><p style="text-align: left;"></p><p style="text-align: left;"><span style="font-weight: normal;"><span style="font-family: inherit;">For weeks it was quiet. </span><i style="font-family: inherit;">Too </i><span style="font-family: inherit;">quiet. Four opinions issued on the 14th of April (after a three-week hiatus).</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">The first case is relatively straightforward. The “yute” in this
case moved for youthful-offender status. The family division took testimony and
made findings, one of which was that it was unlikely the respondent would be
able to complete necessary treatment before aging out of the youthful-offender
program. On appeal, SCOV reasons that this determination was within the trial
court’s discretion and affirms. <i>In re G.C.</i>. <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-285.pdf">2023
VT 22</a>.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Second case for the week is about forum-selection clauses and how
they hold up. In this case, the answer is “well.” Plaintiff sued defendant
after it told him that it had made a clerical error and wouldn’t be able to
transport some motorcycles plaintiff had contracted with defendant to transport.
The contracts had a forum-selection clause for Milwaukee, Wisconsin. Plaintiff
paid a whole lot more money for the transportin’. Plaintiff then filed suit in
Vermont and defendant moved to dismiss. The trial court dismissed in a
“laconic” order. (That means “light on the words,” and yes, I had to look it
up.) On appeal, SCOV agrees that the forum-selection clause survives here and
affirms the trial court’s dismissal, though in a somewhat-less-laconic manner.
Justice Cohen laconically concurs, though he is “troubled by the trial court’s
one-line order dismissing the case without any review of the fundamental
fairness of the forum-selection clause.” <i>Margolis v. Daily Direct, LLC</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-237.pdf">2023
VT 20</a>.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Next we turn to the search-and-seizure provisions of the Vermont
constitution. This is technically the third time at SCOV for this case—an
initial opinion, an amended opinion, and this one. SCOV concludes the trial
court’s findings are sufficient—this go-‘round—to support the conclusion the
investigating officer’s discovery of a shell casing while performing a welfare
check was <i>not </i>outside his limited license to be where he was at the time
he was there. I could have sworn that the casing was out based on the <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op20-079.pdf">initial</a>
and <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op20-079_0.pdf">amended</a>
opinions (defendant thought the same thing), but this time the trial
court—according to SCOV—got the analysis right. Insert shrug emoji here. <i>State
v. Calabrese</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-131.pdf">2023
VT 19</a>. (<a href="https://scovlegal.blogspot.com/2021/10/the-you-must-be-really-bad-at-counting.html">Click here</a> if you’re looking for the previous summaries.)</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">Rounding out the week—I don’t understand that phrase but I’ll use
it anyway—we have a quasi-criminal family law case. This case turns on what
“available to testify” means in the context of V.R.E. 804a. It’s a sad
situation and I won’t go too far into it, but we can say that mom and dad have
an “extremely dysfunctional” relationship and mom is convinced that dad was
sexually abusing their-at-the-time-four-year-old son. Child made statements to
mom and others indicating as much but there are some indicators that the
four-year-old’s statements may not have been the truth, the whole truth, and
nothing but the truth. The rule—804a—provides, in a nutshell, that a court can
admit hearsay statements of a putative child victim of sexual abuse if certain
indicia of truthfulness are met and the child is “available” to testify. The
available-to-testify requirement finds its roots in the confrontation clause.
Here, the trial court reasoned that while many of the elements for
admissibility were met, the child was not available to testify based on the
family court rules and statutes and excluded the statements on that basis (a
lot of the statements came in through expert testimony anyway). Mom appeals the
denial of her motion to permanently suspend parent-child contact with dad,
arguing that the trial court got it wrong in excluding the statements. On
appeal, SCOV reasons that this was a difficult call and the trial court’s
reasoning was sound. Mom also argues that the trial court improperly relied on
the son’s attorney and GAL in determining whether the child could testify. SCOV
doesn’t see an abuse of discretion here, notes that even if it did find error,
a lot of the statements came in another way, and affirms the trial court’s
ruling. <i>Davis v. Davis</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-090.pdf">2023
VT 21</a>.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"> </span><span style="font-family: inherit;">One opinion March 24. This is a child-in-need-of-supervision
(aka CHINS) case and mom’s second trip to SCOV. This appeal concerns transfer
of custody to dad, not the merits (so we don’t get into the CHINS merits at
all). Dad was previously the noncustodial parent. In transferring custody to dad,
the trial court concluded that mom had not done what she needed to do but that
dad had. Mom appeals. As an initial matter, the state argues mom’s appeal is
late—filed three months after the order transferring custody. The SCOV majority
reasons that things were left kinda open by the trial court when it came to
parent-child contact so while <i>typically </i>the transfer-of-custody order
date would start the appeal clock a-tickin’, the parent-child-contact schedule
is what finalizes the order and mom’s appeal is timely (the majority does
mildly criticize the trial court’s confusion-engendering approach in a
footnote). That means we get to the merits of the appeal. Mom’s primary
argument is that the discharge-to-dad decision required a finding of a change
in circumstances. The majority agrees that this is true. But, the majority also
concludes that the trial court’s findings support a finding of a change in
circumstances in this case, even if the trial court did not explicitly state
that it was making that finding. With that threshold issue out of the way, the
majority concludes that the trial court’s findings were adequate on the best
interests of the child and affirms. Justice Eaton, joined by Justice Cohen,
concurs on all points except the best-interest factors. On this point, the
dissent reasons that mom’s shortcomings do not equate to dad meeting these
factors. The dissent would remand for further findings on the best-interests
factors. <i>In re Z.P.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-271.pdf">2023
VT 17</a>. </span></p><p></p></div></div>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-5772540715836127212023-03-18T20:34:00.004-04:002023-03-18T20:34:28.958-04:00Biweekly (this time anyway) Update: March 17, 2023<p style="text-align: left;"><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1bDscLM5iLqYY49UqugwJc_9XyXUhLgGQscn_clzu49TNET0k244Nlj93jEXPfMuZAmVCh6kpfOx0FCKfJ5gire2aV21etdHRBuES00iKw8zekKIqxikJgiccdXV347D2DS2faetjX1Qv6QnO38walxX2UuGIB63sjxLOEU6XeXzpn-yvXNtU154c/s558/St%20Patty's%20Day.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="436" data-original-width="558" height="250" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1bDscLM5iLqYY49UqugwJc_9XyXUhLgGQscn_clzu49TNET0k244Nlj93jEXPfMuZAmVCh6kpfOx0FCKfJ5gire2aV21etdHRBuES00iKw8zekKIqxikJgiccdXV347D2DS2faetjX1Qv6QnO38walxX2UuGIB63sjxLOEU6XeXzpn-yvXNtU154c/s320/St%20Patty's%20Day.jpg" width="320" /></a></span></div><span style="font-family: inherit;">Three St. Patty’s Day<i> </i>opinions. </span><p></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">First, we have a school-choice issue. Three sets of parents sued a
bunch of governmental entities because their kids didn’t get school choice by
virtue of where they reside. They raised “a facial constitutional challenge to
Vermont statutes that allow school districts to choose whether to maintain a
public school, permit children to attend an out-of-district public school or an
independent school at the state’s expense, or some combination of both.”
Parents claim that the statutes violate the Education Clause and Common
Benefits Clause of the Vermont Constitution. School choice can be tricky in
Vermont. </span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">An aside: I grew up in Tunbridge in part, which had school choice
for high school. I was homeschooled, and tried to argue to the Town of Royalton
that had I gone to school, I <i>could have gone</i> to South Royalton High
School and the Town should therefore offer me the yearly full-ride scholarship
deal to Vermont Law School the Town had with the school since nobody else from
my year had claimed it. It went nowhere but the Town did write me a very nice
letter explaining that I was an idiot. </span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"><span style="color: black;">Back to the case. After several of the defendants moved to
dismiss, the civil division concluded that the parents had not presented an
adequate facial challenge to the law. Parents appeal. SCOV reasons that, among
other things, the parents’ individual claims of unequal opportunity for their
own children are not sufficient to raise a facial challenge to the statutory
scheme. But SCOV leaves the possibility of a future challenge open. “Our
conclusion in this case does not end the evolution of the debate over how the
state should educate Vermont children.” <i>Vitale v. Bellows Falls Union High
School</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-059.pdf">2023 VT 15</a><span style="color: black;">.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"><span style="color: black;">Our second case is a partition action. If you’ve ever had a
migraine, then you know what partition is like. Plaintiffs and defendant
co-owned a property with two buildings. Plaintiffs wanted to subdivide.
Defendant did not. It’s off to court we go. In this case, the court followed
the statutory procedure and appointed commissioners to do the formal divvying
up. The commissioners ended up giving defendant the first right of assignment
to buy out the plaintiffs instead of physically splitting the property. This
was, in part, because the proposed subdivision could result in zoning
violations. Plaintiffs take issue with that reasoning (among other things).
SCOV does not find any reason, however, to disturb the commissioners’ rulings. <i>Wells
v. Spera</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-178.pdf">2023 VT 18</a><span style="color: black;">.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"><span style="color: black;">Third this week is a child-in-need-of-supervision or CHINS case.
Briefly, there were some disturbing allegations that mother’s boyfriend molested
C.C., who was in kindergarten at the time. Mother dismissed the allegations
initially and claimed that C.C. was lying. Ultimately, the trial court found
that C.C. was in need of supervision and that C.C. should be placed with father
due to mother’s apparent refusal to protect C.C. Mother appeals, arguing that
any hearsay statements (there’s a rule about this we needn’t get too involved
with here) made by C.C. should have been excluded for the family division’s
consideration. On appeal, SCOV reasons that even if you remove the
complained-of statements, there was still ample evidence to support the family
division’s findings. <i>In re C.C.</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-242.pdf">2023 VT 16</a><span style="color: black;">. </span></span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">Two opinions issued on the 10th.</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">The first is a housing discrimination case. Plaintiff brought suit
against UVM and its housing management company because, in a nutshell, she felt
that she was discriminated against by virtue of having a kid. It seems—on its
face—like a legit complaint. But the case turns on how you classify the kid. If
the declination to rent was “because you’ve got a kid,” then that’s problematic
for the defense because, well, there are laws against that. But here, the
school and its agency claimed the declination was because the apartments are
student housing and plaintiff intended to live with a “nonstudent.” The trial
court granted summary judgment for the defense based on the latter frame and
plaintiff appeals. SCOV holds that the declination to rent was not based on
familial status but on nonstudent status and affirms. <i>Spinette v. University
of Vermont</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-119.pdf">2023 VT 12</a>.</span></p><p class="MsoNormal" style="text-align: left;">
<span style="font-family: inherit;">Our second case is a declination to certify character and fitness for an
applicant that embezzled over a half million from clients while practicing in
California in the ’90s (for no particular reason but “entitlement” and
“narcissism”), eventually went to prison, but practiced with his suspended
license first. He also failed to disclose some of this stuff on his Vermont bar
application. The character and fitness committee found all this problematic.
Applicant appeals, and SCOV affirms. While there was some rehabilitation shown,
it wasn’t quite enough for the committee or for SCOV and the failure to
disclose is always a big no-no. Applicant makes a run at collateral estoppel
based on a transfer-of-UBE-score hearing, but SCOV concludes that character and
fitness was not at issue in that hearing. Thus, collateral estoppel doesn’t
fit. (And as an aside, in my opinion, clever (or not-so-clever), lawyerly
arguments are best reserved for anything <i>but </i>character and fitness and
disciplinary proceedings.) <i>In re Taub</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-168.pdf">2023 VT 13</a>. </span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com1tag:blogger.com,1999:blog-8110639002933228971.post-50011974073360963512023-03-05T13:58:00.004-05:002023-03-05T13:58:39.515-05:00The Three-Three Two<p style="text-align: left;"><span style="font-family: inherit;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: inherit;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjinQAJAotTDKWqsqbM5YYCBNHtNLyQqqEJDsLpkM1YUgUUnrYekCI9vuHyXkkmfABFzJmq2Qg67Q6QCEhtZEmgyS_B6jDiGGk0xz5ORKaDVGA8eBErfs3qnJ79X0kDTZ4M88XtI1txVt6ZhM-k2pfCXgvrpJghpoUL-WZR9tQgrJYEVE2dzJKrxVTT/s627/Most-Interesting-Man%20Meme.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="627" data-original-width="500" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjinQAJAotTDKWqsqbM5YYCBNHtNLyQqqEJDsLpkM1YUgUUnrYekCI9vuHyXkkmfABFzJmq2Qg67Q6QCEhtZEmgyS_B6jDiGGk0xz5ORKaDVGA8eBErfs3qnJ79X0kDTZ4M88XtI1txVt6ZhM-k2pfCXgvrpJghpoUL-WZR9tQgrJYEVE2dzJKrxVTT/w159-h200/Most-Interesting-Man%20Meme.jpg" width="159" /></a></span></div><span style="font-family: inherit;">One opinion Friday (3/3) and one entry order. We’ll start with the entry order.</span><p></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">The Board of Bar Examiners (BBE) has
a lot of discretion. Mr. M. applied for testing accommodations for the bar exam—specifically,
time-and-a-half to take it—on the basis of a 2014 diagnosis and his testing accommodations
ever since (high school, college, law school). He submitted supporting
documentation, but not a Form 5 assessment. The BBE denied Mr. M.’s request for
time accommodation, in significant part because of the missing assessment. Form
5 requires an assessment from a qualified professional and individualized
recommendations as to why more time is needed. Mr. M. moved for reconsideration
and the BBE denied that too. Mr. M. appeals. While SCOV acknowledges that the
BBE could have done better on a host of points, SCOV ultimately concludes that
the BBE “acted within its discretion in denying applicant’s request based on
his incomplete application.” <i>In re O.M.</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo23-048.pdf">2023
VT 14</a> (mem.).</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">This week’s opinion is another
foray into COVID-19 and speedy-trial rights. In a nutshell, defendant was held
without bail when “following <a href="https://www.netflix.com/title/80050008?source=35">a series of unfortunate
events</a>,” (I have to wonder if a clerk chose that phrase on purpose) defendant
fired a 9mm—several times—from inside his home through the front door onto a
porch where his adult son and his adult son’s two pals were standing. One of
the shots hit defendant’s son, though the wound was not life-threatening.
Defendant was charged with attempted murder (among other things). For some time—twenty
months—the case went through pretrial stuff, including questions regarding
defendant’s competency to stand trial. A month after the pandemic hit,
defendant moved for a speedy trial. Eventually, he was tried and convicted of many
of the lesser-charged offenses. Defendant appeals, arguing that his speedy-trial
right was violated and that his convictions should be overturned. SCOV doesn’t
go for it. SCOV takes the twenty-month delay off the top, attributes the
COVID-19 delays to the state but doesn’t give them a lot of weight because,
well, COVID-19, and affirms. Ultimately, SCOV is “persuaded that no
speedy-trial violation occurred here principally because of defendant’s
twenty-month delay in first asserting the right, the unavoidable delays caused
by the COVID-19 pandemic, and defendant’s failure to allege that the State
prosecuted him with anything other than reasonable diligence.” <i>State v. Young</i>,
<a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-122.pdf">2023
VT 10</a>. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com2tag:blogger.com,1999:blog-8110639002933228971.post-81618595455191427772023-02-26T15:52:00.009-05:002023-02-26T15:52:52.182-05:00An Actual Weekly Update: February 26, 2023<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj5DhqRz1PtaReQ4UjqQ1oKTJEn2ueUoAlPHR-dvegps0l3P-9AaoHp5GJwpGL5uzgEodXIGzOLfGPBUZZl42z5wj06vkSsHIcbodax4KU8Sg-sBYk-Olz5ww-ENe4cjU2twAAKq4g3H3aXi0TDtrgFHYxG-RW_G18uOmmmOgp71wwK_giK2lFl_hZi/s800/fdec43ec5fab4ec29f1cad8714e4535b%20(1).jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="588" data-original-width="800" height="235" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj5DhqRz1PtaReQ4UjqQ1oKTJEn2ueUoAlPHR-dvegps0l3P-9AaoHp5GJwpGL5uzgEodXIGzOLfGPBUZZl42z5wj06vkSsHIcbodax4KU8Sg-sBYk-Olz5ww-ENe4cjU2twAAKq4g3H3aXi0TDtrgFHYxG-RW_G18uOmmmOgp71wwK_giK2lFl_hZi/s320/fdec43ec5fab4ec29f1cad8714e4535b%20(1).jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Nothing to do with the case</td></tr></tbody></table>One opinion issued on Friday.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">Mr. Fleurry was a developmentally
delayed man who drowned in an unfenced pond on the property where he resided
with his live-in caretaker. The administrator of his estate brought suit
against the caretaker, the company responsible for Mr. Fleurry’s care, and the
landlord. The landlord moved to dismiss. The trial court granted the motion,
reasoning that landlord had no duty to construct a barrier around an open and
obvious water source, even when landlord knew that a person with limited
capacity and judgment would be on the property. Plaintiff moved for
reconsideration and the court denied the motion, but certified the question to
SCOV (this is because the trial court didn’t dismiss the whole case, just the
count against the landlord).</span></span></p>
<p style="text-align: left;"><span style="font-family: inherit;"><span style="font-size: 12pt;">SCOV reasons on appeal that the count has to be against the possessor of the land, not necessarily the absentee
landlord. Because plaintiff didn’t allege that landlord was in possession of
the property or that there was a legal relationship between Mr. Fleurry and the
landlord, SCOV affirms the trial court’s dismissal of the count. <i>Fleurry v.
Dept. of Aging and Ind. Living</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-082.pdf"><span style="font-size: 12pt;">2023 VT
11</span></a><span style="font-size: 12pt;">. </span> </span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-68257458046798565962023-02-18T17:24:00.002-05:002023-02-18T17:24:57.194-05:00Sorta Weekly Update: February 18, 2023<p class="MsoNormal"><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjGRFjcFWIVPjOuN_qNu7UDTgqfpD1LNIlc0cU-qvgCcowc7ngFfIj76h090M3OoaCzRWn-O6wRPeYEhYiiCwLN18NZqtd_IN8xH-7fWnSi4wvAYb10_b3Bz0ThEjKXcsybk_PA9darM6jjo-WgjCBVi2chyDpwQbyoFYi9pHHfHE4UtMGrUXn9FBlB/s1173/Funny-Valentines-Day-Meme.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="787" data-original-width="1173" height="215" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjGRFjcFWIVPjOuN_qNu7UDTgqfpD1LNIlc0cU-qvgCcowc7ngFfIj76h090M3OoaCzRWn-O6wRPeYEhYiiCwLN18NZqtd_IN8xH-7fWnSi4wvAYb10_b3Bz0ThEjKXcsybk_PA9darM6jjo-WgjCBVi2chyDpwQbyoFYi9pHHfHE4UtMGrUXn9FBlB/s320/Funny-Valentines-Day-Meme.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><br /></td></tr></tbody></table>It’s been quiet the past few weeks. This Friday, however, SCOV
issued two opinions.</span></p>
<p class="MsoNormal"><span style="font-family: inherit;">The first case is about square pegs, round holes, nepotism, and
collective bargaining agreements—not necessarily in that order. The state-employees’
collective bargaining agreement requires, among other things, that a
competitive position be posted for 10 days and gives priority placement to
employees who are subject to reduction-in-force or “RIF” layoffs. On February
7, 2020, a correctional facility (employer) posted a job that several employees
applied for or intended to apply for. This is our round hole. One of the
applicants was Ms. Moly. But here’s the thing about Ms. Moly: she worked for a
different correctional facility and her partner also worked at the different
correctional facility. He was very recently promoted, which meant he was in a
supervisory position over her, which violated the anti-nepotism agreement both
Ms. Moly and her partner had signed. So someone got a bright idea (I mean this
with all the sarcasm you’re hearing in your head right now). They decided to
“RIF” Ms. Moly into the vacant position. There are a few problems with this
approach, not the least of which is that Ms. Moly is not actually subject to a
RIF layoff. This made Ms. Moly a “square peg” for purposes of our story. On
Valentine’s Day 2020—I note the date for its delicious irony—Ms. Moly was hired
for the posted position and employer “disappeared” the posting. No competitive
interviews were held. The other employees who’d applied (or planned to apply
before the February 23 deadline) were understandably upset. The Union filed a
grievance on behalf of the applicants and applicants-to-be. The Labor Relations
Board found that employer had violated the CBA and ordered the State to repost
the job for ten days.</span></p>
<p class="MsoNormal"><span style="font-family: inherit;">The State appeals. SCOV doesn’t spend a whole lot of time on the
State’s arguments. SCOV concludes the Board’s findings and conclusions of law
were reasonable and even goes so far as to dress “evidence” in quotes and cite
to the definition of “Facts” in Black’s Law Dictionary in its rejection of one
of the State’s arguments. Ouch. <i>In re Abbey</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-137.pdf">2023
VT 9</a>.</span></p>
<p class="MsoNormal"><span style="font-family: inherit;">Our other case for the week is an appeal from a second-degree
murder conviction. Witnesses placed defendant at the scene with a gun, though
nobody specifically saw defendant shoot victim. Police pinged defendant’s phone
and he was eventually arrested in Massachusetts (I’m skipping a lot here).
Defendant argues that the evidence was too thin and that the trial court
committed plain error when it didn’t include a limiting instruction on flight.
The sufficiency-of-the-evidence argument gets no traction and that’s no surprise—it
rarely does. SCOV does not find plain error in an also-unsurprising analysis.
Defendant’s other arguments about whether his motions to suppress should have
been granted do not establish grounds for relief in defendant’s case.
But—notably—SCOV does hold that under Article 11 of the Vermont Constitution,
police must obtain a warrant to access cell site location information (CSLI)
absent an exception to the warrant requirement. Now, in the case at bar—a
phrase only a lawyer could love—SCOV concludes that exigent circumstances
justified “pinging” the defendant’s phone to figure out where he was. It was
murder. Defendant was reasonably believed to be armed. He’d vacated his
last-known residence and was driving a rental car. There was a reasonable
likelihood of danger to police and the community at large. Given the totality
of the circumstances, SCOV concludes the police were justified in “pinging”
defendant’s location. Lastly, SCOV rejects defendant’s argument that he should
have gotten a new trial. After trial and conviction, defendant brought in two
witnesses that were allegedly at the scene and identified someone else as the
shooter. The trial court found, however, that neither witness was particularly
credible and that neither actually witnessed the murder. So, SCOV concludes
that the trial court was justified in denying the motion for a new trial. <i>State
v. Murphy</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op19-029.pdf">2023
VT 8</a>.</span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-77324039773796421712023-01-28T12:27:00.005-05:002023-01-28T12:27:31.839-05:00Bi-Weekly Update January 28, 2023<p style="text-align: left;"><span style="font-family: inherit;"><span style="font-size: 12pt;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiYWLXec5uJFYvsNXZCbaELnJX6wRGmxN5mni4Zhkr8XzL5Es4DKY2nv6X1Mjl68lYgUf1v_hkZCVYp61YtwoExZ75u6x77FIaYt-8O0UV7H8mItsmGpa2qKZx0-HowDwBvBomynu3qhqQTO-CbLpJFd45gAIXgVRGj2K53kV6kDQaZ7QNUQMCqU7Mp/s1500/yoda%20meme.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="724" data-original-width="1500" height="154" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiYWLXec5uJFYvsNXZCbaELnJX6wRGmxN5mni4Zhkr8XzL5Es4DKY2nv6X1Mjl68lYgUf1v_hkZCVYp61YtwoExZ75u6x77FIaYt-8O0UV7H8mItsmGpa2qKZx0-HowDwBvBomynu3qhqQTO-CbLpJFd45gAIXgVRGj2K53kV6kDQaZ7QNUQMCqU7Mp/s320/yoda%20meme.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">That's one explanation</td></tr></tbody></table>One opinion Friday.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">When I saw the caption, I thought someone had sued the
televangelist Jim Baker, but it turns out “Jim Baker” is a pretty common name
(who knew?) and the Jim Baker here was the Interim Commissioner of the Vermont
Department of Corrections when this week’s case was filed.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">So, with that out of the way, we can get to the case. This is a
prisoners’ rights case filed by Mr. Myers based on his contention that
excluding him from the earned-time program for a disqualifying offense violates
the ex-post-facto clause of the U.S. Constitution. The trial court found that
this was not the case and Mr. Myers appeals. SCOV frames it thusly: “The
central question in this appeal is whether the effective date of the earned-time
program or the enactment date of the statute mandating its creation controls
for the purposes of an ex-post-facto analysis.” What’s that really mean? Timing
matters. If the earned-time program date is the effective date, then there’s no
issue with ex-post-facto application because there’s no right to participate in
the program as of the date of petitioner’s offense. On the other hand, if the
earlier, date-of-the-enabling-statute analysis controls, then there is a
problem because petitioner—at the date of his offense—had a . . . how can
I put this . . . kinda-maybe-sorta-but-not-exactly vested right to participate.
SCOV concludes that the former date applies and therefore the trial court got
it right. No ex-post-facto violations to see here, folks. <i>Myers v. Baker</i>,
<a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-162.pdf">2023
VT 7</a>. </span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">Three opinions last week.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">First, we have an arbitration appeal. Employer expressed concern
about grievant’s billing practices. In a meeting with employer and his union
rep, grievant brought a couple unredacted bills generated by other employees
with client information on them and said, more or less, “Look, I’m not the only
one doing it like this.” Employer didn’t discipline grievant for billing but
did formally reprimand him for the unredacted bills as a breach of
confidentiality. Grievant brought it to arbitration and the arbitrator
concluded that the offense wasn’t enough to warrant the formal reprimand and
ordered that the reprimand be removed from grievant’s file. Employer filed suit
to modify or vacate the arbitrator’s ruling, arguing in part that the ruling
showed a manifest disregard for the law. The trial court disagreed, reasoning
that in order to succeed, employer would need to show that under similar
circumstances, an arbitrator must always find just cause, not just that an
arbitrator <i>could </i>find just cause. Employer appeals.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">On appeal, the majority reasons that the trial court got it right.
Review of arbitration awards is very limited and—even if SCOV were to adopt
employer’s “manifest disregard” standard—there was no manifest disregard of the
law here. The arbitrator’s conclusion that grievant made an error in judgment
and that he shouldn’t have been given a formal reprimand—but instead given a
lower level sanction like informal counseling—is, in the majority’s view,
consistent with HIPAA’s sanction mandate (as cited by employer). Specifically,
the majority reasons that the arbitrator’s interpretation wasn’t in manifest
disregard of the law. Justice Eaton dissents, saying, “The majority’s decision
essentially transforms our limited review of arbitration decisions into no
review.” In Justice Eaton’s view, the majority’s reasoning is wrong because HIPAA
mandates sanctions for breach of confidentiality and neither employer’s
policies nor the collective bargaining agreement provide for informal
counseling. Justice Eaton would reverse the trial court and direct that the
arbitrator’s decision be vacated. <i>Howard Center v. AFSCME Local 1674</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-257.pdf">2023
VT 6</a>. </span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-size: 12pt;"><span style="font-family: inherit;">Next up is a Vermont Constitution case. Have you ever wondered
about Chapter II, § 42 of the Vermont Constitution? Me neither. But just in
case you had, this is the citizenship-as-prerequisite-to-voting requirement in
the Vermont Constitution. This case arises from Montpelier’s 2018 charter
change allowing noncitizens to vote in local elections. Plaintiffs argue that
this is unacceptable. While SCOV concludes that plaintiffs have standing to
bring the case (because some are citizens of Montpelier and the charter change
dilutes the voter pool), it also concludes that the Chapter II, § 42 doesn’t
apply to local, municipal elections. So, Montpelier’s policy stands. This is a
relatively lengthy opinion weighing in at just under 30 pages. If you like
history, read this one because, as SCOV notes, “Section 42 is as old as
Vermont.” <i>Ferry v. City of Montpelier</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-125.pdf">2023
VT 4</a>.</span></span></p>
<p style="height: 0px; text-align: left;"><span style="font-family: inherit;"><span style="font-size: 12pt;">Finally, we have a case dealing with what “ingress and egress” mean in
the context of a deeded right-of-way. Plaintiffs sued to stop installation of
underground lines across plaintiff’s property for a cell tower on defendant
neighbor’s property (leased to AT&T) pursuant to a deeded right of way.
Defendants counterclaimed. The trial court granted summary judgment to
defendants, reasoning that defendants’ deeded “ingress and egress” necessarily
included the ability to install underground utility lines. “Hold up,” says
SCOV. “Ingress and egress” mean “in and out,” not “bury whatever you want.”
Obviously, I’m paraphrasing and mushing parties together here. You get what you
pay for. SCOV reverses and sends this one back to the trial court to deal
with—among other things—whether defendants’ easement-by-necessity argument
flies. <i>Gladchun v. Eramo</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-192.pdf">2023
VT 5</a>. <br /></span><br /></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-66492013552800861592023-01-15T13:04:00.000-05:002023-01-15T13:04:53.607-05:00Weekly Update January 15, 2023 <p style="text-align: left;"><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjzsI2k7nuYR4d4dOSHvaoHWPUhaa85hcqo9UG7g66eG7DHL5YMvA-C8Vm51_itb9nJWpY55mu4KCOVDIzTg8iwVyd4rBUkLDTTMi_5Qcn8pgQ2eXlhSa2NrIZkz7T8JhHo86leBAFPV5rCXqyiZ8Ean_nllRbcjYkjDPgMqRzthhkAt7ztXhS1yUzd/s681/confusion.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="445" data-original-width="681" height="209" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjzsI2k7nuYR4d4dOSHvaoHWPUhaa85hcqo9UG7g66eG7DHL5YMvA-C8Vm51_itb9nJWpY55mu4KCOVDIzTg8iwVyd4rBUkLDTTMi_5Qcn8pgQ2eXlhSa2NrIZkz7T8JhHo86leBAFPV5rCXqyiZ8Ean_nllRbcjYkjDPgMqRzthhkAt7ztXhS1yUzd/s320/confusion.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">I went to law school, not math school</td></tr></tbody></table>Have you ever
wondered what the equivalent of an indefinite suspension from the practice of
law in Maryland would be in Vermont? SCOV’s January 10, 2023 Entry Order
answers this burning question. Respondent was licensed in Maryland and is (well,
was) licensed in Vermont. He was suspended from practice in Maryland indefinitely
with no apparent path to reinstatement (Maryland’s rules provide for
reinstatement no sooner than the time of expiration of the suspension but there’s
no end of suspension specified in this case). In Vermont, the equivalent of this
kind of indefinite suspension is disbarment. That’s because, SCOV reasons, we
only do suspensions up to three years. Once one hits the six-month-suspension threshold,
one has to apply to be reinstated. Disbarred attorneys can apply for
reinstatement after five years. Thus, an “indefinite” suspension with no timeline
specified for potential reinstatement is effectively the same as a Vermont disbarment
(with the twist that the way this sets up, respondent would probably be
eligible to apply for reinstatement in Vermont before Maryland). Because
Vermont follows reciprocal discipline, respondent is disbarred in Vermont. <i>In
re Spangler</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-321.pdf">2023
VT 3</a> (mem.) </span></p>
<p style="height: 0px; text-align: left;"><span style="font-family: inherit;">We’ll call this week’s full-on opinion a debt-collection case. Maybe “secured
transactions” would be more accurate. Brother helped secure sister’s business
loan, presumably pledging his interest in his Merrill Lynch
investment-management account as part of a commercial pledge agreement. A couple
issues with this commercial pledge, however. First, brother’s wife is a
co-owner of the Merrill Lynch account. She didn’t sign. Second, Merrill Lynch didn’t
sign off on a proposed control agreement. Bank still provided the loan. As you’ve
probably guessed already, we wouldn’t be talking about this if something hadn’t
happened with the loan. Sister defaulted and bank sued brother and sister.
Brother moved for summary judgment and bank cross moved. Bank got judgment
against sister but brother got summary judgment in his favor on the basis that
plaintiff bank never perfected its interest and thus, under the UCC, the
secured interest never existed. This is because the agreement between brother
and bank provided that the collateral was property that bank/lender at any time
possessed or controlled. Neither possession nor control ever happened here. On
appeal, SCOV explains: “Plaintiff created this problem for itself by
incorporating the condition of possession or control into the description of
the collateral.” Without that condition being met, the security interest never
existed despite brother’s intent to create it (indeed, had Merrill Lynch signed
off on the proposed control agreement, that would have done the trick). I
expect this one will be on this or next year’s bar exam. <i>Berkshire Bank v.
Kelly</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-053.pdf">2023
VT 2</a>. <br /><br /></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-84794319952592018322023-01-07T14:46:00.006-05:002023-01-07T14:46:56.833-05:00Welcome to 2023!<p><span style="font-size: 12pt;"><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEia_PR-S7syzkKfBClPLaKiaO1NJg5ixu2o8F8UglC9jGc6WG1qCwBZShnvrNOPVqzsH3Nf4tSuLdx8yg7S6EDR0X9sOAcgmarKbi1srN0o36DxmbKIbhBw_CJKsx_uc2YNdgbmpykutHy-cmHtQg-M7WGWGZYUcQWnwQZ5_b-ld-Usldj6MslvnEX6/s606/67de74dbd9cdcb50eb4ae97099ac1458.png" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="558" data-original-width="606" height="295" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEia_PR-S7syzkKfBClPLaKiaO1NJg5ixu2o8F8UglC9jGc6WG1qCwBZShnvrNOPVqzsH3Nf4tSuLdx8yg7S6EDR0X9sOAcgmarKbi1srN0o36DxmbKIbhBw_CJKsx_uc2YNdgbmpykutHy-cmHtQg-M7WGWGZYUcQWnwQZ5_b-ld-Usldj6MslvnEX6/s320/67de74dbd9cdcb50eb4ae97099ac1458.png" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Pic ipsa loquitur</td></tr></tbody></table>Happy New Year!</span></span></p>
<p class="MsoNormal"><span style="font-size: 12pt;"><span style="font-family: inherit;">One
opinion from SCOV yesterday. This opinion deals mainly with statutes of
limitation and stormwater runoff. In a nutshell, back in 2006, the Vermont
Agency of Transportation (VTrans) rebuilt Route 7 in South Burlington and
Shelburne. As part of that project, it got a permit and constructed “a new,
enclosed stormwater-drainage-management system to collect stormwater from the
widened road surface.” It’s undisputed that the system increased stormwater
discharges. The system sent the stormwater downhill and eventually down to the
Lake (you know which Lake—<i>everybody</i> knows which Lake it is when you
capitalize <i>Lake</i> in Vermont). Plaintiff lives to the west of Route 7 and
her property abuts the Lake.</span></span></p>
<p class="MsoNormal"><span style="font-size: 12pt;"><span style="font-family: inherit;">At
some point—nobody knows exactly when—plaintiff noticed that the stormwater was
creating a ravine where there was formerly a dry depression. She got in touch
with VTrans around 2009, and, ultimately, in early 2013, VTrans told her that
“legal” said they were in the clear. At the end of 2018, plaintiff filed suit with
a whole bunch of claims. VTrans moved to dismiss on SOL and
discretionary-function immunity (a carve-out in the Tort Claims Act—weren’t we
just talking about this last week in the context of municipal immunity?).
Ultimately, the trial court dismissed several claims but allowed plaintiff’s
trespass and nuisance claims to go forward on plaintiff’s
continuing-tort-exception-to-the-statute-of-limitations theory. Flash forward
through some discovery and the inevitable motion for summary judgment and the
trial court dismisses the final remaining claims, reasoning that the
continuing-tort doctrine doesn’t apply.</span></span></p>
<p class="MsoNormal"><span style="font-size: 12pt;"><span style="font-family: inherit;">On
appeal, plaintiff makes four arguments: (1) that her takings claim should go
under the fifteen-year limitations period for bringing claims to recover lands;
(2) if the takings claim is time-barred, the time barring violates the federal
and Vermont Constitutions; (3) the fifteen-year statute also applies to her
trespass and nuisance claims; and (4) even if it doesn’t, trespass and nuisance
fall into the continuing-tort doctrine. SCOV reasons that the longer statute of
limitations doesn’t apply here and that plaintiff’s takings claim is really an
inverse-condemnation claim—six years and time’s up on this one. SCOV relies in
part on New Jersey land-use law and there are some obvious jokes about the
wisdom of such a choice, but I will refrain. Next, SCOV sidesteps the whole
this-is-unconstitutional argument with old not-raised-below-not-doing-it-here
two-step. On the fifteen-years-for-trespass-and-nuisance front, SCOV rejects
plaintiff’s trespass arguments based on a handful of 100+ year old cases
maintaining that the cases don’t say what plaintiff says they say. This—to
me—seems like an easy way to deal with old cases because nobody actually knows
what they’re saying in those old cases half the time. Nuisance finds a similar
fate though based on more recent rulings. Finally, SCOV deals with the
continuing-tort-doctrine argument—a first-time ask to SCOV—<i>not </i>by
rejecting the doctrine itself but by reasoning that VTrans has committed no
tortious act since 2006. The trial court is affirmed and thus concludes our
first opinion of 2023. <i>Nesti v. Vermont Agency of Transportation</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-096.pdf">2023
VT 1</a>.</span><span style="font-family: Georgia, serif;"><o:p></o:p></span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-52378680857266778302023-01-07T14:37:00.000-05:002023-01-07T14:37:03.233-05:00Wrapping up 2022<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhJjPUV442Qt1LkGxx-jDZlHFZikU-VhZJfJyN0uaeBQVLPwZhg_1es22ndOdmoL-BD8djLZq4wI_wDqPXS5MvCHKiTl-Vy7XNxkaSbUoOnKodLrd4j-zqrxXMH5wgdEVrxIQLmM-8Khm9FVlOmxhOFLlwL6YIN3d_8t3hOYBTUUgpXI3-XRV2k62Sh/s640/gift-g23c15b0a5_640.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="427" data-original-width="640" height="214" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhJjPUV442Qt1LkGxx-jDZlHFZikU-VhZJfJyN0uaeBQVLPwZhg_1es22ndOdmoL-BD8djLZq4wI_wDqPXS5MvCHKiTl-Vy7XNxkaSbUoOnKodLrd4j-zqrxXMH5wgdEVrxIQLmM-8Khm9FVlOmxhOFLlwL6YIN3d_8t3hOYBTUUgpXI3-XRV2k62Sh/s320/gift-g23c15b0a5_640.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Would you expect anything <br />other than a visual dad joke? </td></tr></tbody></table>Two opinions issued on Friday, December 30. </span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">The first deals with qualified immunity regarding municipal officials for discretionary acts. In general, in the municipal-immunity arena, discretionary acts are entitled to qualified immunity; ministerial acts, however, are not. Here’s the short version for this case: the decision to widen a road (or not) is a discretionary act and the road commissioner (and the Town) are entitled to qualified immunity. This is this case’s second trip to SCOV (see March and April 2020 update, specifically April 4, 2020). In the first round, SCOV concluded that the road commissioner was <i>potentially</i> subject to liability based on ministerial acts related to road widening. After further factual development, the Town and road commissioner moved for summary judgment and the trial court found that the decision not to widen Main Street in Isle La Motte—which plaintiff alleged was the cause of his injuries—was a discretionary act because there was no mandate that would have made such widening ministerial. On appeal, SCOV agrees, and affirms, summing it up like this: “The discretionary-function exception serves to ensure that public figures like the road commissioner do not suffer legal ramifications for making the types of difficult decisions that policymakers are often required to make. Determining whether to use the Town’s limited resources to alter its roadways goes to the heart of this doctrine.” <i>Civetti v. Turner</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-079.pdf">2022 VT 64</a>.</span></p><p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">The second is a professional responsibility decision dealing with Rule 4.2. This is the rule dealing with communicating with those represented by counsel in a matter. In this case, the facts are a little squirrelly because the person represented filed a pro se notice of appearance after respondent was first notified that person was represented by a lawyer. Respondent reached out to person by phone directly to set up a settlement conference and during that conversation, person said he wanted to get hold of his lawyer. Respondent—and this is where the trouble <i>really </i>starts—said, essentially, “Nah, there’s no need for that,” and continued to try to get things set up. Person told his lawyer about the conversation. A little angry back and forth between lawyers, some strongly worded emails, and a complaint to the Professional Responsibility Board and respondent ends up with a violation and 30-day suspension. I want to highlight something here because I think it’s important. All of us make mistakes. Every last one of us. It’s part of the human condition. But it’s how we deal with those mistakes that really matters. I’ve been saying for years that the best way through a screwup is a three step formula: (1) admit the wrong; (2) take full responsibility; and (3) demonstrate that you’ve learned the lesson and explain why it won’t happen again. Respondent didn’t do that here. Instead, he tried to make excuses and minimize the error. I believe if he’d followed the formula, I wouldn’t be writing this summary—this would be an unpublished private admonition. In discussing mitigating and aggravating factors, SCOV sets aside respondent’s past misconduct for the most part and says: “More significant is respondent’s refusal to acknowledge the wrongful nature of his conduct.” In my mind, that’s the key. Respondent is suspended for 30 days. <i>In re Fink</i>, <a href="https://law.justia.com/cases/vermont/supreme-court/2022/22-ap-001.html">2022 VT 63</a>.</span></p><p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">On Thursday, December 22, 2022, SCOV issued a published entry order.</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"><span style="color: black;">Defendant appeals a hold-without-bail order. He’s accused of
impregnating his 12-year-old stepdaughter and there’s a DNA test that would
seem to strongly indicate that he’s the culprit. The trial court held him
without bail. On appeal, he argues that the trial court abused its discretion
in giving weight to the DNA test and that some factors in the hold-without-bail
statute favor his release on conditions. SCOV is not having it. SCOV concludes
that there was no abuse of discretion and that defendant should stay locked up
pending trial. <i>State v. Welch</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-337.pdf">2022 VT 65</a><span style="color: black;"> (mem.)</span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;"><span style="color: black;">On Friday, December 23, SCOV takes a trip into the
private-healthcare-in-prisons realm. The Human Rights Commission—on behalf of
and with Ms. Congress, a former inmate—brought claims against Centurion, the
private contractor providing healthcare in the prison based on Centurion’s
muddling about with Ms. Congress’s hearing aids. Before Centurion moved for
summary judgment on the Commission’s Vermont Public Accommodations Act (VPAA)
claim, Ms. Congress settled or dismissed all her claims. She’s not part of this
appeal. The gist of the VPAA claim is that Centurion discriminated against Ms.
Congress by not providing proper medical care that would allow her access to
programming in prison. The problem with this claim is the interplay between
Centurion and the DOC. The way the trial court took it was that Centurion’s
actions or lack thereof didn’t discriminatorily deny Ms. Congress access to DOC
programming because Centurion’s purview is medical and it doesn’t control what
DOC does or doesn’t do. SCOV agrees. This one gets affirmed. <i>Congress v.
State</i>, </span><a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-148.pdf">2022 VT 62</a><span style="color: black;">.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">On Friday, December 16, SCOV issued a lone opinion. It’s a third-party legal malpractice
claim where the former lawyer being sued says, “It’s your other lawyers’
fault.” Plaintiffs’ former lawyer wrote a letter but didn’t file suit to kick
plaintiffs’ neighbors off their land before the statute of limitations on
recovery of lands expired. That allowed the neighbors to bring an action for
adverse possession of the disputed land. After that case settled, plaintiffs
sued former lawyer. So, former lawyer filed a third party action against the
replacement attorneys—the attorneys who represented plaintiffs in the
adverse-possession suit—saying more or less that the adverse-possession suit
was meritless hokum and they ought not have settled it. Because they settled
the meritless case when they should’ve beaten it, former lawyer argued, he’d be
entitled to indemnity and contribution. It’s a . . . novel claim. The trial
court found that former attorney hadn’t established any relationship between
himself and replacement attorneys that would give rise to implied indemnity and
Vermont law doesn’t allow for contribution among tortfeasors, and so, the trial
court granted replacement attorneys’ motion to dismiss. On appeal, former
attorney argues that SCOV should change the no-contribution rule in Vermont.
That goes over like an airship composed of an element in the periodic table
referred to as “Pb.” On the indemnity front, SCOV reasons—like the trial
court—that there was no relationship alleged that would give rise to implied
indemnity. This one gets affirmed. <i>Haupt v. Triggs</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-062_0.pdf">2022
VT 61</a>. </span></p>
<p class="MsoNormal" style="text-align: left;"><span style="font-family: inherit;">One opinion Friday December 2, 2022. It involves the Public Utility Commission
or PUC for short. It’s probably a good thing I don’t practice in this area
because I would abuse that acronym mercilessly and likely get in trouble for
it.</span></p>
<p class="MsoNormal" style="text-align: left;"><span style="color: black;"><span style="font-family: inherit;">This case is, at one level, about when administrative guidance
becomes a rule. But more to the point, it’s about the procedure for challenging
it. Plaintiff—a solar-generation-developer outfit—filed a declaratory judgment
action, seeking to invalidate two guidance documents and a plant-classification
system issued by the Agency of Natural Resources. Plaintiff argued that the PUC
treated the guidance as de facto rules; that these de facto rules were not
properly implemented and violate the Vermont Administrative Procedure Act’s
(VAPA) rulemaking requirements; and that, therefore, the trial court should do
away with them. The trial court reasoned that the challenged provisions were
not rules and did not have the effect of law and dismissed. On appeal, SCOV
affirms on different grounds, essentially saying, “Even assuming you’re
challenging ‘rules,’ you’re late to the party.” Did I mention there’s a one-year
statute for challenging rules under VAPA? So that’s that. SCOV does note that
it’s not deciding the merits here and that plaintiff is not without recourse.
Plaintiff can challenge the rules during the certificate-of-public-good process
before the PUC and if the PUC PUCs it up (sorry, can’t help myself), then
plaintiff can make a return trip to 111 State Street. <i>Otter Creek Solar, LLC
v. Vermont Agency of Natural Resources</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-048.pdf">2022
VT 60</a>.</span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-75809664566973929882022-11-19T15:40:00.000-05:002022-11-19T15:40:25.023-05:00Mid-November Update<p><span style="font-family: inherit;"> <table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgptTYmSA1ijtJgzwGsMEwVXyLKgRK9xQhVpTdzvBQjJOWqJgaXO9zHwOYmHu-B-NiTQkO26YQG_vRIDxec9_81Fkcn1MRp1Yzsl3wssL4cagxzFBnl6MU9_IzKdu3QCxKwrjINZzMcglJIDfn-0XaTXM3z0rZl-4dVZowOSN3Ni-j2VxD8vUdai-4X/s2048/pups.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="2048" data-original-width="1536" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgptTYmSA1ijtJgzwGsMEwVXyLKgRK9xQhVpTdzvBQjJOWqJgaXO9zHwOYmHu-B-NiTQkO26YQG_vRIDxec9_81Fkcn1MRp1Yzsl3wssL4cagxzFBnl6MU9_IzKdu3QCxKwrjINZzMcglJIDfn-0XaTXM3z0rZl-4dVZowOSN3Ni-j2VxD8vUdai-4X/s320/pups.jpg" width="240" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">"What's a computer?" <br />"Can you eat it?" </td></tr></tbody></table>Technically, we're just about two-thirds through November, but "mid" is close enough. </span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><span style="color: black;"> </span><span style="color: black;">Yesterday, November 18th,</span><span style="color: black;"> </span><span class="il" style="color: black;">SCOV</span><span style="color: black;"> </span><span style="color: black;">issued a lone opinion. This one touches on some very interesting issues about the power of the probate division to order damages due to a financial guardian’s malfeasance, but ultimately boils down to whether an order is final or not. Here, former guardian was removed, and after several days of hearings, was found to owe his mom’s estate over a million bucks. But, the probate division didn’t enter a final order because it still needed to figure out the fees and costs piece and gave the parties two months to submit such requests. In the meantime, former guardian appealed to the civil division (pro se at first, with a lawyer later). Ultimately, the civil division concluded that the probate division had no authority to order damages to the estate under these circumstances and dismissed the probate order. The court-appointed administrator of mom’s estate appeals.</span><span style="color: black;"> </span><span class="il" style="color: black;">SCOV</span><span style="color: black;"> </span><span style="color: black;">concludes that there was no final order in the probate division—remember the fees and costs piece—and therefore the civil division had no subject matter jurisdiction to dismiss the probate division’s order. Back it goes to the probate division to wrap it up with a final order. Anyone want to take bets on how long it takes to make its way back to</span><span style="color: black;"> </span><span class="il" style="color: black;">SCOV</span><span style="color: black;">?</span><span style="color: black;"> </span><i style="color: black;">In re Thomas</i><span style="color: black;">,</span><span style="color: black;"> </span><a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op22-063.pdf&source=gmail&ust=1668975916770000&usg=AOvVaw27sgXBIb_rpPxSCAta3Dgr" href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-063.pdf" style="color: #1155cc;" target="_blank">2022 VT 59</a><span style="color: black;">. </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><br /></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">On the 10th, <span class="il">SCOV</span> issued a 38-page opinion. One might expect a dissent in an opinion of such length, but one would be mistaken in that expectation. As the opinion explains: “The factual and procedural background of this case is complex.” Because I can, here’s how I’m going to lay it out: this is a business deal amongst some landscaping folks that went bad. Is there more to it than that? Of course. Am I going to cover it all? Nope. The parties first trip to court ended in a 2011 stipulated judgment that required defendant to turn over certain business records pertaining to the parties previously-jointly-owned-but-<wbr></wbr>broken-up-and-belonging-to-<wbr></wbr>plaintiff-now business. Many years down the road, there was federal litigation—some involving defendant, some not. Then plaintiff sued defendant in state court for an enforcement-of-judgment action. Grossly oversimplified, the trial court ended up more or less dismissing everything except one count, which went—roughly—in defendant’s favor, and while the trial court found that defendant had retained some records that maybe she wasn’t supposed to, the retention wasn’t in bad faith, and the stipulated judgment order was ambiguous, so no attorney’s fees for plaintiff. Plaintiff appeals. Long story short? The only thing <span class="il">SCOV</span> really disagrees with the trial court on is that defendant wasn’t allowed to retain copies of certain records—turns out she can. Not a very satisfying trip to Montpelier for plaintiff. <i>Sutton v. Purzycki</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-261.pdf&source=gmail&ust=1668975916770000&usg=AOvVaw0rkSJMicch9HEwgcvh8tUN" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-261.pdf" style="color: #1155cc;" target="_blank">2022 VT 56</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"> </span></span></p><p class="MsoNormal" style="background-color: white; margin: 0px;"><span style="font-family: inherit;">Three opinions on November 4, 2022.</span></p><p class="MsoNormal" style="background-color: white; margin: 0px;"><span style="font-family: inherit;"><br /></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">First, we have a statute of limitations on judgments question. Plaintiff and defendant get divorced about a dozen years ago. Their final order requires plaintiff to refinance the marital home and pay defendant $25K for her equity. If he doesn’t, then defendant can take over, boot plaintiff, and buy him out. Guess what didn’t happen? That’s right—either of those things. At any rate, over the years, and as recently as 2015, the parties had agreed to modify the terms of that order amongst themselves. When plaintiff moved to “enforce”—meaning get out of paying the $25K—the order in 2020, the trial court found that the statute of limitations had expired but because the parties had acknowledged the debt, it was still enforceable. Plaintiff appeals, and <span class="il">SCOV</span> affirms, reasoning that the trial court’s analysis was within bounds and consistent with the factual circumstances. The acknowledgment of the debt in 2015 and the attempt to enforce it within six years (the contract statute of limitations) means that the debt isn’t barred. If there’s a moral to this story, it’s probably make sure people acknowledge it when they owe you money. <i>Traudt v. Traudt</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-200.pdf&source=gmail&ust=1668975916770000&usg=AOvVaw3aIXm1_50LwsD5rJb9mJu0" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-200.pdf" style="color: #1155cc;" target="_blank">2022 VT 58</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Second is a health-insurance regulatory case. I’d like to be able to explain with more authority about contribution-to-reserves (CTR) rates and exactly how they work, but here’s my haphazard take—the higher the rate, the more the insurance company contributes to its reserves pool and the more premiums cost. The Green Mountain Care Board (GMCB) told Blue Cross and Blue Shield (BCBS) to reduce its proposed 1.5% rate to 1.0%. BCBS moved for reconsideration and ultimately appealed. The majority says, “Look, rates are set. This is moot and it’s not in the ‘negative collateral consequences’ nor the ‘capable-of-repetition-yet-<wbr></wbr>evading-review’ exceptions. Game over.” The dissent (Justice Cohen joined by Chief Justice Reiber) reasons that the ‘capable-of-repetition-yet-<wbr></wbr>evading-review’ exception applies here and that <span class="il">SCOV</span> should deal with it now. <i>In re Blue Cross and Blue Shield</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-220.pdf&source=gmail&ust=1668975916770000&usg=AOvVaw2eKtC3CZzTr85dZw0pJfWw" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-220.pdf" style="color: #1155cc;" target="_blank">2022 VT 53</a>. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Our final case is a custody fight between mom and dad. Mom moved to Florida and moved to modify physical and legal rights and responsibilities. The trial court denied her motion and found (1) that mom’s move to Florida was not unanticipated; (2) that dad’s medical neglect was, however, a change in circumstances; and (3) when it got to best interests, refused to consider mom’s allegations of sexual abuse or adult stepdaughter’s allegations of abuse at dad’s hands because all the allegations predated the divorce. On appeal, <span class="il">SCOV</span> affirms on points one and two, but reverses and remands on the best-interests analysis because stepdaughter’s allegations of sexual abuse by dad are not barred just because they occurred before—but didn’t come out until after—the divorce. <span class="il">SCOV</span> affirms, however, as to the trial court’s finding that mom’s allegations were not credible. <i>LaFlam v. LaFlam</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-301.pdf&source=gmail&ust=1668975916770000&usg=AOvVaw1SncFILvgRxYZgtHDnx1in" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-301.pdf" style="color: #1155cc;" target="_blank">2022 VT 57</a>. </span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-5566192119141000742022-11-19T14:38:00.005-05:002022-11-19T14:38:56.532-05:00September and October 2022<p><span style="font-family: inherit;"> <table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjtiAZGc7ULkDyrrOqJo-9g4w0X295vmnLT9TRBCnsssMLiXIeN1rz54cc9xuoN8irRSD25X-1PDn3O6A-sj2FKRbAgovIwVEMXblr48396qcHSZagMA7SuG9SYSny6HD051RgbJKriUtHKHD_ggPUywRWLOX8IL3plLM7NggXcN1XIjLXrifeR4sIL/s640/hd-wallpaper-g56fdfc8c6_640.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="427" data-original-width="640" height="214" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjtiAZGc7ULkDyrrOqJo-9g4w0X295vmnLT9TRBCnsssMLiXIeN1rz54cc9xuoN8irRSD25X-1PDn3O6A-sj2FKRbAgovIwVEMXblr48396qcHSZagMA7SuG9SYSny6HD051RgbJKriUtHKHD_ggPUywRWLOX8IL3plLM7NggXcN1XIjLXrifeR4sIL/s320/hd-wallpaper-g56fdfc8c6_640.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Because these summaries "leaf" <br />a lot out </td></tr></tbody></table>Here we go with another haphazard review of two months' worth of SCOV opinions. </span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Two decisions the last week of October—an entry order on Monday October 24 and an opinion Friday October 28.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"> </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">We’ll start with the entry order. It’s simple. Respondent—the subject of the October 13 entry order discussed below dubbing the PRB’s findings and conclusions good to go—is also suspended from his term as a probate judge without pay. <i>In re Cobb</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/eo22-145_0.pdf&source=gmail&ust=1668971910794000&usg=AOvVaw2GBExREe0jQKpcugoiow3i" href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-145_0.pdf" style="color: #1155cc;" target="_blank">2022 VT 55</a> (mem.)<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">The opinion is lengthier, but not a whole lot going on. Defendant—a former high school principal who filmed teenagers in his home bathroom and pleaded guilty to charges stemming from the same—challenges denial of his sentence reconsideration but gets nowhere with it. The COVID-19 arguments are interesting but ultimately futile. SCOV rejects defendant’s challenges to the trial court’s denial of his motion. <i>State v. Stearns</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op22-022.pdf&source=gmail&ust=1668971910794000&usg=AOvVaw1-QqvwqmHaa3IpG9jztKRm" href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-022.pdf" style="color: #1155cc;" target="_blank">2022 VT 54</a>. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">One decision October 21. It’s a juvenile case. This one is about whether a trial court can extend a conditional custody order (CCO) past its expiration date without finding a change in circumstances to justify the same. Dad contends that’s not Kosher and—spoiler alert—SCOV agrees. The short version (as if I’d ever provide anything else) is that while dad was in jail on domestic assault charges, mom was doing drugs and kiddos were missing a lot of school. DCF took temporary custody. Dad got out, did what he needed to do, and got a CCO of the kiddos to him. Mom and dad reunited at some point. Ultimately, the trial court concluded that dad (and mom) were doing a good job addressing the concerns that led to DCF involvement in the first place but that an extension of the CCO (after expiration) made sense to keep everything on track in the best interests of the children. SCOV explains that a trial court is authorized to extend a CCO “on the grounds that a change in circumstances requires such action to serve the best interests of the child.” Here, SCOV reasons, the trial court skipped the change-in-circumstances finding and just went ahead and extended the CCO on the basis that it served the best interests of the child. The finding of a change in circumstances is a prerequisite though (when it’s a nonparent, there is a potential to extend the CCO without a change-in-circumstances finding). And so, SCOV sends this one back to the trial court to vacate the CCO and give custody to dad. <i>In re B.E.</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op22-164.pdf&source=gmail&ust=1668971910794000&usg=AOvVaw0DoqykqHQ6I41xCX_Y_j48" href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-164.pdf" style="color: #1155cc;" target="_blank">2022 VT 52</a>. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">A somewhat busy week at ye olde SCOV the week of Friday, October 14 in comparison to the last few: one published entry order Thursday the 13th, and two opinions Friday.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">The entry order is very, very short—one paragraph. SCOV adopts the findings of fact, conclusions, and order of suspension (year and a half) for a <a data-saferedirecturl="https://www.google.com/url?q=https://perma.cc/3BPE-YXLQ&source=gmail&ust=1668971910795000&usg=AOvVaw09AtjU3XWoXLVZ9mRob5Ux" href="https://perma.cc/3BPE-YXLQ" style="color: #1155cc;" target="_blank">Professional Responsibility Board case</a> where respondent was found by the PRB to have committed five violations of the Rules of Professional Conduct. The <a data-saferedirecturl="https://www.google.com/url?q=https://perma.cc/3BPE-YXLQ&source=gmail&ust=1668971910795000&usg=AOvVaw09AtjU3XWoXLVZ9mRob5Ux" href="https://perma.cc/3BPE-YXLQ" style="color: #1155cc;" target="_blank">underlying decision</a> is lengthy and covers a range of problematic conduct that gives rise to the found violations. <i>In re Cobb</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/eo22-145.pdf&source=gmail&ust=1668971910795000&usg=AOvVaw2MC7GVAyf2pmD3-O-LZd_T" href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-145.pdf" style="color: #1155cc;" target="_blank">2022 VT 51</a> (mem.).<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Our first opinion for the week concludes that the Vermont Journalism Trust lacks standing to challenge the sealing of criminal records in connection with dismissed charges. As always, there’s a bit more to it than that—including a pending public records request in the midst of the sealing process—but that’s the bottom line. <i>In re Z.P.</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op22-027.pdf&source=gmail&ust=1668971910795000&usg=AOvVaw0pNtq2DxmGy9_i74uk8Ehc" href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-027.pdf" style="color: #1155cc;" target="_blank">2022 VT 49</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Finally, we have a statutory-assignment question in connection with child support. Mom wanted the court to make a retroactive child support award and assign her the arrearage, but the trial court found that the Office of Child Support had been assigned any arrearages and that it waived them. The key point here is that when one receives public assistance, one makes a statutory assignment of child support and that puts control of the funds in the hands of the State. SCOV affirms the trial court. <i>Dione v. Anthony</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op22-070.pdf&source=gmail&ust=1668971910795000&usg=AOvVaw19RByiVCUa-ywTjfFc2hnE" href="https://www.vermontjudiciary.org/sites/default/files/documents/op22-070.pdf" style="color: #1155cc;" target="_blank">2022 VT 50</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">A very short opinion on Wednesday, October 5. And when I say “very short,” I mean three paragraphs front to back.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Mr. Tobin is self-represented and has been held without bail since January. He appealed the hold-without-bail order in mid-September and got a hearing a couple weeks later at the Vermont Supreme Court. However, Mr. Tobin had also filed a bail-review motion in March that still hasn’t gotten a hearing in the trial court. The gist of Wednesday’s published entry order is that the trial court had better get it together and hold a hearing on that bail-review motion that’s been pending for more than half a year. The three-justice panel even breaks out that old crowd favorite “forthwith” for temporal effect. <i>State v. Tobin</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/eo22-246.pdf&source=gmail&ust=1668971910795000&usg=AOvVaw3xz6asn0au0KsNLGULoGgl" href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-246.pdf" style="color: #1155cc;" target="_blank">2022 VT 48</a> (mem.) <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><span style="color: black;">Below, I will make <i>another</i> lame, SCOV-and-</span><a data-saferedirecturl="https://www.google.com/url?q=https://www.youtube.com/watch?v%3DcMTAUr3Nm6I&source=gmail&ust=1668971910795000&usg=AOvVaw104SxSrY4TIw4hAZziafC_" href="https://www.youtube.com/watch?v=cMTAUr3Nm6I" style="color: #1155cc;" target="_blank">Meghan Trainor</a><span style="color: black;"> joke. Lucky you! On September 30th, SCOV says “No” to the State using a <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-250_0.pdf&source=gmail&ust=1668971910795000&usg=AOvVaw1ThnY0UTvGRrfQjxAVa0AB" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-250_0.pdf" style="color: #1155cc;" target="_blank">criminal statute</a> (allowing the State to appeal from an order granting a motion to suppress in felony prosecutions) to appeal a motion to suppress in juvie court. Here, juvenile was charged with lewd and lascivious conduct as a delinquent act in the family division. Based on a custodial interrogation without <i>Miranda </i>warnings, the trial court granted a motion to suppress juvenile’s statements to the police. The State, with its knickers in a proverbial twist, went running to SCOV asking for a reversal. But SCOV says, “Nah to the ah to the, no, no, no.” SCOV reasons that a delinquent act is not a felony, and thus, the State can’t be “runnin’ game” like that. The trial court gets affirmed. SCOV does drop a footnote that leaves open the possibility an interlocutory appeal or petition for extraordinary relief might be successful in the juvenile-delinquency context. <i>In re E.S.</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-250_0.pdf&source=gmail&ust=1668971910795000&usg=AOvVaw1ThnY0UTvGRrfQjxAVa0AB" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-250_0.pdf" style="color: #1155cc;" target="_blank">2022 VT 47</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Two opinions on Friday, September 23.</span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">We’ll start with the 45-pager, which I will grossly, grossly oversimplify. The listing of parties, attorneys, and amicus curiae is reminiscent of an asbestos complaint, so I’m not going to parse that out. Insured (which also includes insurer because we’re dealing with reinsurance and captive insurance and other fun stuff) filed a complaint seeking a declaration of coverage for certain business losses associated with COVID-19. Reinsurers moved for judgment on the pleadings, arguing that COVID-19 does not—and cannot—cause “direct physical loss or damage to property,” despite insured’s allegations that it did (by lingering on surfaces and in the air). Insured also moved for partial judgment on the pleadings. The trial court granted reinsurer’s motion, reasoning that insurer had not alleged direct physical loss and found insurer’s motions moot. The majority reverses and holds that under Vermont’s “extremely liberal” pleading standards, there are sufficient allegations to allege “direct physical loss or damage to property.” The majority also concludes that the trial court screwed up in denying the motion for partial summary judgment as moot because the trial court shouldn’t have granted reinsurers’ motion. Back to the trial court it goes. Justice Carroll, joined by specially assigned Judge Bent, dissents. The dissent reasons that there’s no coverage under the policy despites insured’s allegations and the trial court got it right. Read this one if you’re dealing with insurance coverage issues. <i>Huntington Ingalls Ind., Inc. v. Ace American Insur. Co.</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-173.pdf&source=gmail&ust=1668971910796000&usg=AOvVaw0MJtpnKuVOib9FSev8JkHd" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-173.pdf" style="color: #1155cc;" target="_blank">2022 VT 45</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Continuing with the COVID-19 theme, next up we have an appeal from the Employment Security Board (ESB). An ALJ found claimant ineligible for unemployment and liable for an overpayment. The ALJ reasoned that claimant was already planning to leave his job for other opportunities when the pandemic hit and that his moving to Massachusetts to care for his mother coupled with his working for a few days in April 2020 negated his I-stopped-working-because-of-<wbr></wbr>the-pandemic-and-to-care-for-<wbr></wbr>my-family-member argument. Because the ALJ found he voluntarily left his employment—without good cause—he was ineligible for unemployment and liable for repayment of the benefits he received for roughly five months (May to October 2020). The ESB affirmed. On appeal, SCOV also affirms. SCOV reasons that the interim April work means that claimant rejected an offer of work and therefore voluntarily quit making him ineligible for unemployment benefits. SCOV also agrees with the ALJ’s rejection of the taking-care-of-mom-as-good-<wbr></wbr>cause argument. This one has some credibility stuff going on with claimant asserting he never returned to work and all concerned finding that not credible. SCOV doesn’t take up claimant’s the-repayment-amount-is-too-<wbr></wbr>high argument, concluding it’s inadequately briefed. <i>Worrall v. Dept. of Labor</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-164_0.pdf&source=gmail&ust=1668971910796000&usg=AOvVaw3CqJisW56-u4K69HOVqUJt" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-164_0.pdf" style="color: #1155cc;" target="_blank">2022 VT 46</a>. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><u></u> <u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><span style="color: black;">As foreshadowed above . . . What do SCOV and </span><a data-saferedirecturl="https://www.google.com/url?q=https://www.youtube.com/watch?v%3DcMTAUr3Nm6I&source=gmail&ust=1668971910797000&usg=AOvVaw1UIsW1WihSYtLhyitYxmnc" href="https://www.youtube.com/watch?v=cMTAUr3Nm6I" style="color: #1155cc;" target="_blank">Meghan Trainor</a><span style="color: black;"> have in common? They both like to say “No!” In the first case issued on Friday, September 9, 2022, SCOV says “No” to the state, concluding the state doesn’t have statutory authority to appeal dismissals of juvenile-delinquency cases, even if the charged act could be a felony charged in big-kid court. SCOV explicitly overrules </span><a data-saferedirecturl="https://www.google.com/url?q=https://casetext.com/case/in-re-fef&source=gmail&ust=1668971910797000&usg=AOvVaw0zwkXsumW-XW-2UnbfYN-5" href="https://casetext.com/case/in-re-fef" style="color: #1155cc;" target="_blank">a 1991 case</a><span style="color: black;"> to the extent it allows such shenanigans. It’s a broad decision and comes down in favor of juvenile offenses being scrubbed from one’s record. We’ll see what the legislature does with <i>that</i>.<i> In re S.D.</i>, </span><a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-094.pdf&source=gmail&ust=1668971910797000&usg=AOvVaw3e381Rm2CdDWmAazRT-hmt" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-094.pdf" style="color: #1155cc;" target="_blank">2022 VT 44</a><span style="color: black;">.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Our second decision for the week is about an Act 250 permit, and I gotta tell you, I can’t muster up enough interest to read this one in any detail. Applicants appeal on their sand and gravel extraction permit. SCOV affirms on Criterion 8 but finds one thing needs to be fixed under Criterion 5, and strikes it. Does it sound like I didn’t really read the opinion? That’s because I didn’t. <i>In re Katzenbach</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-189.pdf&source=gmail&ust=1668971910797000&usg=AOvVaw0I3C0z_y5LTEIPuF9UFv_o" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-189.pdf" style="color: #1155cc;" target="_blank">2022 VT 42</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><span style="color: black;"><u></u> </span> </span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;">Two opinions Friday, September 2, both dealing with what we can loosely call “restraining” orders.<u></u><u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><u></u> <u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;">First up is a relief-from-abuse order issued to mother—a Massachusetts resident—against father—a Vermont resident. Father argues that the more-specific venue provisions in the statutory scheme apply and therefore, there’s no jurisdiction for the trial court to issue the orders. SCOV agrees generally with the first part but disagrees on the proposed result. SCOV reasons that mother is a household member and if the county where the action is brought is the county fled, then that county has jurisdiction. And venue. Or something like that. Bottom line is that the lower court is affirmed. <i>Bacigalupo v. Bacigalupo</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-284.pdf&source=gmail&ust=1668971910797000&usg=AOvVaw3GF-xcfVZpO3HDbu9tHGL_" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-284.pdf" style="color: #1155cc;" target="_blank">2022 VT 43</a>.<u></u><u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><u></u> <u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;">Second, we have an anti-stalking order, which was issued to employee against the boss’s wife. The anti-stalking statute allows an order to issue when a “course of conduct”—defined as two or more stalker-y acts “over a period of time, however short”—is established. In this case, there was what sounds like one continuing/escalating incident where the defendant allegedly wrote “abuser” on some paper and put it in plaintiff’s face and then spit at plaintiff in the parking lot. The trial court reasoned that these two acts—shoving the paper in plaintiff’s face and spitting—were enough to meet the definition of “course of conduct” in the statute. “Not so fast,” says SCOV. SCOV reasons that the acts were not separated by time nor distance, and ultimately concludes “as a matter of law, that the evidence shows only a single continuing incident.” This one gets reversed. <i>Beatty v. Keough</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-263.pdf&source=gmail&ust=1668971910797000&usg=AOvVaw27fX8CdlnY79jRwJs2PNd9" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-263.pdf" style="color: #1155cc;" target="_blank">2022 VT 41</a>. </span></p><p class="MsoNormal" style="background-color: white; color: #222222; font-family: Arial, Helvetica, sans-serif; font-size: small; margin: 0px;"><span style="font-family: Georgia, serif; font-size: 12pt;"><br /></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-46155162247066267242022-11-19T14:17:00.006-05:002022-11-19T14:17:43.339-05:00July and August (a Few Months Late)<p><span style="font-family: inherit;"><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi6Y80Jjj9A5J7_zQebxxR0XAR7Ve-B96zmKJ20RLx9FWL3dLmQ4l9cux1rSqclJ5Sciq0CYIZK2x0acb3EGa-ueA5mLWcWJByIVvlabu_xpx-9YSZ22fYQFvze1mHDEcfPy8pNXMiMdo_cVLy-IcTIMb33jS-l-F4SMiqDTmu34iiegEs8EQxajCFC/s640/tomatoes-g35142b714_640.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="284" data-original-width="640" height="142" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi6Y80Jjj9A5J7_zQebxxR0XAR7Ve-B96zmKJ20RLx9FWL3dLmQ4l9cux1rSqclJ5Sciq0CYIZK2x0acb3EGa-ueA5mLWcWJByIVvlabu_xpx-9YSZ22fYQFvze1mHDEcfPy8pNXMiMdo_cVLy-IcTIMb33jS-l-F4SMiqDTmu34iiegEs8EQxajCFC/s320/tomatoes-g35142b714_640.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Bad pun</td></tr></tbody></table>Welp. There's a lot of catchin' up to do. </span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">We’ll do <span class="il">August</span> a little bit scattered-like.</span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><br /></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">We'll start with an entry order issued on <span class="il">August</span> 9, 2022.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Defendant appeals the trial court’s order holding him without bail on attempted murder and felon-in-possession-of-a-<wbr></wbr>firearm charges in connection with shots fired at University Mall, arguing that the evidence of guilt is not great. <span class="il">SCOV</span> disagrees and affirms the trial court’s order, reasoning that the eyewitness ID, matching gun and bullets in the car registered to defendant’s girlfriend’s parents, and video footage all add up (while excluding modifying evidence) to support the trial court’s evidence-of-guilt-is-great finding. <i>State v. Kirkland</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/eo22-173.bail_.pdf&source=gmail&ust=1668970941160000&usg=AOvVaw0CocZ5b27oxqEp-VPzMe0L" href="https://www.vermontjudiciary.org/sites/default/files/documents/eo22-173.bail_.pdf" style="color: #1155cc;" target="_blank">2022 VT 38</a> (mem.)<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">There are a couple <span class="il">August</span> 12, 2022 three-justice entry orders in juvie cases listed on the “<a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/supreme-court/published-opinions-and-entry-orders&source=gmail&ust=1668970941160000&usg=AOvVaw3c-Uw6df597eSrHfkMJaCw" href="https://www.vermontjudiciary.org/supreme-court/published-opinions-and-entry-orders" style="color: #1155cc;" target="_blank">published</a>” page, but they have the don’t-cite-this-anywhere-for-<wbr></wbr>anything warning, so we’re going to skip those for now. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">On <span class="il">August</span> 19, 2022, <span class="il">SCOV</span> issued two opinions.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">First is a land-use appeal dealing with an attempt to set aside a 2008 <span class="il">SCOV</span> decision based on appellants’ previously (2008) rejected statute-of-limitations-as-to-<wbr></wbr>violations argument because—as appellants argue below—a <a data-saferedirecturl="https://www.google.com/url?q=https://www.mskvt.com/http-www-mskvt-com-wp-content-uploads-2019-04-vbm-h-2b-visa-article-pdf-2-2-3-2-2/&source=gmail&ust=1668970941160000&usg=AOvVaw21y_9LCceQLOjhXTsJbLTW" href="https://www.mskvt.com/http-www-mskvt-com-wp-content-uploads-2019-04-vbm-h-2b-visa-article-pdf-2-2-3-2-2/" style="color: #1155cc;" target="_blank">new and different decision</a> would seem to imply their SOL argument in 2008 should have gone in their favor. The trial court rejected the attempt and <span class="il">SCOV</span> affirms. <span class="il">SCOV</span> reasons that this is abuse-of-discretion territory, the trial court didn’t abuse its discretion, and the 2008 decision was <i>not </i>“effectively overruled” by the new decision as appellants argue. Good try, though. <i>In re Benoit Conversion Application</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-247.pdf&source=gmail&ust=1668970941160000&usg=AOvVaw274y8sZSjQIo_IM1Bcc2_t" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-247.pdf" style="color: #1155cc;" target="_blank">2022 VT 39</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Second is another land-use opinion, though the statute-of-limitations argument works out for one of the parties in this case. I won’t go too deep into it, but this one’s about a duplex, whether it needed a variance, amendment of zoning ordinances, and unprosecuted permit violations. The bottom line is that the enviro-court found that the use of the duplex (or whatever you want to call it) wasn’t a violation and even if it was, the SOL barred enforcement. Neighbors appeal. <span class="il">SCOV</span> affirms. <i>In re Burns 12 Weston Street NOV</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-131.pdf&source=gmail&ust=1668970941160000&usg=AOvVaw1YaKNQYFzftJZo5vxKZOoy" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-131.pdf" style="color: #1155cc;" target="_blank">2022 VT 37</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Closing out <span class="il">August</span>, one decision issued on <span class="il">August</span> 26, 2022. This one is about expungement. For the glossed-over-big-picture view, we’ll just say petitioner filed to expunge a bunch of stuff (convictions and dismissals) from his record on various grounds. Not having any luck to speak of at the superior court level, he appeals. <span class="il">SCOV</span> affirms but also opines that some stuff might be expunge-able and remands for that. A few items of note: (1) conduct must be legalized <i>and</i> decriminalized to be eligible for expungement under one statutory provision and its interpretation; (2) in a broad sense, forward-looking language in a statute can provide <span class="il">SCOV</span> with a basis to refuse to find retroactive intent (“within 60 days” of a triggering event being the key language here); and (3) there’s a distinction between a “dismissal with prejudice” and one without prejudice that <i>effectively </i>becomes a dismissal with prejudice when the SOL expires. Because the legislature threw in an eight-year period for expungement after a without-prejudice dismissal, that’s the controlling timeframe and whether or not the SOL is in play is moot. As a final point, the State’s objection to expungement is not an automatic bar to expungement; it just triggers a hearing. Though <span class="il">SCOV</span> affirms the denials, there are a few potentially eligible-for-expungement things on petitioner’s record that would be eligible under changed circumstances. So even though there’s a two-years-to-wait-to-refile rule, <span class="il">SCOV</span> instructs the trial courts to clean those up in the meantime. <i>State v. E.C.</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-179.pdf&source=gmail&ust=1668970941160000&usg=AOvVaw3y8jqbovtLL18v-Fav17dL" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-179.pdf" style="color: #1155cc;" target="_blank">2022 VT 40</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> </span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">One opinion August 5 from the criminal-law world.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Well over a decade ago, defendant was helping himself to various items of personal property in storage units. He got caught, pleaded guilty, and the trial court sentenced him to eight months to two years. Based on the conviction, the court later held a restitution hearing that occurred over three separate days. Defendant and his attorney were present—defendant by phone because he was incarcerated out of state and participating in training—sometimes and sometimes not. The last day was a “not.” Ultimately, the court issued a restitution order just north of eleven grand.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Flash forward a dozen years and defendant moves to vacate the restitution order. The trial court denies the motion on grounds that the motion is untimely but also gives some other reasons why the motion doesn’t fly. On reconsideration, the trial court lands in the same spot. Defendant appeals.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">On appeal, <span class="il">SCOV</span> reasons that the applicable 90-days-to-correct-a-sentence (restitution is part of a sentence) deadline applies and is jurisdictional. The twelve-year wait was just too long. While things don’t look good for defendant, there <i>was</i> a clerical error in counting an ATV’s value in the restitution order that ought not have been counted. Because the parties agree that was an error, <span class="il">SCOV</span> reverses and remands to correct the stipulated error, but affirms on everything else. <i>State v. Therrien</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-059.pdf&source=gmail&ust=1668970941160000&usg=AOvVaw1VA3EyBWLeJJxyHzZYzB7I" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-059.pdf" style="color: #1155cc;" target="_blank">2022 VT 35</a> <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><u></u> <u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">The week of July 22 had two opinions and what we’ll call an “addendum.”<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><span style="color: black;">I wrote about </span><i>State v. Sinquell-Gainey </i>back in May. It was a bad decision then. It’s still bad. If you don’t remember, a majority of the Court (Justices Carroll and Eaton and specially assigned Justice Dooley) reasoned that the police can pull over anyone for pretty much everything over Justice Cohen’s and Chief Justice Reiber’s dissent. The only thing different . . . the only thing new . . . is that there’s a few paragraphs at the end about how defendants’ motion to reargue doesn’t fly because, according to <span class="il">SCOV</span>, the whole motion to reargue is about former Justice Dooley’s impartiality and that’s just not a good argument. <i>State v. Sinquell-Gainey</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op20-306_1.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw2LZNQhG1xvUaE7t_AUULJl" href="https://www.vermontjudiciary.org/sites/default/files/documents/op20-306_1.pdf" style="color: #1155cc;" target="_blank">2022 VT 19</a>.<u></u><u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><u></u> <u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;">July 22 opinion one is about municipal bonds and drinking-water-system remediation and—I gotta be honest here—I started glazing over once I figured out what it was about. Lemme try to regroup. Plaintiff was annoyed by—and I’m only guessing here—charges for a water hookup he didn’t use and some open meeting law violations surrounding the vote, that got the bond, that created the unusable-water-hookup situation. The trial court found that there were violations, but those violations were cured. Plaintiff appeals. <span class="il">SCOV</span> affirms, reasoning—like the trial court—that the violations were cured and plaintiff isn’t entitled to attorney’s fees or anything else. <i>Soares v. Barnet Fire District # 2</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-290.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw0aGz7w8SDFTMFBB7YGten3" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-290.pdf" style="color: #1155cc;" target="_blank">2022 VT 34</a>. </span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"> </span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;">July 22 opinion two runs 50 pages all in. Here are the highlights. There is an old road. That road is in Vernon. I quote: “The Township of Hinsdale was established in 1753, stretching over both sides of the Connecticut River. The town was later divided between New Hampshire and Vermont with the river as a boundary. In 1802, the portion of the town on the Vermont side of the river was renamed Vernon . . . .” And thus begins a saga that ultimately leads to a <a data-saferedirecturl="https://www.google.com/url?q=https://vtdigger.org/2020/09/04/scov-law-blog-trying-to-prove-a-200-year-old-road-is-really-a-road/&source=gmail&ust=1668970941161000&usg=AOvVaw22v5kmcasR7c_Xx3T2OLvj" href="https://vtdigger.org/2020/09/04/scov-law-blog-trying-to-prove-a-200-year-old-road-is-really-a-road/" style="color: #1155cc;" target="_blank">knock-down, drag-out fight</a> between neighbors over whether one of them can use Stebbins Road—if it really <i>is </i>a road. In this chapter, the trial court grants partial summary judgment to the wanna-use-the-road neighbor and the Town of Vernon (I could explain how the Town of Vernon is involved, but then this will be way longer than it has to be) allowing, more or less, access through Stebbins Road. Other neighbor appeals. And <span class="il">SCOV</span> affirms, but not without a titillating romp through the “requirements under the 1797 Act to establish a public road in 1801” and more 1800s law than you can shake a stick at. Or would want to. Seriously, though, as far as legal history and laying out roads goes, it’s good stuff. Specially assigned Justice Dooley dissents. He’d roll it all back, reverse the 2018 decision (hyperlinked above) and affirm the trial court’s initial order. “The majority has revisited the wrong decision and achieved injustice” is how he puts it. In Justice Dooley’s view, the 2018 opinion was fundamentally erroneous and never should have been set forth to wreak the havoc it did. In case you’re wondering, Justice Dooley did not participate in the 2018 decision he wants to reverse. <i>Daiello v. Town of Vernon</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-017.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw1RL26tRGUqV9IfTSENPpkT" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-017.pdf" style="color: #1155cc;" target="_blank">2022 VT 32</a>. <u></u><u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><u></u> <u></u></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><span class="il">July</span> 8 had one decision. The crux of it is that the facts admitted to pursuant to a guilty plea to possession of child pornography can sustain a DCF substantiation of child abuse. DCF doesn’t necessarily need to establish identifiable child victims or a caretaking relationship between petitioner and each child. Procedurally, DCF substantiated M.V. after he pled guilty to two counts of possession of child pornography. He appealed to the Human Services Board (HSB). The HSB granted summary judgment to DCF on the basis that the underlying offense was sufficient to establish substantiation as a matter of law. On appeal, <span class="il">SCOV</span> affirms, reasoning that there is no requirement that the child abuse—in this case the child pornography—be tied to an identifiable victim with whom petitioner has a caretaking relationship. There’s a good discussion about collateral estoppel if you run into that issue elsewhere. <i>In re M.V.</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-249.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw2HQnMTUOkklD2pjMmKiPWi" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-249.pdf" style="color: #1155cc;" target="_blank">2022 VT 31</a>.<u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><span class="il">July</span> 15 also had one decision. Lawyers all know to be careful when drafting wills and such for clients, right? In this case, respondent completed estate-planning services for a client. It was a bit convoluted and ultimately led to a conflict-ridden situation with respondent acting as trustee for a trust and moving money around in some ways that didn’t look so innocent to the professional responsibility board. Documents were not filed or recorded. Money was not properly accounted for. An estate wasn’t opened. Respondent told a potential beneficiary that there was no estate. The best way I can sum it up is a “ballooning bad idea.” In addition to not notifying potential beneficiaries, respondent also went ahead and sold real property below market value to a buddy’s wife (though he did have some reasons why). In the end, the PRB found several conflict-of-interest violations and imposed a three-month suspension. <span class="il">SCOV</span> takes up the matter on its own and, in a <i>per curiam</i> opinion, says, “Okay. The board got the violations right, but this is more serious than a three-month-suspension situation, so we’re tacking on a couple more months.” Estate planning is tricky enough under arms-length principles—this case illustrates why the arms-length rules exist. <i>In re Kulig</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-230.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw1cvqMtK1ZUPU00Mx8s_7Fo" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-230.pdf" style="color: #1155cc;" target="_blank">2022 VT 33</a>. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><br /></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="font-family: inherit;"><span style="color: black;">I don’t know about you, but sometimes, I’ll click on clickbait. It can be funny and slightly terrifying. For example, on Thursday, I read an article about a “viral TikTok” put out by an </span><a data-saferedirecturl="https://www.google.com/url?q=https://7news.com.au/lifestyle/offbeat/mums-mind-blown-as-she-discovers-aged-32-just-why-we-use-the-abbreviations-1st-2nd-3rd--c-7325513&source=gmail&ust=1668970941161000&usg=AOvVaw3ZPQYoLtNKD7JB0Ip9I2w4" href="https://7news.com.au/lifestyle/offbeat/mums-mind-blown-as-she-discovers-aged-32-just-why-we-use-the-abbreviations-1st-2nd-3rd--c-7325513" style="color: #1155cc;" target="_blank">Australian woman about her mind being blown</a><span style="color: black;"> when she figured out why we use 1st, 2nd, 3rd, etc. Yeah. So. There, as they say, is that. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Two opinions <span class="il">July</span> 1<i>st</i>. First up we have a probation violation appeal. Defendant is supposed to stay off the interwebs because he pled guilty to a few sex crimes. While on probation, he sent some, uh, intimate selfies to three different people who did not<i> </i>ask to see such images. And so, a probation-violation proceeding ensued. After the initial complaint was filed, defendant’s probation officer added two more violations based on defendant’s continued possession and use of internet-capable devices. The trial court found defendant had violated his probation for several reasons, including the above and a prohibition on “residing where he would have access to computers or other devices with access to the internet.” The court sentenced defendant to three years to life. On appeal, <span class="il">SCOV</span> affirms the findings except as to the residency violation. <span class="il">SCOV</span> reverses on that point because defendant wasn’t ever charged with violating that condition. Back to the trial court for resentencing based on the legit violations. <i>State v. Burnett</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-031.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw0avm65bceauEfM2sNQ0HpU" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-031.pdf" style="color: #1155cc;" target="_blank">2022 VT 30</a>. <u></u><u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;"><u></u> <u></u></span></span></p><p class="MsoNormal" style="background-color: white; color: #222222; margin: 0px;"><span style="color: black;"><span style="font-family: inherit;">Also from July 1, we have a thing about a thing. Our State Auditor wanted access to OneCare Accountable Care Organization, LLC’s (OneCare) payroll records because OneCare made a significant hike in its payroll budget and OneCare has a contract with the State. It also has a $1.2B+ budget—to put things in perspective. The State Auditor filed a complaint. OneCare filed a motion to dismiss. The trial court granted the motion to dismiss. On appeal, <span class="il">SCOV</span> affirms, reasoning—like the trial court—that the State Auditor lacks statutory or contractual authority to demand the payroll records. <i>Hoffer v. OneCare Accountable Care Organization, LLC</i>, <a data-saferedirecturl="https://www.google.com/url?q=https://www.vermontjudiciary.org/sites/default/files/documents/op21-271.pdf&source=gmail&ust=1668970941161000&usg=AOvVaw2I_Z_2F2e_XCOfqyGtshJH" href="https://www.vermontjudiciary.org/sites/default/files/documents/op21-271.pdf" style="color: #1155cc;" target="_blank">2022 VT 29</a>. </span></span></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com0tag:blogger.com,1999:blog-8110639002933228971.post-16146001103597668422022-06-25T09:31:00.005-04:002022-06-25T09:31:43.914-04:00Bi-Weekly Update<p><span style="background-color: white;"><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; font-family: Merriweather, Georgia, serif; font-size: 16px; margin-right: 1em; text-align: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1TeUDVBwD6H8q6r7_9UPf2TdpHVJ7rKc_c8iHos02GUihQn3q8w2ikSVNXUGuceQO69HaJWcV3D6d9fHr1MJo998HeF6Xzv8YoCtwC5TcOj5xfrK3M0UsLo1W5VPdUpUcZpT5EIT_xmC6a5v7IgvJ5UyR-VYIT8xZhchCdcepnRKPAo1d-o51vBHf/s640/golf-g151a1f430_640.png" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="640" data-original-width="441" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1TeUDVBwD6H8q6r7_9UPf2TdpHVJ7rKc_c8iHos02GUihQn3q8w2ikSVNXUGuceQO69HaJWcV3D6d9fHr1MJo998HeF6Xzv8YoCtwC5TcOj5xfrK3M0UsLo1W5VPdUpUcZpT5EIT_xmC6a5v7IgvJ5UyR-VYIT8xZhchCdcepnRKPAo1d-o51vBHf/s320/golf-g151a1f430_640.png" width="221" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Deuces</td></tr></tbody></table><span style="font-family: inherit;">By </span></span><a href="https://martinassociateslaw.com/about-2/andrew-b-delaney/" style="background: rgb(255, 255, 255); color: #729c0b; text-decoration-line: none;" target="_blank"><span style="font-family: inherit;">Andy Delaney</span></a></p><p><span style="font-family: inherit;">SCOTUS issued a whopper yesterday and we'll leave it at that. </span></p><p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">SCOV’s offering from yesterday is
far more mundane. As we all know, jurisdiction matters. No jurisdiction? No
case. Here, defendant was tried and convicted. He sent a pro se motion for a
new trial to his mom to file but for whatever reason, there’s no paper or
electronic trail to show that. One of his pro se motions that was eventually
filed was hand-dated by defendant four days after the trial, but SCOV reasons
that there’s also nothing to show that’s even close to accurate. Defendant had
lawyers representing him the whole time, though there was quite a bit of
turnover. There was a lawyer-filed motion for acquittal or a new trial filed in
the proper window. Denied. There was also another pro se motion “for mistrial”
filed in the same time period. Then we end up with three notices of appeal. Then
a later motion ten months-ish after the trial in December 2019. What can I say?
It’s a puzzle. Defendant raises a number of issues on appeal, but because there’s
that puzzle I mentioned, SCOV punts, reasons there’s a missing piece—jurisdiction—and
affirms the trial court’s denial of defendant’s motion for a new trial on those
grounds. How do we get there? Well, SCOV reasons that when the motion for a new
trial (we’ll just call it “the one that’s on appeal” or the “December 2019
motion” for now) was denied, the case was on appeal at SCOV. Because the case was
on appeal, it can’t also get the same issues litigated in the lower court (collateral
issues are an exception). So, in this case, the issues raised in the December
motion are the same issues that were already on appeal—meaning, SCOV had
jurisdiction and the trial court did not. Defendant does raise an interesting
argument—that the no-dual-jurisdiction rule is antiquated and unnecessary due to
the 1974 constitutional reorganization of Vermont courts—but it gains no
traction. SCOV reasons that the no-dual-jurisdiction rule has good and solid
roots and it stands. The opinion concludes with a direct quote from <a href="https://cite.case.law/vt/134/36/">the case</a> defendant argues should no
longer be applicable: “[W]hen a proper notice of appeal from a final judgment
or order of the lower court is filed the cause is transferred to this Court,
and the lower court is divested of jurisdiction as to all matters within the
scope of the appeal.” SCOV affirms the trial court’s denial of defendant’s
December 2019 motion. <i>State v. Kuhlmann</i>, <a href="https://www.vermontjudiciary.org/sites/default/files/documents/op20-041.pdf">2022
VT 28</a>. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></p><p class="MsoNormal"><span style="font-family: inherit;">There was also one opinion on June 17. </span></p><p class="MsoNormal"></p><p class="MsoNormal"><span style="color: black;"><span style="font-family: inherit;">Why don’t I do family law? Here’s one of many reasons.</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">In a nutshell, mom and dad get
divorced in 2018, but dad’s living situation changes, visitation isn’t where
he’d like it to be, and mom isn’t inclined to agree with dad on the issues.
This is a familiar tale. Mom is represented, though, and dad is not. Dad files
a <i>lot</i> of motions. Mom files a motion for sanctions for all the motions.
The trial court considers those motions (amongst various hearings) and
ultimately concludes that there’s, among other things, an overall lack of legal
and factual merit to dad’s many filings. This frustrates the trial court. It
probably doesn’t help dad that he refers to the trial court as the
“dishonorable court,” and takes digs at the judge, the judge’s family, and the
judge’s workload. So the trial court says, and I’m paraphrasing here, “Look,
dude. No more filing motions unless you get permission from the court or
they’re signed by a licensed attorney. I can’t take this anymore.” There’s a
bit more to it than that—including attempts to appeal other orders, missing
filing fees, procedural defects, and other fun stuff. Dad appeals the sanctions
order (again, among other things).</span></span></p>
<p class="MsoNormal"><span style="font-family: inherit;"><span style="color: black;">On appeal, SCOV reasons that the sanctions order (requiring
pre-filing permission or attorney-signed motions) is the only thing properly on
appeal and concludes that the trial court was justified in imposing sanctions
but that the sanction went too far in requiring pre-filing permission or an
attorney signature on every pleading because a procedure for seeking permission
was not specified. SCOV starts out by noting: “Father’s three-page brief does
not cite to any legal authority other than the U.S. Constitution, and his
arguments are difficult to discern.” That’s a polite way of saying, “We’re
stumped.” But SCOV does—after noting that its review of sanctions is for abuse
of discretion—conclude that the trial court’s order needs clarification on the
proper procedure for permission. SCOV also reasons that the trial court must
consider the merits of father’s motions to the extent legitimate issues are
raised. SCOV affirms but also sends it back for the trial court to “tailor the
sanctions order to outline the appropriate procedure and standard for father’s
future filings with the court.” <i>Fox v. Fox</i>, <a href="https://url4490.lists.trialsmith.com/ls/click?upn=wR2fw-2FZ-2F9kXHRlOzChG6bsO2RVB-2FRu-2FYTL0eqUoFVUnhOP5XraNnlEohYQgKznnSX-2Fn66EP-2Bq-2FtWoHk0ntvB7RCK9bXLqKh03XKkHcDd0D43vGDyOOyCJB6BgIhsUh3-2B9p4D_GptQX16N64WwKT5la58D1oNAv4SNlbdASyKIiZC5M5-2FReAHGKVB6jyqs6J4C6UgjUzRnszFqgbZYi7Ui8ABB5UtLFWhnzpQCuV2V9RRsP1DsxdoTF0igjHFBUF8-2BbQN1eri10WGc-2FtHFSBl-2BGhl5RN-2BZM91K3cIv6yXCB6AehFAheUUi-2B44BkCoDskfptG5tXDp0QOGazrBZfn0emvkiytDhKkucij2HBy6LWfVb5unZSxHgdxXoDfl2aoMTPkIdBX1E1s5IcXaZWjkJQbu53Hjm3GkSqDp3wwYfXAgpKIUtH2bc3I-2FT-2BKM2a6wPhJKtglxRizsswpRiLZwYIizWyiRgaVnfgqMHTBRslB67mrSuXoV7-2FZZEYwXw9ME9mvwQrJ1iQNRDd-2BZYaWSTDDQQnxZYfymGknwvDxgRXB-2Fp-2BDJwJDzYWxQOGCAXfcuYb4xfspaogfQuXH2q9QYn5WwzqulaAieMRoBhPuvTOoCRVyqyLTPBODuHwyEWEkzBJIATJxVSR46gg7EqhRSIZHXVrh6hq0oJoXkIqSL1OGNyr4gD4-2BZJCh-2BF6oampYl5rCJ7bkTBVvyVn-2BSGoUwviFrrw4Aq8UQx56JFJfjgogGkMSUujxTS6yx8uotrFHktRlQGZijC64-2BhkIAWo79aC09n9Pvfs4ecF05gQ4Fxheblmg6cNFDLqMm1of9kSI7xODnLSrYZRAlxIzrO9CLbvvnsj2s3DQVEWMFlXrbL7qO92680wEBEd3Y8Qqd2r-2FJAmrDI-2Fyhb-2FWfmoYEimyIgPIwbjLiPFs1-2BRvdV-2B1DyIEkJnsLA6hoEbMgQOv1umkWiVyr6">2022
VT 27</a>.</span></span></p><p></p>Andrew Delaneyhttp://www.blogger.com/profile/05225096327264217866noreply@blogger.com3