Saturday, March 17, 2018

Same as the Other

And so, as the force transfers . . .
In re Moyer, 2018 VT 29 (mem.)

By Andrew Delaney

If a lawyer has multiple law licenses, and the lawyer gets in trouble in one of the places he has a license, then he’s generally subject to reciprocal disciple. It’s kind of like if you lose your driver’s license in one state, you generally lose it in all states. This case is not an exception to the rule.

Side note: when available, I tend to link to the Google Scholar versions of cases. That’s because the links are to regular webpages as opposed to the Vermont Judiciary links which are to PDF files and can be problematic. The Google version of this case linked above does have a big ol’ “Do Not Publish” on its version. I assure you that the PDF on the Judiciary site has the “Publish” box checked. I don’t know as anyone besides me really cares . . . but now you know. Google? If you’re listening, could you fix that, please?

Attorney Moyer is licensed in Tennessee and—one must assume—Vermont. The Tennessee Board of Professional Responsibility found that Attorney Moyer collected partial fees from bankruptcy clients and requiring installment payments on the remaining fees after their bankruptcy petitions were filed. 

One For You, Nineteen For Me

That is one weird mug. 
Vermont Department of Taxes v. Montani, 2018 VT 21

By Elizabeth Kruska

In the spirit of maple-sugaring season, I’m going to boil this way, way down. Then I might have some pancakes, because they’re basically just a syrup delivery system, and syrup is delicious and magical. I tend to prefer Grade B, which I think now is called Very Dark. Whatever it’s called now, it tastes very, very good.

Here’s what happened. The Vermont Department of Taxes tried to collect on some old tax debts from a handful of taxpayers who didn’t file tax returns. The Tax Man* is allowed to do this, because the Commissioner of the Department of Taxes is charged with the duty of collecting taxes.

So, three separate taxpayers didn’t file returns over various years in the early 2000s. The Tax Department sent notice, and the taxpayers didn’t do anything in response to that notice. The Tax Department then went to court to enforce those defaults as collection actions.

Friday, March 16, 2018

Probation Conditions: A Perennial Favorite

Is this necessary? Maybe. 
State v. Urban, 2018 VT 25

By Elizabeth Kruska

Probation conditions! Again! We should be good at this by now!

So here we go into this one. Mr. Urban was convicted of some assault offenses and received a suspended sentence with probation. With probation comes probation conditions. As we know, probation conditions are supposed to be tailored to the individual situation so as not to be overbroad.

During Mr. Urban’s sentencing, he reserved the right to appeal the imposition of the so-called “no alcohol” condition. It’s called that because it prohibits the purchase, possession, or consumption of alcohol. We lawyer-types don’t always overthink everything, I promise. Mr. Urban argued that the “no-alcohol” condition couldn’t be imposed because of a SCOV decision in State v. Albarelli, which struck down a similar condition for a defendant on public policy grounds.

Monday, March 5, 2018

A Question of Time

Skidmore v. Dept. of Labor, 2017 VT 65

Appellant Margaret Skidmore, otherwise known by SCOV here as “Claimant,” was injured on the job in April 2013, and hasn’t had full-time work since then.  She comes before SCOV pro se (without a lawyer) to appeal the decision of the Department of Labor’s Unemployment Insurance and Wage Division denying her continued weekly unemployment benefits.

For the sake of consistency- I’ll continue to call Skidmore “Claimant.”  So, anyway, Claimant was injured and left work in April 2013 and started receiving workers comp.  She received temporary total disability wage replacement benefits until March 20, 2015.  Remember that date, because it becomes important later.

On May 18, 2015, she called the Unemployment Division of the Department of Labor to ask about unemployment benefits.  Unbeknownst to her, the Unemployment Division, which oversees unemployment benefits, opened a claim after taking down her Social Security number and other relevant information.

Friday, February 23, 2018

Keep Your Hands To Yourself

It's all connected in some way
State v. Discola, 2018 VT 7

By Elizabeth Kruska

Here are the basic facts. Mr. Discola was charged with multiple counts of lewd and lascivious conduct. The State alleged that during the Burlington Marathon in 2015, Mr. Discola, in apparently a few different locations along the marathon route, touched three female spectators on their respective rear ends. A runner in the relay saw one of the touching episodes and also took a photo.

A police officer saw this fellow sort of hanging around a group of girls and became suspicious based on this man’s behavior. He asked Mr. Discola what he was doing and Mr. Discola said he was meeting a friend for burritos. I suppose this makes sense where “meeting a friend for burritos” is code for “touching women inappropriately during the Burlington Marathon.” The police officer, apparently not entirely convinced, took a photo of Mr. Discola. You know, just in case it turned out something was afoot.

I’ll interject here and say that I really enjoy running in road races. I am not fast, but I enjoy training for and running in races. Lots of other people feel the same way I do. These are events that bring that bring out big crowds, and big crowds often need police to help keep things under control, which is how the officer I mentioned above came in to contact with Mr. Discola.

Not Much to Talk About . . . Yet

And . . . we're done. 
Wash. Super. Union v. Cabot Teachers' Ass'n, 2018 VT 24 (mem.)

By Andrew Delaney

This is my favorite kind of opinion to summarize—one paragraph long. The Board of School Directors of Washington Northeast Supervisory Union appeals the Labor Relations Board conclusion that the Cabot Teachers’ Association didn’t commit an unfair labor practice by declining to engage in collective bargaining in a public session.

Because SCOV issued another opinion today that resolves the whole negotiating-sessions-are-subject-to-public-meeting-requirements argument (based on this one-paragraph opinion, I’m guessing that’s a no), the Labor Relations Board’s decision is affirmed.

And we're done . . . for now. Stay tuned for the actual opinion that dictated this one.

Sunday, February 4, 2018

Delay of Game?

Better figure somethin' out soon. 
Adams v. Barr, 2018 VT 12

By Andrew Delaney

The lesson in this case is: “Don’t wait until the last minute.” I suppose, in life, that’s a universally applicable lesson. In this case, for Mr. and Mrs. Adams and their construction company, it’s an expensive lesson as well. And in the spirit of Super Bowl Sunday, we could say, “Don’t let the play clock run out before calling a time-out.”

Barr Law Group filed an arbitration demand against Adams Construction with the American Arbitration Association (the “other” AAA) “claiming that Adams Construction had failed to pay Barr Law Group more than $40,000 in fees for legal services.” Adams Construction filed an answer and counterclaim for $97K. There was discovery, conferences, scheduling, rulings, and yadda, yadda, yadda the case headed to hearing.

But one week before the scheduled three-day hearing, Adams Construction said something like, “Whoa. Hold up. We never should’ve agreed to this arbitration thing. It’s unfair and Barr tricked us into it. We object.” Adams Construction filed an objection to the arbitration and moved to dismiss it. Adams argued, for the first time, that the arbitration provision in the fee agreement was unenforceable. Adams Construction cited legal authority that arbitration provisions are supposed to be fully explained and disclosed. Adams Construction said Barr didn’t do any of that stuff. As to its delay in raising the issue, Adams Construction indicated that it had only recently learned of the legal basis for objection before raising it. 

Sunday, January 28, 2018

Timing Is Everything

Like sands in an hourglass . . .
State v. Scarola, 2017 VT 116

By Elizabeth Kruska

OK, maybe timing isn’t exactly everything, but timing is a big piece of why this particular case got affirmed. Timing is also the reason this case might have burst into a fiery mess of a procedural sideshow, but didn’t because SCOV affirmed.

The underlying facts are horrible, In 2013, Mr. Scarola beat up his wife with a baseball bat, nearly killing her. By some miracle, she survived, and he was charged with aggravated domestic assault and attempted second degree murder. That later got upgraded to attempted aggravated murder. There are lots of news articles about the facts; they need not be fully recounted here.

The case headed toward trial, and in March of 2015, the parties had a pre-trial hearing on some evidentiary issues. After that hearing, the judge called the attorneys in to chambers to inquire if the case was going to go forward to trial, or if there was some sort of plea agreement also being discussed. The judge apparently suggested that 20 years to life seemed like a reasonable sentence, given the situation.

Saturday, January 20, 2018

Needy or Not?

What's in your wallet? 
State v. Kittredge, 2018 VT 6 (mem.)

By Andrew Delaney

Mr. Kittridge got charged with a bunch of crimes, including neglect, manslaughter, and welfare fraud. He requested a public defender and the trial court denied the request at arraignment. Mr. Kittredge was released on a $25K unsecured appearance bond. He reapplied for a public defender and the trial court again denied the request because Mr. Kittredge’s income exceeded the financial guidelines. He moved to reconsider the public-defender denial. Again, the trial court denied the request because Mr. Kittredge’s “income and family size disqualify him from receiving a public defender.”

That brings us to SCOV’s door.

Generally, denial of public-defender services is left to the trial court’s discretion. In this case, however, SCOV considers “whether the trial court conducted the proper analysis in determining whether to appoint counsel.” This is a no-deference analysis.

Who’s on Your Ballot?

Decisions, decisions . . .
Paige v. State, 2017 VT 54

By Eric Fanning

Get ready, SCOV Law readers, 2016 is back . . . with a vengeance!

Appellant H. Brooke Paige is a Vermont voter, and was a candidate in the state’s 2016 presidential Republican primary. Back in December of 2015, when primary season was in full swing, he filed a declaratory judgment action and asked for a temporary restraining order against the State of Vermont, the Secretary of State, and the Attorney General. 

Paige sued to block the inclusion of Senators Marco Rubio and Ted Cruz on the Republican primary ballot on the basis that they were not qualified to run for President of the United States (Paige is playing the you’re-not-a-natural-born-citizen card). His complaint claimed that, by putting unqualified candidates on the ballot, he would be deprived of his 5th and 14th Amendment rights as a citizen, and, as a candidate, he would “suffer the prudential debilities of having to contend with candidates who are not qualified” like competing for signatures, money, media coverage, votes, and all that jazz.