Sunday, December 16, 2018

Enough Evidence?

Can you hear me now?
In re B.C., 2018 VT 126

By Elizabeth Kruska

This is an appeal of a CHINS case, but the issue is really about evidence. So, although the name of the case is B.C., the appeal isn’t exactly about B.C. Sort of like how “Alice’s Restaurant” was not the name of the restaurant, it was always just the name of the song.

The child involved in this case is B.C., who was born December 31, 2016. At that point, Mom had 2 other children and was already working with DCF relative to those kids. DCF’s work with Mom centered around issues of domestic violence and substance abuse.

I could get bogged way down in the facts of this case, and honestly, in my first draft of this post I did. The truly relevant facts are these. There was an existing CHINS case involving Mom, Dad, and B.C., which was filed shortly after his birth. The child was taken into DCF custody and lived apart from his parents. Initially the goal was to get B.C. home with both parents, but the parents split up, and Mom wanted to try to get to parent B.C. on her own. A merits hearing was held in early spring 2017 and taken under advisement. While that decision was under advisement, DCF started to worry about Mom, due to a relapse and the fact she missed a visit and a counseling appointment.

Monday, December 10, 2018

A Motion For Costs

This case isn't about coffee.
I just like coffee.
Alpine Haven Property Owners’ Association v. Brewin2018 VT 127 (mem.)

By Elizabeth Kruska

There’s not a lot to this particular opinion, as it’s an entry order on a pretty discrete issue.

Briefly, if a party appeals to the Supreme Court and does not prevail, the other party may seek costs. The party seeking costs has to make its request within 14 days of the judgment. That party can ask for more time, but it’s got to be a pretty good reason. Let’s suppose there’s a government shutdown and mail isn’t moving. That’s probably a good reason. “I forgot,” probably isn’t a good reason.

Sunday, December 9, 2018

There’s No Appropriate Funny Title For Anything About This Case

No jokes here

Sheldon v. Ruggiero, 2018 VT 125

By Elizabeth Kruska

The facts underlying this case are horribly sad.

As has been widely-reported in the news, Dezirae Sheldon, a toddler from Rutland, died in her family’s care, after having had DCF-related involvement. Here are the facts, and how we get to this particular civil case. I don’t know facts of the case other than what are recited in the opinion or what I have learned in the news. I also don’t know if there are any other lawsuits pending. If there are I wouldn’t be surprised. This particular case is fairly narrow in the grand scheme of what could be out there.

This all started in early 2013, when Dezirae was one year old. Her mom brought her to the hospital because her legs were broken. I assume here the hospital made a report to DCF, because a DCF investigation began. Mom gave multiple, conflicting accounts about how Dezirae’s legs got broken. Those accounts ranged from Mom saying she never did anything and didn’t see anyone do anything, to saying she dropped Dezirae onto her crib, to saying Dezirae fell down, to an explanation involving hitting her legs on a doorway.

Sunday, December 2, 2018

Changing Direction

Does anyone else see the beginnings of 
a creative argument about a 
busted turn signal here? 
State v. Cook, 2018 VT 128

By Andrew Delaney

One might think that if one is in a turn-only lane, a turn signal is redundant and unnecessary. Surely, it’s not a basis for a traffic stop.

According to SCOV, one would be wrong.

Just days under two years ago and just after midnight, Mr. Cook was driving in St. Albans. He came to the end of Hoyt Street, where it merges in a “T” with Main Street. One can go left. One can go right. If one attempts to drive straight ahead, one is likely to drive onto a lawn, perhaps into a building, and one will not have a very good argument for why one shouldn’t have been pulled over. A picture of Mr. Cook’s approach follows the break.

Sunday, November 18, 2018

The Private Salesman

The real culprit? 
Foti Fuels, Inc. v. Kurrle Corp., 2013 VT 111

By Nicole Killoran

Today’s oldie but goodie fills in an important gap in Vermont’s Consumer Fraud Act (CFA) case bank. As civil plaintiff’s lawyers know, the CFA is a bit of a reliable “kitchen sink” option. It’s fun to throw into just about every complaint in which there’s some scintilla of a promise that went awry. If it sticks, it might get you attorney’s fees and, in heinous cases, exemplary damages. But just how arms-length does a transaction have to be before it’s “in commerce” and thus consumer fraud?

Back in the ‘70s, plaintiff’s owner set himself up as a gasoline mogul in the bustling burg of Montpelier. He had one corporation running a gas station and convenience store, and storing and distributing fuel, and another corporation delivering fuel to gas stations. After 25 years, plaintiff seller announced he was retiring to sunny Arizona, and offered to sell his gassy empire to defendant buyer, who didn’t have much experience in the fuel industry. Seller agreed to train his novice successor, and employ him as a manager, before they finalized everything in writing.

When the parties sealed the deal four years later, they signed a couple of documents, including an asset-purchase agreement. Seller sold everything but the distributorship to buyer. They agreed that buyer would continue buying fuel from seller for five years, before having the first shot at buying the distributorship. Seller also agreed in the asset-purchase agreement, in exchange for $30k, to not compete directly or indirectly with buyer during those five years. The parties later signed a separate, more-specific noncompete agreement that also gave buyer a pretty big grace period to make his first payment.

Thursday, November 8, 2018

Give Credit Where It's Due

This has nothing to do with jail credit. 
It is a lovely photo, though.
Bridger v. Systo, 2018 VT 121

By Elizabeth Kruska

This is a case about Corrections Math. The long and short of it is that if someone is held in jail pre-trial, that person is entitled to credit toward his or her sentence. You’d think that would be easy. You’d be wrong.

The problem turns out to be that credit needs to be able to attach to something. A defendant can’t get credit for time in jail not spent in jail. Also, a defendant can only get credit toward a sentence if the time spent in jail attaches to the particular charge for which a defendant is being held.

Here’s what happened to Mr. Bridger. He got arrested on January 27, 2009 for some burglaries in Bennington County. While he was being processed, he got questioned about some Rutland County crimes. Just after midnight on January 28, he was taken to the correctional facility and held on bail. He was arraigned the same day and continued to be held on bail.

Wednesday, November 7, 2018


This has got to be evidence of something.
State v. Finkle, 2018 VT 111

By Elizabeth Kruska

Warning: law nerd post ahead. This is going to be full-on criminal procedure discussion from here on out. It may not be as fun or cheeky as some of our other posts. That’s because sometimes cases can be cheeky, but sometimes we like to nerd out. This is the latter.

Our friends the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution deal with unreasonable searches and seizures. A search warrant, supported by probable cause, is needed for searches in homes. Search warrants are needed for other kinds of searches, too, but since this is a case about a home, I’m honing in on homes.

Warrants must be issued by a neutral and detached magistrate (or judge, but 4A says “magistrate” so that’s the word we’ll use. James Madison was no fool and drafted these amendments using particular words for very good reason; I see no reason to second-guess.). The magistrate can only issue such a warrant if the request from law enforcement is supported by sworn affidavits that establish probable cause to support a belief that evidence of a crime will be found in the place to be searched. Warrants have to be particular in describing what is being searched and what police are able to look for. If it’s too vague, it looks like a general warrant, which we collectively decided was no good in or around the late 1700s.

Sunday, October 21, 2018

Violence, Clarified

Violent or no? 
State v. Bryan, 2016 VT 16

By Christopher A. Davis

Probation can be a confusing system to navigate. Rules, regulations, contracts, supervisors, fees, costs . . . it can begin to sound less like punishment for your DUI and more like the job site of a metropolitan construction company. But in a 2016 decision, the SCOV clarified one point and emphasized another: first, groping the breasts of your partner’s 14-year-old daughter is considered “violent” behavior for purposes of probation; and second, if you want to fire your assigned attorney, and the court says no, it’s up to you to convince the SCOV that the trial court was unreasonable.

The facts are straight-forward. Defendant is convicted of larceny from a person and given a sentence that is mostly suspended (hanging over his head, so to speak) while he serves a period of probation. One of his probation conditions is that he not engage in “violent or threatening behavior.” This is coincidentally one of the most heavily-litigated probation conditions in recent SCOV history, mostly in the context of whether certain speech may be viewed as “threatening” (not the issue here, as you will see). Once placed on probation, he spends a week with a woman at a hotel in Berlin and on multiple occasions watches her two children, a girl age 14, and a boy age 9, at the hotel while she goes to work. On two occasions, according to a later report by the girl and investigation by local law enforcement and DCF, he touches the girl’s breast over her bra; this behavior occurs in conjunction with statements reportedly made by defendant to the girl encouraging the touching, discouraging the girl from reporting it, and attempting to blackmail her if she does report it by disclosing sensitive information he learned from spying on her use of his cell phone.

In what must have been a shock to local dating circles, defendant’s relationship with the children’s mother independently comes to a close a short time later and he is subsequently incarcerated for reasons undisclosed by the Court. After this point the girl discloses the touching, authorities investigate, and the probation officer responsible for supervising defendant files a violation of probation alleging two counts of violations of the condition prohibiting “violent or threatening behavior.”

Go to the Tape

"Well, who else had access to the jar?"
State v. Manning, 2017 VT 90

By Eric Fanning

It’s your lucky day, devoted SCOV Law readers, because today we get to discuss an embezzlement case! People commonly think of embezzlement as a rich person’s crime—only occurring on Wall Street in large banks or brokerage firms where the trusted young executive skips town to his own private island with millions of dollars in ill-gotten wealth. However you don’t have to steal a lot of money to be guilty of embezzlement, and you sure as heck don’t have to be in a big city working for a big bank to commit the crime.

Case in point: Gregory Manning. Mr. Manning worked at the Corner Stop Mini Mart in Royalton- hardly a Wall Street behemoth. He was a Mini Mart employee for several years, and was also friends with the owners of the store. Manning was so close with the owners in fact, that he was the only employee allowed to make after-hours bank deposits for the store. This entailed counting the money in the cash register at the end of his shift, filling out a deposit slip, putting the money and deposit slip in a zippered bag to be deposited, and then depositing the money and slip at the bank’s after-hours deposit box.

At some point, the store owner who did the bookkeeping noticed some irregularities, namely that there were a few deposits missing: four to be exact, totaling over $10,000. As fate would have it, all four of the missing deposits were on dates when Manning was working. The bank’s search of the deposits came up with nothing. Then they went to the bank security footage, which appeared to show Manning basically pretending to drop the bags in the deposit box, putting the money in his jacket, and walking away.

Saturday, October 13, 2018

Admission Ticket Required

"I'm sorry, sir, but you need a
complete ticket to take a seat."
In re Hamid-Ahmed, 2018 VT 113

By Andrew Delaney

Mr. Hamid-Ahmed applied to take the Vermont bar exam. The board rejected his application based on its assessment that Mr. Hamid-Ahmed didn’t meet the educational requirements.

He appeals.

Mr. Hamid-Ahmed has a bachelor’s degree and an LLM. What he doesn’t have is a JD or something like it. He isn’t enrolled in the law-office-study program and he hasn’t been admitted to any other bars. But he argues Vermont’s bar admission rules allow him to sit for the Vermont bar (specifically the “curing provision” in Rule 8(c)(4)). He also argues that the board violated his due process rights when it didn’t explicitly tell him about the process for appealing to SCOV.