Saturday, April 13, 2019

Step by Step

One foot in front of the other . . .
Northfield School Board v. Washington South Education Ass'n., 2019 VT 26

By Elizabeth Kruska

This opinion can be boiled down pretty simply: if there is a statute that tells you what steps to follow in your particular situation, follow those steps. You don’t get to make up your own steps if you’d like the law to protect you.

Mr. Clayton was a teacher in the Northfield school system. He had a contract and was a member of the Washington South Education Association. Because he had an employment contract, he was subject to the rules set forth in this statute, which sets forth the steps that are to be taken if a teacher with a contract is subject to suspension or termination. Because he was a member of the Association, which had a collective bargaining agreement (CBA), he was also subject to those rules.

There were some allegations that Mr. Clayton did and said some unbecoming things during his course of being a teacher. The school wanted to investigate those complaints, so they put Mr. Clayton on paid administrative leave pending investigation. They provided notice. Under the statute, this would have triggered Mr. Clayton’s right to appeal and have a hearing with the school board about the matter. After the hearing the school board could affirm or reverse the suspension, or take other action, like a dismissal. There’s a timeline for these steps to be taken.

Wednesday, March 13, 2019

Don't Read This. It's Too Long.

In re: Palmer


This whole case sort of feels like it probably started as a good idea. Then when it was time to do the idea, or when the rubber met the road, or however you want to say it, things went sideways. I also want to warn you, fair reader, that the opinion is long and full of facts, and correspondingly, this summary is… less than summary. You may wish to stop reading right now because honestly, it’s long.

Tuesday, March 12, 2019

Just Tortin' Around

Just Tortin' Around
Heffernan v. State


Ms. Heffernan was an inmate at the Chittenden County Correctional Facility (CCCF) in 2013, during which time, Tracy Holliman was employed by the State as a corrections officer at CCCF. After her release in 2015, Heffernan filed a complaint against Holliman alleging inappropriate sexual conduct during her time at CCCF. Heffernan made a slew of allegations, including a violation under 42 U.S.C. § 1983, but did not name the State as a defendant.

Heffernan notified the State of the lawsuit. The State reviewed the complaint and determined that Holliman’s actions were outside the scope of his duties, and therefore, the State was not required to defend Holliman. Holliman basically participated in no part of the lawsuit, and Heffernan won a default judgement, including punitive and compensatory damages.

Monday, March 11, 2019

Restitution Reversal

State v. Baker



Although this opinion is 16 pages long, the meat of it is pretty straightforward. The issue is in a criminal case, who is entitled to restitution, and what needs to be shown in order to get restitution? The answer, as it turns out, is that there may be 2 different answers.

This is a really unfortunate situation. Back on September 4, 2015, Ty Baker was driving in Swanton. His car crossed the center line and struck another car. The second car was totaled. It’s not clear to me if the people in Car 2 were injured – the opinion doesn’t say so, and I hope they were not. 

Help Me, I'm Poor

One dollar will not be enough for bail.
State v. Pratt
2017 VT 9

By Amy Davis

When a person gets charged with a crime, the defendant’s initial court appearance in Vermont is his/her arraignment. (Some other states hold a probable cause hearing prior to arraignment. In Vermont those proceedings are handled simultaneously.) At this first appearance, the judge also decides what conditions of release are appropriate, or in some cases, decides to hold the defendant on monetary bail or without bail pending trial. The court has, what we call, “broad discretion” in deciding what to set. Meaning judges can pretty much do whatever they want as long as their decision mostly justified.

Sunday, March 10, 2019

You Wanna Pizza Me?

Depot Square Pizzeria, LLC v. Department of Taxes
Mmmmm.... pizza

I took this case because I love pizza. No matter how you slice it, pizza is delicious. Sorry, that was cheesy. Cheesus Crust, Amy, just get to the case. What a weirdough.  OK, OK, I’m done. I also took this case because I hate taxes. No puns there, just sheer rage. Skip to the end for a nice rant.

Let Them Eat Cake


I like cake.
State v. Dubaniewicz


I like cake. I’m one of those people who just likes cake. My wedding cake was a wonderful, delicious chocolate cake and it was far too large (and I don’t care). I am the kind of person who would fully understand crossing state lines to eat a piece of cake. 

That is why I have a lot of love in my heart for this particular case. Not only is it a fine piece of work about criminal procedure, but it involves a little bit of a story about cake.

Friday, March 8, 2019

Here Today, Conflict Tomorrow



In re L.H., L.H. and L.H., Juveniles
One requirement to becoming a licensed attorney in most (if not all - I haven’t checked) states is for the attorney to pass the Multistate Professional Responsibility Examination (MPRE). In short, it’s an ethics exam. It covers a wide variety of topics, including how you store a client’s money and when you’re allowed to sleep with a client (a topic the SCOV covered in 2019). I found that in studying for the exam, when in doubt, choose the second-most ethical answer on the multiple choice. Most ethical problems are clear cut. For instance, if you engaged in representing a wife in a divorce, you cannot represent the husband in a post-divorce matter. That’s what we call a “conflict of interest.” This case is a termination of parental rights (TPR) hearing at heart, but it addresses an interesting ethical dilemma.

This case involved four children (all with the initials L.H., so that’s not at all confusing), who became subjects of a court proceeding due to allegations of domestic violence and lack of adult supervision. The parents agreed that the children were in need of care and supervision (CHINS), and the initial plan was for the children to either reunify with their mom or be adopted.

Sunday, March 3, 2019

No Cigar

No cigar here either
In re Bridger, 2017 VT 79

By Andrew Delaney

Rule 11 in the criminal world deals with plea colloquies. If you don’t know what a colloquy is, it’s a lawyer-job-security word for “conversation.” The conversation is between a defendant and a judge usually, though sometimes the prosecutor chimes in to say what the government would expect to prove if the case went to trial. The important thing to know here is that Rule 11 requires the trial court to satisfy itself that there is a factual basis for any plea.

Mr. Bridger pled (or “pleaded” if you want to write like nobody talks) guilty to sixteen counts of burglary (in case you want to know, SCOV uses “pled” as it should). There were a couple other burglary charges brought in for sentencing from other counties. Petitioner had an oral plea colloquy and signed a written waiver of his rights and restitution orders. He got six to twenty years with concurrent lesser sentences on the transferred charges.

After five years or so in jail, Mr. Bridger filed a post-conviction relief (PCR) petition. As we know, Rule 11 requires a factual basis for a plea. Mr. Bridger moved for summary judgment arguing that he didn’t admit any facts and the plea colloquy was “unlawfully sparse.” The State, of course, opposed and said it was entitled to summary judgment.

Wednesday, February 13, 2019

Perturbed by a Pergola

This is a monstrous pergola. You'd definitely
need a permit for this one.
In re: Langlois


Friends, we’ve got ourselves an equitable estoppel case here. I’ve written about equitable estoppel before. Ah, it was a simpler time then. 

This mess starts back in 2014 neighbors in the lovely town of Swanton. The relevant neighbors are Langlois and Heller. Langlois has a house with a patio, and from what I can tell, the patio has been there for many years. Team Langlois thought it would be nice to construct a pergola to go over the patio.