Tuesday, November 5, 2019

The Moot Boot Scoot

This is also known as a window.
Sullivan v. Menard

Not everyone spends a lot of time in criminal court. Even fewer people spend a lot of time handling post-conviction issues that arise. You’d think with the rise of true-crime series, like Making a Murderer or podcasts like Serial and Undisclosed(and all the eleventy jillion others out there; I kid, many of them are interesting) that everyone and their sister is somehow suddenly involved in filing habeas corpus and post-conviction relief cases. But that’s not exactly the case. And although we’ve got great lawyers handling post-conviction relief cases (I may be biased, many of them are my friends), it’s not always the buzz-worthy media-type cases that get filed. 

Tuesday, October 29, 2019

An Attempt To Get Things Done

In re A.M., 2019 VT 79

In re: A.M. is a good example of, “sometimes it makes sense to do something in order to get it done, but it isn’t necessarily okay to do that.” 

The basic facts are this. Mom and Dad are the parents of A.M. They all used to live in Colorado. Then Mom and Dad filed for divorce and after the divorce, Mom moved to Vermont with A.M. Mom’s family is from Vermont, so this move makes sense. A.M. spent big stretches of time in Colorado with Dad.

Monday, October 28, 2019

Bad Acts, Bad Acts

State v. Amidon

In 2013, Defendant was charged with touching his daughter’s genital area, sometime in the vicinity of 2005 to 2007. The Court referred to her as C.A., so I shall, as well. The State intended to show evidence that Defendant had been physically and emotionally abusive towards C.A, and that she felt safer when he was incarcerated. We call these “prior bad acts” and the court needs to give special permission for the State to tell the jury about it.

So during a hearing without a jury present, the court decided that the evidence could come in because it would explain why C.A. had held off in reporting the abuse. The court reasoned that she did not feel safe to disclose unless Defendant was in jail. Nobody would tell the jury why defendant was incarcerated. Furthermore, the jury would not be informed of the Defendant’s prior conviction for sexual assault on a minor, and other allegations of sexual assault on children.

Sunday, October 13, 2019

Reasonable Refusal?

Close but not quite
State v. Alzaga, 2019 VT 63

By Andrew Delaney

Mr. Alzaga got hit with a DUI-refusal charge. Contrary to what it sounds like, this is not a criminal charge for refusing to drive while under the influence. In Vermont, if you’ve been convicted of DUI, then you can’t refuse a breath test if a law-enforcement officer has reasonable grounds to request one. “Reasonable grounds” in this context is akin to probable cause.

Before trial, Mr. Alzaga filed a motion to dismiss the charge. His argument was simple: he wasn’t driving. I believe we’ve referred to this as the Shaggy defense in the past. He claimed the dashboard camera showed him switching seats with the driver. That may have been, but the trial court wasn’t convinced. It denied the motion, reasoning that there was enough evidence to allow the driving-or-intending-to-drive question to go to the jury.

The trial court split up the issue of whether Mr. Alzaga had a previous conviction, noting that if the jury came back with the requisite “yeses” on the questionnaire, it would then ask the jurors to determine whether Mr. Alzaga had a previous conviction.

Saturday, October 12, 2019

Dog Problems

Safer bet for a service animal
Gill Terrace Retirement Apartments v. Johnson, 2017 VT 88

By Elizabeth Kruska

Here’s a landlord-tenant case from some time ago.

Ms. Johnson was a tenant in the Gill Terrace Retirement Apartments in Ludlow. Ms. Johnson started living in her apartment in 2002. Also important to know is that part of her rent was paid with federal housing assistance.

Not sure when, but sometime after October 1, 2009, Ms. Johnson’s son moved in with her and brought his dog, Dutchess. From the sounds of things, Dutchess is a whole lot of dog. She had some aggressive behaviors, and some other tenants were afraid of her.

Ms. Johnson’s son moved out in late 2013 but left Dutchess behind. Several things happened in early 2014. First, the landlord asked Ms. Johnson about Dutchess continuing to live in the apartment. Ms. Johnson said that she had a doctor’s note recognizing her need for a support or assistance animal. She also said that she was having some medical treatments which made it hard for her to take the dog out, but that one of her kids took care of that.

Tuesday, October 8, 2019

Search Upheld

Corned beef hash value
State v. Lizotte, 2018 VT 92

By Elizabeth Kruska

This is interesting. Well, to law-nerds like me who like Fourth Amendment issues it’s interesting. If that’s not you, you may not find it interesting. And now the fourth sentence of this paragraph contains the word interesting.

Very, very briefly, the defendant in this case, Mr. Lizotte, was charged with and ultimately convicted of offenses relative to child pornography. I don’t usually take a stand in my summaries, but I think we can all agree child pornography is a bad thing.

Friday, October 4, 2019

Modification? Not really.

Shine bright like a diamond.
Diamond v. Burlington Free Press
2017 VT 93

I’ve unearthed this gem from the depths of the archives. 

Workers’ compensation is its own strange animal within our legal system. In Vermont it’s done primarily at the administrative level. It’s got its own language and its own rules and its own forms. It’s also a little bit misunderstood, so I will do my best to make this as clear as possible.

The point of workers’ compensation (or “comp,” as we shall call it) is to compensate people when they are injured at work and are unable to do their jobs normally. Employers carry special insurance for this, and it’s the insurance company that pays the injured employee while he or she is unable to work due to the injury. The insurance also helps cover medical treatment related to the injury. It’s generally the goal of the comp system to get injured workers healed and to get them back to work. Sometimes they can go back to their normal jobs; sometimes they get different jobs, depending on the impact of the injury.

Thursday, September 26, 2019

An Expensive Distinction

Time is money
Doyle v. Burlington Police Dept., 2019 VT 66

By Jacob Oblak

A citizen named Reed Doyle witnesses an incident in a public park involving Burlington Police officers, and he becomes concerned about the officers’ use of force. So Mr. Doyle does two things. He makes a citizen complaint to the police directly, and he asks to view the police’s body camera footage of the incident.

The police chief tells Mr. Doyle his request is going to take hours upon hours of staff time to make sure the police have redacted all the stuff that other laws require them to redact, so the police will be charging Mr. Doyle for their time. It’ll be hundreds of dollars. The police chief requires a deposit before he’ll begin making the redacted copy of the video. The police chief’s demand is based on the public records act, which says a department can charge someone for their time “associated with a request for a copy of a public record.”

Mr. Doyle declines to pay and sues the police, alleging they have effectively denied him his request to “inspect” the video by requiring him to pay hundreds of dollars. Everybody agrees Mr. Doyle’s request forced the police to make a redacted copy, and everybody agrees Mr. Doyle doesn’t want to keep the copy, only to inspect it. 

Sunday, September 8, 2019

Recreational, Really?

Some cases are just sad. 
Estate of Berry v. Fishman, 2019 VT 63

By Andrew Delaney

This decision deals with Vermont’s recreational use statutes and the limits on liability. If you’re not familiar, the statutes essentially exempt landowners from liability when someone uses their land for recreational purposes and no consideration is paid for the use.

This is a tragic case. Three-year-old Parker Berry drowned while attending Elephant in the Field daycare in Waterbury, Vermont. The younger Fishmans, husband and wife, ran the daycare on a three-acre parcel. The older Fishmans, husband’s parents and defendants here, own the adjoining forty-acre parcel. “Thatcher Brook meanders on defendants’ property, near the border with the daycare’s property.” The daycare used defendants’ property to access the brook and children also used a sandbox, brook bridge, and seasonal teepee on defendants’ land. Defendants didn’t profit from these uses and weren’t daycare employees. Defendants never posted the land and have always held it open for recreational use.

In February 2016, Parker drowned in Thatcher Brook about 100 feet inside the defendants’ property line. The administrator of his estate filed a negligence suit against the defendants. Defendants filed a motion for summary judgment, arguing the recreational use statutes barred the suit. The estate filed a motion for partial summary judgment on the recreational-use defense.

Sunday, September 1, 2019

Time Keeps On Ticking . . .

You know what this place needs?
A parking lot. 
In re Purvis Nonconforming Use, 2019 VT 60

By Andrew Delaney

Back in 2014, the City of Burlington found out that Mr. Purvis had paved paradise and put up a parking lot. To be fair, I don’t know anything about whether Mr. Purvis’s property is or is not paradise and whether the expansion of his parking area was with pavement or something else, but I wasn’t going to pass up an easy opportunity to quote some song lyrics in a summary.

Code enforcement ordered Mr. Purvis to turn the parking area back into green space. So, Mr. Purvis appealed to the Development Review Board (DRB). He argued that code enforcement had missed the boat because the first expansion happened over fifteen years ago (see this statute). After reviewing materials, the DRB reasoned that because parking in the area had stopped for more than sixty days, Mr. Purvis lost the statute-of-limitation benefit and his potential claim to reestablish the right to expanded parking.

Mr. Purvis then appealed to the Environmental Division. The parties settled the case without prejudice and filed a stipulated order. I probably should explain the difference between “with prejudice” and “without prejudice” here because I didn’t really understand it until I was studying for the bar. “With prejudice” means that things are done. There’s no takesies-backsies and if a party to a lawsuit tries to rehash something that could’ve been hashed before, that doesn’t fly. The case is done. “Without prejudice” means the opposite. Parties are free to drag things up from the past. Almost every argument with your spouse that you think you’ve “won” is “without prejudice.”