Sunday, January 7, 2018

Location, Location, Location

What's goin' on in that spot? 
In re North East Materials Group LLC, 2016 VT 87

By Andrew Delaney

Sometimes it takes us a little while to get around to cases here at SCOV Law. This is a late-2016 decision, and for some reason it’s never been picked up by any of our writers. But it’s 2018 now, so we need to get 2016 wrapped up.

Location matters. That’s the two-word version of this case. 

This is the second round, but we haven’t gotten to the first one yet either, so we’re starting from scratch here. Briefly, in the first round, a group of neighbors appealed and SCOV reversed because the environmental division has used the wrong legal standard in determining that North East Materials Group LLC (NEMG)’s rock-crushing operation didn’t “constitute a cognizable physical change to the preexisting development.” SCOV also concluded that one of the factual findings in support of the environmental division’s conclusion was “totally whack.” So, the case went back to the environmental division, which on remand again concluded that the rock-crushing operation was exempt from Act 250 as a preexisting development. The neighbors appeal again and the majority goes with the neighbors. Here we go again.

Sunday, December 31, 2017

"A Very Difficult Case"

Yep. That's about the sentiment. 
Knutsen v. Cegalis, 2017 VT 62

By Andrew Delaney

This case has previously been described as “heartbreaking.” This is the fourth published opinion in this case I’m aware of. You can read summaries of the second and third opinions by clicking on the respective links. The first opinion predated this blog.

This time mom is appealing from the trial court’s denial of her motion to modify parental rights and responsibilities. She argues that the trial court’s findings don’t support its conclusions. Specifically, even though the trial court found that mom had shown a real, substantial, and unanticipated change in circumstances, and that dad and stepmom weren’t credible, the court nonetheless chose not to modify parental rights and responsibilities because it reasoned that transferring custody to mom wasn’t in the kiddo’s best interests. SCOV says, more or less, “We guess that’s within the trial court’s discretion, but if dad and stepmom keep up the alienation stuff, then that’s probably going to warrant a change.”

Mom also appeals the trial court’s denial of her motion for attorney’s fees. On that point, SCOV sides with mom, reasoning that she’s “entitled to such fees given father’s egregious and ongoing effort to alienate her from” kiddo, which is what brought all this about.

Sunday, December 10, 2017

Roof not Required

Structure? 
State v. Lampman, 2017 VT 114

By Elizabeth Kruska

Any time I see a last name ending with “-man” I tend to think that person might be some sort of superhero, like Spider-Man or Superman. I don’t know Mr. Lampman, but I immediately envisioned him like this: all dark clothing* with red gloves, and an emblem of an old-timey gas lantern on his chest that has a yellow glow around it. And obviously there’s a cape, because I suspect nobody gets into the superhero business without the promise of a cape.
Superhero Interviewer: “You’ll bring lightness to the world.”
Potential Superhero: “Do I get a cape?”
Superhero Interviewer: “No, sorry, our cape budget is maxed out.”
Potential Superhero: “You know, I have a degree in electrical engineering. I don’t need this nonsense.” *storms out*
(*Anyone able to tell me why superheroes always wear tights? Can’t someone be super in, say, a pair of Levi’s and a hoodie? I’m wearing a hoodie right now with a big outline of the state of Michigan on the front, and I gotta say, it’s comfy and I feel pretty super. Also, as an expatriated Michigander and Wolverine, I am duty bound to add, “Go Blue!”)

Anyway, it appears that Lampman in this case has a completely different superpower, which is stealing building materials from partially constructed structures.

Form Over Substance

You can't ride a bicycle with one
wheel because then it's a unicycle. 
State v. Heffernan, 2017 VT 113

By Elizabeth Kruska

This is what happens when a rule is followed to the letter and ends up having an unfortunately bad effect in the long run.

Mr. Heffernan was charged with simple assault and disorderly conduct in 2015 after he and another man got into a sidewalk fight in Burlington. Mr. Heffnernan worked (maybe still works, I don’t know) at Nectar’s. He wears glasses and usually rides his bike to work. The complainant in the case often went to Nectar’s. A bouncer recognized them both.

The bouncer’s version of the facts is that at some point on the night in question, he saw Mr. Heffernan and the complainant having a “close conversation” but he couldn’t really hear what they were saying. A fight started, but he couldn’t see exactly how. A patron at Esox, another bar nearby, also saw the fight and had a similar story.

Sunday, December 3, 2017

Take It or Leave It

Because when there’s no applicable photo,
we go with a photo of a cute puppy.
State v. Love, 2017 VT 66

By Elizabeth Kruska

Here’s a new twist on an old theme: probation. For a little while there SCOV was deciding a probation-related case almost every other day. This case answers a probation-related question that does come up from time to time but isn’t as common as some of the other probation issues we frequently see.

When we’re talking about probation, there are a couple different ways to get there in Vermont. Someone could be sentenced to a suspended sentence and supervised on probation with a requirement to complete certain conditions for a period of time. Often, it’s a fixed period of time, sometimes it’s an indefinite period. Let’s suppose someone gets a sentence of 6-12 months, all suspended, and a probation term of 2 years. That means they’re on probation for 2 years, and if they screw up on probation, they could have to serve that 6-12 month sentence in jail. If the person does well, or with permission of the court, they can be discharged from probation supervision earlier than their ordered term.

The other way someone ends up on probation is with a deferred sentence. Deferred sentences operate a little differently. A person is adjudicated guilty, but isn’t sentenced just yet. Sentencing gets deferred for a certain period of time. During that period of time, he or she could be supervised on probation, and have to follow certain probation conditions. When the person reaches the end of the deferred sentence period, if they’ve complied with their conditions, the conviction gets expunged from the person’s record and the matter is treated as if it didn’t happen. The other side of the sword, though, is that if the person violates probation, since they’ve already been adjudicated guilty, they just get sentenced at that point and the conviction stays on their record.

Sunday, November 26, 2017

Bail, or Not?

Hay! That’s the wrong kind of bail!
State v. Orost, 2017 VT 110

By Elizabeth Kruska

This is a bail appeal across four different dockets. Two get reversed, and that’s really only just so that bail can be imposed in those two particular cases.

Right-o. So, Mr. Orost was charged with a whole bunch of offenses. On October 16, 2017, he was arraigned on Docket 357 (the docket numbers are helpful because there are many of them). Three of the seven counts were punishable by life imprisonment. Two were counts of sexual assault of a child under the age of 18 entrusted to defendant’s care, and one count of aggravated sexual assault.

I already see where this is going.

Reversal

Why does the caged bird sing?
Wait. What? 
In re B.K., 2017 VT 105

By Elizabeth Kruska

Between basically the dawn of time and 2015, the Vermont Supreme Court didn’t overturn any termination of parental rights orders from the lower courts. Since then they’ve overturned several, including the one here.

So, here’s what happened. B.K. and L.K. were two little kids—ages six and seven—taken into DCF custody in 2014 on allegations that they were children in need of care and supervision (CHINS). This filing was because parents had apparently not engaged in services meant to rehabilitate them for domestic violence and substance abuse. The kids suffered trauma as a result of the violence in the home. They missed a lot of school during the 2013-2014 school year.

DCF created a case plan with services for the parents, and a concurrent goal of adoption and reunification with either parent. For those not mired in the fun that is juvenile court, a concurrent plan means DCF simultaneously plans for multiple outcomes. If the parents get it together and can reunify—great. If they can’t, plans to move forward with adoption happen. It’s not fair to little kids to keep them in the system for a long time while parents try one thing, potentially fail, and then a new plan has to start.

Timing is Everything

Does the clock keep ticking? 
State v. Villar, 2017 VT 109

By Andrew Delaney

This case is interesting (I’d drop a footnote here that says “If you’re a nerd,” but footnotes are a pain in these posts, so we’re going with a parenthetical). Can the prosecution dismiss a case while it’s on appeal? The trial court judge said, “Nope.” SCOV disagrees.

Mr. Villar was convicted of DUI in 2015. He was sentenced to six months to three years, all suspended but 15 days. Though the opinion doesn’t say so, I assume it must’ve been a DUI3 or more given the upper limit of the sentence.

Mr. Villar appealed. His sentence was not stayed pending appeal. The appeal process was like a slow ping-pong match. There were several requests for additional time that were granted. At one point, before briefing was complete, the parties tried to enter a stipulation and plea agreement. SCOV pinged the ball back to the trial court, but the trial court denied the agreement. The ball ponged back to SCOV. More time for briefing, then a ping back to the trial court for an agreed-upon dismissal. The trial court denied the motion to dismiss and a motion to reconsider.

Barred From the Bar

Careful with your words here. 
In re Brittain, 2017 VT 31

By Eric Fanning

Eric Brittain applied for admission to the Vermont Bar and was denied because he failed the Character and Fitness review. He wants SCOV to let him practice law in Vermont, and so he appeals.

SCOV has original jurisdiction because it is responsible for regulating the practice of law in the State of Vermont, and has disciplinary authority concerning lawyers. One of the requirements of admission to the Bar is demonstration of good moral character and fitness, which is decided by the—wait for it . . . Character and Fitness Committee.

The Committee vets would-be-licensed attorneys, and tries to make sure that lawyers who actually are admitted have decent character and ethics. For example, applicants with a lengthy history of felony convictions or bearers of false witness (if I may get biblical for a moment) will have a hard time being accepted to practice law, even assuming they’ve already satisfied the educational requirements for admission. You don’t have to be Mr. Rogers to pass the Character and Fitness review, but somebody with the ethics of, say, Daniel Plainview probably won’t make the cut. The “fitness” part doesn’t mean fitness like this, it just means means that you have to be physically and mentally capable of doing a lawyer’s job—but that’s not our focus here.

Sunday, November 5, 2017

You Can’t Go Home Again

This puppy is unbearably cute. It has
nothing to do with the story.
State v. Shores, 2017 VT 102 (mem.)

By Andrew Delaney

Thomas Wolfe’s posthumous novel of the same title as this post is 743 pages long. So don’t say we never taught you anything. I really wanted to put "nothin" at the end of the last sentence but that would be a double negative and double negatives, sadly, are wrong—even if they sound way more entertaining than proper English. 

In February, Ms. Shores was charged with second-degree murder and held without bail pending a weight-of-the-evidence hearing. After the hearing, Ms. Shores was continued held without bail, she appealed, and SCOV affirmed. Allegedly, this is in a published entry order. Guess where it’s not? On the judiciary website.

Ms. Shores filed a motion for home detention. It was denied after a hearing and she didn’t appeal. A few months later, she filed a second motion for home detention. There was another hearing, an agreement that the evidence from the prior hearing could be factored in, some more testimony, and some agreed-to proffer from a Trooper, though it’s not clear what it was. The court issued a written decision denying the motion.