Saturday, October 21, 2017

In the Kitchen

We're well past the curtilage
at this point
State v. Allis, 2017 VT 96

By Elizabeth Kruska

Ever have it when you don’t expect to find police in your kitchen? But then you leave the room for a second, and bam! Cops in the kitchen.

That’s sort of what happened here. Christian Allis lived with his girlfriend. Back in October of 2015, police got a call about what looked like a car crash. They arrived on scene and found Christian’s pickup truck in a ditch, and some evidence nearby suggesting the truck had crashed. They ran the plate, learned who the owner was, and learned where he lived. They travelled to the house to try to find out what was going on.

The police knocked on the door, which was answered by Christian’s girlfriend. They asked for him, and she said he was upstairs. She turned to go get him, and unbeknownst to her, they came in behind her. When she returned, she was a little surprised to find a pair of cops in her kitchen. The police believed that when she said she’d go get him and turned that it was an implied invitation for them to come in behind her.

Your Shrink Or Mine?

No extra letters. 
State v. Sharrow, 2017 VT 25

By Eric Fanning

This case is relatively simple, folks, so I’ll keep this one short and sweet. 

Defendant Christopher Sharrow was charged with second degree murder in July 2013. While he was awaiting trial, his lawyer requested a competency hearing. A quick digression for the readers out there with no criminal law background: a criminal defendant cannot stand trial if he or she is found mentally incompetent. The two-prong analysis for incompetence is: (1) can the defendant understand the nature of the charges against him or her; and (2) is the defendant capable of consulting with his or her attorney? Don’t confuse this with insanity, which is a defense to a crime. A finding of incompetency merely delays the trial until the defendant regains competence; it doesn’t mean the defendant is not guilty.

Anyway, the court ordered an evaluation pursuant to this law, which we’ll get to in a second. The Department of Mental Health had an expert conduct a competency evaluation, but Sharrow’s lawyer wasn’t present when the evaluation was done, and so he moved for a reevaluation. The court ordered another evaluation and the Department of Mental Health selected another expert. This time, the expert requested a neuropsychological examination, but the Department declined to provide funding for that examination. The second doctor bailed and suggested they find someone else, because they believed that a neuropsychological examination was crucial for completing their evaluation. The third court-appointed expert concluded the Sharrow was not competent to stand trial for the alleged offense.

Saturday, October 14, 2017

What Choice Does One Have?

The boot. Get it? 
In re Durkee, 2017 VT 49

By Andrew Delaney

The Department for Children and Families (DCF) provides temporary housing assistance under its General Assistance (GA) program. The program is for folks that are in bad situations and need temporary emergency financial help getting or maintaining housing. The program doesn’t provide housing directly, just financial assistance. People who meet the criteria for the program can get up to about a month’s worth of financial assistance.

Ms. Durkee is a single mother who rented a mobile home with her three children. The family’s resources were limited. One child received social security benefits. Mom got food stamps but no longer qualified for certain benefits as she’d timed out of a program.

At the end of April 2015, landlord served mom with a no-cause notice of termination and gave her three months to get out. Rather than waiting for an eviction order from the court, mom moved out the day after the end-of-tenancy date specified in the notice. 

Home State Blues

Reverse Stork
In re M.S., 2017 VT 80

By Elizabeth Kruska

Hey! It’s another UCCJEA case! I happen to like the UCCJEA because it gives a nice clear, concise set of rules about what state has jurisdiction in child custody matters. But, there’s a tricky part of the UCCJEA which is perhaps less likeable, and which is a fairly big issue in this case. And that’s the issue of where a newborn baby lives. What?

Mom and Dad have a total of four kids. M.S. is the youngest of those kids, having been born in January of 2015. The thing about 2015, from a juvenile court perspective, is that it was when Vermont saw an enormous explosion of child-in-need-of-care-and-supervision (CHINS) petitions. This was likely part of that giant CHINS boom. I say this only for some context. For other context, this particular case originated in Windham County which, as people with maps know, borders New Hampshire. It’s pretty common for people who live on or near the Connecticut River to have friends, family, jobs, services—whatever—on both sides of the river.

Mom and Dad’s oldest two kids were subject of Vermont DCF proceedings in 2008, and then of New Hampshire DCYF proceedings later on (at that point the family lived in New Hampshire). Ultimately termination of parental rights petitions were filed in New Hampshire, and the parents’ rights to those two children were terminated. Then there’s a third child, who was taken into Vermont DCF custody in 2013 at a time when the parents lived in Vermont. 

Saturday, October 7, 2017

Cumulative Capacity Contracts

Catching some rays of hope?
In re Programmatic Changes, 2017 VT 77

By Amy Davis

Allco appeals from the Public Service Board which apparently denied some sort of request, and then denied a motion to reconsider its original denial. Allco argues that the Board was supposed to award standard-offer contracts to several solar projects because they provided “sufficient benefits” to the operation of Vermont’s electric grid.

The projects Allco refers to are part of Vermont’s Sustainably Priced Energy Enterprise Development (SPEED), which promote renewable energy in Vermont. The program is so important that the Legislature made it official in this statute. It allows the Public Service Board the authority to offer power-purchase contracts to new renewable-energy plants. There are two types of contracts included in subsections (c) and (d). Each contract has specific qualifications. These subsections require the Board to issue standard offer contracts until a certain cumulative plant capacity is reached. The first type of contract, under subsection (c), involves the Board sets a capacity and then receives proposals to fill that capacity. The second type of contract, under subsection (d), applies to plants that do not count towards cumulative capacity, including the plants that provide “sufficient benefits” to the electric grid. Sufficient benefits means that the plant must be “intended to mitigate transmission and distribution constraints, as opposed to those that provide more generalized benefits.”

On to the facts of the case!

Friday, October 6, 2017

Exemption Exceptions

Tax law is exhausting
Vermont College of Fine Arts v. City of Montpelier, 2017 VT 12

By Amy Davis

Normally I try to pick topics to summarize in areas of law I know pretty well so I don’t have to think too hard. This time I decided to challenge myself. Now I’m sleepy and want a whiskey.

Vermont College of Fine Arts (VCFA) is a nonprofit corporation formed in 2007. In 2008, VCFA purchased a bunch of buildings and some acreage in Montpelier, including Schulmaier Hall. This all is a two-story building with classrooms, faculty lounges, a basement, and an unused attic.

VCFA provides graduate degrees in fine arts. Students only need to reside on campus twice per year for 7-10 days at a time. Because not many students need to reside there, VCFA does not use the majority of the campus. For 2013-2014, 62% of the building space was open for lease. VCFA’s rental income can generate up to $2.8 million in revenue.

Saturday, September 16, 2017

Prospective Duties

This draft isn't going to work
Strong v. Fitzpatrick, 2017 VT 35

By Andrew Delaney

This case is about whether a lawyer owes a duty to a potential beneficiary when drafting—or more specifically not drafting—a will. Spoiler alert: there’s no duty when not drafting a will; there can be a duty when a will is actually drafted.

Let’s back up a bit for some context. Mr. Strong’s mom and stepdad got hitched in the ’60s. Mr. Strong and his siblings grew up on the homestead property, which consisted of two sections: “(1) a portion where the house was situated (House Portion), and (2) a large tract of undeveloped land (Upper Meadow).” In 1992, Mr. Strong moved back to the homestead to care for his mom and stepdad. According to Mr. Strong, stepdad told Mr. Strong that he was to inherit the entire property when stepdad and mom died.

Stepdad died in 2000 and mom inherited the entire homestead. Mom had executed a will in 1999 that left everything equally to Mr. Strong and his siblings. Mr. Strong didn’t like this plan and he discussed it with mom. According to Mr. Strong, mom said “I will leave you the house, the barn and the lower meadow, and you three kids can divide up the upper field.”

Sunday, September 10, 2017

Direct Harm

In the immortal words of the
Wu-Tang Clan: "Dollar dollar bill, y'all."
State v. Stewart, 2017 VT 82

By Elizabeth Kruska

In criminal cases, the court has to consider the question of restitution if there is a victim that suffers uninsured losses. Let’s use an easy example. Suppose Danny Defendant goes out and smashes up Victor Victim’s mailbox. Sure, Danny gets charged with unlawful mischief, and maybe he pays a fine or goes to jail as a sentence. But where does that leave Victor? He’s got no mailbox through no fault of his own, and if he has to replace it because of what Danny did, he’s out the cost of a new mailbox.

Enter restitution. The court can order that Danny pay Victor the cost of the mailbox.

In criminal court restitution is very narrow and is only limited to uninsured losses suffered by a direct victim of the crime. So if Victor’s neighbor, Noreen Neighbor, decides to go get a new, ultra-strong mailbox because she’s afraid that Danny might damage her mailbox, she doesn’t get restitution for that, since she’s not a direct victim of the crime. And if Danny had a no-deductible insurance policy that covered his mailbox, he wouldn’t be able to collect restitution because he’d have insurance available to pay for the loss.

Saturday, September 9, 2017

What Is Love? (Baby Don’t Suspend my License)

Just in case you didn't get the
reference in the title . . .
State v. Love, 2017 VT 75

By Amy Davis

This case considers when the court must hold a final hearing on a civil suspension of a driver’s license. Does the court have to hold it within 21 days of the preliminary hearing, and, if it’s not, does the civil suspension need to be dismissed. Yes and yes!

So, this statute says that when you violate this statute, meaning that if you drive under the influence, then the State has to notify you that they intend to suspend your driver’s license. If it’s your first time drinkin’ and drivin’, the suspension takes place within 11 days of receiving notice, unless you ask for a suspension hearing. Then, your license isn’t suspended unless the the court orders so, after a hearing. However, if you’ve been caught a second time, then your license is automatically suspended within 11 days of the notice, regardless of whether you ask for a suspension hearing or not.

This suspension hearing is a two-part process: a preliminary hearing and a final hearing on the merits. The preliminary hearing “shall be held within 21 ones of the alleged offense.” Then the final “to be held within 21 days of the date of the preliminary hearing” but no more than 42 days after the alleged offense without the defendant’s consent or for good cause shown. When it comes to a first offense, these limits are directive and not mandatory. The SCOV here reasons that these limits are mandatory for second or subsequent violations.

Intended Consequences?

Leave the gun at home
State v. Baird, 2017 VT 78

By Charlie Buttrey

When recently retired Vermont Supreme Court Justice John Dooley and longtime trial Judge Michael Kupersmith both take your side in a legal dispute, you’re usually in pretty good shape.


Keith Baird discovered that truism the hard way. 
The Baird matter involves the somewhat unusual and arcane matter of the “felony-murder rule.” Vermont law provides that a defendant can be convicted of murder, even if he did not commit the murder and even if he had no intention of committing a murder, if the State can prove three things: (1) that he intended to commit the felony of arson, sexual assault, aggravated sexual assault, burglary or robbery; (2) that he exhibited the necessary mental state for second-degree murder (intent to kill, intent to do great bodily harm, or “a wanton disregard for human life”); and (3) that someone was killed in the course of the crime. Under the felony murder rule, whether the defendant actually committed the murder, or even intended for a murder to be committed, is immaterial.