Tuesday, February 28, 2017

Try your hand?

Dear Reader:

I'm going to go out on a limb and guess that you enjoy reading this blog. Or at least you enjoy trying to sell knockoff handbags in the comments. Anywho . . . we haven't really advertised in the past when we're looking for new talent. But we're almost always looking for new talent. 

The criteria isn't stringent. A healthy sense of humor, a legal background, and an ability to translate from legalese to human speech are all that's required to get your foot in the door. You also have to be willing to work for no pay and no benefits. You will get your name in the "SCOV Law lights" and a link to your website out of the deal.  

If you're interested, send me an email and I'll give you a tryout case.

—Andy       

Monday, February 20, 2017

Permit from the Past

In re Musto Permit, 2014 VT 103

By Andrew Delaney

This is old news—not “fake news” but definitely old news. The case was decided about two-and-a-half years ago, and we’re just finally getting around to it. Look. You get what you pay for.

The Mustos applied to the Agency of Natural Resources (ANR) for a permit for a wastewater system and a water supply for their home on Lake Bomoseen. In the application, they described the project as “reconstruction of a 3 bedroom year-round single use family residence using a new wastewater disposal system and drilled bedrock water supply well.” When I first skimmed through the opinion, I thought this was an odd thing for the SCOV to quote directly. As we’ll soon find out, however, this is important.

The ANR granted the permit. Neighbor who, along with her brothers, owns the parcel next door filed a petition with ANR to revoke the permit about five months after it was issued. She claimed that the Mustos lied about the number of bedrooms in the camp. The ANR had a hearing and denied the request to revoke the permit. Neighbor appealed to the environmental court—both the permit and the ANR’s denial of revocation. The environmental court did a de novo review on the record and concluded that there wasn’t any reason to revoke the permit.

Sunday, February 19, 2017

A Bail Appeal

This photograph of hot chocolate
 has nothing to do with bail.
It’s cold and windy when I’m
writing this, and I think hot
chocolate would be nice.
State v. Bullock, 2017 VT 7

By Elizabeth Kruska

Bail, of course, is not meant to serve as punishment before someone is convicted. That’s not the point and it’s not what bail is for. Bail is meant to ensure that someone is going to show up for trial. But, there are going to be times when someone is accused of something so serious that no amount of bail is going to ensure his or her future appearance. Why would someone show up for trial only to be convicted and sent to jail? The likelihood of that defendant deciding to beat feet and make a run for the border goes up as the seriousness of the case goes up. Nobody’s outrunning the marshals over stealing a pack of gum. That might happen, however, if someone’s looking at spending life in prison.

That’s why Vermont has a specific section of the bail statutes specifically for lif- imprisonment situations.

The State can (but is not required to), seek to have a defendant held without bail if the defendant is charged with an offense where the maximum possible penalty is life imprisonment. There’s a separate section having to do with hold without bail requests in violent crimes; that’s not what was considered here, so we’re going to save that for another day.

A Spoonful of Sugar Helps The Meds Go Down

"So what exactly is in this?"
In re I.G., 2016 VT 95

By Amy E. Davis

This is a case in which the SCOV Justices reverse one of their own. Justice Skoglund presided over the case below. The SCOV releases opinions on Friday morning. I picture Justice Skoglund walking into Justice Eaton’s office and saying, “Dammit Scoop!” (Side note: I imagine Justice Eaton’s nickname around chambers is “Scoop.”) I should probably just shaddap and get to the case.

Patient is 32-years old and was hospitalized for psychiatric care in Berlin, Vermont in April 2016 following a court order. Patient had spent another stint in the psychiatric unit about a year prior in 2015, for 2 months. During his last stay, Patient was diagnosed with schizophrenia, and the hospital unsuccessfully sought an order to medicate him. The court had rejected the request because the State did not show Patient was incompetent nor that the potential side effects of medication outweighed its potential benefits.

Right after the 2015 case, Patient went to live at Soteria House, a residence for people with mental illness in Burlington. While there, Patient signed a document that looked and smelled like an advance directive. Patient stated that he did not want medication because it made him angry and murderous, and it inhibits “the limbic system from powering organs.” He also indicated that he was aware he might be involuntarily committed or treated then listed his preferred interventions: (1) seclusion; (2) seclusion plus physical restraints; or (3) physical restraints with medication. The document did not meet the statutory requirements of an advance directive because it needed to be signed by two witnesses, and it was not.

Saturday, February 18, 2017

Attachment Agitation

Estate of Lott v. O’Neill, 2017 VT 11

By Elizabeth Kruska

Easy facts. Robin O’Neill is accused of having murdered two men, one of whom is Jamis Lott. She got charged with two counts of murder (one aggravated, one second degree), and the murder charges are pending. She hired a lawyer to represent her in the criminal cases.

I have worked on a murder case, up to and through trial. I wasn’t the primary lawyer on the case—there were two of us working on it. I did a lot of work on the case. A barnload. Maybe several barnloads. And that’s just me; the other attorney did at least twice as many barnloads’ worth of work as I did. I can’t even start to guess how much that would have cost if someone was paying full-freight out of pocket for that defense. I say this not to pat myself on the back, but because I know that these cases take a lot of work, and consequently, would cost a lot of money if someone was paying for it out of pocket.

So. Robin not only got charged criminally, but she also was sued by the estate of Jamis Lott in a wrongful death action. Lott’s estate attached all her money, including the retainer she paid to her lawyer for her defense in the criminal case. The trial court said, “Ayup, that’s fine” and permitted the attachment. Robin, unsurprisingly, said, “I haven’t been convicted of anything, and under the Sixth Amendment I get to be represented. Attachment is unconstitutional because it affects my right to counsel.”

Blast from the Past

"Okay. But NOT if they're on furlough."
State v. Bogert, 2013 VT 13A

By Andrew Delaney

Here’s a blast from the past. Sometimes an opinion ends up in our we’ll-get-to-it-soon pile and languishes there for several years. That’s sorta what happened with this one.

The first time we wrote about this case was in March of 2013. We’re going to play spot the differences. Luckily, it’s an 11-pager and it shouldn’t take too long.

A brief synopsis of the previous opinion is in order. Mr. Bogert pleaded guilty to two counts of possession of child pornography and no contest to two counts of sexual assault. One of his probation conditions included warrantless searches. He signed off on the conditions. As our previous summary puts it: “Basically, he signed away his Fourth Amendment rights.” He served some time and was released on furlough. When a warrantless search turned up evidence of violations of his conditions, he got in hot water and ended up back in jail. He appealed his violations, arguing that the search violated his Vermont and federal constitutional right to be free from unreasonable searches and seizures. The SCOV concluded that the State can make furloughees submit to random, suspicionless searches under a “special needs”—that of effectively supervising furoughees—exception to the warrant requirement. Neither the Vermont nor federal Constitution was violated.

Friday, February 17, 2017

Tree Line

In re Wagner and Guay Permit, 2016 VT 96

By Elizabeth Kruska

Back in 1995, Wagner subdivided some land into six parcels which were suitable for building houses. Apparently, this land is partly wooded and also has a meadow. Wagner created some rules, or covenants, regarding building. There’s a tree line, and in addition to required setbacks (road, wetlands, etc.), any houses constructed have to be built “within the tree line.” The point of building within the tree line was so as not to obstruct the view of the meadow.

Now, I’m not a builder, nor do I play one on television. I am, however, a person of ordinary sensibility, and before I read this I thought I understood what a tree line is. I also am a lawyer, and I know that if there’s an argument to be made about words, that someone of my ilk will make such an argument. I also know that those arguments can take a year or more, travel to a few different courthouses, cost thousands of dollars, and can end up in exactly the same place as where they started. Guess what happened here?

Wagner had plans to sell two lots to Guay, whose plan was to have the lots merged into one big lot and to build a house and a garage on the big lot. The rule appeared to be that Guay would have to build the house “within the tree line.” A neighbor (Neighbor), who owns a nearby lot (next door, to the proposed building lot, from what I can gather), objected to the issuance of the building permit. She objected on nine different grounds, four of which were dismissed pretrial. Both sides filed motions for summary judgment on the remaining grounds. The summary judgment motions were denied, so there was a trial in the Superior Court, Environmental Division.

Sunday, February 12, 2017

Service Station Scrap

In re Costco, 2016 VT 86

By Andrew Delaney

Every time I hear “Costco,” I think of this scene from Idiocracy:


That has little to do with this opinion. If that bothers you, you’re welcome to take it up with management.

This is an appeal by Costco’s neighbors—specifically, gas-station companies R.L. Vallee and Timberlake Associates—from a superior court decision affirming several permits issued to Costco for Costco’s new gas station. Let me grossly oversimplify. Vallee raises four issues related to traffic mitigation and stormwater impacts, and Timberlake says the trial court screwed up when it relied on “on a presumption with respect to the project's impact on water pollution and waste disposal under Act 250.”

Saturday, February 11, 2017

You’re Fired

In re Lepore, 2016 VT 129

By Amy E. Davis

Mr. Lepore, or as the SCOV calls him “Grievant,” worked as an environmental biologist for the Vermont Agency of Transportation from 1992 to July 2015. Mr. Lepore evaluated the potential environmental impact of potential transportation projects, created reports, and applied for and prepared environmental permits. He worked with state and federal employees. That is, until he got sacked.

The fact that Grievant was fired is not particularly interesting in my opinion. But the reason for his termination is fascinating and worthy of a Lifetime movie. In 2005, Grievant served as a juror in the criminal trial of Donald Fell. Fell, as you may recall from the news and/or internet, was convicted of all criminal charges and sentenced to death. Five years after his conviction, a juror came forward and informed Fell’s attorneys that the juror had visited the crime scene and shared their observations with the other jurors.

I’ll give you three guesses, and the first two don’t count. Guess who the juror was? Yes, indeed, it was Grievant.

Restitution Reversal

State v. Charbonneau, 2016 VT 83

By Elizabeth Kruska

Sometimes criminal cases involve a loss to another person. That person—the victim of the crime—is entitled to be made whole. If the defendant is convicted of a crime where there was a loss, the defendant has to make restitution to the victim. This could take a couple forms. Suppose someone breaks into my house and steals my favorite painting. If the painting is recovered and returned to me, I’ve been made whole. If the painting cannot be found or returned for whatever reason, the defendant has to pay me the value of the painting.

That’s sort of what happened here. Toby Charbonneau was charged with possession of stolen property. There was also a co-defendant, who is mentioned in a footnote, but who is not a part of this appeal. She’s important in the long run, though, because of what happened at her restitution hearing.

The victims in this case are homeowners in Franklin County. They discovered that their home had been burgled and that they had considerable losses. The opinion doesn’t give a lot of details about this, but I suspect they were away over a weekend and came home to this situation. They figured out their loss was in the neighborhood of $52,000, and made insurance claims. Their insurance paid out a portion of the loss, leaving a balance of about $31,000. That means whoever is responsible for the loss is on the hook for restitution of $31,000.