Saturday, February 25, 2017

Shotgun

State v. Buckley, 2016 VT 59

By Andrew Delaney

The song “Shotgun” by Southern Culture on the Skids—besides being a great song with some as-always-fantastic guitar work by Rick Miller—starts with the lyric: “Trouble, love, trouble, love, trouble loves that trouble.”

And a shotgun is exactly how Mr. Buckley got hisself in trouble. Mr. Buckley lives in Bennington. He owns a house where he lives with his brother Peter, and also owns an apartment building next door. There’s a parking lot by the house that the tenants use. One day, at around five in the morning, two repo guys showed up to take a lady’s car. The lady was visiting one of Mr. Buckley’s tenants. Mr. Buckley knew the lady, knew she was a guest, and knew it was her car.

The repo guys were getting ready to put the car on their flatbed. The noise woke brother Peter up and he went outside to see what was going on. One of the repo guys testified that Peter was aggressive; Peter said the repo guy was aggressive and said a bunch of nasty stuff.

Enforcement Error

Citimortgage, Inc. v. Dusablon, 2015 VT 68

By Andrew Delaney

You may have noticed, dear reader, that we’re doing a bit of spring cleaning here at SCOV Law. That’s because we really do try to summarize every published case that comes out. This is one of those lost-in-the-shuffle cases but that doesn’t make it any less boring exciting than it was when it greeted the world for the first time.

This case is between the Horizon Heights Condominium Association and the Dusablons. Citimortgage, Inc. isn’t even part of this dispute—pay no mind to the case name. See, what happened was that there was an agreed-to foreclosure judgment between Horizon Heights and the Dusablons for past-due assessments. In between the date of that agreement and the trial court’s entry of judgment, a year passed and new assessments accrued. The SCOV says, “At the bottom of procedural muck lies the principal question of this case.” That question is whether the foreclosure judgment can be used to avoid those interim assessments. The SCOV says, “Nope.”

The Dusablons are required to pay monthly assessments. There’s some stuff about Title 27A and Horizon Height’s declaration, bylaws, rules, and regulations, but the bottom line is that there are assessments, those assessments are valid, and the Dusablons are required to pay. Nobody is arguing about that, uh, as a general concept.

Evidentiary Error

State v. Cameron, 2016 VT 134

By Elizabeth Kruska

This case is really sad. Tristan Cameron, a 17-year-old kid, got a new car, and while driving it got into a crash that killed his friend. He got charged with grossly negligent operation with death resulting as a result of the accident. He had a trial and was found guilty. He appeals on two issues. SCOV affirms on one issue, but reverses and remands on the other.

As I understand the facts, Tristan drove on Duffy Hill Road in Franklin County. This is apparently a gravel road that had recently been re-graveled. The road has curves and hills (because, Vermont), and at one point has a very sharp right-hand bend. As he drove around the bend, he encountered two farm trucks. One truck veered to the right to avoid a collision. Tristan steered, too, but this caused the car to fishtail, and ultimately it hit the second farm truck. His passenger was really seriously hurt and later died from his injuries.

At trial, those are the facts that came out, along with additional facts about Tristan’s speed being way too fast, and a statement by Tristan to the effect that he may have fallen asleep.

After the Fact

Chandler v. Pallito, 2016 VT 104

By Elizabeth Kruska

Mr. Chandler, the petitioner, thought he was getting one thing. In reality, he got something different. I totally get where he’s coming from. That doesn’t mean he’s legally correct. SCOV agrees he isn’t legally correct and affirms the lower court.

Here’s what happened. Mr. Chandler got charged with some crimes—some bad ones—in the late 90s. Aggravated sexual assault, kidnapping, and burglary formed the Chandler trifecta of criminal activity. Full disclosure: I use horse-betting references because I love horse racing, and I have a fantasy list of race horse names; aggravated assault, kidnapping, and burglary are not on that list. Well, maybe Burglary could be a good horse name, but I’d really need the right circumstances to suggest that. I will gladly discuss Kentucky Derby prospects with anyone who is interested.

Anyway, back in the spring of 1997 (when Silver Charm won the Derby), Mr. Chandler got sentenced to 25-60 years to serve for his offenses. This is a big sentence.

Mother Knows Best?

Clark v. Bellavance, 2016 VT 124

By Eric Fanning

There are times when our family courts have the good fortune to dispose of cases that involve neither long arduous battles over parental rights and responsibilities (or PR&R, a.k.a. custody) nor a bitter deterioration of the parents’ relationship. There are cases that grace their dockets where the parents get along famously and have no trouble coming to a mutually agreeable parenting arrangement with court approval.

This is not one of those cases.

The parties are the parents of a daughter, who was born in 2009. They were never married, and in fact they had broken up by the time daughter was born. Even though their relationship had come to an end, they were able to arrange a parenting agreement in 2011, giving mom sole physical and legal rights and responsibilities, and dad getting parent-child contact. Both parents were committed to fostering a “healthy, respectful, and supportive” co-parenting relationship, and for a while everything went well. That is, until things started going not-so-well.

Calculation Connundrum

Merchant v. Merchant, 2015 VT 72

By Elizabeth Kruska

Sometimes we here at SCOV Law lose track of things and realize we’ve got an old case or two kicking around that needs addressing. Sort of like in Home Alone when they realize they got to Paris and left Macaulay Culkin in Chicago. Hilarity ensues. This case is about child support, though, so there probably won’t be any Wet Bandits and probably not much will be hilarious. Hey, I’m trying here.

The Merchants were married in 2000 (so, ten whole years after Home Alone came out, if we’re keeping with a theme, which apparently I am) and divorced in 2008. In the 8 years of their marriage they had two kids. Initially they agreed they’d have joint custody of the kids, and that they’d each pay for child care as needed during their respective times. A child support calculation was done and came out to show that Dad would have to pay Mom $112 per month in support. However, they agreed to deviate from that, and that Dad would pay $200 per month plus $43 in arrears. Once the arrearage was paid off (over 42 months), Dad agreed he would just keep paying $243. This is in addition to each parent footing the bill for their own respective child care costs. They also agreed that Mom would get to claim the kids at tax time to get the benefit of a deduction.

A few years later, Dad filed a motion to modify the child support. Reading between the lines a little bit, I think Dad had some changes to his work after his divorce that may have brought his income down and so he tried to get his out-of-pocket child support reduced.

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.”