Thursday, August 15, 2019

Reciprocal Discipline

This is an awesome picture of Arizona.
In re: Palmisano


We’ve jumped in the wayback machine again to find an un-summarized opinion. Remember the fall of 2017? The air was crisp. The apples were plentiful. Ever had a Zestarapple? They are ridiculously delicious. Anyway, also in the fall of 2017, the Vermont Supreme Court exercised original jurisdiction as it is occasionally apt to do, and published an opinion with respect to an attorney discipline issue. 

The Professional Responsibility Board handles attorney discipline. Attorneys have professional rules we have to follow. Sometimes an attorney does something (or fails to do something) as required by the rules. That issue can be brought to the board by a complaint. The board also has the ability to impose reciprocal discipline. Lawyers are a licensed profession; every state requires its own license. Suppose an attorney is licensed in State A and State B. If there’s an issue in State A that results in discipline, State B may also discipline the attorney because of that issue. 

Monday, August 12, 2019

Causation Confusion

This tiger says, "negligence is made up of
duty, breach, causation, and harm."
Stephan Palmer v. Mark Furlan and State of Vermont


The facts of this case are fairly straightforward. The legal analysis of this case includes an excellent one-paragraph refresher of a law school torts class and a concurrence that reminds us we never really know what judges are going to do until they do it.

Mr. Palmer was in jail serving a sentence. He filed a motion for post-conviction relief (PCR). The opinion doesn’t tell us what he was in jail for or the basis for the PCR, because neither of those things especially matter here. 

Mark Furlan was appointed to represent Mr. Palmer. In all candor, I will disclose that Mr. Furlan is a colleague and friend of mine. The criminal defense bar in Vermont is small; generally we all know each other. 

Friday, August 9, 2019

Sunshine Daydream

In re Petition of New Haven GLC Solar


This is a pretty long opinion, because it details a lot of things that happened. I am generally going to skip those things, because this is a “summary” and not a “longary” which is a word I made up but you know what I mean.

New Haven GLC Solar (GLC) wanted to build a net-metered solar array in the town of New Haven. A net-metered system is some sort of electricity generation powered by renewable energy. Could be sun, could be wind, could be water, could be good vibes. The system is connected to the local electrical utility. The purpose is to supply renewable energy to the utility, and in doing so, lower a customer’s usage. In the long run, customers see savings. Because this is connected to the grid, it falls under the purview of the Public Service Board.

Saturday, July 20, 2019

Restricted Records

Where's the key? 
In re Affidavit of Probable Cause2019 VT 43

By Elizabeth Kruska

Interestingly, court records—by and large—are public documents. Suppose you read about a legal case on the interwebs and you think, “Huh. I think I’d like to know more about that case.” You can. You just go to the courthouse, ask to see the file, and in most cases, you get to look at it. You can even make copies. I did that just yesterday.

But access isn’t unfettered, and not everything is public. We’ve got rules about when things are public and when they aren’t.

So here, a petitioner was interested in a legal case involving a potential defendant. According to the opinion, there was a highly publicized incident that led to someone being accused of disorderly conduct. The petitioner, wanting primary source information, went to the court clerk to see the file. The first time he went, he was told there wasn’t a case involving this person. The next time he went, he asked what the procedure was to unseal a record. (This isn’t clear to me, but must be he thought there might be a record but it was sealed?) He appealed to the court to give him access to the record, and the judge denied that. The petitioner appealed this denial to the Vermont Supreme Court.

Mailbag

Not an entirely lost art . . .
Brandt v. Menard2019 VT 32

By Elizabeth Kruska

A wise man once said, “when you control the mail, you control… information.” OK, maybe a wise man wrote the line. Oh, to be able to write like Larry David. But, I write like Elizabeth Kruska, so that’s what you’re getting.

Anyway, at relevant times, Mr. Brandt was an inmate serving a Vermont sentence. When someone’s in jail, his or her ability to communicate is somewhat restricted. Lots of inmates turn to the lost art of letter writing to stay in touch. And they send those letters through the mail.

As you can imagine, the Department of Corrections has some regulations around mail. And as you can probably also imagine, this can cause some complications. It also causes problems if Vermont inmates are housed somewhere other than Vermont. Not to get too complicated on it, there is also an interstate compact on corrections, which also comes into play if Vermont inmates are housed elsewhere.

Sunday, July 7, 2019

Defamation Denied

Are they really lies?
If there's a privilege, it won't
support a defamation claim 
Couture v. Trainer, 2017 VT 73

By Andrew Delaney

Dad sued mom and aunt because he claimed that they coached daughter in saying “Daddy hit me.” He also alleged that they submitted defamatory audio and video recordings of daughter's statements to his parole officer, and that mom made false statements to his parole officer and in mom’s petition for relief from abuse. Dad also brought claims on the basis that he’d loaned mom money without explicitly detailed theories. Dad also moved for a court-appointed expert.

The trial court denied the request for a court-appointed expert. It then concluded that the recordings and statements were absolutely privileged, imputed legal theories on the money claims, and dismissed the whole case.

Dad appeals.

Won't Stand For It

A merry-go-round of litigation
In re Faignant, 2019 VT 29 (mem.)

By Andrew Delaney

I like Google Scholar a lot. In fact, that’s what I usually link to because the Judiciary is always fiddlin’ with its website and I never know if the links will work a week or two from now (go ahead—look at some of our older posts and click those links for a super-fun 404 error). Google’s links have a much better shelf life. But sometimes the Google’s pdf-to-text conversion gets it all wrong. In this case, for example, Google’s version says: “Do Not Publish” in bold type at the top. Wrong. This is a published entry order.

Now that my you-kids-get-off-my-lawn rant about the interwebs and its quirks is out of the way, let’s talk about what’s going on in this case.

The Professional Responsibility Board (PRB) administers the disciplinary program and Bar Counsel (BC) screens complaints. If it looks like a legit complaint, then BC refers it for formal investigation and proceedings. If BC reasons it doesn’t need to go further, then BC sends a letter explaining why and notifies the complainant that he or she can seek review from the board chair (which we won’t abbreviate here for obvious reasons).
  

Friday, June 14, 2019

Dismissal Rules

A bird. Because there aren't
really any good photos of
the rules of civil procedure.
Weitz v. Weitz, 2019 VT 35

By Elizabeth Kruska

I’ll keep this short.

Mr. and Mrs. Weitz want or wanted to get divorced. One or both of them live or lived in Massachusetts. They also have a house in Vermont and a house in New Hampshire. Mrs. Weitz filed for divorce in Vermont. Initially Mr. Weitz wanted the case to be heard in New Hampshire, but then agreed to Vermont. The case went on for nearly a year and a half, and then Mrs. Weitz moved to dismiss the case. The court agreed and the case was dismissed. Then she re-filed for divorce, but this time in Massachusetts. They’re batting .500 on trying to get divorced in New England. Whether Maine, Connecticut, and Rhode Island get involved remains to be seen.

Mr. Weitz was not pleased by this dismissal, and moved to re-open the proceedings. He felt like Mrs. Weitz was abusing the court systems by filing, and then dismissing only to re-file somewhere else. He appealed.

SCOV affirmed. Justice Carroll, writing for the court, spells out really clearly why this was okay.

Monday, May 27, 2019

Baked Goods and Alimony

These biscotti have almonds baked in,
not alimony 
Atherton v. Atherton, 2019 VT 15

By Chris Larson

I’m writing about this case from the Speakeasy Cafe in Rutland, eating a plate of almond cookies. As an aside, this is a really good cookie and a fabulous coffee shop. Check it out if you’re in our fair city.

This aside is related to our discussion of this case because these cookies have fat almonds baked into them with the pointy ends sticking out of the sugared tops. And the rule of the case concerns the information “baked in” to decisions on spousal maintenance. I can’t take credit for this tortured metaphor—the Supreme Court came up with it, as you will read shortly.

This case is about whether you can get your alimony payments reduced if you lose your job.

Wednesday, May 15, 2019

Adoption Appeal

This is just a cool bird.
In re Appeal of Sharon McSweeney


This case seems like it’s about adoption but it’s really about statutory construction and administrative agency authority.

There’s a federal law that provides for assistance with adoptions. If a child is adopted through DCF, DCF has a pool of federally-provided funds available to provide subsidies to the adoptive parents until the child turns 18. This makes sense; kids aren’t cheap, and to help ease some of the financial strain an adoptive parent may feel by adopting a child, there’s some support available.