Tuesday, December 28, 2010

The Student Loan and Daniel Webster

Dartmouth College v. Kozaczek, 2010 VT 113 (mem.).

What’s an Ivy-league-educated pro se to do when Dartmouth comes knocking to get its Big Green back?  Fight, fight, fight (against) Dartmouth!  In this debt collection appeal, a Dartmouth College alum allegedly owed the institution $17,743 plus interest on three student loans.  The aspiring young Daniel Webster, says Dartmouth “misrepresented” its financial aid package, but this young orator never got to make his closing speech to the jury.  Instead, Dartmouth landed summary judgment when "Webster" failed to adequately respond not once, but twice, to Dartmouth’s requests to admit, and the trial court deemed them all admitted.  On appeal, Webster put up a decent fight, latching onto some clever (and some not-so-clever) procedural-defect arguments.  Ultimately, however, the Big Green prevailed and received $950 in attorney’s fees.

The opinion is a must-read for all Civil Procedure students daydreaming about ways to avoid paying back their student loans.  We call it: The Pro Se’s Guide to Never, Ever, Ever Escaping Your Higher Education DebtSee also "No Bankruptcy Discharge, Either!"  It is your standard three-act drama with a twist and apologies to Stephen Vincent Benet at the end.

Friday, December 24, 2010

Self Medicating, the DCF Registry, and the Folly of the HSB


In re D. McD., 2010 VT 108 (mem.).

Petitioner appeals from the Human Services Board concerning whether he had placed his children at risk of harm by driving with them while intoxicated.  If petitioner had, then his name would be placed in the Department for Children and Families child protection registry. 

Petitioner was intoxicated while driving with his two-year-old children in the car, a fact that petitioner does not dispute.  It seems that petitioner had a few too many while spending the day at an amusement park with his children, and stopped at a gas station to ask for directions.  The gas station attendant reported petitioner’s drunken behavior to the police, and soon an officer discovered the car at a restaurant, filled with empty beer cans and sleeping children.  Later, petitioner explained that he was replacing his bipolar medication with beer. He subsequently sought more professional medical help and dropped his prescription with Dr. Michelob.

Toxically Trashed Tyke’s Tempest Puts Mom on the DCF Hot Seat

By Andrew Delaney

In re M.E., 2010 VT 105.

While most six-year olds were playing with Power Rangers and Legos, P.L. was smoking marijuana. (I hesitate to do it, but I cannot help imagining that P.L. might have used something like this.)

By age nine, P.L. was drinking alcohol and using cocaine on the side. When he was twelve, on May 25, 2008, P.L. had an overdose. At that time, he had Xanax, cocaine, marijuana, and Benzodiazepine in his system. I suspect that the contents of this toxic cocktail might lead even Robert Downey, Sr., whose famous son also began smoking marijuana at age six, to blush.

Thursday, December 23, 2010

Bibliophile Learns Crime—or at Least an Artful Plea—Does Pay


State v. Baker, 2010 VT 109 (mem.).

            Let us, like the SCOV, make this short and sweet.  Defendant was arrested as a result of a prescription drug fueled rampage and faced nine criminal counts that included prescription fraud, obstruction of justice, violation of an abuse prevention order, and burglary.  The last was for stealing a laptop from the Fletcher Free Library with keys he had got hold of when he was employed there. 

            Obviously, he did not spend a lot of time in the mystery section planning the perfect crime.  But he did spend some time in reference learning to parse the logic of written words as the rest of the case demonstrates.

            Following the theft, the Library changed all of its locks at a cost of $620.67.  At trial, the State sought restitution on the burglary charge based on the lock replacement costs.  The State simultaneously negotiated and approved a plea agreement in which Defendant pled guilty to the three counts of prescription fraud in exchange for dismissal of the other charges.  Defendant signed an agreement outlining his probation terms and general restitution for “uninsured losses.”

Holiday Special: What We Have Been Reading

During the Holidays, our thoughts often turn to other subjects, including carols, presents, and of course, roast beast (unless you are vegetarian, then it might be who-hash).  But the holidays are often the time that we relax from our daily grinds, put up our feet, and enjoy a book.  We at SCOV Law are not immune to the siren's literary call, and we give you a roundup of the last five books that each of us have been reading.  Let us know what you think and more importantly, what you have been reading.  Happy Holidays and Enjoy.  


Gavin Boyles


Babies on the Move
 One of Thea's favorites - jolly pictures of chubby babies in strollers, papooses, backpacks, and sleds.

Star Wars - Anakin and the Clones
Liam loves this one even though it give him nightmares.

Goodnight Moon
I have this memorized, and I'm not ashamed to admit it.

Gerry [Tarrant] and Hans [Hussey]'s ping-pong filings in the Beaver Wood Biomass Public Service Board Application.
Bound in book form, this tome is a real up-and-comer.

Corwin on The Constitution of the United States (1953 edition)

Friday, December 17, 2010

The Street Lawyer: Shine On, Son, Shine On

The Street Lawyer is the Cultured Barrister’s necessary counterpart. Offering a viewpoint sometimes at odds with CB’s, the Street Lawyer takes a no-nonsense approach to the realities of law practice. Sometimes cynical, usually irreverent, and occasionally serious, the Street Lawyer welcomes your feedback.

While it’s hardly as if there’s a dearth of off-topic lawyer-fashion posts on this blog, the Street Lawyer nonetheless presents another this week. At the outset, you should note that I am a fictional, androgynous every-lawyer character. I am neither a male nor a female entity; you should think of me as a gender neutral unicorn. That said, even a gender neutral unicorn needs to keep its shoes in good repair. I also need a sheath for my horn to stop from impaling people in court.  But that is another story. Scuff marks are unsightly and—as you will soon learn—easily taken care of.

Friday, December 10, 2010

SCOV Sets Up Third Trial for Alleged Sex Offender


State v. Herring, 2010 VT 106

Defendant was convicted of several counts of aggravated sexual assault, sexual assault on a minor, and lewd or lascivious conduct with a child, and sentenced to thirty-years-to-life in prison.  All charges were based on defendant’s alleged abuse of his daughter from the time she was five years old until she was sixteen.  On appeal, defendant claimed that the trial court erred in multiple evidentiary rulings and in refusing to grant defendant a continuance.  The SCOV agreed with defendant on his first claim of error—that the trial court improperly excluded evidence the defense proffered to impeach his daughter’s testimony—and proceeded to rule that this was not a harmless error.  Therefore, the Court vacated defendant’s conviction and remanded the case for a new trial.  This is not a pretty case, and the evidence being debated is both sad and disturbing.  Reader, take warning.

Tuesday, November 30, 2010

Cultured Barrister: Lush Life

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloging the matters that young attorneys are likely to be confronting as they begin their professional ascent.  The CB is meant to begin a conversation and rarely will claim the final word.  If you agree or disagree, the Cultured Barrister and the other readers of this blog want to hear from you.

With the oncoming Christmas season, there are the inevitable firm parties, dinners, and social events.  Though we pale behind Atlanta, D.C., and some of the more-sociable bar associations, there is still some sense of holiday decorum. And good cheer to be found in the form of an open bar manned by a surly fellow forced to wear a Kris Kringle hat.  At these events, the young associate often "distinguishes" himself or herself by one of two maneuvers.

The first maneuver is to stick with the old familiar—the associate may choose a bottle of Long Trail, a Magic Hat, or if he is feeling brave, a can of PBR.  He may feel confident in this choice of a standby and be able to judge his consumption quite well.  Still, the primary impression left by a man in a suit holding a can of PBR is "Do you think TKE will ask us to pledge?"

Or, nervous about being in a professional gathering, the associate switches to red wine, usually a merlot. After all, isn't wine the classy alternative to beer?  Being new to the perils of red wine (and somewhat thirsty) the associate quickly quaffs three glasses in a row and finds herself soused before the second wave of appetizers appears.  When she makes her way to the senior partner, she is close to killing a bottle, and suggests that the partner accompany her snowboarding this winter because she was the snowboard team captain at the University of New Hampshire and they kicked Dartmouth's tail.  Of course, this was long after the senior partner was captain of the Dartmouth ski team.  Of course.

Monday, November 29, 2010

A Little Bit for Play


State v. Delaoz, 2010 VT 65.

The facts of Defendant’s unlucky arrest are as follows.  On July 13, 2007, a police officer responded to a report of a person screaming and found Defendant, and two other individuals, who admitted they were responsible for the noise.  The officer asked for the individuals’ names, to which Defendant, whose name is really Jorge Delaoz, responded with a fake name.  Unfortunately for Mr. Delaoz, the fake name was that of an individual with an extraditable warrant in Florida.  Whoops.

As the officer confirmed the warrant, Defendant dropped a dollar bill folded into a small pouch directly in front of the officer, which the officer immediately recognized as a pouch used to carry illegal drugs.  Again, Whoops.  When asked what was in this pouch, Defendant responded, “a little bit for play.”  Defendant’s remark did little to diffuse the situation.  When asked again, Defendant responded, “coke.”  One fake name and pouch of cocaine later, Defendant was arrested, handcuffed, and subsequently searched.  This search produced another bag of cocaine, marijuana, and an object in Defendant’s underwear.  When questioned about this object, Defendant responded that it was “a little more coke.”  Whoops.

Tuesday, November 23, 2010

Anger Management

Bombard, Jr. v. Dep't of Labor, 2010 VT 100 (mem.).

A public service announcement from SCOV this week: if your boss tells you that he wants to climb a tower and shoot a hundred people, you might want to tell another manager about it.  But whatever you do, don’t just run for your life—at least not if you want unemployment benefits.  Because if you decide to quit before you give the higher-ups a chance to “rectify the situation” you’re going to be out of luck proving that you left with good cause.

In this denial-of-benefits appeal, an employee at an Essex auto parts store argued that he had good cause to quit after the manager shared his mass-killing fantasy.  The previous week, the same manager had spent a day on the phone with his wife, shouting, throwing things around the store, and driving off a few times for good measure.  For whatever reason, the employee just didn’t feel comfortable tapping his manager on the shoulder to ask him to simmer down.  Instead, he left a voicemail for the regional manager.
          

At the Dark End of the Street


Schonbek, Trustee of the Isaiah 61 Foundation v. Chase, 2010 VT 91
  
Plaintiff owns a building on Cherry Street in Burlington.  As part of the City’s fire code requirement, Plaintiff was required to find a second egress away from the building in case of fire or other building-evacuating-disasters.  The egress had to be at least fifty-inches wide.  The problem was the two alleys leading out the backdoor of Plaintiff’s restaurant either end at a fence or narrow to a point of 29 inches.  The good news, at least Plaintiff thought, was that both areas are owned and controlled by the same owner.  Prior to litigation, Plaintiff approached Defendant about opening up their fences to him to help him meet code.  Defendant agreed for the low, low price of $20,000 and a revocable easement.  Plaintiff balked.  Instead, Plaintiff installed an internal second egress and filed a lawsuit against Defendant for violating a prescriptive easement right by refusing to take down its alley blocking fence. 

Killer Fails to Establish Diminished Capacity


State v. Williams, 2010 VT 83.

On a lovely summer’s day in 2006, Defendant went on a bloody rampage at two residences and an Essex elementary school that left two dead and two critically wounded.  Defendant failed to kill himself in an attempt at the end of his spree, and he failed to shoot or harm his girlfriend, the apparent target.  Defendant was taken into custody almost immediately thereafter.

Defendant was charged with first-degree murder for the two victims that were killed.  He was charged with attempted first-degree murder and attempted second-degree murder for the others.  At trial, Defendant’s attorneys did not contest the facts of the murder or Defendant’s guilt, but they plead diminished capacity and moved to suppress all of Defendant’s statements made in custody based on the argument that the Miranda warning was delivered too late.

Pick Your Friends Wisely


Lussier v. Bessette, 2010 VT 104

Almost exactly five years ago this day, Rene Lussier, Anthony Bessette, and Adam Reed were hunting with their pal Collin Viens. The group was hunting on Rejean Lussier’s land, which included both woods and fields. Rejean Lussier was sitting in his parked tractor, although it seems that no one walked in his area or was aware that Rejean was out in the field, sitting in the tractor. Rene, Anthony, and Adam were flushing game out of the woods toward a field by walking as a group in a line through the woods. Collin—approximately ten minutes ahead of the others—sat at the edge of the field, rifle in hand waiting for the game to run out of the woods. 

According to the opinion, Collin Viens had no hunting license,* though his friends apparently did not know this. His friends did know that he had passed a hunter safety course and obtained his Hunter Education Certification. Given what happened next, how Collin passed a hunter safety course is anybody’s guess. According to one version of the story, Collin mistook the tractor for a coyote. What actually seems to have happened, though, was that Collin, while sitting in the field waiting for his friends to flush out game, had his rifle to his shoulder, his safety off, and started to look through his scope. To everyone's loss, he saw the tractor and either accidentally or intentionally shot it. His shot hit the tractor and killed its occupant, Rejean Lussier. Collin was convicted of involuntary manslaughter and that conviction was affirmed in 2009.    

Up the Creek with a Paddle

By Gavin Boyles

State v. Brown, 2010 VT 103

This opinion answers one question: is the fact that defendant used a paddle to discipline a child admissible at his trial for sexually assaulting her?

The state introduced the paddling evidence to rebut defendant’s contention that the child’s three-year delay in reporting the assault reflected her tendency to lie.  The state countered that such delays are common in child sexual-assault cases, particularly when the perpetrator inflicts other violence on the victim.  Among other things, the state elicited testimony from several witnesses that defendant had paddled the victim and her sister.

Tuesday, November 16, 2010

Mo’ Money Mo’ Problems


In re Willey, Administrator, 2010 VT 93 (mem.).

In this case, the SCOV ruled that only the probate court has jurisdiction over settlement proceeds after they are distributed, and that the superior court erred in retaining control after final judgment was entered.  

The facts that led to the $900,000 settlement in this case are simple and sorrowful.  Grandmother Julie Willey’s daughter died in a car accident on the way home from a pub while the daughter’s friend was at the wheel with a .18 blood-alcohol concentration.  Grandmother was appointed by the probate court to serve as a financial guardian for the daughter’s two-year old child.  Grandmother filed a dram shop and wrongful death action on behalf of herself and her daughter’s estate, which then settled for the above-mentioned six-digit figure.

Thursday, November 11, 2010

Child Abuse and Neglect Registry 001

In re M.G. and K.G., 2010 VT 101

By Elizabeth Catlin

We have here the third case in two weeks regarding the state child abuse and neglect registry.  In terms of aiding the learning process, I believe the SCOV would have done better to issue this case first because it goes to an even more basic element of the process than “Child Abuse and Neglect Registry 101” (aka In re R.P. and B.P., 2010 VT 96) and “Child Abuse and Neglect Registry 202” (aka In re R.H., 2010 VT 95).  Here in Child Abuse and Neglect Registry 001, the Human Services Board learns the same lesson that the SCOV taught the Department of PATH last week in In re McNally, 2010 VT 99:  a recitation of the evidence presented by one of the parties is not the same thing as making your own findings of fact. 

As usual, the facts of this case are the opposite of uplifting.  The parents of a one-year-old and a three-year-old child got busted with all the makings of a meth and ecstasy lab in their basement.  In addition to the drug bust, parents were investigated by the Department for Children and Families (DCF) for putting their children at risk of harm.  Unsurprisingly, DCF concluded that the parents had put their children at such a risk and informed parents that their names would be added to the child abuse and neglect registry.  Parents went through the various stages of appeal (refer to Child Abuse and Neglect Registry 202 if you want to know all about the registry and the appeals process—it is a long process, with many steps, and many bureaucrats—it might be like going through the 5 phases of grieving, or all 9 levels of hell, or even the 12 steps for addiction recovery).

Court Gives the Sad Saga of Miller-Jenkins a New Chapter

by Daniel Richardson

Miller-Jenkins v. Miller-Jenkins, 2010 VT 98 (mem.).

In yet another installment of what has to be the most public custody proceeding in Vermont, the SCOV rejected arguments made on behalf of a mother fighting a trial court order transferring custody of the child to her former spouse. 

The facts of this case are well known, but are worth a brief review, if only because the emotional intensity of this case can sometimes obscure the more bread-and-butter legal issues driving things.  In 2000, Lisa and Janet Miller-Jenkins came to Vermont and obtained a civil union, which gave legal status to their same-sex union.  They then returned to Virginia where they decided to have a child.  They selected a sperm donor, and decided Lisa was to carry the baby.  Nine months later, Lisa gave birth to a happy, healthy baby, known to the public as IMJ.  The new family moved in 2002 to Vermont where they lived for 17 months before the couple split.  Janet helped Lisa and IMJ move back to Virginia and maintained contact.  In November 2003, Lisa filed a pro se divorce complaint in a Vermont state court to dissolve her civil union.  Although not stated in the opinion, this action was driven in part by Lisa’s newly resurgent Christian faith and decision that she was no longer a lesbian. 

Art Center Fails to Pick a (Tax-Exempt) Winner

Vermont Studio Center, Inc. v. Town of Johnson, 2010 VT 59
The Vermont Studio Center, Inc. (VSC) is a non-profit organization that runs an artists’ residency program at it facilities in Johnson, Vermont.  The main users are artists, writers, photographers, and printmakers.  Because of limited funding and space, the Center can only accept 612 residencies each year from out of 2000 applicants.  The general public is free to apply, but the applications, which include a portfolio, resume, and reference components are reviewed by a jury that selects the best and offers positions to individuals who must then pay to enroll.  VSC claimed exemption from property taxes under 32 V.S.A. § 3802(4), which exempts real estate put to public use.  To be entitled to an exemption under this provision, an owner must show, in part, that the primary use of its property directly benefited “an indefinite class of persons who are part of the public,” and also conferred “a benefit on society as a result of the benefit conferred on the persons directly served.”  Am. Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 110, 557 A.2d 900, 904 (1989).

Wednesday, November 10, 2010

Court Chides Commissioner for Failure to Make Findings


McNally v. Dept. of PATH, 2010 VT 99

The Vermont Supreme Court’s Opinion in this case boils down to a simple warning for decision makers: “a recitation of evidence in findings is not a finding of the facts.”  And if you can’t get the factual findings done right, then at least apply the law correctly. 

This opinion followed Claimant’s appeal from a decision by the Commissioner of Labor denying her workers’ compensation benefits.  The Vermont Supreme Court remanded the case on the basis that the Commissioner failed to make findings and her conclusions were at odds with, or at least ignored aspects of, governing law.

Tuesday, November 9, 2010

Failure to Chug-a-Lug Dooms DUI Case


State v. Burgess, 2010 VT 64.

If I am ever called upon to train police in DUI stops, the first bit of advice I will give is this: No matter what, if you are planning on having a stopped driver exit for a sobriety test, always write in your notes that the car reeked of alcohol.  You don’t have to get hit with a cloud of fermented hops and barley, but you do have to smell it.  If you write it down, the SCOV will never overturn your justification for an exit order. 

Such was certainly the case in the present appeal.  Defendant was heading home after an evening amongst friends when he was pulled over by a state trooper for speeding.  He also decided that Defendant had not reacted quickly enough to his lights or pulled over far enough onto the shoulder and approached the car with a suspicion of DUI.  Sure enough, the Officer sensed a gentle breeze of alcohol emanating from the car where Defendant sat alone with his two friends, Unopened Beer in the Cup Holder and Unopened Beer in His Jacket.  Officer asked Defendant if he would mind exiting the vehicle and performing a few feats of physical skill.

I Do Declare! And the Declaration Controls.


Madowitz and Kohl v. The Woods at Killington Owners’ Association, 2010 VT 37.

Condo developers in Killington began constructing and selling units in the 1980s.  Under the law at the time, purchasers were entitled to an equal share of the common area in accord with the number of owners.  Since future development was anticipated, the developers needed permission from the homeowners, so they slapped it into the declaration of condominium language that promised the developers a power of attorney.  Unfortunately for the developers, they also stuck language into the buyers’ individual deeds indicating that power of attorney was limited and would expire at the end of ten years.

Backstabbers (What They Do!)


J.A. Morrissey, Inc. v. Smejkal, 2010 VT 66

I imagine Justice William Shakespeare beginning his opinion in this case along the following lines:

Look no farther to see the sad tragedy that struck the house of Smejkal.  Once a prince of construction under the Queen of Morrissey, Lord Smejkal plotted with Lady Smejkal to discredit the throne, take the riches of the kingdom, and establish a new order where all could come for quality construction services.  But alas, good Sir Gannon of the Rose firm hath persuaded this bench and the jury below that the actions of Lord Smejkal are at odds with our laws and jurisprudence.  Therefore, we must award the fruits of justice to Queen Morrissey and restore her crown.  Thus spaketh, the Court.

I realize that my imaginary justice does not speak in the proper iambic pentameter.  Just work with me.  Law school ground the poetry out of him. 

All Fired Up and Nowhere to Go


Demar v. Dept of Labor, 2010 VT 69 (mem.).

In an appropriate tale for our times, Claimant worked as director at a day care center as “director” and teacher for $12.75 and hour.  At forty hours a week, claimant’s base pay was approximately, $26,520.  You see where the big money is in this state—childcare, Ben, childcare.  In 2009, the toilet-flush in the economy hit the day care center’s fan, and claimant’s wages were reduced to $10.50 an hour and 36 hours a week.  That translates out to annual base salary of $19,565 or the equivalent of a 24% pay cut.  As the SCOV majority notes in its decision, claimant would have been justified in leaving at that point, and would have been eligible for unemployment, which given the steep reduction would have made some sense—or at least calls to mind the Bob Newhart line about how he quit his job as clerk in the unemployment office making $55 a week once he learned that weekly unemployment benefits were $45 a week, and he “only had to come in to the office one day a week to collect it.”

Monday, November 8, 2010

The Street Lawyer: Smile, It’s Good for what Ails Ya’

The Street Lawyer is the Cultured Barrister’s necessary counterpart. Offering a viewpoint sometimes at odds with CB’s, the Street Lawyer takes a no-nonsense approach to the realities of law practice. Sometimes cynical, usually irreverent, and occasionally serious, the Street Lawyer welcomes your feedback.

As I sit here enjoying a lukewarm bowl of ramen noodles and a cold Fresca at ten in the evening, I am struck with a nagging thought: What the hell have I done with my life?

This is a recurring theme. I have these sorts of thoughts at various times, sometimes more than once a day. For example, I might have this thought when my client—the one with 4 DUIs, a couple sexual assault convictions, an arson conviction, and more minor infractions than I can count without an abacus—wants to know why I have not made any headway on his latest charges. “What ‘m I payin’ you for, boss?” he might ask.

Groping Grandpa Gets Reprieve: Miranda Violation Requires Suppression

by Andrew Delaney

State v. Muntean, 2010 VT 88

From the dysfunctional-family-from-hell case files comes the Court’s latest ruling on when police custody begins and Miranda warnings are required. The Court affirms the trial court’s suppression order finding that defendant was in police custody during an interview. Buckle up folks—it’s going to be a bit of a bumpy ride.

In late 2007, State Police began investigating defendant for molesting his daughters when they were children, and more recently, for molesting his grandsons. Both defendant’s adult daughters told a detective that defendant had molested them when they were children, and two grandsons recounted recent sexual abuse. On January 2, 2008, the detective requested that defendant come into the Rutland State Police Barracks for an interview. No subject was mentioned, but the interview was arranged for the next day to accommodate defendant’s schedule, and defendant agreed to it.

Thursday, November 4, 2010

Child Abuse and Neglect Registry 101



The issues in this Supreme Court decision are narrow and relate only to Human Services Board procedure, not the underlying substance of this child-protection-registry case.  The case began with a determination by the Department for Children and Families that parents R.P. and B.P. should be placed on the child protection registry for placing their children—four young daughters—at risk of harm by knowingly allowing the children to have contact with a convicted child sex abuser over an extended period of time.  Parents sought administrative review of DCF’s determination, which involved a reviewer examining the case and holding a conference with parents and their attorney.  The reviewer upheld DCF’s decision.  Parents then appealed this decision to the Human Resources Board (Board).

Child Abuse and Neglect Registry 202


                                      
The State of Vermont — via the Department for Children and Families — maintains a registry of people about whom it has substantiated reports of child abuse or neglect.  The registry is not wholly public but is available to entities that serve children and vulnerable adults, to aid them in making hiring decisions.  DCF is required by statute to place a person on the registry when it has substantiated a report that he or she placed a child at “substantial risk of harm.”  Before being placed on the registry, however, one may contest DCF’s substantiation decision at a hearing before a neutral administrative reviewer with no prior involvement in the case.  That decision, in turn, may be appealed to the Human Services Board.  And that decision can be appealed to the Vermont Supreme Court.  It’s like baklava, but with appeals instead of delicious layers of phyllo dough.

Wednesday, November 3, 2010

Cultured Barrister: Herbie Hancock as a Primer to Modern Jazz

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloging the matters that young attorneys are likely to be confronting as they begin their professional ascent.  The CB is meant to begin a conversation and rarely will claim the final word.  If you agree or disagree, the Cultured Barrister and the other readers of this blog want to hear from you.

You are a young associate.  You are trying to impress your partner.  She comes in from a night at the Hopkins Center and starts in about the Chucho Valdes show.  After a ten minute description where your comments are politely ignored or shut down, you understand the following:

(1)  Chucho appears to be a Cuban Jazz Musician but not of the Ricky Ricardo school of Babalu.

(2)  His style is elegant and rhythmic, but you are not clear whether he plays the piano or congas.  You are 93% sure it is the piano.

(3)  He quotes from several other musicians.  This is apparently a good thing and something that jazz players do without forming big air quotes during the performance.

(4)  No singing was done at this show.

(5)  You may have dropped a few notches on that partnership track.

Fickle Fate Fingers Driver for DUI

by Andrew Delaney
 
State v. Young, 2010 VT 97

You cannot make this up. Listen. One night last summer, Defendant was driving home after an evening of drinking when a car came up behind him rather quickly. Not wanting to raise his profile, Defendant took his first right onto a side street to lose the potential tailgater. The car followed him. Defendant took his next right. Still the car followed. Defendant turned into a driveway. And yes, the car followed him. Defendant rolls down his window to apologize for turning in what seems to be the other car’s driveway and discovers that he has pulled into the driveway of an off-duty police officer returning home with his cruiser who proceeds to process him for DUI.

Monday, November 1, 2010

Don’t Push the Red Button! (It’s a $2,000 Fine for Criminal Contempt)


In re Pannu, 2010 VT 58

For some people, being told that you are not allowed to do something only makes you want to do it more.  That certainly seemed to be the case with Attorney Jasdeep Pannu, who was found in criminal contempt after violating a clear order from the trial court.  On appeal, the Vermont Supreme Court agreed that Pannu’s willful disobedience warranted the $2,000 fine for contempt.

Wednesday, October 27, 2010

Husband Fails to Convince Court to Terminate Spousal Support to Permanently Disabled Ex-Wife

by Elizabeth Catlin

Mayville v. Mayville, 2010 VT 94.

In what is likely a familiar scene in family courts around the country these days, an ex-husband, who was laid off from his job, sought to terminate the spousal maintenance payments he was obligated to make under a court order resolving his divorce.  In this case, husband and wife had been married for twenty-seven years before their 2003 divorce.  During the entire period of their marriage, wife suffered from a permanent disability that prevented her from working at all, and husband worked for IBM.  The 2003 court order resolving the divorce split husband’s pension in half between husband and wife, and obligated husband to pay wife $3,000 per month in spousal maintenance until he turned sixty-five years old.  When husband learned that he was losing his IBM job, he moved to terminate his spousal maintenance obligation.

Tuesday, October 26, 2010

The Road Foreman Not Taken: Selectboard Comments Continue to Cost Town Plenty

by Daniel Richardson

Spooner v. Town of Topsham, 2010 VT 71.

From the foot-in-mouth case files comes the Town Selectboard of Topsham, which found itself in hot water in selecting a new road foreman. Following a public meeting at which the Board announced its decision, two out of the five members of the Selectboard spoke to a journalist covering the event to say that the Board made its decision based on age. One went so far as to say that the Board wanted to hire “someone young who would be around for awhile.”

At this time, we ask those members of the plaintiffs’ bar who are reading this entry to close their mouths and stop drooling on the keyboard.

Thus James Spooner, a candidate for the position who was not hired and who was older than the person hired, filed suit under the Vermont Fair Employment Practices Act for age discrimination.

Age Ain’t Nothin’ but a Number: Qualified

by Andrew Delaney

Badgely v. Walton, 2010 VT 68

When Vermont State Police officers George Badgely and Ruth Whitney reached age 55, they were involuntarily retired under 3 V.S.A. § 459(a)(2). They brought a claim against the Department of Public Safety in Windham Superior Court, arguing that their involuntary retirement violated the Common-Benefits Clause of the Vermont Constitution. The lower court initially found that sovereign immunity barred a damages claim, held a bench trial on the remaining claims, and found for the Department of Public Safety.

On appeal, Badgely and Whitney argued that the mandatory retirement age, as well as the public-safety-officers exception to Vermont’s Fair Employment Practices Act (21 V.S.A. § 495f), violates the Common-Benefits Clause of the Vermont Constitution.

Not so, sayeth the Court. It notes that “the primary justification for the mandatory retirement policy is maintaining public safety.” After a discussion of the parties’ respective expert witnesses’ testimony, we are treated to a short refresher course on rational-basis review under the United States Constitution. If you skipped reading Murgia or Vance in con law, here is a chance to catch up.

Second Circuit Rules Vermont's Vanity-Plate Scheme Unconstitutional

Byrne v. Rutledge, No. 07-4375-cv
(2d Cir. Oct. 8, 2010)

Forget what you vaguely remember about free expression and recall the maxim that the law gravitates toward rational results (outside of ERISA and the Eleventh Amendment). Now read the following fact pattern and guess as to whether what is described complies with the First Amendment’s guarantee of free expression:
A state permits individuals to purchase vanity license plates for a fee. Vanity plate applicants must propose the seven-character number and letter combination that they wish to appear on their plate, but the combination may not touch upon certain subjects, including religion or any deity. Applicants must support their proposed combination with a signed statement attesting to the meaning that the proposed plate has to them; this statement and the gut instinct of line-level DMV clerks will be used to determine whether the plate references religion or a deity. Applicants who propose combinations that look religious, such as STJOHN, PSALM, SINNER, and BUDDHA, but who swear that the meaning is not religious, will receive their desired plates. Applicants who propose combinations that look meaningless – such as BVM22 and JMJ1 – but who swear that the meaning is religious, will not.

Monday, October 25, 2010

Deliverance II: Dueling Attorney's Fees

by Jennifer McDonald


Kwon v. Eaton, 2010 VT 73 (mem.).

The Court was asked in this appeal to determine: (1) whether a party may obtain an award of attorney’s fees where the party satisfies its burden of proof but does not obtain an award of net damages and (2) whether an award of attorney’s fees is reasonable if it is greater than the award of damages.

The underlying litigation arose out of a dispute over unpaid rent.  Tenants in this case were 6 college students who signed an agreement to rent Landlord’s house in Burlington.  The parties agreed that during the summer of 2007 Landlord would renovate the apartment during the college recess.  Prior to the start of the school semester, it became clear that renovations would not be complete in time.  Tenants were given the option to either: (1) stay at a nearby inn at Landlord’s expense or (2) stay at a friend’s house and receive $39 per day rebate from Landlord.  Under either option, Tenants were required to continue paying rent in full.

Over the course of the fall school semester, Landlord unsuccessfully attempted to collect unpaid rent from Tenants and eventually terminated the tenancy on December 15.  Landlord brought litigation to collect the unpaid rent and Tenants counterclaimed for (1) breach of lease; (2) breach of warranty of habitability; and (3) violation of Vermont’s Consumer Fraud Act.

No Participation, No Appeal

By Gavin Boyles

In re Verizon Wireless Barton Permit, 2010 VT 62


Verizon applied for conditional use approval to install two telecommunications facilities in the town of Barton. A hearing on the applications was held on April 27, 2008, and no party other than Verizon appeared. The Barton Zoning Board of Adjustment (ZBA) unanimously approved the applications on May 29, and the zoning administrator issued the permit on June 5, 2008. That same day, neighbors opposed to the project, asserting that they had received no notice of the applications, sent a letter to the ZBA expressing opposition to it. On June 30, 2008, the neighbors attempted to appeal to the Environmental Court.

They were rebuffed. Verizon moved to dismiss the appeal on several grounds, including that the neighbors had not “participated” before the municipal panel. See 24 V.S.A. § 4471(a). The Environmental Court granted Verizon’s motion. Neighbors appealed, asserting first that their letter to the ZBA and a phone call to the zoning administrator satisfied § 4471(a), and second, that they had standing under the “procedural defect” and “manifest injustice” provisions of §8504(b) even if they failed to participate before the ZBA. Three Justices sided with Verizon. Judges Davenport and Crawford (sitting by designation) dissented.

The majority concluded, as to the first question, that § 4471(a) allows appeals only by those who “participate” while the town’s deliberative process is still ongoing. Because the neighbors “did not appear at the ZBA hearing and did not submit any information at that time,” they had not participated and could not appeal under that section. As to the second question, the majority affirmed—as a matter of discretion—the Environmental Court’s decision that the neighbors had failed to “affirmatively claim and satisfy the burden of establishing party status with a motion filed with the notice of appeal.”

The Superior Court Judges sitting by designation disagreed forcefully, averring that the court’s ruling was “plainly” not “reasonable from the perspective of fairness and consistent with our policy of protecting the rights of those who represent themselves in court.” The dissent was premised in large part on the undisputed fact that neighbors had not received written notice of the applications. “The trial court’s ruling here was the functional equivalent of a default judgment for applicant based upon what amounted to a harmless procedural omission,” Judge Davenport wrote.

Thursday, October 21, 2010

The Street Lawyer: Don't Pull the [Well-Tailored] Wool Over Us!

The Street Lawyer is the Cultured Barrister’s necessary counterpart. Offering a viewpoint sometimes at odds with CB’s, the Street Lawyer takes a no-nonsense approach to the realities of law practice. Sometimes cynical, usually irreverent, and occasionally serious, the Street Lawyer welcomes your feedback.

I distinctly remember the day I went for my student-loan exit interview. It was a beautiful day on campus: the sun was shining, the birds were chirping, the trees were coming to life after the long winter, there was a soft breeze at my back. I walked into the loan officer’s temporary on-campus office smiling.

The loan officer seemed like a kindly older man. He was balding a bit, wore ill-fitting glasses, and seemed somewhat scattered as he shuffled through papers to find my information. I sat down in the chair he indicated with an absent-minded brush of his hand and said, “So what’s my monthly payment?”

Smiling—I will always remember that he was smiling—he said, “Oh, about [more than I’ve ever made in a month in my life].”

Note that I have not edited out the amount he spoke for your benefit; I am just trying to avoid getting charged with obscenity for putting it in print. Obscene might be too mild a word. And I am sure my alma mater’s admissions office would not appreciate such disclosure.  

Suddenly this kindly old man looked different—as if he had grown horns, a tail, and a little goatee right before my eyes. You know that old saw: “Don’t shoot the messenger”? Well, if I had had a firearm . . . .  

“Ha ha,” I said nervously, “You know I don’t have a job, right?”

“Well,” he said, “There are options . . .” He then proceeded to tell me about some Ponzi schemes involving student loans, how much I might be able to get for my first-born child, and where I could sell organs on the black market. He also told me how I could reduce my monthly payment by about six bucks by doing an “extended” repayment plan. Eventually, the buzzing in my head drowned him out and I went into a state of semi-catatonic shock.

You might be chuckling, but the amount of money it takes to become a lawyer these days is staggering. While the economy has tanked, the price of a legal education has soared. At least the student-loan people are not sending out “enforcers” to bust kneecaps—yet. I would encourage anyone thinking about going to law school to think long and hard about it before enrolling. By your third year, you might be contemplating knocking over the local bank to pay off your loans. These are not good thoughts to have. Besides, you will have to knock over more than one bank. They just do not keep that kind of cash lying around. 

Several people believe that all lawyers are well to do. They tend to forget that some lawyers—new lawyers especially—have crushing student loan debt, cannot find jobs, and are struggling just like everyone else.

So, while Cultured Barrister is busy picking out brand-spanking-new overcoats and Brooks Brothers suits (and using obnoxious words like “sartorial” when he means “clothing”), some of us are saving up for . . . our student-loan payment. Like CB, however, we do need professional clothes. So while your paycheck is too small to even get you onto the mailing list at Armani, here are a few practical ways to save money in that department.

Kohl’s is a decent store. If you are patient enough, and willing to sort through the gaudy yellow-and-black-checked golf shirts and fitting-room castoffs on the clearance rack, you can usually find what I like to call “grown-up clothes” at very-affordable prices. A good tactic is to look for a concentration of 90%-off clearance stickers, yell “Fire!” and, in the confusion that follows, calmly pick through the items, placing the nice stuff in your size in your cart. Of course, this can also be accomplished without yelling “Fire!” but what fun is that?   

Thrift shops can be alright too. I used to be mortified that I might be seen in a thrift shop with my mother when I was a kid. Now, I have no issue with shopping in thrift shops. “Vintage” clothing shops are all the rage these days. Vintage clothing shops are just higher-priced thrift shops. The better choice is probably the shop that is honest about what it is. Thrift shops, incidentally, are great places to find overcoats.  

—The Street Lawyer

Tuesday, October 19, 2010

Cultured Barrister: Sartorial Style, Part 1—The Overcoat

The Cultured Barrister is a SCOV Law Column that is an ongoing miscellany cataloguing the matters that young attorneys are likely to be confronting as they begin their professional ascent.  The CB is meant to begin a conversation and rarely will claim the final word.  If you agree or disagree, the Cultured Barrister and the other readers of this blog want to hear from you.



I distinctly remember that fall day as a first-year associate when I opened the closet for something to wear over the Brooks Brothers suit that I had purchased as a trophy of a successful job search.  In my hall closet, there were several fleece vests and pull overs, a windbreaker, and a barn coat.  I opted for the latter and left with the tails of my suit jacket peeping out from the bottom of a tan jacket originally purchased for and carrying the scars of a long-since abandoned career in landscaping.  I looked like a farmer going out to bury his mother.

The problem that many of us face at the beginning of our legal career is that we do not have the clothes.  Sure there are a few of us, who like Gay Talese, had tailors for parents who left us with racks of hand-tailored suits.  But the rest of us start at the bottom, slowly accumulating the shirts, suits, and matching ties or scarves and necklaces while ditching the crimson satin shirts and off-the-rack casual skirts that defined our undergraduate sense of elegance.  We adopt the uniform of the attorney: dark suits of conservative cut, white or blue shirts and ties for men, a simple blouse for women.  This is changing, but slowly.  When asked most judges and older attorneys will point to the dress code above as the model and the aspirational norm.

Because it is one of the more expensive items and because most associates start in the late summer, the overcoat is often the last item added to the wardrobe.  But two realities of practicing in Vermont always make this purchase inevitable: winter and rain.  The aforementioned Brooks Brothers suit was almost ruined a month before the barn coat fiasco when a late-afternoon rainstorm coincided with a hearing at the courthouse down the street.  Only the numerous alcoves along the way saved what is still a significant investment of wool and Canadian thread.

So what should we wear to not only cover ourselves and our suits, but to look less like a funereal farmer or soaked solicitor?

Let us start at the beginning.  The overcoat is intended as the outermost garment in formal dress.  A true overcoat extends past the knee.  By definition, a Peacoat is not an overcoat.  It is too short.  A good overcoat is made of heavy material, like fur or wool.  A good overcoat is a single color with black, blue, camel hair, and brown being the most common and traditionally acceptable.  Very few of us can carry the fur coat look without being mistaken for a FrenchCanadian Fur Trapper.  Although I have it on good authority from Middlebury that it can be done with panache.

Like most innovations, the overcoat owes a large debt to the military.  Napoleon popularized the overcoat during his 19th century winter campaigns and the tradition carried through Europe until World War II with the introduction of the field coat and Denison Smock.  This includes one of the few positive contributions of the first World War, the Trench Coat.  That coat is one of the more difficult looks to pull off.  Unless you occupy a smoky, black and white world or solve crime with batman, the trench coat may have to wait.  

The modern overcoat is the descendent of several variations that have held sway over the past two hundred years of fashion.  These including several caped versions known as the Great Coat, the Inverness Coat and the Ulster Coat.  None of which are appropriate for court unless your opponent is Moriarty.  Others include the Frock Overcoat, the Redingote, the Paletotcoat, the Paddockcoat, the Chesterfield Coat, and the Covert Coat.  Only the last of these is really still worn by people outside of Carnaby Street or PBS dramas.

What should you look for in an overcoat?  Fortunately, nearly every retailer of men and women's business wear carries a version of the modern overcoat.  The rule of thumb is conservative.  Dark colors are best, followed by the brown and tans.  Elegant, simple cuts of good fabric with quality stitching will serve you better than a two-for-one deal.  For everyone's sake, avoid tweed.  An overcoat should last for years and if cared for, it becomes an heirloom that your children will eventually give to a thrift store where some unknown future hipster will revive it in the most ironic manner possible.  But who cares? You will be dead by then.

The point is that an overcoat is an investment.  A classic cut will weather time and fickle fashion better than a more-stylish cut.  Just ask your mother to pull out her denim acid-washed jacket from her Def Leppard roadie days.  A good overcoat is a purchase that you should only make once, which is a long time to live with regret.

But what about rain?  A wool Overcoat is no greater protection from a downpour and highly impractical in a summer shower.  The conventional wisdom is that a lightweight, water-resistant version of the overcoat is the appropriate option.  But that is bunk.  Formal raincoats, like trenchcoats, are creatures of the pastexercises in kitsch that look dated and are impracticallike rubbers over wingtipsRod Stewart notwithstanding.  The success that outdoor gear companies have had wedding technology to design means that the most practical raincoatsi.e., coats with hoods, waterproofing, and effective, zipper closuresare found at North Face, EMS, or similar outfitters.  The comparison is not even close, and the culture reflects it.  While most lawyers have an overcoat for the winter, most of those same lawyers have a Lowe Alpine shell or Mountain Hardware parka for the other three seasons.  This is perfectly acceptable.  They are stylish, practical, and in Vermont, where one is never far from the trailhead, ubiquitous.

For these reasons, it is better for a young lawyer to sink the wad on the winter overcoat, and then splurge on a high-tech shell that she can use on the weekends as well as the commute.  Both are costly and both will last for years.  One offers more gravitas, but the other gives us spirit and hope, perhaps a sign that we are not lean solicitors who exist only to break seals in empty rooms.

the Cultured Barrister

Thursday, October 14, 2010

The Definitive Article Fails to Exempt Insurance Company from Duty

Northern Security Insurance, Inc. v. Stanhope, 2010 VT 92

The Court affirmed the Washington Superior Court’s decision finding that Northern Security Insurance Company owes a duty of coverage to the insureds.

This dispute is the result of events that occurred at Rose Perron’s day care business in the early 1990s. During the time that Rose Perron had homeowner’s insurance through Northern, her son Kyle, age 8 to 11, repeatedly sexually abused two children who attended the day care. After initial lawsuits were filed, two additional claims were made by other families who also claimed Kyle sexually abused their children. Northern refused to provide coverage for the Perron family, alleging that Rose falsely stated on the policy application that she was not conducting business on the premises, and the injuries were intended and/or expected. The Washington Superior Court disagreed.

The first issue of contention was whether or not Rose Perron’s misrepresentation voided the coverage for the rest of the insured. The lower court found that the policy was void as to Rose, but there was no evidence that that Kyle or Rose’s husband Steven had any knowledge of the misrepresentation. As a result, the “innocent co-insured” doctrine provided that Kyle and Steven were owed coverage by Northern. Northern disputed this finding, suggesting that the language in their policy differed from precedent because the word “the” was used instead of “an.” The Court spent little time wrapping its brain around that one, as Northern forgot to raise this issue at the trial court, and as such, did not preserve it for review.

Northern also disputed that they had the burden to prove the injuries caused by Kyle were intended or expected, and that this should be reviewed by a subjective rather than an objective standard. The Court agreed with the lower court, citing precedent which stated that once the insured has made out a “prima facie case for coverage by producing evidence of the harm,” the insurer then has the burden to prove that the harm was “intended or expected.”

Northern also lost on its argument that the jury instructions should have incorporated an objective rather than a subject standard, i.e., that Kyle knew or had a reason to know that his actions would cause harm. The Court had plenty of precedent, both in-state and from other jurisdictions, to shoot this argument down. At the heart of the cited precedent is the reasoning that a subjective standard would “deny coverage for injuries negligently or foreseeably caused, rather than intended, and thereby defeat the very risk for which the insured contracted.” As such, it was up to the jury to decide, based on circumstantial evidence, whether Kyle knew that his actions would cause harm. However, had Kyle been an adult during these incidents, intent would be inferred.

Finally, Northern disputed the lower court’s ruling to sustain the defense counsel’s objections to a statement by Northern’s attorney during rebuttal argument. The objectionable mini-tirade included statements such as, “[t]his is an eleven year old boy who is sexually mature, who’s got sexual experience. He knows what he’s doing,” and “let’s talk about common sense if an eleven year old boy is vaginally penetrating a four year girl. Are we saying that’s not harmful? That’s not injurious?” Northern argued that this ruling prevented them from arguing that harm could be inferred from the circumstantial evidence, but the Court found that Northern made this argument repeatedly during trial and provided ample evidence on this front. As the Court stated, “if the jury was ultimately unpersuaded by the argument, it was not the result of trial court error.”

—Christine Mathias

Tuesday, October 12, 2010

State Gets Taken to the Cleaners with Discovery Snafus


Once upon a time in Barre, there was a dry cleaner, who like many in the trade, did not necessarily follow the best practices when it came to disposing of its incredibly dangerous and deadly toxic chemicals.  But what is a little illegal dumping among friends, eh paisano?  Needless to say, the owners of Howe Cleaners are long since gone, dead in early graves or enjoying their ill-gotten, pollution-fueled profits on some beach in the Bahamas. 

Instead we have the baker, the banker, and the defunct pizza-bread maker.  These three entities took ownership of the building/toxic waste dump over the past ten years, and they are the entities that the state sought to stick with the large bill it incurred cleaning the site. 

The State brought an action under the Vermont Waste Management Act (VWMA) (10 V.S.A. § 6615) and under a common law theory of public nuisance to recover from the new landowners.  The VWMA allows the State to seek recovery from owners up the chain of title who took ownership of the property after the site had been contaminated.  The statute is a strict liability provision that tracks the Federal Government’s CERCLA regime, but not too closely, as the majority in this case finds. 

Before the parties were able to reach any of the nitty-gritty of their claims, they began duking it out over depositions and the finer points of discovery procedure.  Banknorth began with a motion for summary judgment designed to flush out the State’s evidence, followed by a notice of deposition under Rule 30(b)(6), which names a governmental agency but allows the agency to designate a deponent.  The State refused.  Banknorth sought a motion to compel, and the State, a protective order. 

In June 2006, the trial court rejected the State’s arguments and granted Banknorth’s motion to compel.  But the parties headed to mediation.  Once mediation failed, Defendants Banknorth and Fiore, the pizza-maker, served a “re-notice of deposition” on the State.  The notice was sent on October 10th and the depositions were scheduled for November 1st.  Five days before the depositions, the State filed for a second protective order and notified the Defendants that it would not attend.  Defendants attended a very brief deposition on November 1st, most of which was no doubt spent planning the motion for sanctions that followed.  In May of 2007, the trial court sided with Banknorth and Fiore, and precluded the State “from using at trial evidence that should have been provided in accordance with the court’s June 2006 order.”  This order effectively shut down the State’s case against Banknorth, and one swift summary judgment motion later, the case against Banknorth and Fiore was dismissed. 

On appeal, the State argues that the trial court erred in applying “litigation-ending sanctions” under Rule 37 without evidence or findings that the State acted in bad faith.  The State argued that the trial court had failed to make any findings of this nature before it made a ruling that effectively shut down the State’s case by not allowing it to put on evidence concerning the release or potential release of toxic material during Banknorth’s ownership.  The Court was unmoved by this line of argument.  The Court ruled that the trial court did not actually dismiss the case; it simply took away the State’s (best and only) evidence. 

The gasp you heard was from our staff logician who seems to be rolling on the floor in some type of fit.  Pay no heed to him as he is not a member of the bar.

The Court continues.  Not only was the sanction not explicitly final, but the whole reason it had a final, completely detrimental effect on the State’s case was because of the State’s faulty strategy.  This will take a minute to unpack.  Pour yourself a glass of limoncello, put on your favorite Brubeck album, and hang in there. 

When Banknorth made its first motion for summary judgment, it raised the issue of whether any releases occurred during its tenure with the property.  This timing issue is a part of the VWMA and an issue on which the State has the burden of proof at trial.  In responding to the motion, the State proffered only general evidence that the trial court noted met its minimum burden of production but little else.  Aha, says the Court, this is your mistake.  If only you, State, had produced more specific evidence at the first motion for summary judgment, then you could have used it later after the sanctions had issued.  Or as SCOV’s staff logician has helpfully reduced down its essentials: if the State had released the information it considered outside the scope of discovery before Banknorth requested it and the State sought to protect, then it could have used that information after its renewed objections were struck down and sanctioned.  This is otherwise known as Lubnitz’s Gambit or “Quit before You Begin.”

The State makes one more argument that the trial court’s dismissal failed to take into account the limitation of the Rule 37 sanction, which the State contended would have allowed the earlier evidence in and required the trial court to distinguish what it was and was not considering as the basis for the dismissal.  The Court disagrees and in applying the “We Gave You the Lemmons, You Make the Lemmonade” Rule, puts it back on the State to have come up with the distinctions in the Rule 37 order to provide proof to defeat Banknorth’s motion.

So far so unified for the Court in its opinion, but the next issue about the diligent owner defense divides the Bench 3-to-2.  The question for the Court is whether Fiore, who bought the property from Banknorth for $2,000 below its assessed value, should be on the hook under the VWMA.  Fiore argued, and the trial court accepted, his diligent owner defense, which says that if an owner acts in a reasonable manner, takes reasonable steps, and still remains unaware of the pollution, then she is off the hook.  In this case, the question is whether Fiore can claim the defense for relying on an environmental Phase I assessment that Banknorth had commissioned, which everyone by the time of trial agreed was faulty, negligent, and more useless than a chocolate teapot. 

For the majority, the issue is not whether Fiore can claim the diligent owner defense for relying on the Phase I study, but whether he was objectively reasonable in light of the totality of the circumstances.  Three justices find that he was.  Their reasoning is that Fiore had no outward evidence to determine that there was pollution on the site, and that it was reasonable to rely on a Phase I Environmental Report.  The majority declines to assign blame to Fiore simply because the report has proven to be completely wrong.  The report read well, and Fiore, who is not a trained environmental engineer, was reasonable to rely on it.

For Justice Johnson, the answer is no.  Fiore used the report and effectively adopted it.  He must, therefore, live or die by the report as his own.  It is a simple issue of agency.  The environmental company was the agent and Fiore was the principal.  The environmental company messed up the study and report.  Fiore stands in the agent’s shoes and has to take responsibility for the unreliable study.  Later, he can sue the company and pass along the costs if a judgment attaches.  But it is strict liability, and a lot of people like him get hurt simply by standing in someone else’s shoes.  Justice Johnson would remand and, without further showing, reject Fiore’s diligent owner defense .

Chief Justice Reiber suggests a different tack.  He believes that the Phase I Environmental Report, while flawed, may be some proof of diligence, but that its weight and ultimate validity is the province of the fact finder to determine.  Being a strictly factual issue, the Chief would reverse the grant of summary judgment and remand the issue back to the trial court for a hearing.

Not to remain fractured, the Court comes back together for the final issue concerning whether the State has another cause of action against Fiore for common law public nuisance stemming from a plume of pollution that has extended hundreds of feet from the site into the area’s groundwater.  The Court finds that this general interest in protecting groundwater is not enough to support a public nuisance claim, which requires a showing that the contamination affects a general public.  The Court suggests that the State is simply trying to re-package a VWMA claim under another name, but it stops short of denying that such parallel claims can exist and rules against the State for failing to present a prima facie case.  The dismissal is affirmed.

On a somewhat related note, there is a great parcel in Barre available for immediate development.  Call B. Sorrell for additional details and MLS number.

—Daniel Richardson

I Drive the Line


After an evening out—no doubt reading books to blind shut-ins at a local nursing home—Defendant headed into Berlin from Barre on Route 302 where a Berlin Police Officer began to follow.  As the Officer noted in his later testimony, he followed Defendant for about a mile of unexceptional driving before Defendant's tires crossed the double yellow center lines on a curve in violation of Vermont's "drive to the right" law.  The Officer pulled Defendant over for this traffic violation and after detecting signs of intoxication arrested and processed Defendant for DUI. 

On a motion to suppress, the trial court focused on the Officer’s testimony, which stated that Defendant’s car crossed the center line but which could not pinpoint whether it was two-hundred feet or five feet over the center line or whether the violation occurred for three seconds or for two minutes.  Given the discrepancies in both distance and time, and the difference each version represented (one being a serious violation, the other a nominal transgression), the trial court granted the motion to suppress and dismissed the DUI charge. 

On appeal, the Court takes the opportunity to revisit its relatively extensive case law concerning the right of law enforcement officials to stop a car for any infraction of the motor vehicle code—including but not limited to loud mufflers, missing mirrors, burned out lights, or minor infractions of the “drive to the right” statute.  Therefore, whether the Officer observed Defendant crossing the line for five seconds, two minutes, or taking a drive in Merry Ole England, the resulting right to pull Defendant over was the same. 

Thus, the trial court erred in suppressing evidence of DUI since the variation in the Officer’s testimony was meaningless.  Any distance that Defendant crossed over the center line constituted a violation that authorized the Officer to pull the car over and talk to Defendant long enough to get hit by the waves of Jim Beam fumes pouring out of the car.

Justice Skoglund, joined by Justice Johnson, is not so sure.  She points out in her dissent that the trial court did not find that Defendant had crossed the yellow line but to prove that the State had presented an untrustworthy witness.  The trial court’s citation of the Officer’s varying testimony was not to prove that Defendant crossed the line, but that the Officer did not know what was going on since his testimony varied so widely.  Under the deferential standard applied to trial court findings, Justice Skoglund believed that the variation and lack of credulity in the Officer supported the motion to suppress, and that the majority had missed the boat on this all together.  Short of a third vote, however, means that this view will have to sit at the back of the opinion.

—Daniel Richardson

Much Ado about Tires

Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82 (mem.)



Junkyards have long been strange beasts under Vermont law, and they just got a little bit stranger.

Appellant owned a junkyard in Milton that operated under a certificate of approval from the town Zoning Administrator from 1974 through 2001.  He allowed his location approval to lapse in 2001, but subsequently settled some other affairs with the town and reapplied for location approval in 2008.  Due to a change in the statutes since 1974, he now had to apply to the Selectboard rather than the Zoning Administrator.  Alas, poor junkyard operator.

The unwitting Board conducted what many readers will recognize as a typical meeting of a small-town Selectboard: they introduced the question at hand, they let everyone in the room say their piece without limitation and without objection or application of any rule of evidence or procedure, and then rendered a decision based on fairly vague standards of unclear origin.  The trial court, nonetheless, chose to review the matter “on the record.”

The controversy before the Supreme Court in this sui generis appeal—the statute has since been amended to vest jurisdiction over junkyard appeals in the Environmental Division and to require de novo review—was whether the Selectboard’s decision should be reviewed de novo or on the record.  The Chittenden Unit of the Superior Court, having chosen the latter, determined that there was “some rational basis” for the Board’s denial of the application. 

The junkyard owner contended on appeal that the trial court’s review should have been de novo as in an appeal of a typical municipal zoning decision, and as the subsequent statutory amendment mandated for junkyard-siting decisions.  The Supreme Court disagreed in a split decision, with Justices Skoglund and Burgess joining in a blistering dissent.

The majority concluded, in essence, that a Selectboard exercising authority under a broad statutory mandate that is silent about the standard of review must do nothing more than act in good faith and in a manner that is “not capricious.”  The majority further appeared to imply that the courts should defer to the selectboard’s familiarity “with the interests of their community” and noted that such bodies are “best equipped to make decisions on local matters, such as location of a junkyard, that will have an immediate effect on the municipality.”

Thus, the majority had no trouble affirming.  Findings had been made that approximately tracked the rather vague statutory criteria, which include protection from “unfavorable effect[s]” on the “clean, wholesome and attractive environment” and “general welfare of . . . citizens.”  In finding against the landowner, the Board had found among other things that landowner had too many tires, his hours were too long, there were “concerns” about arsenic levels in water despite an expert’s testimony that the arsenic was naturally occurring, and that a large pile of tires posed a public health risk.  The majority affirmed under the extremely deferential standard noted above, finding that there was at least some support in the proceedings below for each negative finding.  One could read the majority opinion and be forgiven for thinking that the appeal was from an august, detached body with long expertise in evaluating junkyard applications and entitled to deep deference.

The dissent, by contrast, begins thusly:

It was a shouting match.  Apparently there were local scores to settle.  Audience members questioned one another, talked over evidence, and interrupted the Selectboard members.  Doors were slammed and petty grievances were aired.  No “witness” was sworn in.

Thus, in short, “the trial court was not presented with an agency action, as we have generally understood that term, nor did the underlying proceedings bear the hallmarks of an administrative adjudication to which we afford deferential review.”   The dissenting Justices noted that this decision was simply nothing like the sorts of agency decisions that are traditionally entitled to deference, and if anything should be reviewed with more care than a zoning board’s decision under a zoning ordinance.  Instead, the dissenters contend, the majority “created a too-subjective-to-review standard for the aesthetic considerations uniquely within the selectboard’s competence” and then used it to review a proceeding that “failed to satisfy even minimal standards of due process.”  For the dissenters, the entire underlying proceeding was a melee of interpersonal grudges that lacked even the basic forms of due process and thus demanded a more precise and careful review by the trial court.

This opinion—which curiously issued with an unattributed majority but avec dissent with named author—may have far-reaching but, so far, uncertain effects for attorneys representing clients before selectboards in matters that are ancillary (or prerequisite) to related state permitting proceedings.

—Gavin Boyles