Wednesday, October 27, 2010
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
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.
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.
(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
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.
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
Tuesday, October 19, 2010
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 French–Canadian 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 past—exercises in kitsch that look dated and are impractical, like rubbers over wingtips—Rod Stewart notwithstanding. The success that outdoor gear companies have had wedding technology to design means that the most practical raincoats—i.e., coats with hoods, waterproofing, and effective, zipper closures—are 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
Tuesday, October 12, 2010
The relevant facts are as follows. Defense counsel raised concerns that her client did not feel well and could not concentrate at trial. The trial was suspended until the following day so that defendant could be examined by medical personnel. The next day, defendant reported feeling sleepy from his medication and defense counsel noted serious doubts about whether the trial could proceed.
Friday, October 8, 2010
Thursday, October 7, 2010
Wednesday, October 6, 2010
Tuesday, October 5, 2010