Monday, January 31, 2011

SCOV Law Hits the Big(ger) Time

Greetings Loyal SCOV Law Reader(s):

This weekend our good friends over at Vermont Digger began cross-posting SCOV Law blog posts on their site.  They plan to make a weekly thing of itat least until the complaint letters start piling up.  If you do not already do so, you need to make Vt. Digger part of your daily web traffic.  Anne Galloway and her crew do an amazing job of covering the Vermont government, environmental issues, business, and politics.  It also provides some of the most in-depth analysis that you will find on these issues.  As print journalism shifts to the on-line, sites like Vermont Digger will become more and more our common journal of record.

While we realize that their willingness to post our material may be a step backwards for Digger, we appreciate their willingness to stoop, and we look forward to reaching out to a wider audience through the site and sharing our "legal analysis" with a wider audience.

Check it out!

—The Staff of SCOV Law

Pleading the Way to Restitution

State v. Plante, 2010 VT 116

By Christine Mathias

Defendant, who was charged with burglary and grand larceny, entered a plea agreement with the State, contingent on defendant's plea of nolo contendre. Apparently Defendant did not know that part of the plea agreement meant that he would have to repay the victim all of the money stolen, minus the $500 covered by insurance, totaling $32,300. The only issue on appeal is whether a defendant must pay restitution where the conviction is based on a plea of no contest.

Saturday, January 29, 2011

SCOV Unanimously Embraces Home Moto-Cross Tracks

by Elizabeth Catlin

In re Laberge Moto-Cross Track, 2011 VT 1 (mem.).

Is this the SCOV’s annual effort to appear more sympathetic to those fun-lovin’ folks that so often appear as criminal defendants?  Are they seeking to broaden their base of support among the voters? oh wait, they aren’t elected officials . . .  How else can we explain the enthusiasm that the SCOV has shown for backyard motocross racing in this recent reversal of the Superior Court, Environmental Division (did anyone aside from me oppose the recent court reorganization solely on the grounds that it made the court names so much more unwieldy and awkward?)? 

Tuesday, January 25, 2011

A Penny for the Governor

State v. Quist, 2011 VT 5

It’s tax time again!  Just in case you were planning to “accidentally” forget to file or pay your taxes, you should know that the one-stop-shopping-venue also known as the Criminal Division just added another item to its restitution menu: back taxes.  Yes!—says SCOV—the Vermont Department of Taxes (or any other State of Vermont “Department” for that matter) can be considered a “victim” for purposes of awarding restitution.  This means that the Defendant here, who was convicted of twelve charges of failure to pay taxes or file a tax return, is on the hook for $15,234.36 in back taxes payable as restitution to the Department. 

Here’s the play-by-play: a “victim” is defined as a “person who sustains . . . injury . . . as a direct result of the commission or attempted commission of a crime.”  The restitution statute does not define “person.” However, other statutory definitions of “person” do include the State of Vermont.  And so, while government entities are expressly precluded from receiving advances from the restitution unit, according to SCOV, this provision indicates that the Legislature contemplated that government entities are entitled to restitution, just not restitution advances.  SCOV points out that the legislative history also gives a nod to the gov’na’.  (Justice Skoglund acknowledges that she wasn’t aware of the legislative history when she penned a previous concurrence reaching a different result.) And so, restitution for me, restitution for you, and restitution for the government, too.  You’re not a victim anymore, Vermont Department of Taxes, you’re a survivor.

This case is a close companion to another recent decision holding that the State can seek restitution at sentencing regardless of whether the defendant agrees to it as part of a plea deal. 

If it looks like a Duck . . . .

Mahoney v. Tara, LLC, 2011 VT 3 (mem.).

Then you’d better make sure it walks and quacks like one too. Land-use bar take note: just because a property owner has a pious- or charitable-sounding name doesn’t necessarily mean that the property is being put to a charitable or pious use. That’s the thrust of this adverse-possession appeal.

The Mahoney family has been vacationing at a property on Lake Champlain for, oh, the past 60 years or so. For the last 35, they’ve owned the property. By the terms of their lease and deed, the Mahoneys enjoyed the use of about 75 feet of lake frontage. From 1958 to 2006, Vermont Catholic Charities (VCC) owned the adjacent lot and recognized the boundary line as being where the Mahoneys said it was. VCC marked the boundary with signs. Then, in 2006, VCC sold its lot to defendant, Tara, LLC. In 2007, Tara filed an application to subdivide, and in its application, included a survey that cut the Mahoneys’ beach in half. Then all hell broke loose.

Monday, January 24, 2011

Liquored-up Lawyer Leaves and Later Lies: Court Clears Conviction for Clone-like Charge

State v. Neisner, 2010 VT 112

A hit-and-run accident, a jury trial, convictions for “grossly negligent operation of a motor vehicle, leaving the scene of an accident, giving false information to a law enforcement authority, and impeding a public officer . . . .” Sound familiar? Faithful readers will note that the defendant here is the same person as the attorney-respondent in another recent case.

So let me begin by saying that alcoholism is a very serious problem. Substance abuse plagues our profession. It is not funny. Please also keep in mind that the respondent here—aside from this incident—has made very significant contributions in his community. Now that I’ve said that, let me proceed to make light of this very serious situation. As Don Williams, Jr. once said, “What I lack in decorum, I make up for with an absence of tact.”

Tuesday, January 18, 2011

File under “S” for “Straightforward”

State v. Brewer, 2010 VT 110 (mem.).

By Gavin Boyles

The SCOV really had no choice but to affirm here, folks.  Defendant, on trial for aggravated domestic assault, admitted that he had been so drunk on the night of the alleged offense that he didn’t remember anything that happened.   Perhaps because of this, he chose not to testify in his own defense.  Because, really, how effective would it be to say repeatedly “I can’t have done anything really bad, or I’d remember it better, you know”?

Monday, January 17, 2011

The Street Lawyer: A Walk In My Shoes

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. 

Many apologies, dear readers, but we can’t get off the topic of shoes just yet!  My last post got a bit ahead of itself when it left things at how to shine shoes, but said absolutely nothing about Vermont legal footwear.  I mean, can you honestly say that you have never had a conversation with a fellow attorney about shoes?  Don’t tell me that you’ve never asked a colleague where to find the perfect black boot that one can wear with a skirt suit or slacks but won’t lead to a broken tailbone when the sidewalks ice over. What do you wear to meet a client at a gravel pit?  And flats! Need I say more?

Wednesday, January 12, 2011

Supreme Court Shows Soft Spot for Liar with a Heart of Gold

In re Melvin B. Neiser, 2010 VT. 102

Stop me if you have heard this one before.  Attorney attends two weddings in one day, has a few dips in the champagne fountain at each, and then rolls over to his office.  On his way there, he gets behind a couple of out-of-state choppers on the Killington Access Road who are going way too slow for someone who has seen it all before.  In a bold move, our protagonist darts around them and speeds up, just to let them know how frustrated he was with their driving choices.  To put a fine point on the gesture, Attorney slams on the brakes and then keeps jamming to the office, barely looking back.  What the Attorney later claims not to realize is that his sudden stop resulted in a chopper down and a driver in critical condition. 

But not for long. As he heads back down the Access Road, Attorney gets an eyeful.  Then he does what anyone would do—he scurries home, quaffs a few drinks, (let us speculate that the first one was for his nerves, but the next four were to throw off any breathalyzer), waits, and uses some of that law school intellect to think his way out of this predicament.  Enter the Trooper sent to investigate (as Chekhov might have imagined it).

Tuesday, January 11, 2011

Meet the Men and Women of SCOV Law (and some other bloggers)!!

Greetings Loyal SCOV Law Readers,

As part of the Vermont Bar Association Young Lawyer's Mid-Winter Thaw Event in Montreal, the contributors of SCOV Law have been invited to present on a panel looking at the recent growth of blogs within the Vermont Legal Community.  It looks to be a very cool event with some great members of our every growing blog community coming together to talk.  Here's language from the flyer.  If you are in Montreal this Friday for the Thaw, come up and don't forget to say hi.

The Battle of the Blogs: How New Media and Networking Have Become Vital Parts of How Lawyers Promote Discourse, Legal Information, and Themselves (1 hour CLE).

Within the past five years, legal blogs have become ubiquitous in larger cities, where tech savvy young associates have taken to the internet to discuss legal issues and lifestyle and to gripe about the practice of law.  Vermont has not been far behind as firms have slowly added “blog” elements to their websites.  2010, though, saw a marked growth in blogs, and 2011 could be the “Year of the Blog” for the Vermont Bar.  Yet for their growing popularity, blogging presents many different questions for attorneys.  What type of blog can and should an attorney contribute to or host?  What function does a blog play in our professional careers?  How far can the essentially personal and diary-like nature of the blog be taken?  What makes a blog successful?  Our panelists will discuss the issues that come with blogging about the profession including the benefits, the need to identify your audience, and the risks of posting on-line.  Panelist will discuss the structure of blogs, their personal experiences, and what future bloggers need to consider when starting their own blogs: including setting a workable theme, dealing with public response, and the question of collaboration.

This panel will be featured at the Mid-Winter Thaw on Friday, January 14, at 4 p.m., immediately following, and at the same location as, the Ethics Panel (Drummond, Third Floor). 

Lack of Preservation Proves Unaccommodating on Appeal

Venturella v. Addison-Rutland Supervisory Union, 2010 VT 115 (mem.).

Venturella is the most recent reminder to Vermont’s litigators that failure to preserve claims of error in the jury instructions is an absolute bar to judicial review of the alleged errors.

This is a cautionary tale. 

The Plaintiffs in this case are two children who filed suit under the Vermont Public Accommodations Act (VPAA), 9 V.S.A. §§ 45004507, claiming peer harassment.  At trial, Plaintiffs failed to prove “they were victims of harassment that was so severe, pervasive, and objectively offensive that it deprived them of access to the education opportunities or benefits provided by their school.” Plaintiffs and amicus curiae, the Vermont Human Rights Commission, appealed arguing reversible error in the jury instructions.

Monday, January 3, 2011

Battle Hymn of the Old Republic (Insurance Company)

Hathaway v. Tucker, 2010 VT 114

Paul Tucker worked for Casella Waste Management as a waste hauler.  Mr. Tucker drove a tractor-trailer using his own Peterbilt Tractor and a Casella-owned trailer, in which he hauled bulk sewage waste.  After a June trip to Glen Falls, New York hauling waste, Mr. Tucker was returning to Vermont when he attempted to pass Robert Hathaway’s vehicle.  Mr. Hathaway turned his vehicle across the lane that Tucker was using to pass him, and Mr. Tucker’s rig collided with Mr. Hathaway’s vehicle.  Mr. Hathaway died as a result of the crash.  Thereafter, Mr. Hathaway’s widow sued Tucker and Casella. 

While these facts are tragic and likely to inspire strong feelings, they are only tangentially related to the present case that bears Mr. Hathaway and Mr. Tucker’s names.  The underlying wrongful death suit settled out in mediation.  The widow Hathaway long ago received her million dollar settlement and has left the stage.  This is the resulting insurance coverage fight that arose between Mr. Tucker’s insurance company (Peerless) and Casella’s (Old Republic).  The result is a very long and very boring decision.  Imagine if you will that when Star Wars began and the droids escaped that George Lucas took this as a cue to begin a four-hour documentary about the effect of asteroids on the erosion process of Tatooine.  (Reader take note: Blogger Catlin did not write this sentence and she does not, in fact, even know what the hell it is referring to, but she has opted to allow her editor, Mr. Richardson, to insert his own science fiction references where he feels it is appropriate.)  (Ed.'s Note: C'mon Betsy, it's Star Wars, it is not like I quoted high elvish.)  The effect is the same here.  We have hit pay dirt with the ever-thrilling legal trifecta: insurance coverage, duty to defend, and vicarious liability.  Anyone who is thrilling to read on after those words has either masochistic tendencies or a vested interest in the insurance business.  That is not to say the two are separate.  

Assailant Socked with Victim's Medical Bills

by Cara Cookson

State v. Thomas, 2010 VT 107

A new item has been added to the criminal defense practitioner’s “must-advise” checklist: restitution never comes off the table, no matter what the plea agreement says.  Here, the Defendant, (and presumably his attorney, understandably so,) assumed that he was pleading guilty to aggravated assault in exchange for eighteen to twenty-seven months in a furlough program.  The plea agreement was silent as to restitution.  Nonetheless, the Defendant is now on the hook for the additional $18,673 necessary to pay the medical expenses of the alleged victim, or at least he will be, pending remand.
The whole mess began when Defendant got into a serious tussle at a party.  After finding his ex-girlfriend in a bedroom with another man, Defendant and some friends busted in and started punching the would-be Romeo in the face and head.  Eventually, the fight ended up outside, and the Defendant punched and choked the victim until he passed out.  The victim spent four or five days at Dartmouth Hitchcock.