Tuesday, January 11, 2011

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.

Two types of errors in the trial court’s instructions were raised on appeal.  First, the Commission argued that the trial court erred in defining harassment (the “definition argument”).  Second, the Commission argued that the trial court erred in requiring the jury to take into account the age of the persons engaging in harassment (the “contextualization argument”).  However, the SCOV refused to review either of these alleged errors.

Rule 51(b) of the Vermont Rules of Civil Procedure states that “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”  This mistake is often made by practitioners who object to jury instruction in conference but fail to preserve the objection on the record at trial.

Since Plaintiffs’ counsel failed to object to jury instructions on the “definition argument,” that issue was not reserved for appeal.  In fact, the SCOV points out that Plaintiffs’ counsel expressly agreed with the charge by stating, “I agree with your charge as written.”  

While Plaintiffs’ failure to preserve the definition argument for appeal is straightforward, the issues with preserving the contextualization argument for appeal should be heeded.  Plaintiffs’ counsel did object to the charge language that is challenged on appeal; however, the ground for that objection was different at trial.  At trial, Plaintiffs’ counsel objected to the language on the grounds that the language was derived from a U.S. Supreme Court Opinion on Title 9, not the public accommodations act or Vermont’s statute.  The SCOV held that this objection was “totally different” from the contextualization argument, and thus the contextualization argument was not preserved for appeal.

The lesson: vague or general objections to jury instructions are insufficient to preserve specific issues for appeal.  Instead, an attorney who wishes to object must do so by stating “distinctly the matter objected to and the grounds for the objection.” 

Plaintiffs’ final argument, to avoid application of V.R.C.P. 51, claimed that the trial court committed “plain error” in the jury instructions.  The SCOV did not find this argument persuasive.  The limited application of plain error in civil cases—when appellant raises a claim of deprivation of a fundamental right—was not implicated since the outcome of the appeal did not bear on Plaintiffs’ access to education but on their receipt of damages for past harm.  In holding that the outcome of the appeal would not implicate a fundamental right, the Court did not reach whether deprivation of access to public education may, in a different situation, involve a fundamental constitutional right and require plain-error review.  That issue remains to be decided. 

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