Eats, Shoots and Hoards

By Craig Jarvis

Lay v. Pettengill, 2011 VT 127

Like so many people on reality TV these days, Plaintiff was a pack rat.  Unlike most hoarders, Plaintiff was a state trooper and over the course of three years, he gathered twenty-seven items from various criminal investigations and placed them in his desk.  Eventually, the fellows over in Internal Affairs caught on to Trooper Lay’s hoarding habit, and once they suspected something was amiss, they acted swiftly and decisively.  Without warning they suspended Plaintiff, revoked his access to the police barracks, and took away his badge, identification, gun, police cruiser, and keys. 

After recovering from the initial shock—which may best be described as the mental equivalent of being kneed firmly in a very sensitive part of the anatomy—Plaintiff began to reflect upon the memorabilia that he had collected over the years.  It occurred to him that it would have been smarter not to have placed a few of those items inside his desk. Shock quickly turned into panic.  Plaintiff tracked down a fellow trooper with whom he had always had a good relationship and explained his predicament.  “They” over at Internal Affairs, he said, would “like to make something ugly out of it.”  In order to avoid any ugliness, he asked his friend to remove a few items from his desk at the barracks and to get rid of them.  These items included marijuana pipes, rolling papers, and some pills taped to a piece of paper.  Forever after Plaintiff was adamant that he never asked anyone at any time to remove any actual marijuana from his desk. (One should pay close attention to this fact as it will turn out to be of momentous unimportance later on in the story.)

Of course the good trooper in whom Plaintiff had confided did none of the things asked of him.  Instead, he informed his superiors of Plaintiff’s requests, thereby landing Plaintiff in even hotter water than when he was just a hoarder. 

Over the next several months, Plaintiff adopted another change in strategy.  He now wanted to move on with his life, preferably somewhere far, far away.  When Internal Affairs put out its report of the thirty-seven counts of professional misconduct, Plaintiff agreed to tender his resignation.  He accepted eight weeks of severance pay.  The one thing he asked was that the state police not talk about any of this ugly business with anyone who might consider employing him.  With agreement in hand, Plaintiff—no longer a state trooper—took a new job and flew off to Iraq with a new lease on life.

If only things were so simple!  Unbeknownst to Plaintiff the State’s Attorney had caught wind of his request that items be surreptitiously removed from his desk.  Soon after he left for Iraq, the State’s Attorney charged him with two counts of obstruction of justice.  A warrant was issued for his arrest.  He lost his new job and had to return to Vermont.

Once back in Vermont, it seems that Plaintiff’s life spun out of control.  He did some things, which led to new charges of unlawful restraint and domestic assault.  After being released on bail, he did some more things, which led to more charges of violating an abuse-prevention order and violating conditions of his release.  This was the low point for Plaintiff.  But in the end things did not turn out as bad as they could have.  The State’s Attorney offered to drop all pending charges, including obstruction of justice if Plaintiff pled guilty to violating an abuse-prevention order and violating conditions of his release.  Plaintiff accepted the offer.

One would think that if Plaintiff had wanted to bring his troubles to the SCOV, he would have had ample opportunity to do so at any time during these events.  He could have sued the state police of wrongful termination.  He could have fought the criminal charges tooth and nail.  Plaintiff chose neither of these more direct paths to the Supreme Court.  Instead, he waited until they were resolved and filed suit against the state and his former superiors for fraudulent nondisclosure, violation of his civil rights and malicious process.  For what, you might ask.  (And you would be right to ask.)  The trial court—for one—could find no “what” to any of the claims and dismissed them in summary judgment.  It was only then that Plaintiff got his day before the SCOV.

Unfortunately, the SCOV could find no “what” to Plaintiff’s claims either.  Plaintiff was unhappy about two things. First, he thought that he should have been told about the possibility of a criminal prosecution when he agreed to resign from the state police force.  He assumed that by signing off on his severance, that he had also “resolving all issues” between himself and the state.  The SCOV points out that as the negotiations for his severance were conducted at arm’s-length, there was no duty to disclose any facts that might change Plaintiff’s negotiating position.  Even if there had been a special relationship that might give rise to such a duty, Plaintiff was not asking for a duty to disclose facts.  He was asking for a duty to disclose an opinion regarding his susceptibility to criminal prosecution.  No duty to disclose opinion was recognized by law, and it would not have been reasonable for Plaintiff to rely on such an opinion, even if one were given.  This was an ordinary severance agreement with nothing in it to suggest that the state was forgoing its right to charge Plaintiff with a crime.  To the extent that Plaintiff believed that his severance agreement would resolve any criminal matters between himself and the state, this belief was unreasonable.

Plaintiff also thought that the state was out to get him and should pay for it.  Unfortunately for Plaintiff, one cannot claim malicious prosecution if there was a prior finding of probable cause in the criminal matter.  In his case, the trial court had found probably cause for obstruction of justice when it issued an arrest warrant.  Moreover, Plaintiff had taken the affirmative step of moving to dismiss the charges for lack of a prima facie case, had lost that motion, and did not appeal it or the State’s original probable cause.  When that case became final, he lost the right to challenge any of that in the new action. 

To get around these legal hurdles, Plaintiff dusted off the seldom-used ursa panda defense.  For those of you who do not recall the ursa panda defense from law school, it arose from the famous case in which Lord Kelvin defended a former zookeeper against a demand (writ of replevin) by his former employer the London Zoo to return a panda bear.  “Your Honor, the Zoo cannot possibly be referring to my client’s panda bear,” exclaimed Lord Kelvin, “the writ says that ‘the panda bear eats, shoots and leaves.’  While my client’s panda bear eats a great deal, he has never shot anything and is more inclined to stay put rather than to go off and wander about.”  Lord Kelvin won his case, but Plaintiff was not so lucky.

Plaintiff invoked ursa panda to insist that the findings of probable cause might possibly be based upon false testimony.  The initial affidavit stated that investigators had removed, “marijuana pipes, rolling papers and a piece of paper with pills taped to it.”  The affidavit upon which probably cause was found stated that investigators had removed, “marijuana, pipes, rolling papers, and a piece of paper with pills taped to it.”  As you will remember, Plaintiff was always adamant that there had never been any marijuana in his desk, and that he had never asked anyone to remove marijuana from his desk.  He had been libeled by the addition of a comma.

The SCOV dismisses the ursa panda claim by pointing out that Plaintiff had not been charged with possession of marijuana, but with obstruction of justice. He had admitted to asking his fellow trooper to remove the other items from his desk after he knew that an investigation against him had started.  Plaintiff had had every opportunity to raise ursa panda in the course of the criminal proceedings and had failed to do so.  He could not raise it now.

The lesson here is that a good grammarian doth not a successful plaintiff make.