Monday, December 16, 2013

Sex and the Wild Mushroom

It is that time of year again when all good attorneys head north to big city to enjoy a weekend of network, shopping, and CLEs.

That's right it's time for the annual Young Lawyer's Mid-Winter Thaw in Montreal.  But listen up, there a few things to know about this year's festival in La métropole:

1.  The thaw is a week early this year.  It is January 10th and 11th instead of MLK weekend.  So turn back your clocks, and get your reservations in now (before the reservation window closes and the early bird specials fly south)!

2.  The YLD board has gone out of its way to put together a killer programs of CLEs, including the ever popular real estate seminar from First American Title.  (I know, we lawyers are a dangerous breed).

3.  The brunch speaker is Cardy Raper, lady scientist, biologist extraordinaire, and raconteur par excellence. She is the reason for the title above and has promised to bring the down and dirty on how the fungi get it on.  (Funk music to be provided.)

4.  The Thaw remains the best place for Vermont lawyers both young and old to meet, mix, and mingle.  More than any other VBA event this is the networking opportunity of the year.  But it only works if YOU attend!

5.    $129 rooms per night!!  Ten years ago, rooms for the thaw were $145.  The YLD has not only kept the price down, they have actually negotiated a lower rate.  That means it is actually cheaper now to go to the Thaw than it was ten years ago.  That simply does not happen.  And yet . . . your wallet tells the tale.

6.  The Thaw is at the Sheraton smack dab in the middle of Montreal and a block away from St. Catherine's Street.  The world does not get much better or easier than this.  

So what are you waiting for?  Sign up here and now for the best way to start 2014.

Sunday, December 15, 2013

It’s a Hard Rock Life

By Sara Puls

In re Ferrera & Fenn Gravel Pit, 2013 VT 97

Life on the quaint streets of Middlebury can apparently be unforgiving—that is, when you want to open a new gravel pit.

This case all started when applicants submitted a proposal to construct a sixteen-acre gravel pit on their 71.5 acre property, adjacent to Route 116 in the Town of Middlebury.  Close to the proposed pit lie residential communities, as well as several other existing “gravel-extracting” sites.  Applicants’ property lies within both the Medium Density Residential (MDR) (where gravel extraction is not allowed) and the Forest Conservation District (where gravel extraction is permitted as a conditional use).  

While applicants’ proposed pit lies entirely within the Forest District, the access road from Route 116 crosses the MDR zone.  As a “mixed-zoning” district, the Design Review Board (DRB) consequently subjected the proposal to conditional-use review under a provision of the Town’s zoning regulations.

In October of 2008, the DRB conducted a site visit and later held public hearings for ten days in August of 2010.  The following month, the DRB issued a written decision, concluding that the proposed project failed to comply with eight provisions of the Town’s zoning regulations.  The DRB cited adverse effect on the character of the neighborhood, the noise-performance standard, and concerns of the cumulative impact of an additional pit in the area.  Thus, the DRB opinion concluded the new pit would “disrupt the balanced diversity of uses currently in place and will disturb the essential character of the existing neighborhoods.”  With that, the application was denied.

Saturday, December 14, 2013

Amendments 5 and 4, Where are You?


State v. Sullivan, 2013 VT 71  

On a cold January night, a police officer was driving down the road when he passed a car stuck in a snowbank, partially off the road.  A short distance later, he saw a solitary woman walking down the road.  The officer stopped and offered the woman a ride.  She accepted and explained that the car was hers and that she had become frustrated and pulled off the road after a fight with her boyfriend.

After dropping the woman off, the officer called in to report the car off the road and his delivery of the woman to her home.  Another on-duty police officer then arrived at the car and went through the glove box to confirm that the car belonged to the woman.  The officer who gave the ride also went back to “the scene” and informed officer #2 where he had dropped the driver.  

Let’s stop a moment and take note of what officer #2 knew and could reasonably suspect at this point.  A woman had driven a car into a snowbank in the winter and gone home.  There is no indication that there was damage to either the car or property.  The SCOV notes that part of the car was on the travelled portion of the highway.  If this constituted a safety hazard, it would seem the officer could have it towed.    

The important thing is that at this point, there was no evidence of criminal activity.  Moreover, it is arguable, under Vermont caselaw, to say that there was no “articulable, reasonable suspicion” that a crime had occurred.  Therefore, applying the SCOV’s precedent, the officer had no basis for the subsequent detention of Ms. Sullivan.  As Vermont law notes, “An investigatory detention must be supported by reasonable suspicion of criminal activity.

Friday, December 13, 2013

“Bye” now—pay later

Windham County Sheriff’s Dept. v. Dept. of Labor, 2013 VT 88


Roll up your sleeves, folks.  Today’s case is a technical morass of terminology and Department of Labor-speak.  It gets going quick.

Let’s start with the logistics.  Plaintiff Employer is a “reimbursable employer,” which means that instead of paying an unemployment tax, it pays into the unemployment trust fund for payments that are chargeable to it.  Generally, this means payments to former employees receiving unemployment benefits from the fund will be reimbursed by the responsible employer. 

In this case, employee was fired for “theft of department equipment.”  (We speculate that involved more than taking home some paperclips and pens, though the SCOV doesn’t specify.)  After he was fired, employee applied for unemployment benefits.  The Department of Labor (DOL) found that employee had been terminated for gross misconduct and disqualified him for benefits until he earned an additional six times his weekly benefit amount.  The DOL noted, however, that the Employer would still have to pay any chargeable benefits.

We Control the Horizontal


State v. Tuma, 2013 VT 70

Don’t call it a rollback, but today’s case marks the first time in a long string of probable cause cases where the SCOV has been skeptical and dismissive of a police officer’s basis for an initial stop to support the suppression of the events that followed. 

Cynics take note.

The facts are simple.  Police Officer stopped Defendant because the passenger’s side of Defendant’s front license plate was two inches lower than the driver’s side.  From this stop, the Officer noticed that Defendant was a bit hoary-eyed and ran him through the usual roadside coordination Olympics.  Defendant took bronze for effort, and things ended where they mostly do with an arrest and charge of DUI.

At trial, Defendant sought to suppress all evidence of the stop because the Officer lacked probable cause.  The State opposed. 

Wednesday, December 4, 2013

What’s the Magic Word?

By Sara Puls

State v. Green Mountain Future, 2013 VT 87

It’s like the old song says:


Put 'em together and who do you vote for?

. . .

Magic words often have a specific, and sometimes unintended, effect. They are often nonsensical phrases, used in fantasy fiction, requested by parents in response to ill-mannered children, and certain comic book heroes use magic words to activate their super powers. Here, “vote for,” “elect,” “support,” “cast your ballot for,” “Bob for Congress,” “vote against,” “defeat,” “reject,” or any variations thereof, were traditionally the eight “magic words” set forth by the United States Supreme Court to open the gateway to the magical world of Express Advocacy-land (which the SCOTUS locates somewhere between Tomorrow-land and the Enchanted Forest).

Here in Vermont’s mystical land of politics, today’s case is an appeal of a summary judgment decision of the trial court, which found that, even without saying the magic words, Appellant opened the door to Political Action Committee-land, and thus, violated a number of provisions of the Vermont campaign finance laws during the 2010 election.

In the 2010 general election, then-Lieutenant Governor, Republican Brian Dubie was running for Governor against the Democrat Peter Shumlin.  An “issue advocacy organization” (almost entirely funded by the Democratic Governors Association) registered with the IRS pursuant to 26 U.S.C. § 527 with a stated purpose, “to communicate with the citizens of Vermont about economic, environmental, and other issues of importance without expressly advocating the election or defeat of any candidate.”

In September and October of 2010, this organization ran television ads staring, non-other than, Dubie as the champion of the ever-so-popular Vermont Yankee Nuclear Power Station.  In an attempt to skirt PAC status and Vermont campaign laws, the ads did not mention the upcoming election for Governor, nor Dubie’s candidacy, and it did not urge voters to vote for a particular candidate.  Rather, they just portrayed Dubie as a simple, VT Yankee-loving guy, who merely hates Vermont and wants everyone to burn in a fiery nuclear disaster.  You know, we report, you decide stuff.

Tuesday, December 3, 2013

Well, Isn’t It Obvious?

State v. Waters, 2013 VT 109


Today’s lesson in semantics comes to us via a conviction for violation of a relief-from-abuse (RFA) order. 

Complainant and defendant lived together for several years and had a kid together.  At some point, there was trouble in paradise, and complainant got a RFA order against defendant.  The final order, as modified at the time of defendant’s charge, prohibited defendant from “abusing, threatening, stalking, or harassing complainant” and also prohibited contact with complainant except by telephone.   The order also allowed for phone contact with the parties’ kid on Friday evenings and in-person contact at a visitation center. 

Complainant reported to the police that she felt “harassed, bullied, and made to feel guilty” by the volume of communication from defendant.  He’d apparently texted her nearly forty times and called her over thirty times during a one-month period. 

So the State charged defendant with violating the harassment portion of the order, which due to this being his second violation of a RFA order, was a big, fat felony. 

Mandatory Participation

Knutsen v. Dion, 2013 VT 106


Today’s Ask the SCOV™ letter is inspired by a home-purchase transaction.

Apprehensive Association writes:

Dear SCOV:

If we provide a form for our members’ use, can we be held liable for consumer fraud when our members modify and use that form in a transaction?

Dear Apprehensive:

Nope. 

(At least in this case.)
                                                                        —The SCOV


In reality, though, it’s hard to know what to make of this case.  Essentially, it’s a consumer-fraud case against a non-party (to the underlying transaction), who provided a form to its membership that was eventually turned into the parties’ purchase-and-sale agreement.

Monday, December 2, 2013

Expert Exclusion Error?

State v. Scott, 2013 VT 103


This case arises from a car accident.  On his way to work, defendant—with several coworkers in his truck and at some speed above the posted limit—passed a coworker’s vehicle and collided with a third car.   The driver of that car died from injuries; defendant broke his leg.  Defendant was charged with grossly negligent operation of a motor vehicle, death resulting.     

A deputy sheriff—certified as an accident reconstructionist by some fancy police organization—investigated the accident and did some on-site testing, which included drag-sled (a weighted sled used to measure drag on surfaces) testing and a bunch of math stuff.  He concluded defendant was driving at 61 miles per hour, and so testified at trial.

Of course, defendant tried to keep that testimony out, filing a pretrial motion to exclude under Vermont’s “what-is-an-expert-exactly . . .” rule—Vermont Rule of Evidence 702.  The trial court denied defendant’s motion.  And so at trial, the coworkers in defendant’s truck testified and defendant had his own expert testify that the state’s expert was full of pre-processed sandwich meat.  The jury acquitted defendant of grossly negligent operation, but convicted defendant of negligent operation. 

Pesky Preservation

Straw v. Visiting Nurse and Hospice of VT/NH, 2013 VT 102


Plaintiff worked for the Visiting Nurse Association and Hospice of Vermont and New Hampshire (VNA) as a licensed Advanced Registered Nurse Practitioner for a number of years.  After an incident in which a patient’s family member made a complaint, plaintiff was fired.  Do not pass “Go.”  Do not collect $200.    

There was an employee handbook that had some discipline guidelines.  For those not familiar with Vermont employment law in general, here’s the 20-second, grossly oversimplified summary: employment is, by default, “at-will”—this means that unless the parties enter an employment contract, an employee can leave at any time for any reason, and an employer can give an employee the boot at any time for any reason (other than an illegal one).  If, however, there’s an employee handbook with policies, those policies can give rise to an implied employment contract.  In other words, the employer doesn’t get to say “here’s what we’re gonna do,” but then say “um, we changed our mind—see ya.” 

The basic result of this law is that employers constantly generate employment material with the big bold words “This is not a Contract.”  Much like Magritte’s “This is not a pipe,” such language can be a treacherous conceit.

No review for you!

Inman v. Pallito, 2013 VT 94


Do you remember the soup Nazi from Seinfeld?    

This is a short opinion based entirely on procedural grounds.  Plaintiff is an inmate who was kicked out of the Incarcerative Domestic Abuse Treatment Program (InDAP).  At the time, he was serving a twenty six-month to eight-year sentence for aggravated assault and escape.  Participation in InDAP, along with meeting other requirements, can help an inmate get early, supervised release.     

When plaintiff was coming up on completion of his minimum sentence, he requested a telephone hearing for visitation with his kids upon release.  He got the hearing.  At the hearing, he asked his wife—the complainant in his domestic-assault case—to be quiet and let him tell his side of the story.  He also accused his wife of lying.  Plaintiff contends that he was polite and well-behaved throughout the hearing. 

An account of plaintiff’s behavior at the hearing made its way to the InDAP coordinator and plaintiff was placed on probation.  Plaintiff was booted from InDAP six days later on the bases that he “continuously justifies abuse towards his partner and blames others for his actions,” he “is just going through the motions to get through the program,” and he had “another person call his victim of record after being placed on probation for abuse towards her during the court call.”

Crime and Punishment?

Carpentier v. Tuthill, 2013 VT 91


Let’s jump to the heart of it. 

Plaintiff lived with her grandchildren in a subsidized apartment complex.  She contacted a salvage company to see if it would buy her totaled car.  The owner of the salvage company showed up personally, told plaintiff he would buy the car, and left.  When he returned to pick up the car, he propositioned plaintiff.  He then called plaintiff twenty times over the next several days. 

Owner returned to plaintiff’s apartment and offered her $200 for sex.  Plaintiff refused and asked him to leave, which he eventually did.  Plaintiff reported the behavior to the police.

The next morning, plaintiff found Owner in her apartment.  He grabbed her breasts and ground against her.  Plaintiff believed he was going to rape her.  When she finally broke free, Owner told her that when he returned, she would have sex with him for money. 

Owner was arrested and charged with numerous crimes based on these events.  Before arraignment on those charges, Owner killed himself.  This ended the criminal action, but plaintiff sued Owner’s probate estate in civil court for assault and battery, false imprisonment, and intentional infliction of emotional distress. 

At the beginning of the case, the parties agreed to a prejudgment writ of attachment, subject to defendant’s opportunity to challenge it later—how that works we’ll find out later. 

Juvenile Justice Juxtaposition


In re D.D., 2013 VT 79

Children-in-need-of-supervision (CHINS) proceedings are complicated.  The stakes are high; the standards of proof and admissibility of evidence vary from hearing to hearing; and the legislature overhauled the applicable statutes within the last five years, making a great deal of so-called “juvenile law” widely open to interpretation. 

That’s just my personal opinion, of course. 

In this case, the trial court found D.D. to be CHINS because he was without proper necessary medical care.   D.D. was born with a serious medical condition, which required significant regular medical treatment.  Based on concerns about the parents’ ability to properly care for D.D., the Department for Children and Families (DCF) petitioned for a CHINS finding as to D.D.  Based on affidavit from a DCF worker, the trial court granted an emergency transfer to DCF custody, held a temporary-care hearing the next day, and continued DCF custody based on a finding that returning D.D. to his parents could result in substantial danger to D.D.’s health. 

It’s all in the way you look at it . . .

In re Hoch, 2013 VT 83

Today’s case begins several years ago when Petitioner was charged with aggravated stalking based on his surreptitious viewing and photography of a thirteen-year old girl in her bedroom.  After the arrest, the police got a warrant and searched petitioner’s house.  That search led to five counts of possession of child pornography. 

Following his arraignment, Petitioner filed a motion to dismiss the aggravated-stalking charge on a theory that the State can’t make a prima-facie case, arguing that the stalking statute required contemporaneous fear or emotional distress on the part of the victim.  The trial court denied the motion.  Petitioner filed a motion to suppress the incriminating evidence, which the trial court also denied. 

Subsequently, Petitioner pled (or “pleaded” depending on your pedantic preferences) guilty to one count of aggravated stalking and two counts of child pornography.  He received a mostly suspended sentence but violated his probation and ended up in jail. 

Understanding “Use”

State Farm Mutual Automobile Insurance Co. v. Colby, 2013 VT 80

Today’s case is brought to you by the letters A, B, and C because using anything other than these basic letters (that is the proper insurance terminology) to describe this case’s issue would render the whole deal confusing and awkward (kind of like my high school years). 

At any rate, the question before the SCOV is whether an omnibus clause in an insurance policy provides coverage for a person in the middle of a car-loaning triangle.  Put another way: A loans car to B; B, in turn, loans car to C; C, in turn, gets in an accident.  Is B covered under the policy for a negligent-entrustment claim against B for loaning the car to C?

The underlying story, using the A-B-C designations, is as follows.  On the day of the accident, defendant (B) picked up decedent (C) who was hitchhiking.  Eventually, they met policyholder (A) at a McDonald’s, where C asked A to use her car.  In response, A asked B whether B was sober and licensed.  B said he was.  A gave B the keys to A’s car with no restrictions.  But there seemed to be an unarticulated understanding that C, who had been drinking and had had a number of alcohol-related driving charges, would not be driving the vehicle.  A said something about needing to get some boxes out of the trunk.  B gave C the keys so C presumably could go sit in the car and listen to the radio (and maybe help with the boxes—this isn’t clear).  C just got in A’s car and drove off.    
 
B saw C a couple times later in the day; at one point B told C he shouldn’t be driving and to return the car to A immediately.  Eventually, C drove into a telephone pole at a high rate of speed and died instantly. 

Resented Representation


In re AB and AB, 2013 VT 66

The biggest mistake that pro sers make is assuming that the court hearing is the time to develop their case.  They sally forth and stumble through the hearing, figuring that if they can just keep going, they will get the right words out at some point.

In reality, court is the last place you want to explore or develop your case.  Court time is short and precious.  The judge or jury has short attention spans and little innate sympathy for your situation.    The sooner you can get the key evidence to them and the more effectively you can do this, the better your chances of success are. 

I am not Sam


In re BC, 2013 VT 58

In the movies bad situations exist largely to provide motivation for the plot: single father with mental disabilities tries to raise his child as a single parent; he struggles against the system but calls upon his pluck, eccentric circle of friends, and love of the Beatles to overcome the odds.  Even though the child is given to a foster home, everyone recognizes that she belongs with him, and in a sudden dénouement, she is returned.  Cue the swelling music. 

In real life, adversity exists in and of itself.  Bad things happen to good people, not to provide them with a way to “meet-cute,” but because we live in a universe in which chaos and nonsense battle order and structure on a regular basis.

Thursday, November 7, 2013

Poker Face



State v. Kenvin, 2013 VT 104 

Today’s case provides a compelling look into a prevalent problem in our society today—that of our callous disregard for the safety of our neighbors when we get behind the wheel of a car.  It also demonstrates the frustrations experienced by, and the sentences issuing from, our judiciary when confronted with tragedy, which resulted from carelessness, and highlights an issue that I address in my criminal law class—the difficulty presented by situations involving negligence, as a criminal mental state combined with a tragic outcome.  

But today’s major holding isn’t about any of that. Instead, it’s about how much restriction on liberty prior to conviction or imposition of sentence constitutes “custody” for purposes of a convicted defendant receiving “credit” toward a sentence.  In other words, today’s case is a criminal defense practitioner’s dream.

Waiver of Service?


Rollo v. Cameron, 2013 VT 74

This is a pro se appeal from a final relief-from-abuse order.  Despite defendant–appellant’s putatively valid claims of improper service, the SCOV majority affirms.    

Plaintiff filed a complaint “to extend an existing relief-from-abuse order against defendant issued a year earlier based on threats that defendant would kill plaintiff when released from prison.”  Plaintiff didn’t show for the final hearing and the original order expired.  A few days afterward, plaintiff filed another complaint on the same basis, explaining that a death in the family caused her to miss the previously scheduled final hearing.  Defendant was [allegedly] served with the paperwork and notice of hearing in prison by a prison official.  Defendant [allegedly] refused to sign the acceptance of service.  The prison official’s return of service made it into the court’s file.  

[S]low Rider—Rides too Slow!

Fagnant v. Foss, 2013 VT 16A

The SCOV reverses itself—now there’s something you don’t see every day. 

Regular readers will recall the first opinion in this case, which is summarized here.  In that opinion, plaintiff–appellant more or less “won” a reversal and remand on an erroneous jury instruction.     

The sole issue this time around is whether the appeal was timely filed.  The SCOV concludes that it was not and dismisses the appeal. 

We’re on your side (for the time being)


GEICO Insurance Co. v. Bernheim, 2013 VT 77

You know those commercials insurance companies put out—the we’re-on-your-side-and-we’re-always-there-for-you types of ads?  I’m going to guess those are ruined for the defendants in this case.

Subrogation is an interesting and sometimes complicated concept.  It’s basically the idea that when an insurance company pays their insured and someone else is at fault, the insurance company has a right to collect from the at-fault person.  Because the right to recover flows from the insured, the insured has an obligation not to settle away the insurer’s right to recover; consequently, if the insured does settle away the insurer’s rights, then the insured is responsible for paying back the money the insurer paid the insured in the first place under an implied trust.

This case is an illustration in how this concept can work—or not work, depending on your perspective.

Subtle Discoveries


Clarke v. Abate, 2013 VT 52.

In September 2000, today’s Plaintiff, a 16-year old high school athlete, developed a hip injury playing soccer that caused her groin pain.  For the purposes of today’s case, we’ll call our Plaintiff, Teenager, even though she is now in her late 20s.

Teenager sought the help of Defendant Doctor, an orthopedic surgeon at the University of Vermont’s medical school.  Teenager’s parents initially went with her to her visits with doctor, but after the first few visits, Doctor told Teenager that she didn’t need her parents there.  Teenager continued to see Doctor weekly, alone, and sometimes after hours.  Oddly, there are no records of some of these visits.  Over the course of these many visits, Doctor slowly managed to convince Teenager that he was the only one who could help her.

The relationship migrated into the nonprofessional zone in late 2001 when Teenager began babysitting Doctor’s children.  Doctor paid Teenager an unusually high rate for her services, gave her his personal contact information, let her drive his car, and allegedly made “inappropriate comments” to her about his family.

Worsening Heights


Smith v.Wright, 2013 VT 68

The abuse and exploitation of people who cannot adequately care for themselves is a heinous and grotesque state of affairs.  It erodes confidence in our community, causes elected officials to enact laws and expend resources to enforce those laws, and it is just plain repugnant.

In today’s case, Defendant (our would-be “Heathcliff”)—who is 20 years older than Plaintiff (our “Catherine”)—appeals the trial court’s “relief from abuse” order, which order prevents Defendant from having contact with plaintiff for two years.

Plaintiff, we should also mention, is a 19 year old who was born deaf and who, as a result, had some amount of developmental delay.  During all times relevant to this case, Plaintiff lived with her parents.

Monday, October 28, 2013

Charitable Bias


McCormack v. Rutland Hospital, 2013 VT 59.

Today’s case is an example of how not to get a disfavorable verdict set aside for juror bias.  In 2005, Plaintiff went to the emergency room at the Hospital with appendicitis.  Hospital’s doctor misdiagnosed Plaintiff.  As a result his appendix ruptured, requiring emergency surgery, and Plaintiff suffered post-surgery complications.

Plaintiff tried to sue the pants off hospital and the doctor who misdiagnosed him.  Hospital hired a prominent local firm, to defend.  The case was eventually scheduled for a jury trial in December 2011. 

Among the eager citizens awaiting their chance to take unpaid time off work to be given a number and herded like so much reasonable cattle into the voir dire and jury empaneling in October 2011 was one taciturn Juror R, a public relations coordinator for Central Vermont Public Service (“CVPS”).  As we shall see, Juror R’s quietude, her occasional experience coordinating charitable food and blood drives for CVPS, and both Hospital’s and Hospital’s attorney’s tendency to give to charity, form the basis of this appeal.

13 Paragraphs to View a Plea


State v. Mutwale, 2013 VT 61

Some law simply has a limited shelf life. 

Today’s hot button issue is tomorrow’s resolved dispute. 

When the SCOV dedicates decision after decision to flushing out an area of law, one result is that the uncertainties go away and the challenges become fewer to the point where the succeeding challenges are left with little ground and quickly dissolve in short and brief decisions. 

About eight years ago there was a substantial issue about plea bargains, collateral consequences, and non-citizens.  The federal government had adopted statutes and regulations that revoked a non-citizen’s immigration or naturalization status if he or she was convicted of a violent crime. 

What constituted a violent crime was somewhat ambiguous.  Murder, certainly, but certain domestic assaults were also included.  Other crimes, if they demonstrated violent actions, might also bring around the federales. 

Saturday, October 12, 2013

Wouldn’t It Be Nice?


State v. Johnstone, 2013 VT 57

This is a case about exasperation and its consequences.  Life under the constant supervision of a probation officer is frustrating. But you have to be careful what you say, lest a few improvident words require a divided Vermont Supreme Court to undo the consequences.

Like every person in Vermont who spends time on probation after committing a crime, the defendant in today’s case was subjected to a standard condition—known as “Condition M”—that is almost refreshing in its brevity:  “Violent or threatening behavior is not allowed at any time.”  This defendant explicitly agreed to live with Condition M, because he accepted it as a part of a plea deal (in connection with what the Court merely characterized as “several charges stemming from different incidents”).

Three months later, defendant stood accused of various probation violations and he appeared in court for arraignment.  The arraignment was testy but otherwise uneventful, in contrast to what occurred thereafter.  Defendant left the courthouse and, just outside, got into a shouting match with his ex-girlfriend in which, among other things, he yelled that his probation officer was “going to end up in a body bag.”

Unfortunately for the defendant, just then his probation officer happened upon the scene, having left the building from another entrance.  Although there was no evidence that defendant had any idea the probation officer was within earshot, he found himself formally accused of violating Condition M.  He admitted to the facts and appealed the conviction.

Inherited Impacts


Hausermann v. Hausermann, 2013 VT 50

Today’s case is a brief addition to the ever-growing area of law covering spousal support and the need for modification when one spouse receives an inheritance.

Let’s go to the facts.  Husband and Wife divorced in 2006.  Wife was awarded $6,300 per month for 15 years from Husband for spousal support to ensure that Wife could maintain her then-current lifestyle.  This amount was reduced when Husband’s illness reduced his income.  By 2010, however, Husband was on the mend, and Wife filed to reinstate the full support payments.  Husband filed to end them all together.

Fibrous Threads Among the Gold


In re Moore Accessory Structure Permit and Use, 2013 VT 54.

Here is a chapter in the long-running debate about the future of Vermont.

Landowners in today’s case own almost a thousand acres of land near Woodstock that is dedicated to a variety of agriculture uses.  There is an orchard, a sugarbush, pasture, and forest land.  But at issue is a ten-acre parcel where the family owns and now operates a sawmill, a drying kiln, and a large wood planer.

Neighbors opposed this operation and appealed to the trial court when the local ZBA granted the Landowners a permit for the wood planer (it must be some planer).  Neighbors also appealed the Town’s failure to seek enforcement against Landowners for various alleged zoning violations.

The trial court upheld the Town’s position, and the Neighbors appealed to the SCOV.

A New Lease on Depreciated Life


In re Colchester Leased Lands, 2013 VT 48

Sit up and take notice! 

Today’s case is about property tax, the grand list, and the limits, if any, that a town is bound by in appraising property. 

While the immediate question is a fairly narrow one—whether a town can consider location and other factors when appraising a house located on leased land (that is a situation where the owner of the house does not own the land underneath)—the larger implications should be considered by every property owner in Vermont.

Let’s start at the top.  The homeowners in today’s case own camp buildings in Colchester on or near Lake Champlain.  The land underneath is owned separately and rented to owners on a long-term basis.  The situation is known as leased lands.  For years, the owners of these buildings have been taxed by the Town because a statute denominates these leased land buildings as real property (as opposed to personal property).  During this time, the Town looked only at the value of the building in terms of replacement value, which depreciated over time.

One Appraisal over the Line


Vanderminden, A Family LTD Partnership v. Town of Wells, 2013 VT 49

What is a municipality to do? 

By law, municipalities are obligated to regularly assess the value of all property located within their geographic limits.  This includes property that lies across town lines.  The law also says a municipality must appraise all contiguous property held by a single owner as a single parcel—unless that property lies across town lines.  For those parcels, there is no rule.  So for generations town listers have looked at the portion in their town, assigned a value based on a variety of internal principals, and moved onto the next parcel. 

In today’s case, the listers looked at the .09 acres of land that Plaintiff owned.  This sliver was actually a small tip of a larger parcel located in the next town.  Useless by itself, the listers looked at what value it gave the parcel in the next town (it was the larger parcel’s lake frontage), and based on the town’s guidelines for such frontage, the listers eventually determined this sliver to be worth $122,000.

What is a taxpayer to do?

Prickly Property “Purchase”?


Kellogg v. Shushereba, 2013 VT 76

This case is a mess.  And that’s exactly what the SCOV majority says at the outset, but the SCOV says it prettier.  The dissent actually comes right out and call it what it is.     

Plaintiff owns a house and land.  That’s the simple part.    

In the late ‘90s Plaintiff entered a $180k rent-to-own agreement regarding the house and land with some guy who’s not a party in this case.  Said guy’s girlfriend moved in; girlfriend is Defendant here.  After about five years, it seemed that guy and girlfriend would be co-owners at the end of the deal.  Defendant came up with a $40k+ “down payment” toward the purchase price.  Once the already-paid rent got added in, there was a balance of a little under $100k.

The parties entered into an agreement where the deed went to Defendant (guy had tax troubles), guy agreed to pay taxes, Plaintiff took a mortgage, and nothing got recorded

Oops.    

Potential Parole Push

In re Blow, 2013 VT 75

Unfortunately for Petitioner, the fallout from an ex-post-facto misapplication of law isn’t necessarily radioactive in the legal sense.    

Petitioner pleaded guilty to three counts of lewd and lascivious conduct and was sentenced to three-to-eight years in prison.  While Petitioner was in prison, the legislature enacted a delayed-release statute that the DOC applied to Petitioner’s convictions to extend his minimum sentence.

Petitioner successfully challenged the extension of his minimum sentence with an ex-post-facto claim, and the Department of Corrections (DOC) corrected his sentence.  Petitioner’s current claim is that the corrected application delayed his participation in required pre-release programming, which effectively denied him a chance at parole once his minimum was complete.    

Tuesday, September 10, 2013

Tax Troubles


Travia’s Inc., and Mellion v. State of Vermont, Department of Taxes, 2013 VT 62

Someone once said that the only things certain in life are death and taxes.  This case, to a degree, disproves the latter.  The Department of Taxes gets to “guesstimate” taxes when business records are questionable. 

Taxpayers, husband and wife, own and operate a small bar and grill as an S-corporation (which means that only the profits passed to the owners are taxed; this is known as a pass-through basis in the trades).  The records they kept were not exactly impeccable.  In fact, there were some—perhaps a lot of—discrepancies.  The Department of Taxes (Department) audited the corporation and found an outside-the-norm cost-of-goods-to-gross-receipts ratio.  During its investigation, the Department found some discrepancies between cash-register receipts and handwritten accounts.  Long story short—according to the Department, something didn’t add up.     

So the Department assessed additional taxes for three years on meals and alcohol based primarily on its determination of appropriate cost-of-good-to-gross-receipts ratios.  Taxpayers requested an administrative hearing, which did not go in their favor.  An appeal to the civil division ensued, where the trial court upheld the assessment.  And . . . yep, you guessed it . . . that’s how we end up at the SCOV.   

Construction Conversion Conundrum

Birchwood Land Company, Inc. v. Ormand Bushey & Sons, Inc., 2013 VT 60

If this case were a play, it would begin something like this:

Developer: Contractor stole sand!  Burn Contractor alive!

Contractor: Developer owes money!  Burn Developer alive! 

Judge: Ugh.  Contractor, you owe Developer for the sand plus prejudgment interest.  Developer, you have to pay Contractor what you owe plus prejudgment interest on that amount.  Neither of you get attorney’s fees.  No punitive damages.  Now go home.

Contractor: I shall appeal this injustice to the SCOV!

Developer: As shall I!

SCOV: Uh, yeah, sorry, but we’re pretty much with Judge on this one.

Look—I never said I was a playwright.  Let’s fill in the blanks a bit, shall we? 

A Crack in the Armor

State v. Betts, 2013 VT 53

Let’s just title this piece with a horrid pun, shall we?

Defendant was charged with felony possession of crack cocaine after a state trooper stopped a vehicle where Defendant was a passenger.  The trooper took Defendant to the barracks for a “consensual” strip search.  The trial court denied Defendant’s motion to suppress, and Defendant entered a conditional guilty plea.  The SCOV reverses on appeal, concluding that Defendant’s so-called “consent” was coerced by the trooper’s threat to unlawfully arrest Defendant.  Bravo, as I for one have trouble believing anyone would willingly agree to go to the barracks with a trooper for a strip search . . . . that is unless it was the plot of some Cinemax late movie where the trooper was also playing smooth jazz saxophone.     

Here’s the skinny: a confidential informant (or “CI” for short) told a state trooper that he had seen “White Steve” and a black dude with a lot of crack.  The timing was unclear, and additional details, beyond the type of car Steve was driving, were scant, but the trooper testified that the CI had provided reliable information in the past.

Bewitched, Bothered, and Besieged


State v. Senna, 2013 VT 67

Today’s case demonstrates the importance of humility in criminal law.  If we should start with a moral, let it be this.  If you have cranky neighbors and you are involved in illegal activity, be nice to your neighbors and discrete in your interactions. 

Some may also view today’s case as another effort by the SCOV to thoughtfully balance several interests, including:

·         The rights guaranteed by the State and Federal Constitutions with the public’s right to be protected from the evils of marijuana (assuming for the moment that they exist);
·         The ability of police to avoid needless, and potentially dangerous, interactions with citizens by accessing available information;
·         The sanctity of the home and our right to be free from government intrusion with the compelling governmental interest in prosecuting low level marijuana dealers on the other.  

It’s really all about perspective, isn’t it?

Friday, September 6, 2013

Just Do the Hokey Pokey


State v. Stokes, 2013 VT 63 

Remember the Hokey Pokey? 

There are conflicting theories about the origin of the song and accompanying dance, but the key to all versions is that the dancers must follow the lyrical directions in order for it to flow.  Today’s defendant started out on the right foot, but things quickly fell apart for him when he stopped following directions from the court.

Defendant was charged with unlawful trespass stemming from a domestic argument with an ex-girlfriend.  During the dispute, defendant continued to stand with one foot in and one foot out of her car, ignoring her numerous demands that he exit the vehicle—at least until he heard approaching police sirens.  Although defendant insisted that he was never in the ex-girlfriend’s car at any point, the jury concluded otherwise and found him guilty of unlawful trespass.  So he put his right foot in, he put his right foot out, and after trial, defendant stood with one foot in a jail cell.

At this point, the trial court shook things all about. 

Flying Solo


Preston v. City of Burlington Retirement System, 2013 VT 56

Score one for the Pro-Ser

Plaintiff worked for the city of Burlington as a firefighter for over a decade.  He filed for and was awarded disability retirement by the City’s Retirement Board due to chronic back pain.  (Those hoses are really heavy.)

A couple years later, the City sent him a questionnaire, which he filled out and returned.  Plaintiff indicated in his cover letter that he was gonna learn to fly.  City then asked him to take a functional capacity medical exam.  Plaintiff wasn’t able to make the first appointment the City set up for him.  He sent a letter, though, noting that he was entitled to five years disability, regardless.  The City kicked it over to its attorney’s office, which terminated Plaintiff’s benefits, but indicated that it would reconsider the decision should Plaintiff submit to a functional capacity examination. 

Scheduling proved problematic, but after the retirement administrator threatened to permanently revoke Plaintiff’s benefits, he was able to schedule an appointment in Texas.  He did not complete a couple of the tests due to fear of injury.  The evaluator discussed this issue with the retirement administrator by phone.  The evaluator also noted that Plaintiff’s concerns were “valid and reasonable” in the notes section.  The evaluator concluded that Plaintiff could not perform the essential duties of a firefighter due to his physical limitations, but that he could pilot a plane.