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


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.