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:


(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.