Monday, February 24, 2014

Proper Punishments


Ying v. Heide, 2013 VT 81

Raising children requires a certain amount of tact and discretion.  What works for one child will not for the other.  One of the magic devices that parents often employ is the five-count—“I’m going to count down from five, and before I get to zero, you better be upstairs.”  But the trick of the five-count is that the child has to understand what zero means and the consequences it implies.  It also requires the proper circumstances.  When the child is overtired, intractable, and unable to separate emotion from process, you don’t want to start counting.  It’s not fair to you or to the child, who simply can’t comply.  In those cases, you just grab the kid, give them a hug, and carry them upstairs. 

The issue in front of the SCOV today is not so different.  In 2012, Plaintiff sought to eject her ex-husband from property that she owned and had leased to him.  The Defendant disputed the terms of the lease and filed a set of counter-claims.  The case was scheduled for a preliminary status conference in June 2012, but attorney for plaintiff asked the court to move the hearing to July.  The trial court re-set it for July 5th, but then plaintiff and her attorney failed to appear.  At the hearing, counsel for defendant asked that the case be dismissed and withdrew his counterclaims.  The trial court granted the motion, largely as a punitive measure toward plaintiff’s counsel for failing to attend.

Sunday, February 23, 2014

King of the Road


State v. Gorton, 2014 VT 1

Not only are cigarettes bad for your health, they’re very expensive. 

Defendant worked as a night manager for a grocery store for two years.  He did not smoke “old stogies that [he had] found,” but he did find some lost credit cards in the store.  He got caught using one of them that had been reported stolen, and confessed to a litany of sins—including stealing multiple cartons of cigarettes over eighteen months.  His first estimate was eight cartons a week, but he later revised that number downward.  

Eventually he was charged with one count of embezzlement and four counts of fraudulent use of a credit card.  More specifically, he was charged “with embezzling cigarette cartons from ‘on or about March 1 to August 24, 2010.’”  He pled (pleaded if you like your legal terms to sound like an unfortunate pant-style) guilty to all charges, and got a mostly suspended sentence with a whole lot of “pushin’ broom.” 

Saturday, February 22, 2014

Too Close for Comfort

by Sara Puls

Herald v. City of Rutland, 2013 VT 98.

Sometimes the law just makes so much sense! Turns out, police officers, employees of the public variety, can’t watch porn at work and expect to keep it private.  What a concept!  But don’t worry; the Vermont Public Records Act will still protect your private, intimate, public employee details from public disclosure—just not that intimate.

Here are the facts.  In 2010, a Rutland Police Sergeant was fired in the wake of a criminal investigation involving suspected viewing of pornography and child pornography on work computers, some of which may have been obtained from evidence lockers.  The Rutland Herald immediately launched an investigation and quickly learned that throughout the last decade, other police officers had been investigated and disciplined for using department computers to view pornography at work.

The Herald requested from the City, per Vermont’s Public Records Act which requires public entities to provide access to public records, the complete records from a 2004 internal investigation into police employees and subsequent disciplinary actions, as well as discipline records of two employees from the Department of Public Works for violating the City's internet usage policy.

Democracy Rules!


Anderson v. State of Vermont 2013 VT 73

We all expect a certain level of red tape in our democratic system.  The joke that bureaucratic process follows us throughout our lives and possibly beyond is neither new nor unique.  At the same time, there can be little doubt that rules and regulations serve an important purpose and are often crucial to maintaining an orderly and efficient system. 

But when political power concentrated in the hands of one or two competing factions, this type of regulation may¾either in fact or mere appearance¾be used to disadvantage those not in power. 

It’s a familiar story.

Friday, February 21, 2014

Sundown, You Better Take Care


Cate v. City of Burlington, 2013 VT 64

If you could kick the person in the pants responsible for most of your trouble,
you wouldn’t sit for a month. —Theodore Roosevelt

Today’s case is about personal responsibility, and the moral of the story is: just because no one tells you that you can’t, doesn’t mean you should.

Plaintiff was the Waterfront Manager of the Parks and Recreation Department for the City of Burlington, and as such, was in charge of overseeing the daily operations of the city-owned Boathouse on the Burlington waterfront.  Soon after plaintiff’s supervisor, the Superintendent of Park Operations, left the Department to work at City Hall, plaintiff moved into his old office, and subsequently gained access to his email account by correctly guessing the password (statistics suggest that it was either “password” or “123456”).  Plaintiff accessed the account approximately six times over the course of a few months.

Plaintiff soon upped the ante, and started accessing another coworker’s email account after discovering that it was not password protected.  He accessed that account approximately eight times.  Plaintiff apparently found something of interest, because he printed selected emails and shared them with the Department Director under the pretense that he had simply found them sitting atop the office printer.

The jig was soon up and, realizing that Plaintiff had been accessing other employees’ email accounts, the City’s Human Resources Department placed him on paid administrative leave pending further investigation.  Plaintiff lied to the investigator, maintaining that he found the emails on the office printer.  Plaintiff later claimed that he lied at the behest of his immediate supervisor. 

Monday, February 10, 2014

File Under: Declining Standards

Big news over the weekend as our humble SCOV Law Blog was called up to the big leagues.  We are now officially listed in the American Bar Association's National Blawg Directory. We  join the ranks of other national and regional blogs such as our neighboring New Hampshire's Injured Biker Law Blog and Pennsylvania's bluntly named Ask a Question to a Philadelphia Criminal Defense Attorney.


You can view our listing here.


As you might expect, we at SCOV Law took the weekend to celebrate:

  

Saturday, February 1, 2014

One of these is not like the other


In re Harwood, 2013 VT 89

Getting one’s name on an abuse registry is easier than you might think.  Getting one’s name off the registry once it’s on there can get complicated.  The usual process is a clandestine operation of administrative law that plumbs the murky depths of process and agency discretion.

It begins with a request that leads to an agency investigation and is followed by a determination letter.  If the letter is unfavorable, you can appeal that determination by asking for an independent review.  At that point, you receive a redacted copy of the investigation file.  The (so-called) independent reviewer then makes a determination based on what the reviewer had for breakfast that morning.  One can then appeal to the Human Services Board and get a copy of the unredacted file and a full hearing if necessary.  If this fails, then one goes to the SCOV.

Now, keep in mind, that’s the usual course.

Brushing Up


State v. Lawrence, 2013 VT 53.

Lay people who derive their understanding of the legal system from television dramas (for the record, I personally include Judge-Judy-style reality shows in that category) assume that litigation is somehow exciting, and full of passion and brilliant legal maneuvering.  The reality is, the vast majority of litigation is really quite boring, as today’s appeal of three obscure evidentiary issues demonstrates.

In 2009, defendant was charged with lewd and lascivious conduct with a child.  Defendant’s complainant, a 14-year-old girl, claimed that defendant grabbed her breast and buttocks, then told her he would shoot her if she told anyone.  Though this fact doesn’t appear in the SCOV’s decision, the impression is that this was something of a high-school romance between senior and freshman gone very, very wrong.

Before trial, the State gave notice that it intended to introduce evidence that defendant had brushed complainant’s bosom a year previous to this incident.  Defendant filed a motion to suppress this evidence.  The State moved to exclude evidence that complainant had previously lied about being pregnant.  The trial court denied defendant’s motion, and granted the State’s.  At trial, the jury found defendant guilty. 

Defendant filed a motion for a judgment of acquittal and a motion for a new trial.  The court denied both motions.  Defendant then discovered that complainant had posted to her MySpace page that she “wasn’t really sexually assaulted, I was just doing it for the attention.”  Defendant moved for a new trial, and was denied.  Defendant appealed.

Three Days of the Probate


State v. Zorn, 2013 VT 65.

Ever felt like the world is against you?  So does today’s defendant, who takes grand delusions to a whole new level.  He also brings new meaning to the phrase “the dangers of practicing probate law.”

Defendant was the subject of a contested estate matter brought by his brothers through their attorney, Herbert Ogden.  On March 30, 2011, defendant marched into Attorney Ogden’s office, demanded money he believed was owed him, punched Attorney Ogden, and tried to place him under arrest.  After being asked several times to leave, defendant finally stalked out.  Attorney Ogden called the police.

That same day, the police pulled defendant over.  Defendant immediately got out of his car, walked toward the police, and ignored their commands to get on his knees and then lie prone.  The police tased him, then took him into custody.

Steal Away


In re RM, RM, and CM, 2013 VT 78

Today’s case might be entitled the appeal that wasn’t there.

RM, RM, and CM are siblings who have had it rough.  Originally raised in Winooski, the three became subject to a child in need of supervision (CHINS) petition.  This process was suspended when they left the state with their mother who moved them all to Pennsylvania.  Things did not work out well, and the three were sent back to an adult brother in Vermont.

Crapshoot


State v. Cahill, 2013 VT 69

Things are a little different in the Northeast Kingdom of Vermont.  As a wild and picturesque section of the state boasting farms, woods, and very little infrastructure, the disputes that arise and fuel the docket in Essex County are always going to be unique. 

So it happened that today’s defendant had a long-running feud with his neighbor concerning manure.  Defendant is a vegetable farmer, and he had long complained that his neighbor, a dairy farmer, in the process of spreading liquid manure on the dairy farmer’s fields was also spreading the liquid gold onto defendant’s vegetable crops. 

The record indicates that much shouting and flared tempers over time eventually gave way to a DMZ-type pact where the dairy farmer promised not to drive the spreader more than halfway across his fields where they bordered defendant’s vegetable gardens.

This truce held until July 1, 2010 when dairy farmer instructed his field-hand to spread the manure on the fields.  Dairy farmer warned the field-hand about the dispute with defendant and the terms of the DMZ.  Field-hand, however, strayed a bit into the zone, which infuriated defendant.  Defendant ran to the field-hand and pulled out a .45 caliber pistol.  Defendant aimed the gun at the field-hand and cocked a shell into the chamber.  After a few seconds, defendant turned the gun away from the tractor and fired into the woods. 

The Trouble with Taxes


Franks v. Town of Essex, 2013 VT 84

This is a property-tax-appeal case.  I’m primarily a litigator.  I don’t do real-estate or tax law.  Save your angry comments for our esteemed Editor at the next VBA event. 

The majority’s introduction to this case is as follows: “These cases raise the question of how non-rental residential properties subject to housing-subsidy covenants should be valued for property-tax purposes.  Let’s try to figure that out together, shall we?        

There are two cases.  In both, the taxpayers argue that under the applicable statute, they’re entitled to an automatic reduction in valuation for tax purposes because the properties are subject to housing-subsidy covenants.  The towns argue that the housing-subsidy factor is, well, just a factor.   

Taxpayer one owns an affordable-housing unit in Essex, subject to a housing-subsidy covenant.  After an assessment came in high, taxpayer one appealed, and the state appraiser concluded that in this case, the housing-subsidy covenant didn’t affect value.  Taxpayer one appealed.   

Taxpayer two’s situation is more complicated, but the quick version is that her house is subject to a housing-subsidy covenant.  She leases the land her house sits on from a land trust and pays the taxes pursuant to a 99-year lease.  The trust appealed an assessment on her behalf, and the state appraiser reduced the assessed value to match the previous year’s assessment but didn’t explain the basis for the calculation.  Town appealed.