Saturday, June 28, 2014

Professionalism Pondered

Whittington v. Office of Professional Regulation, 2013 VT 93

By Andrew Delaney

This case is about nursing home administration—it’s a bit of a “dos and don’ts” with an emphasis on the don’ts.

Respondent was a nursing home administrator at a nursing home for four years. It seems as though she was not a lot of fun to work with.

The State “alleged that respondent committed a host of specified acts that amounted to unprofessional conduct.” After ten days of hearings before an administrative law officer (ALO), the ALO issued a lengthy written opinion, finding the State had met its burden of proving the following instances of unprofessional conduct: (1) interfering with medical diagnoses and treatment on at least three separate occasions—or conduct and practice outside the scope of her ability and training; (2) kicking the ombudsman out of the facility and threatening to call the police; (3) requiring patients to dress against their wishes; (4) creating a hostile work environment; (5) interrupting nurses regularly during medication passes; and (6) showing deficiencies in two annual surveys (which are basically inspections).

Saturday, June 21, 2014

Delivery Driver Dues

863 To Go, Inc. v. Dept. of Labor, 2014 VT 61

By Andrew Delaney

You’ve got to pay to play. So says the Vermont Employment Security Board with some backup from the SCOV.

Here’s an interesting business model. Start a corporation that offers food-delivery services from area restaurants that don’t have their own drivers. But try not to actually “employ” drivers. Instead, have drivers go through an independent agency, use their own cars, and let them choose whether or not to take an assignment. The logistics aren’t particularly complicated—the bottom line is that “approved drivers”—approved through the third-party agency—have access to the delivery provider’s website and can pick up assignments as they see fit. 

Wednesday, June 18, 2014

Having a Blast!

State v. Gillard, 2013 VT 108

By Ember S. Tilton

This explosive decision from the Supreme Court of Vermont really shakes the pillars of the most fundamental facets of our system of law. Property . . . who owns it? Well, that is the question isn't it? Here, Green Mountain Power (GMP) the power giants of Vermont take on a group of would-be Davids who refused to back down. No epic saga in history displays such dramatic disparity in power, yet the story here is as old as the hills being blasted. Spoiler alertGoliath wins this round.

GMP had a deadline to begin work on a wind project if they were to collect certain federal monies. A small group of activists threatened these millions by remaining in the blast zone at the Lowell wind projects. Some land owned by the Nelson family was within the blast zone. The protesters took up camp on this portion of the Nelsons' property in the blast zone to make sure that if blasting were to occur they might get hit by large pieces of flying rock. Now, that's dedication! But, rather than blast with protesters dangerously close by, GMP sought a preliminary injunction (that's lawyer speak for an emergency court order) in civil court. 

Sunday, June 15, 2014

Five Hundred! (And One)

Yesterday marked a SCOV Law milestone: five hundred posts! Christopher A. Davis, one of our more-recent additions to the roster, gets the dubious honor of being post number five hundred's author.

As always, we'd like to thank you, our loyal readers, for tolerating and encouraging our shenanigans.  We hope you all keep reading and tell your friends as we muddle our way toward one thousand.  If past experience is any indication, that'll happen in three years and nine months.  

Just a few friendly reminders on this momentous occasion: citing SCOV Law summaries in court documents without further research is malpractice.  Keep SCOV Law out of the reach of pets and small children.  Not to be used as a flotation device.  Do not eat SCOV Law.  Always test SCOV Law in a hidden area before using on entire garment.  Do not use SCOV Law if you are pregnant or nursing.  If ingested, seek immediate medical attention.  Use only as directed.  May cause headache, nausea, or dry mouth.

Saturday, June 14, 2014

Jail Doesn’t Make You Unavailable; You Make You Unavailable

In re D.S. & In re M.H., 2014 VT 38

By Christopher A. Davis

That seems to be the overarching message from the SCOV in this opinion, to the extent such a message can be discerned.

This case involves an appeal by two fathers of a trial court’s decision to terminate their residual parental rights to their two minor children. The mother of both children had voluntarily relinquished her parental rights to both children prior to the final termination hearings.

Dog Bites and Duties

Martin v. Christman, 2014 VT 55

By Andrew Delaney

There’s a concept in dog-bite cases that’s colloquially called the “one-bite rule.” What it means is that a dog owner isn’t negligent unless the dog has bitten someone or another animal in the past or previously shown some tendency to be aggressive and dangerous. It’s not a very lovable rule at times, though it’s the rule in a majority of states.

It’s the only thing considered by the SCOV in this case, though it’s never identified by its colloquial phrasing. The facts of this case are sad, and the SCOV, for what it’s worth, seems almost reluctant in concluding that the rule applies.

Friday, June 13, 2014

Taking the "High" Road

State v. Rennis, 2014 VT 8

By Scott R. Williams (with research and assistance from Katia Alcantara, VLS 1L intern).

Today’s case teaches us that Article 11 protections of the Vermont Constitution do not reach the acts of federal government officials operating under federal law in the state of Vermont. In reaching this conclusion, it seems Vermont’s vibrant history of state sovereignty goes out the window.  But I digress.  

Mr. Rennis was driving on Interstate 91 in Hartford, Vermont. The U.S. Border Patrol has established a semi-permanent presence theresome 110 miles away from the nearest U.S. border, but who’s counting those pesky miles as long as we are safe from bad people coming across our borders. State’s rights people will go out of their minds on this case.

Monday, June 9, 2014

And I Am the Water Boy . . .

In re L.M., 2014 VT 17

By Merrill Bent

This case involves a now nearly-four-year-old child known as L.M. In 2013, when the child was about to turn three, DCF filed a petition alleging that L.M. was a child in need of supervision (CHINS).

Soon after the petition was filed, the trial court assigned temporary custody to L.M.’s paternal grandmother. The mother agreed that, because of her own drug use and homelessness, the child was CHINS. The father disagreed.

A merits hearing was held a few months later, at which the trial court heard testimony from the DCF social worker assigned to L.M.’s case and from the paternal grandmother. Neither parent appeared at that hearing.

Culture Clash

In re Towne, 2013 VT 90

By Merrill Bent

It’s important to have standards, and that’s what this case is all about. The issues revolve around Vermont’s Innocence Protection Act, which allows convicted criminals to obtain DNA testing under certain circumstances.

The petitioner in this case was convicted in 1989 of murdering young Paulette Crickmore after kidnapping her on her way to school. His conviction was affirmed on appeal, and at least ten requests for post-conviction relief have all since been denied. In 2011, the trial court rejected the petitioner’s request for mitochondrial DNA testing of hairs found on the victim’s body. Because the petitioner asserted that his ex-girlfriend’s son was guilty of the crime, he requested that the son’s DNA also be tested.

Sunday, June 8, 2014

Risky Business

In re Lowry, 2013 VT 85

By Andrew Delaney

As a general rule, post-conviction-relief (PCR) complaints based on ineffective assistance of counsel can be tough sells. In prison, “everybody” is an amateur lawyer, and “everybody” got screwed over by his or her trial lawyer. It’s easy to be a Monday-morning quarterback. That certainly doesn’t mean that there aren’t legitimate gripes, but often it’s a take-it-with-a-grain-of-salt proposition.

The facts of this case don’t need any seasoning—trial lawyer probably made a mistake or three.

Here’s the deal: petitioner lived with his girlfriend (who later became his wife, then became his ex-wife and whom the SCOV, as will we, calls “witness”) and their two young children. Their infant daughter was hospitalized with head-trauma injuries. Petitioner “was charged with two counts of first-degree aggravated domestic assault for allegedly causing the child’s injuries.”

Saturday, June 7, 2014

Instant Interest Implied

Richard v. Richard, 2014 VT 58

By Andrew Delaney

When you take a close look at this case, and realize that it’s an appeal over $373.30 in interest, you just have to squint your eyes and scratch your head—or at least I do.

Husband and wife were divorced pursuant to an unappealed final decree. The order required husband to pay wife $11,500 before a certain date. Four days after that date, wife filed a motion for contempt and enforcement. Husband opposed the motion, arguing that he’d initiated the process to get the money to pay wife, it was in the works, and that was all that was required by the order. Plus, he said, a qualified domestic relations order (aka QDRO or “quad-ro”) takes time to complete.

Permits and Preclusion

In re Hale Mountain Fish & Game Club, 2014 VT 54

By Andrew Delaney

A shooting range (Hale Mountain) and a riding center (neighbors) might not be the most synergistic enterprises to have right next to each other. This case’s subtext kind of hammers home that point, even if the opinion is primarily about a zoning permit’s issuance.

So—the SCOV first notes that this is neighbors’ “fourth appeal to this Court from various proceedings involving their complaints challenging the operation of Hale Mountain Fish and Game Club.” When the SCOV notes that it’s the fourth appeal on the same general issues in the first sentence of its opinion, you can read the writing on the wall. Neighbors will not be winning this round.

Hale Mountain has been a shooting range for 65 years. “Over the years, Hale Mountain made numerous improvements to the property without obtaining either zoning permits or permits under Act 250, which became law in 1970.” Neighbors bought adjoining property in the late ‘80s. In the ‘90s, Hale Mountain and the neighbors talked about working out things like shootin’ times and frequencies, but they weren’t able to. So they started litigating and they’ve never stopped. 

Friday, June 6, 2014

Eminent Domain, Ultra Vires, and Adverse Possession Walk Into a Bar…

Old Railroad Bed, LLC v. Marcus, 2014 VT 23

By Nicole Killoran

Get ready to dust off your nineteenth-century-property-law hats, folks, cause this case is chock-full of neglected old cases about rail beds, public trails, adverse possession, eminent domain, and railroad corporations venturing outside the realm of their existential purpose.

The property in question is a strip of land between 50 and 82 feet wide in Manchester. The property was cobbled together in 1902 from neighboring landowners and conveyed in three deeds to the Manchester, Dorset & Granville Railroad Company (“MD&G”). Before it took title, the MD&G conducted and recorded a survey to determine where the line would be. MD&G laid tracks and used the line mostly to transport marble for about ten years. MD&G quit using it in 1918, revived it in 1924, and dismantled it in 1934. MD&G sold to Vermont Marble Company, who merged with OMYA, Inc. in 1992. In 2009, plaintiff Old Railroad Bed, LLC bought the property from OMYA to build a public recreational trail.

No Go

In re Bruyette, 2014 VT 30

By Nicole Killoran

Remember In re S.C.? Earlier this year the SCOV determined that appointed counsel cannot withdraw from representing parents in a termination of parental rights appeal even if he sees zero chance of success without making frivolous arguments. Essentially, the SCOV told the Defender General to suck it up and give it a go because it is important for parents to be represented in termination cases, even if it’s only to tell the Court how unfair it was to take the parents’ kids away.

Today’s case provides the SCOV with another chance to hack away at the contours of this relatively new doctrine, in the criminal context. It also presents an opportunity for the SCOV to clarify its 2009 opinion in In re Bailey, where the SCOV was presented with similar procedural facts. The result is a review standard for State-funded counsel’s decision to not pursue an appeal for post-conviction relief (PCR) when counsel thinks it would be ethically frivolous to do so.