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. 

The Nelsons counterclaimed, asking the court to declare: (1) that they are the true owners of the property; and (2) that GMP's blast zone constitutes trespass. The Superior Court in a wondrous feat of judicial acrobatics ruled simultaneously that the Nelsons made a prima facie (legally valid) claim to the property, but that GMP was so invested in the project and so well-funded that the injunction should issue. So, this meant that a court order banned the protesters from entering the "disputed" lands which may very well be owned by the Nelson family. The reason was literally that GMP had a lot of money riding on it and that the Nelsons really never cared about that swath of land before GMP wanted to blast right next to it. The final decision on who owned the land would not be made by the court in time to stop the blasting.

Okay, now before you start in about how evil corporations are and all that jazz, I want you to brace yourselves because this is going to get a lot worse and it's not getting any better. Even though the Honorable Justice Dooley writes a scathing and yet enlightened dissent, there is no silver lining here. Seriously, if you are even a little outraged now, go take the dog for a walk or make a pot of tea because stress is a killer and you want to be relaxed for this next part.

The protesters remain on the land subject to the court order. The police arrest the protesters, cuff 'em, and they are all charged with unlawful trespass and booked. Here's the statute. The really important language is "actual communication by the person in lawful possession."
Now as you might have guessed, based on the underscore, the rest of this case will pivot on the term "lawful possession." The right of possession is the right to stand on the thing and to hold it. Ownership is the right to sell it and to decide who has the right to possess it. Of course, every landlord and every tenant understand the difference. No tenant believes they "own" their apartment and most landlords know that they do not possess the apartment while they rent it to a tenant.

The criminal trial focused on who actually owned the land where the protesters were arrested. The prosecution called but four witnessesa police officer, a corporate agent, a surveyor and a landowner. The police officer testified that the protesters really thought they were on the Nelson property. The GMP agent testified that the land was the land the court said the protesters had to leave. The surveyor didn't say much except that the survey report he conducted was true and accurate. And, Mr. Nelson testified he told the protesters they could be there and that was his land.

The defense moved for a judgment of acquittal at the end of the State's case (as any defense attorney worth her salt would do). The judge ruled that ownership wasn't at issue and who was in lawful possession wasn't clear, so the case was allowed to continue.

The defense then called an expert to testify that the Nelsons owned the property according to the surveyor's report. Also, two defendants testified that Mr. Nelson told them it was his land and that they could be there.

Finally the parties rested. They then argued over proper jury instructions. The defense's proposed instructions focused on actual ownership while the State's focused more on lawful possession. Remember the statute uses the term "lawful possession"? . . . Well, so did the judge, who accepted the State's proposed instructions.

The jury then went into deliberations and they deliberated and deliberated until they could deliberate no more. So then, the jury asked the court a question: “In Vermont case law, during a current property dispute, who is in control of property until the dispute is settled? Current owner, or person disputing, or both?”

Now, the judge responded by simply stating, "Go back an' deliberate 'til you figure it out." (Okay, so that's not an exact quote but it might as well be).

Finally, the poor jury, exhausted and confused, convicted the protestersall six of them.

The protesters appeal. On appeal the majority goes for the State and affirms the trial court's decisions on the jury instructions and the denial of the motion for judgment of acquittal. First, and foremost, the majority must state the standard of review: De Novo! Yes, it's "de novo" because whether the State was required to prove ownership beyond a reasonable doubt is a matter of law and SCOV reviews de novo on matters of law (for the laymen, de novo means "from scratch" or more literally from the Latin "the new"). After a prolonged recitation of the definitions of ownership and possession, which still remain murky, the SCOV decides that the injunction settled the issue and that even if the property was owned by the Nelsons, the court order gave GMP lawful possession. And, the jury instructions were fine. The majority concludes that the case should not be overturned in the interest of justice either because GMP had a lot of money at stake and the heinous criminals must be punished (okay, so I added that last part about punishment but the part about the money is really in there).

Now before you go smash your electric meter, remember it could get cold in a few weeks and you might need a space heater this August. Who knows, right?

One glimmer of hope for the civil libertarians and strict constructionists out there who find themselves oddly aligned against this decision is Justice Dooley.

Justice Dooley points out that "intent" is an element of unlawful trespass and that it was absent from the jury instructions. Well, except for when the judge told the jury "In the above elements, I have used the word intent or intention." In fact, the judge had not used the words before then in the instruction.

Justice Dooley also gripes about having a civil-boundary-dispute issue in a criminal trial. He seems to find this some kind of error but doesn't quite explain why. In the end, he concludes that since the jury was not instructed that they could find the defendants not guilty if the State failed to prove ownership, the convictions should be reversed.

Interestingly enough, Justice Dooley never mentions the injunction—leaving one to wonder why the majority made such a point of it. Didn't the court order decide with some finality who had lawful possession of the land at least for the time being? While the defendants have by now likely paid their debt to society, one question remains somewhat unclear after this decision. Who owns the land anyway? Isn't ownership and possession of land an absolute? How can land be owned by one person and possessed by another without permission? Isn't that trespass? If there is one takeaway from this case, it's that land is owned by whomever has more money tied to it. Forget property law 101, legal title, warranty deeds and fee simple absolutes, because the demolition doesn't end with your property rights, it goes all the way to due process and your right to be tried by a jury of your non-confused peers.

1 comment:

  1. "Forget property law 101, legal title, warranty deeds and fee simple absolutes, because the demolition doesn't end with your property rights, it goes all the way to due process and your right to be tried by a jury of your non-confused peers."

    Well said.