Monday, October 27, 2014

Bail, Briefly

State v. Campbell, 2014 VT 113 (mem.)

By Andrew Delaney

Those of you that read a lot of SCOV opinions know all about the “rocket docket” opinions. (This is also a sure sign that you need to get out more.) They’re usually written by a three-justice panel and emblazoned across the top there’s a big ol’ warning that reads: “Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.” Yep, it’s in italics too. Now, when I saw that the SCOV had begun this opinion by citing an unpublished memorandum opinion, I had a “gotcha” moment. I looked up the opinion, and lo and behold, it’s a four-justice opinion with the warning conspicuously absent. So there goes my whole goose-gander analogy.

At any rate, Mr. Campbell was on probation, got charged with violating it, and went directly to jail. He did not pass GO; he did not collect $200. He was held without bail. Though his merits hearing on the violation began a few weeks later, it didn’t finish and the continuation of the hearing was scheduled out about a month-and-a-half later. Mr. Campbell filed a motion to review bail in the meantime and the trial court more or less said, “Nope, already explained all that at arraignment. And the motion doesn’t change anything.”

Errors: Sometimes They’re Harmless

State v. Wilt2014 VT 114

By Elizabeth Kruska

On the day after Christmas in 2011, Maureen Wilt invited her neighbor over for dinner. They cooked, they had wine, they ate, and when they were done, Mr. Neighbor (we don’t know his name) went on his merry way back home. Then Maureen called up another friend of hers, maybe around 8:00. The facts of this are a little confusing, but it seems like Maureen wanted to go visit the friend but he didn’t want her to come over. She showed up anyway, knocked on the door, and somehow ended up falling down a flight of stairs, hitting her head, and becoming unconscious. The friend, Mr. Rondeau, asked his son to call 911I’d assume because there was an unconscious, bleeding lady in his basementand before help arrives, Maureen gets up and drives away. Mr. Rondeau thought her driving seemed fine.

If I may interjectunconscious and bleeding while lying at the foot of a flight of basement stairs seems a little inconsistent with competent driving ability a few moments later. I’d have been concerned with that, but perhaps they weren’t able to stop her from driving. I don’t know.

Tuesday, October 21, 2014

What We Talk About When We Talk About Due Process

Hogaboom v. Jenkins, 2014 VT 11

By Andrew Higley

In the most recent installment of delinquent-tax-sale gone wrong, SCOV makes sure to put the “due” in “due process.” The question in this case is the classic procedural conundrum of how much process is due. The Court’s answer: quite a bit. SCOV held that when a notice of tax sale is sent with return-receipt requested, and is returned to sender unclaimed, due process requires a little extra push in order to be sufficient. Also, that process is due before the tax sale itself, and not anytime before the ultimate transfer of title. Result for the unfortunate buyers in this case: instead of getting a bargain-basement deal, plaintiffs bought themselves a lawsuit.

Deprivation by the State of a person’s life, liberty, or property requires due process, which even property owners who don’t pay taxes are entitled to. The reason? Evade the taxman long enough, and a town can sell your property through an auction to satisfy any delinquencies, a.k.a. "tax sale." In a case of great significance to these sales, SCOV set out to answer, how much process is the defendant due? And, when is it due? 

Sunday, October 19, 2014

In Burlington, Vermont, Single-Family Dwelling Lot Subdivides You

Regan v. Pomerleau, 2014 VT 99

By Christopher A. Davis

Landowner wishes to add apartment to single-family home in Burlington, as well as subdivide the property into two lots. Predictably, lots of folks get upset about it, cases proceed to both Chittenden Civil Division and the Environmental Division, courts say, “You’re good, go for it,” everyone is still upset, appeals follow to the SCOV, SCOV says “Nah, you’re still good, go for it.” The end.

But let’s dig deeper for purposes of this qualifying as a helpful summary. Overlake Park Development Corporation creates the lot at issue in 1955. In 1961, the lot is sold to DeForest Reality with a covenant restricting use to “one dwelling for a single family dwelling unit.” By its terms, covenant expires in 1995. In 1965, DeForest sells lot in question to the predecessor-in-interest of landowner (let’s call landowner “applicant” from now on). In 1987 applicant purchases home and lot.

Friday, October 17, 2014


State v. Felix, 2014 VT 68

By Elizabeth Kruska

If cleanliness is next to godliness, then truthfulness must be right up there, too. When witnesses go to court to testify they raise their right hands and swear to tell the truth, so help them God.

All we have when witnesses swear to say what’s true is their oath that what they’re saying is true. But sometimes witnesses don’t exactly have truth-telling as a high priority. (Ha! Puns! See below.) You see, people will sometimes choose to say something other than what’s true if it means serving his or her own ends. How many kids have told their parents they’re going to the library when they’re really off to do something infinitely more fun? (Answer: all of them)

Sometimes the truth is far more serious though, like in a felony trial when the only people who know what happened are the defendant and a witness. That’s what happened in this case.


CitiFinancial, Inc. v. Balch, 2013 VT 86

By Elizabeth Kruska

As mundane as a mortgage feels, it’s a big responsibility. It’s the securing of debt to land. Land is expensive because it’s finite. In the wise words of Tony Soprano, “God ain’t makin’ any more of it.” Not everybody can pay the full amount of the purchase price in cash, so they’ve got to borrow money from a bank. If they can’t repay the money, the bank can come in and foreclose on the land.

Sometimes people who have land or who want land also have guardians to help with their affairs. SCOV takes a pretty clear stand in saying that the Vermont guardianship statutes are a bit of a mess. They use the word “hodgepodge.” That can’t be good. We had some statutes, and they got revised, but that might have made things more confusing. There’s also a rogue outlier guardianship statute about mortgages that’s not even in the same chapter.

The long and short of it, though, is that a guardian is charged with the duty to act in the ward’s best interest (I know it’s called a “person in need of guardianship” now, but that’s too long to type and “PING” seems confusing when “ward” is the word we all already know). The guardian’s powers are set forth by the probate court. They can be limited to certain powers or they can include a whole range of powers. The point is that the powers are specified by the court and tell the guardian what he or she is allowed to do. Or not do.

Saturday, October 4, 2014

You Can Keep Your Genes On...

State v. Medina, 2014 VT 69

By Hannah Smith

In a landmark decision, the SCOV has deemed a section of Vermont’s DNA collection statute to be an unconstitutional invasion of personal privacy under the Vermont Constitution. The section of the statute at issue amends 20 V.S.A. § 1933(a)(2), and mandates DNA collection and analysis from anyone arraigned for a felony. In several recent trial-court cases, criminal defendants challenged the constitutionality of the amendment. The trial courts hearing those cases found, across the board, the language at issue to be unconstitutional. In this consolidated appeal, the SCOV affirmed the rulings of those trial courts, finding the recent amendment to be in violation of the Vermont Constitution. Take that privacy-rights infringers!

As a point of (significant) interest, the U.S. Supreme Court was faced with a similar case last year, and found warrantless, suspicionless DNA collection from individuals arrested for violent crimes or burglary to be perfectly legal under the Fourth Amendment of the U.S. Constitution. From the outset, the SCOV makes very clear that its ruling only pertains to the statute’s constitutionality under Article 11 of the Vermont Constitution, which has been found to provide greater protection than its federal counterpart. In addition to the heightened protection provided by the Vermont Constitution, the SCOV also found the statute in this case differed substantially from the Maryland DNA-collection statute on which the SCOTUS ruled. 

A Question of Character

In re Katherine Pope, 2014 VT 94

By Timothy Fair

How important is the character of the individual representing your legal interests?

When most people think about the arduous journey of becoming an attorney, the first hurdle that leaps to mind is the dreaded bar exam. Lesser known to the general public are the understated, but arguably more important, requirements of character and fitness. While each state has its own ideas as to what constitutes “good character,” honesty, integrity, and candor to the tribunal are pretty much universally accepted as essential personality traits for any would-be barrister. In this case, we have a unique opportunity to see precisely why this is. As an added bonus, we also get the chance to see firsthand that what constitutes really bad decisions for an attorney in New York also constitutes really bad decisions for the same attorney in Vermont.

At issue is whether the Vermont Supreme Court should impose the identical two-year suspension from the practice of law that was levied against the respondent by the State of New York. Before we can address this question, however, a little background is necessary.