Tuesday, November 25, 2014

Deck, Deck, Use

In re Carrigan, 2014 VT 125

By Elizabeth Kruska

One of my favorite songs is “Go Back To Your Trailer” by the brilliant young country singer/songwriter Kacey Musgraves. The chorus goes (in part):
Keep your two cents
On your side of the fence
Girl, we ain’t friends, we’re just neighbors
This reminds me of a lot of the permitting and zoning dispute cases we read from SCOV, although the case opinions tend to be more full of words and less full of slide guitar. (Note to SCOV: more slide guitar, please. Although, I’m not sure how to make that happen.)

Anyway, as best as I can tell, this is the problem faced by the Carrigans. They bought a camp on or near Lake Champlain in the town of Addison sometime during the Reagan Administration. The camp is located fully within 100 feet of the shoreline, and under the Town’s bylaws, is a “nonconforming structure.” Whether the camp was there first or the rules were there first, I’m not sure. I’m guessing the camp predates the bylaws.

Sunday, November 23, 2014

Bail, Brought Back, Briefly

State v. Campbell, 2014 VT 123 (mem.)

By Andrew Delaney

Last round, Mr. Campbell got the SCOV to order an immediate bail-review hearing. This round, Mr. Campbell doesn’t fare so well.

As you may or may not recall, Mr. Campbell was charged with violating his probation. The underlying charge was violation of an abuse prevention order. When, months later, a different complainant applied for and was granted an abuse-prevention order, Mr. Campbell was charged with violating his probation. He was arraigned and ordered held without bail, which means he ended up in some state-subsidized Hotel California style housing. When he asked to review bail, the trial court just said that it had explained why he was going to be held without bail at arraignment and that was that.

So he appealed, and if you’re a regular reader, you know what happened: the SCOV ordered an immediate bail-review hearing. Here’s a link for you slackers.

Money Can’t Buy Me Love

Goodrum v. Vermont Dept. of Taxes, 2014 VT 128

By Andrew Delaney

But its pursuit can help qualify one for a tax exemption. Also, if I was a pirate I’d want my last name to be Goodrum, but that’s neither here nor there.

The Goodrums own just over 40 acres, and all but two acres is enrolled in Vermont’s Use Value Appraisal Program. The two acres at issue (presumably) house Turtle Hill Farm, a nonprofit corporation operating an animal sanctuary, funded almost entirely by donations. The Goodrums started Turtle Hill in 2008, and they provide most of the donations. The Goodrums lease four barns and two sheds to Turtle Hill for the taking-care-of-the-rescued-animals thing.

A few years back, the Goodrums applied to enroll the leased-to-Turtle-Hill sheds and barns in the Use Value Appraisal Program (UVA), which would exempt the buildings from property taxes. The Vermont Department of Taxes’ Division of Property Valuation and Review (PVR for short) found that the buildings were ineligible. The Goodrums appealed to PVR’s director, who found the same. The Goodrums then appealed to the superior court, and both parties went for summary judgment. PVR got it, with the superior court ruling “that the buildings are not eligible for enrollment because [Turtle Hill] does not operate for gain or profit” and doesn’t meet the statutory definition of farmer.

Tax law is weird. 

Friday, November 21, 2014

Slut Shaming: Don’t Do It

State v. Groce, 2014 VT 122

By Elizabeth Kruska

Sometimes SCOV takes an entire paragraph to call out some bad behavior. This is one of those times. Good on you, Chief Reiber. It’s not cool to call someone a slut. Just don’t do that. Don’t.

The thumbnail version of the story is this. Complainant (not Slut, as perhaps the State’s Attorney would prefer she be called) and her boyfriend Jason went out for drinks in downtown Rutland, and then ended up at a party at the home of some friends. Complainant and her boyfriend got into an argument because he was talking to other people at the party. He decided to cool off and walked home, leaving her there.

After he left, she went into a bedroom and made some phone calls, and then fell asleep. Her story is she woke up later to find a man who she did not know, performing oral sex on her. According to her she got up, ran into another bedroom and told the people at the party what happened. Then she got a ride home and her boyfriend took her to the police station and the hospital.

Friday, November 14, 2014


Kevin Barrup (Marilyn Barrup, Intervenor) v. Tammy Barrup, 2014 VT 116

By Elizabeth Kruska

Normally, we pare down the case name to its bare necessities, but with this case the long form seemed, you know, appropriate.  Now, before anyone makes a “meddling mother in law” or “helicopter parent” comment, let’s start with Justice Skoglund’s concurring opinion to explain why we even are where we are.

It’s really really rare that a third party can intervene in a divorce case. Generally speaking, spouses have the right to fight their own battles when they get divorced. If courts let third parties in as intervenors with any regularity, already-acrimonious situations could get completely out of control with all sorts of third parties wanting to get involved, court-wise. Justice Skoglund made a nice 5-point test to help figure out if someone could properly intervene in a divorce.

Even then, if a third party can intervene, it doesn’t mean they should or that the court should let them. The scope has to be really narrow and really limited. If a third party has a property right that is somehow going to be infringed upon as a result of a divorce order, then it is possible the third party could intervene to make sure his or her property rights are preserved. Due process and all that good stuff.

Sunday, November 9, 2014

Duty to Defend

State of Vermont v. Prison Health Services, Inc., 2013 VT 119

By Elizabeth Kruska

On August 14, 2009, a young woman reported to serve a jail sentence at Vermont’s correctional facility in Swanton. On August 16, 2009, she died. It came to light that she had a medical condition that required her to have potassium supplements, and that she didn’t get them while incarcerated.

This case isn’t exactly about that, though. It’s about whether Prison Health Services (PHS), the contract health provider in 2009 has a duty to defend the State in the lawsuit that followed, relative to this young woman’s death. The trial court said no. SCOV disagreed.

Here’s why. Vermont has some prisons within the State. When people are imprisoned, they’re in the custody of the State. The State has the duty to provide appropriate shelter, nutrition, and care for those people. Just because people ended up in jail for whatever reason doesn’t mean the State can mistreat them when they’re there. The shelter part is easy; Vermont owns the prisons and maintains them (I’m sure to what degree would be debated by those who’ve spent time there, but that’s not really the point here). The nutrition part isn’t that hard, either (ditto). The care part gets a little tricky, though.

Sunday, November 2, 2014

Indemnity, Insurance, Interest, Interest on Interest, and Iffy-ness

Town of Ira v. Vermont League of Cities and Towns, 2014 VT 115

By Andrew Delaney

You can smell dusty law books when you read this opinion. It even feels a little like law school. Let me break it down for you.

Town bought a policy from its insurer, which covered, among other things, embezzlement by town employees. The policy coverage limit was a half-mil. As it turns out, a 2009 audit showed that the long-term elected town treasurer had embezzled over $300K, and the lost interest on that was figured at $346.4K. So town gets a judgment against treasurer just north of a $1.1M (there were other things goin’ on for those keeping score at home).

When town put in a claim with insurer, insurer paid, but paid only the amount actually taken, not the interest. Town sued for the difference and the trial court—on cross motions for summary judgment—held that the town could recover lost interest in addition to the amount actually embezzled. Town’s argument was that the policy should cover the “time value” of the money taken and the trial court agreed. The trial court figured that got to the policy limit, and kind of booted town’s claim for audit and attorney’s fees, town’s bad-faith claim, and insurer’s counterclaims to recoup already paid sums.