Sunday, December 28, 2014

Incarceration Implied

State v. Breer, 2014 VT 132 (mem.)

By Andrew Delaney

Some practitioners call a hold-without-bail order “HWOB.” The first time I saw this acronym, my reaction was “WTF is an H-wob? Do I even want to know?” As it turns out, it’s one of those family-friendly acronyms that doesn’t have its very own Urban Dictionary entry—kind of disappointing, really.

Our protagonist, Mr. Breer, “faces several misdemeanor and felony charges in five separate dockets.” He moved to review a hold-without-bail order; the trial court denied the request, and Mr. Breer appealed.

The SCOV (or more accurately a three-justice panel of the SCOV) notes that Mr. Breer has a significant criminal history, including a number of felony convictions. He’s currently charged with two counts of second-degree aggravated domestic assault, one count of second-degree unlawful restraint, and two counts of sexual assault. Along the way he picked up a couple probation violations.

Saturday, December 27, 2014

Once, Twice, Three Times a DUI?

State v. Wainwright, 2013 VT 120

By Andrew Delaney

So this case is about a year old. Actually, as I write this, it’s a week past its first birthday. Sometimes “we” take a little while to get around to doing things. Just ask my wife about the “temporary” carpeting that resided in our entryway for nearly six years.

But this isn’t a case about carpeting; it’s a case about DUI and prior convictions and whether the same prior conviction can be used to criminalize a refusal to submit to an evidentiary test and to enhance the penalty for the refusal. The SCOV says it can.

Here’s the setup. One statute generally provides that if one has previously been convicted of DUI, it’s a crime to refuse a law-enforcement officer’s reasonable request for an evidentiary test. Another statute, again, generally, provides an enhanced penalty for second and subsequent DUIs.

Thursday, December 18, 2014

Aesthetics Arguments

In re Goddard College, 2014 VT 124

By Elizabeth Kruska

Goddard College wants to build a woodchip heating system to replace its old system. Goddard’s neighbor thinks the plant will ruin the aesthetics of the area and wants to use Act 250 to make Goddard put the chip plant somewhere else on its property. Hey, I get it. Nobody wants to look out their kitchen window at what used to be a nice view of a mountain or a lake and see a power plant instead.

Part of the Act 250 permitting process requires that the aesthetic impact of a project be considered. If there is going to be an adverse aesthetic impact, there then has to be a consideration of whether it’s an undue impact. That is, whether the impact violates a clear, written standard meant to preserve the aesthetics of an area or whether the project offends the sensibilities of an average person. Plopping a giant industrial park in the middle of a historic neighborhood might be such a thing.

Monday, December 15, 2014

Development Disagreement

Highridge Condominium Owners Association v. Killington/Pico Ski Resort Partners, LLC, 2014 VT 120

By Elizabeth Kruska

When I was a junior in college, my dad asked me what classes I planned to take one semester. I told him I needed to find a social science course that fit my schedule and was interesting to me. He told me to take meteorology. I was confused for a second, since meteorology is a physical science. Without skipping a beat, my dad said, “of course meteorology is a social science. Get 2 people in a room together and they’re going to talk about the weather.” Ba-dum-bum. Everyone’s a comedian.

As true as it is that people will always talk about the weather, it is equally as true that people involved in condo associations will disagree about something.

Here, a group called North Ridge created a condo association called Highridge (this gets confusing with all the ridges) in 1983 in the Town Formerly Known As Sherburne. I didn’t know Sherburne changed its name to Killington in 1999 until I read the footnotes in this case. The things you learn in footnotes!

This Litigation Goes to Eleven . . . Days of Trial, That Is

Ring v. Carriage House Condominium Owners’ Assoc., 2014 VT 127

By Elizabeth Kruska

This case has to do with a “longstanding feud” (SCOV’s actual description of the situation) between a condo association and one of the individual property owners in the association. For those who have never lived in a condo association, lemme tell you, feuds are de rigeur in such associations. In fact, I wouldn’t be surprised if some had a clause in their bylaws requiring that there must be one or more ongoing feuds between various owners and the association at all times.

There are five different players in this case: Plaintiff Ring and the four defendants including the Association, Maroldt, Morrison, and Beck. Morrison and Beck were married; Mr. Morrison died.

Here’s the story. Way back in 1996, Ring buys two unfinished condo units in a building. There was an issue about development rightshe paid for the ability to develop without permission of the Association, although the neighbors thought the Association had to okay it. In any case, Ring got a permit to do some development, and the Association sued him. But he applied for a permit, and the permit was approved, so he started doing construction.

Saturday, December 13, 2014

Trees, Trucks, and Trouble

State v. Hinton, 2014 VT 131

By Andrew Delaney

Losing one’s driver’s license is a big deal—especially in Vermont. Public transportation is pretty much nonexistent and hitchhiking to and from work can get old in a hurry. So, if there’s a shot at getting a DUI tossed based on an unlawful seizure or some other violation, most people will take it.

At first I thought the defendant in this case might be Unknown Hinson, which would’ve been an interesting twist, but alas, we’re one letter off. So we probably won’t get a psychobilly ballad about trucks, trees, and troopers to accompany this opinion.

It all started with a tree. In late December of last year, the tree broke off about fifteen feet above the ground and partially blocked a roadway. An officer responded to the scene, decided the tree was a danger, called the highway crew, and drove a mile or two back to an intersection to (allegedly) warn drivers of the danger if they were headed up the road.

Sunday, December 7, 2014

Great Guilt?

State v. Theriault, 2014 VT 119 (mem.)

By Andrew Delaney

I don’t think “whether the evidence of guilt is great” is the best phrase to use in the criminal context. But it’s the phrase that’s used.

Mr. Theriault was charged with second-degree murder of two-year-old Jamaal (Munyon) Turkvan. The trial court held a weight-of the-evidence hearing, and determined the evidence of guilt was great. Mr. Theriault was held without bail under the statute that allows a defendant to be held without bail when the evidence of guilt is great and the offense charged is punishable by life imprisonment. He appeals.

The SCOV notes that the trial court hasn’t yet made a discretionary determination regarding whether Mr. Theriault should be released on conditions or whether he should continue to be held without bail, so the only issue on appeal is whether the evidence of guilt was great, or as I would phrase it, whether the evidence strongly indicates guilt. Alas, I don’t run the world . . . yet. 

Wild Water

Langlois v. Town of Proctor, 2014 VT 130

By Andrew Delaney

In the spirit of Félix Fénéon’s Novels in Three Lines: Potentially negligent landlord wins suit against town for town’s negligence without mention of her potential negligence and the SCOV reverses.

Of course, there’s a little more to it than that. Basically, plaintiff-landlord didn’t pay her water bill. She made some kind of an agreement with a town representative to shut the water off so that she wouldn’t incur any more charges. The town didn’t shut off the water, but landlord thought the town had. Landlord stopped heating the building. The pipes froze and burst, bada-bing, bada-boom, and in the words of Samuel Taylor Coleridge, “Water, water every where, Nor any drop to drink.”

So, landlord sued and made it to trial on negligence and breach-of-contract claims (consumer fraud and negligent misrepresentation got the boot on summary judgment). The jury found town negligent and awarded plaintiff almost $65K. The trial court didn’t give a comparative negligence instruction. Oopsie.