Saturday, October 31, 2015

Where do we go now?

Moran v. Vermont State Retirement Board, 2015 VT 119

By Andrew Delaney

As has been said once or twice before, “The devil is in the details.” Not that we ever let that slow us down ‘round here.

No exciting facts in this one, folks. At some time there may’ve been, but we’re down to the vagaries of administrative law and appellate procedure at this point.

Ms. Moran stopped working at the Vermont State Hospital and applied for ordinary disability-retirement benefits. The Medical Review Board denied benefits, and Ms. Moran requested an evidentiary hearing (pursuant to this statute). The Board again denied benefits. Ms. Moran then filed a Rule 75 complaint in superior court (V.R.C.P. 75 is a rule that allows review of “governmental action” “if such review is otherwise available by law” when the situation doesn’t fit into other rules). The superior court dismissed the case for lack of jurisdiction. It concluded that Ms. Moran’s case was a “contested case” under the Vermont Administrative Procedure Act (VAPA), and that the proper forum for her appeal was the SCOV, due in part to this statute.

Thursday, October 29, 2015

Everybody Stand and Party: Understanding Standing and Party Status

In re Application of Beach Properties, Inc.2015 VT 130


By Thomas M. Kester

Everyone and everything enjoys fun in the sun—raisins, our bodies’ Vitamin D production, and solar panels. But to concerned lakefront owners, the sun can be the enemy—especially when it is being reflected from a photovoltaic net-metering system.

But this case doesn’t involve just sunshine and happiness; it involves party status and standing. You may be thinking of “party status” like asking your college roommate what is happening tonight at the local fraternity house or “standing” as in “am I going to be standing after taking all these Jell-O shots?” but you would be wrong (side note: the “bar examination” doesn’t involve knowing how to concoct alcoholic drinks either, in case you were wondering). Before getting to the issues, let’s recount the facts.

In August 2014, the Basin Harbor Club (BHC) applied for a certificate of public good (CPG) for installation of a solar metering system in Ferrisburgh, Vermont (I have always wondered if there is an opposite “certificate of public bad” you can apply for). The proposal was for twenty-five solar panels, about twenty-feet tall, and situated on one-and-a-half acres of a property bordered by the private Mile Point Road. 

Saturday, October 24, 2015

A Crash Course in Road Design and State Liability

Vanderbloom v. State of Vermont, Agency of Transportation, 2015 VT 103

By Thomas M. Kester

If two cars crash in the Town of Berlin and no one is around, does it make a sound? My guess is—probably (philosophical arguments aside). But is the State liable for allegedly negligent design and construction of the road?

The main thrust of the plaintiff’s case (the plaintiff being one of the people hurt in the car crash) is that the State “had a duty to exercise reasonable care in the design, construction, and maintenance of highways, including Route 63,” and that the State’s design created “freezeback.” I initially thought “freezeback” was one of powers Mr. Freeze had in the Batman & Robin movie. “Freezeback,” as it is known in the road-design arena, is the process where melted snow and ice refreeze in the “travel” portion of the road rather than flowing into the shoulder. Plaintiff asserts that the State gave the cold shoulder to the road shoulder when designing Route 63 and is liable.

It will be a cold day in hell when the State doesn’t assert some sort of sovereign immunity and they did just that in this case. The State asserted that they have sovereign immunity from “[a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways” under the Vermont Tort Claims Act. The superior court agreed with the State, ruling that they were entitled to judgment as a matter of law on summary judgment. So, onto the appeal.

Riding the Bench

State v. Tracy, 2015 VT 111


By Ember S. Tilton

There are some words that shouldn't be said in certain places. Not everything that is permissible to say is advisable to say. 

This case  sets out what type of speech is protected and when speech goes too far. Mr. Tracy was upset with his daughter's basketball coach and wanted to speak to her after the game. His daughter didn't get to play and he wasn't too happy about it. So, he walked to the parking lot and up to the coach's car. He started with the simple questions, like: "Why didn't you play my daughter in the game?" 

The coach explained that what's best for the team isn't always what's best for an individual player. This did not please Mr. Tracy, and he became agitated. He got louder. His voice tensed and became more angry in tone. He began to use profanity and even told the coach, "This isn't the f*ing NBA!" Finally, he called her a "bitch" and the coach drove away saying, "This conversation is over!" and Mr. Tracy proclaimed for all to hear, "This will never be over!" Mr. Tracy was then charged with disorderly conduct and assault by menace. 

Tuesday, October 20, 2015

Construction Confusion

State v. Richland, 2015 VT 126

By Elizabeth Kruska

Back in 2013, a 16-year old got a hold of some gin, went for a ride on his ATV, crashed the ATV, and died. As it turns out, the minor had texted the defendant, Kent Richland, earlier in the day, asking Kent to get him some alcohol. Kent was going to do it, but couldn’t find his ID. So, Kent arranged for a friend of his to get the alcohol. After the crash Kent got charged with enabling the 16-year old’s consumption of alcohol. He had a trial and was found guilty.

Kent appealed the conviction, and made four different arguments about why the case should be remanded for a new trial. SCOV didn’t even get to three of his arguments, because as it turns out, the first argument was enough to cause SCOV to reverse and remand. It was about statutory construction and jury instructions, and that was enough for SCOV to say there was a problem and to send it back for a new trial.

The problem here is with how the statute is written, how it was amended, and what the legislature actually meant when it changed the statute. The statute says, in pertinent part, “no person shall… knowingly enable the consumption of malt or vinous beverages or spirituous liquors by a person under the age of 21.” Criminal acts are made up of a mental state and an action. Mens rea + prohibited activity = you better call Saul.

Sunday, October 18, 2015

Sure Thing?

Tillson v. Lane, 2015 VT 121

By Andrew Delaney

Summary judgment can be an abrupt end to a case. If it’s granted, you never get to see a jury; your case never really gets heard in court. A judge simply reviews the file and decides one way or another who wins. But sometimes, summary judgment is premature.

Mr. Tillson got a cataract in his left eye surgically removed by Dr. Lane. Mr. Tillson’s eye showed signs of infection within 24 hours. Dr. Lane presumptively diagnosed endopthalmitis but didn’t make a referral, and within 48 hours of the surgery, Mr. Tillson was permanently blind in his left eye.

So, Mr. and Mrs. Tillson filed a medical malpractice suit for pain and suffering, stress, medical bills, loss of consortium, and economic losses. They alleged that Dr. Lane and Lane Eye Associates “breached their duty of care by failing to ‘adequately and timely recognize, diagnose, and treat the infection.’”

Saturday, October 17, 2015

Coming Back for More

State v. Winters, 2015 VT 116

By Andrew Delaney

I’m usually pretty good about avoiding the really long opinions. It’s mostly because I’m lazy. And truth be told, this isn’t a really long opinion, but between the majority and the dissent, it does weigh in at 40 pages. So, you know . . . bear with me.

Mr. Winters was parked at a rest area sleeping in the driver’s seat of a vehicle at 1:00 in the mornin’. A woman with a suspended license owned the car. A state trooper was checking license plates and found that out. But the trooper didn’t confront Mr. Winters at that time.

The trooper went back to his cruiser and after a little more police-database digging learned that Mr. Winters—who also had a suspended license—lived at the same address as the suspended-license lady. So, the trooper woke Mr. Winters up and asked him why he was driving a car with a suspended license. Mr. Winters admitted it was his girlfriend’s car. He said he’d been driving and hit a deer, and busted a headlight, and a Massachusetts trooper had told him to park overnight at the rest area rather than drive with one headlight. He also said his girlfriend was going to pick him up in the morning. The trooper told Mr. Winters to “rack out” and took off.

Realistic Reliance

Glassford v. Dufresne & Associates, P.C., 2015 VT 77

By Elizabeth Kruska

Mr. and Mrs. Glassford bought a house from D&L Homes By Design (D&L), which appears to be a construction contractor. D&L hired Dufresne to certify that the sewage disposal system on the Glassford’s home site satisfied state law with respect to various permitting requirements. As I understand it, the rule says that a permit gets issued but doesn’t become valid until a wastewater disposal installer or licensed designer certifies that the wastewater system meets the plans and criteria.

In 2005, the Agency of Natural Resources issued a sewage disposal system construction permit for the Glassford site. Several months later, Dufresne certified that, in their professional judgment, the system fit the plans and it passed the performance tests. The Agency, satisfied with this certification, issued a notice indicating the permit conditions were satisfied.

A month or so later—in late December 2005, the Glassfords signed a purchase and sale agreement for the house. They never saw the actual certificate regarding the wastewater disposal permit. They hired a lawyer to help with the closing on the house. That lawyer did a certificate of title and included that the wastewater system was acceptable, as there was a permit and the certification from Dufresne. The closing moved forward and occurred on January 17, 2006.

Thursday, October 8, 2015

Among Other Things, A Signal

In re: M.O, Juvenile
2015 VT 120

By Elizabeth Kruska

M.O. was Mom’s first child, born when Mom was twenty-one. The opinion makes clear that Mom has some cognitive delays, and maybe also has a learning disorder. Before M.O. was born, she got services from a visiting nurse to help prepare for the baby. The nurse found that Mom was engaged in the preparation (Dad less so). The nurse, in hindsight, thought that maybe she should have called DCF before the baby was born so they could help with safety planning.

In any case, M.O. was born, and while Mom and the baby were in the hospital, the hospital social workers and nurses observed that Mom was having some difficulty with pretty basic things. Feeding, waking up when the baby cried, that sort of thing. The hospital workers, as mandated reporters, called DCF because they were concerned that there was a risk of harm to M.O. if there wasn’t some intervention. DCF stepped in and took M.O. into custody.

Wednesday, October 7, 2015

Grandma Got Run Over By Judicial Notice

In re: A.M., Juvenile
2015 VT 109
By Amy Davis

The fall of 2011 bore a child by the initials A.M. Unfortunately, A.M.’s parents struggled with going substance abuse, and the summer before A.M.’s second birthday, DCF filed a CHINS petition after an indication that A.M. was in a hotel room with Mom, Dad, and some heroin. A.M. was placed with his maternal grandmother pursuant to a temporary-care order.

In November 2013, A.M. was adjudicated CHINS based on his parents’ stipulation of their history of drug use.  But the big question was if Grandma was suitable to take care of A.M. given that she was not licensed as a foster parent.  Mom moved to transfer temporary custody to Grandma, and the court indicated it would maintain status quo until an evidentiary hearing.


Tuesday, October 6, 2015

Extraneous Email Effect?

Labate v. Rutland Hospital, Inc. d/b/a Rutland Regional Medical Center, 2015 VT 128

By Andrew Delaney

Juries are supposed to be free of outside influence. This appeal boils down to whether an email sent to hospital employees over the course of a trial influenced the jury. The trial court concluded that it did not and the SCOV concurs for the most part.

The Labates filed suit against Rutland Regional Medical Center (RRMC) (and related entities) and an individual doctor alleging medical malpractice associated with the birth of their daughter. Eventually, the case went to trial.

During voir dire—which translated from French means “to see to speak,” is pronounced differently all over the U.S., and just means “jury selection” but sounds a whole lot fancier—one of the prospective jurors disclosed that he worked for RRMC in security. He wasn’t kicked out of the jury pool by either side preemptively or for cause.