Saturday, December 24, 2016

Presumptive Bail

State v. Kane, 2016 VT 121

By Amy E. Davis

Hell hath no fury like a woman denied bail. In 2014, Defendant pled guilty to custodial interference and was sentenced to 2-5 years, all suspended except one year. In August 2016, her probation officer filed a probation violation complaint alleging that Defendant had failed to meet with her PO, notify her PO of a change in address, obey a curfew, etc. Also, Defendant had made some statements to an Easter Seals worker to the effect of, “What happened with Jody Herring is understandable.” (I assume most of our reader base also reads the news, so I won’t tell that story here). Defendant also made some suicidal statements to the Sheriff’s department.

The next day, Defendant was arraigned on the probation violation complaint where the State requested she be held without bail pending a revocation hearing. The State argued that she was a risk of flight and posed a risk of harm to herself and to the community. Defendant, however, claimed that she was attempting to comply with her probation conditions, and she had always attended court, so she was not a risk of flight. The court ordered her held without bail.

On September 1, 2016, the Chief Justice issued an unpublished entry order affirming the trial court’s decision to hold Defendant without bail. The order stated that a probationer does not have a right to bail, so release is subject to the court’s discretion. Defendant asked the entirety of the SCOV to review her denial of bail.

Sunday, December 18, 2016

Give Me One Reason, Or Two (Part Three of a Collection of Entry Orders in Three Acts)

State v. Breer, 2016 VT 120 (mem.)

By Elizabeth Kruska

“As a probationer, he’s not entitled to bail as a matter of right” is a phrase I have heard at least a thousand times in making bail arguments in probation violation cases.

Harley Breer was on probation for some felonies stemming from some charges filed in 1999. Then he got charged with more offenses in 2011, as well as some violations of probation and was held without bail. While pending trial, he got charged with more offenses, including 2 counts of sexual assault, violations of a restraining order, and violations of conditions of release, in 2012. The cases moved forward, and in 2014 he moved for a bail hearing. The trial court held a hearing over the course of three days.

The trial court ruled that Mr. Breer should continue to be held without bail for two reasons. First, he still had the probation violations pending. By statute there are certain times when a trial court should set bail in probation violations. This wasn’t one of those circumstances. Second, the trial court found that in the new criminal matters, he was facing life imprisonment and the evidence of guilt was great. The court also noted that Mr. Breer was a flight risk.

You’re Not Supposed To Do That (Part Two of a Collection of Entry Orders in Three Acts)

State v. Lyford, 2016 VT 118 (mem.)

By Elizabeth Kruska

There’s such a thing as an interlocutory appeal. You get to do this only in certain circumstances. And to get to be able to do it, the trial court has to give permission. If the trial court gives permission at the wrong time, you get what happens here.

Ms. Lyford was charged with a crime. She filed a motion to suppress certain evidence in her case. The motion was denied, so she sought interlocutory appeal. The trial judge granted her request, and off the file went to the Vermont Supreme Court.

SCOV said, oops, this shouldn’t be here. A criminal defendant can only take interlocutory appeal on a motion to suppress if he or she has first entered a conditional guilty plea. Ms. Lyford had not done a conditional guilty plea prior to seeking permission to appeal. So, it’s dismissed, as having been improvidently granted.

Staycation (Part One of a Collection of Entry Orders in Three Acts)

In re Petition of Vermont Gas Systems, 2016 VT 132 (mem.)

By Elizabeth Kruska

Vermont Gas wanted to condemn a horizontal easement through Geprags Park and construct an underground pipeline. Park users asked the Public Service Board for a stay, halting the project pending litigation. Vermont Gas appealed.

SCOV looked at the factors needed for such a stay. First, there has to be a likelihood that the party asking for the stay will prevail on the merits. Second, the court must consider irreparable injury to the moving party, then also the threat of irreparable injury to the nonmoving party. Last, the court considers the public good.

The Public Service board had granted the easement condemnation and allowed the project to go forward. It took evidence and learned that the impact on Geprags Park would be fairly limited, and would not disrupt above-ground recreation.

Grownups Not Being Grownups

Wener v. Wener, 2016 VT 109

By Elizabeth Kruska

It cannot be said too often: grownups can choose to be awful or irritating to one another, but when it has a bad or potentially bad impact on kids, it has to stop. Fortunately, that’s why we have courts; they make decisions when people can’t anymore. And that’s the case with Mr. and Mrs. Wener (Mom and Dad). The Weners have a son, who happens to be autistic—which here happens to be a relevant fact—and they got divorced.

For a while after the divorce, it appears that the Weners could get along and were able to co-parent their son fairly well. Then they couldn’t, and they couldn’t get along, and they couldn’t agree on things. Initially, they both lived in the West Rutland area and split their time with their son 43/57 (Dad/Mom). Then Mom said, “Yeah, so, I’m moving to South Burlington and kiddo is going with me and I’m enrolling him in school there, so there.” Dad said, “Au contraire.” Dad filed a motion to amend parental rights and responsibilities and parent-child contact. The trial court held a hearing over the course of two days and awarded custody to Dad.

The court looked at the fact that Son was well established in his school and community and felt it was important for him to stay there. The court also took note that both parents seemed unable to communicate anymore, especially given Mom’s seemingly unilateral decision to pick up and move far enough away that it would require a change in schools and a change to mid-week visits.

Saturday, December 17, 2016

Police Petition Problems?

In re Petition of New England Police Benevolent Association, 2016 VT 67

By Andrew Delaney

As best I can tell, a group of law-enforcement officers want some representation from their ranks at the collective-bargaining table and this ain’t the first time they’ve gone for it and been shot down.

The New England Police Benevolent Association (NEPBA) filed a petition for election of reps from among a group of law-enforcement officers (F&W, DMV, and DLC), currently represented by the Vermont State Employees’ Association (VSEA) and the Non-Management Unit (NMU). Excuse me—I’ve got a sudden hankering to go eat a bowl of alphabet soup.

The first petition was filed by VSEA in 2011. The idea was to remove the officers from the non-management bargaining unit and put them in their own independent bargaining unit. After two days of hearings, the Board tossed the petition. The reasoning was that the new unit could result in over-fragmentation, which would make effective representation more difficult. The Board also found the officers hadn’t pursued many of the issues they wanted addressed, and that the proposed unit would unduly complicate regular negotiations. VSEA didn’t appeal.

Judicial Burn Notice

In Re J.W., 2016 VT 78

By Amy E. Davis

[Author’s note: this post is dripping with more-than-usual sarcasm because it helped me cope with this case.]

The court adjudicated JW as CHINS because Mom could not adequately protect him from Dad if JW went back to Mom. Dad appeals saying the court erred in taking judicial notice of his criminal records and filings from a relief-from-abuse order against him. Dad also says the findings do not support the conclusion that JW was a kid in need of care or supervision.

JW was born in 2012. In May 2015, the Department for Children and Families (DCF) filed a Child In Need of Supervision (CHINS) petition, and JW went into temporary DCF custody. Some allegations included that Mom and JW were homeless, Dad was incarcerated, Dad had history of domestic violence against Mom, Dad had been substantiated for sexual abuse, Dad had been charged and convicted of prohibited acts for groping a juvenile, both parents had substance abuse use issue, etc. etc. There’s just a whole bunch of bad stuff in the petition.

Saturday, December 3, 2016

What is ‘Reasonable Doubt,’ Alex? No, Seriously. What is it?

State v. Levitt, 2016 VT 60

By Andrew Delaney

Mr. Levitt got convicted of simple assault and was put on probation. He appeals his conviction and most of his probation conditions. Ah—another probation-conditions appeal. We’ve already made the eleventy-billionth joke more than once, but why not make it again? There’re a lot of probation-condition cases, mm-kay?

Mr. Levitt was tried for simple assault in front of a jury. The judge’s reasonable-doubt instruction—paraphrased here with my patented bare-minimum-and-potentially-inaccurate system—was: “Nothing in life is 100% certain. ‘Beyond a reasonable doubt’ means that you’re convinced of it with great certainty.” Probably not the greatest instruction, but no objection was made, and the jury came back with a guilty verdict.

There was a sentencing hearing and the State argued for two weeks in the pokey. The defense went with a fine or suspended sentence. The judge went with a short suspended sentence, twenty days of work crew, and a fine. So the trial court placed Mr. Levitt on probation—‘cause that’s what you do with a suspended sentence—and imposed “standard conditions A through N, and also condition P.” The judge didn’t bother naming or describing those conditions, which are reproduced in the opinion if you’re truly curious, but boil down to—again using my patented system—the PO will be your babysitter; you can’t do stuff without permission; and if your PO tells you to do stuff you better do it—also, no drugs, no booze (or no excessive booze), no being violent, and no threatening people. Of course, there’s more to it than that, but that’s the basic gist.
 

Waste Not, Forfeit Not

Mongeon Bay Properties LLC v. Malletts Bay Homeowner’s Association, 2016 VT 64

By Thomas M. Kester

“Liquid sunshine” can dampen anyone’s camping spirit. 

Allan Sherman waxed that while, “Camp is very entertaining,” the truth was, “They say we’ll have some fun if it stops raining.” So while everyone is soaking in the serene environment, lakefront property is continually embroiled with a fearsome foe hidden in plain sight: H2O. Because an Act 250 permit application to drain Lake Champlain for “erosion control measures” wouldn’t hold much water, that means a long-term battle plan is required for littoral property (and, I imagine, even if you tried for a permit, like an algae bloom, an ocean of red stuff would stand in your way). You must vigilantly (and proverbially) “put one’s finger in the dike” before things snowball. Who must do what and the ramifications that flow therefrom are the questions the SCOV examines in this case.

Here is the sweet and condensed version of the facts: there are over twenty-five camps within the Mallet’s Bay Homeowner’s Association (“Association”) and ten of them “are situated immediately on the shore of Lake Champlain at the eastern edge of Malletts Bay, all perched above a twenty to twenty-five foot embankment.” The Association entered into a ground lease, whereby (over time) the Mongeon Bay Properties (“MBP”) solely owns all the land and leases the land to the Association for a yearly fee.

Sunday, November 20, 2016

Whose Line is it Anyway?

I'm Mr. Seagull and I neither
approve nor disapprove of this summary. 
I'm just a bird with an expression that 
vaguely resembles the famous 
McKayla Maroney shot from 2012
State v. B.C., 2016 VT 66

By Andrew Delaney

Once a criminal defendant has been found incompetent or insane, what’s the State’s Attorney’s role in the case, if any? 

This is kind of a weird appeal. It stems from the State’s Attorney’s attempt to be heard on motions for continued treatment after mental-health orders had expired. It’s kind of a “we’re not-done-with-you-yet!” appeal. But the SCOV, in proper judicial fashion, says, “Oh, we’re done.” 

DH was charged with simple assault on a police officer and resisting arrest. After DH’s competency and sanity was evaluated, the parties agreed that he was insane at the time of the offense and to a 90-day order of non-hospitalization (ONH) under this statute (subsection 17 if you’re curious). Because a personal injury was involved, there had to be a hearing before DH was discharged from the care and custody of the Commissioner of Mental Health. 

Saturday, November 19, 2016

It’s Raining, It’s Pouring . . . Is The Old Culvert Diverting?

Regan v. Spector, 2016 VT 116

By Thomas M. Kester

The issue in this case is surface-water redirection. There is a hillside dissected by two roads and property lots below the top road are owned by the Regans and Spectors (Regans live on the easterly side and Spectors live on the westerly side). Culverts play an integral role in this story. Of particular note is culvert #7: a 15" culvert that carried water from above the top road, under it, and then drained below the top road, and was repositioned in 2004 and again in 2008. There are also culverts #5, 6, and 8, as well, but #7 is the important one.

The Spectors purchased three lots in 1992 that were off the top road and later became their residence. In 1992, as well, culvert #7 “was a fifteen-inch culvert that carried storm water from a portion of the hillside above . . . [the top road], under the [top] road, and on the wooded hillside below.” In 1996, the Spectors sought a permit for a driveway that was at the location of culvert #7 and the Town required the Spectors to help pay for enlargement costs of the 1992 culvert. Spectors wanted to move culvert #7 further uphill but the town road commissioner was concerned that it would increase the flow of storm water.

In 2004, the Spectors applied for a home-build permit from the town that planned for a driveway access close to culvert #7. The town road commissioner “dug out a box ditch from the outlet of culvert #7 for several feet in an easterly direction. It sent the flow of water from culvert #7 towards the east approximately fifteen feet, at which point the water was free to run in sheets down the hillside,” and “when the Spectors built their driveway close to culvert #7, they placed a culvert in the box ditch and covered it with gravel for the driveway to run over it. The result was that water from above . . . [the top road] flowed through culvert #7 into the box ditch and then turned at almost a ninety-degree angle to proceed through the culvert under the Spectors’ driveway toward the east for a distance of fifteen to thirty feet.” 

Saturday, November 12, 2016

A Rose by Any Other Name . . .

Chandler v. State, 2016 VT 62

By Andrew Delaney

“Would smell as sweet,” Shakespeare wrote. And this case also teaches us that creative labeling cannot change the nature of a thing. For example, just because we describe this blog as “witty,” does not make it so.

Mr. Chandler’s “Petition for Extraordinary Relief” was dismissed by the trial court. When the SCOV puts quotes around the name of the filing itself, it’s a safe bet that this is not going to end well. Essentially, the trial court tossed Mr. Chandler’s filing because in its view, the petition raised claims already decided in a previous post-conviction-relief (PCR) proceeding.

The SCOV begins by noting that this is round four of Mr. Chandler’s appeals of his conviction. Mr. Chandler was convicted of impeding a public officer—a felony—when he confronted a firefighter responding to a reported brush fire on his property. His conviction was affirmed in an unpublished opinion (which I tirelessly tracked down for you). He filed a PCR on ineffective-assistance-of-counsel grounds, arguing that a fee dispute and other deficiencies meant that his conviction was unlawfully obtained. The trial court got rid of that case, reasoning that Mr. Chandler was done with his sentence, so the thing was moot. The SCOV reversed, reasoning that the case wasn’t moot, and sent it back for a decision on the merits.

Unraveled

Flanagan v. duMont (Flanagan), 2016 VT 115

By Elizabeth Kruska

The facts of this post-divorce action remind me of pulling on a loose thread and then everything unravels. I think Weezer put it best when they sang, “If you want to destroy my sweater, hold this thread as I walk away.”

Flanagan (Husband) and duMont (Wife) were married and then divorced. They partly negotiated a divorce agreement, but had to have a contested hearing regarding some other issues. The appeal in this case has to do with a few provisions in the final order.

The first issue is the marital home in Stowe. The house was awarded to Wife, free of any marital interests of Husband. Wife was ordered to refinance the loan on the house within about a year, and if she couldn’t do that, she had to sell the house at a price that was agreeable to both she and Husband. Since they were jointly on the mortgage, if Wife fell behind and failed to make a payment, Husband was authorized to make the payment, but could then offset that against what he owed Wife for maintenance and support. Seems reasonable so far.

Saturday, November 5, 2016

Early Deeds Done Incomplete

Khan v. Alpine Haven, 2016 VT 101

By Thomas M. Kester

Bill Cosby in Himself (1983)1 has this bit where he recounts preparing his children’s breakfast all by himself and:
The child wanted chocolate cake for breakfast! How ridiculous! ... And someone in my brain looked under chocolate cake and saw the ingredients: eggs! Eggs are in chocolate cake! And milk! Oh goody! And wheat! That's nutrition! 
The joke being that breakfast is the most important meal of the day and selectively viewing the chocolate cake’s constituent parts may bring about the (albeit wrong) conclusion that serving a piece of cake is appropriate breakfast food—even with grapefruit juice on the side. I thought of this joke when I read this case, as I saw the same type of scenario presented (sans chocolate): Can constituent and fragmented portions contained in various deeds be combined to create a palatably distinct legal entree or do these deed provisions retain their original flavors because ingredients were omitted that prevented the provisions from being able to gel and coalesce? In other words: If I have some combination of chocolate cake ingredients in my kitchen does that mean I actually have (or should view their collective culinary potential as) chocolate cake?

Alpine Haven is a subdivision in the Towns of Montgomery and Westfield. For over thirty years, certain Alpine Haven chalet/lot owners (Plaintiffs) have “asserted that their property is not part of a CIC [“common interest community”] and that they were not required by their deeds to be AHPOA members” (“AHPOA” being the Alpine Haven Property Owners’ Association, Inc. (Defendants)). While Plaintiffs acknowledge they are obligated to pay certain costs, they argue that “they should not have to pay AHPOA for special assessments, annual meeting costs, insurance, road expansion or improvements, or any other AHPOA expenses not specified in their deeds.” AHPOA argues that Alpine Haven is a preexisting CIC, and that Plaintiffs cannot exit the AHPOA and disregard their unit-owner obligations including paying AHPOA-assessed fees.

Sunday, October 23, 2016

Disputing a Duplex

In re Burns Two-Unit Residential Building, 2016 VT 63

Then thing I find most curious about this opinion is how nineteen neighbors got involved in a renovations dispute and the first neighbor who complained isn't one of them. 

The Burnses own a two-unit residential building in Burlington. Nineteen of their neighbors appeal an Environmental Division decision that the neighbors’ the-Burnses-converted-their-home-to-a-duplex-without-a-permit claim was precluded by a previous decision. The neighbors argue that the earlier decision wasn’t made by the Burlington zoning administrator like the applicable statute requires. The neighbors further argue that they were entitled to notice and an opportunity to be heard on the prior decision and that they’re entitled to a determination by the Environmental Division about whether the Burnses’ other sans-permit modifications violated the zoning ordinance.

The Burnses bought the place in January 2014. The property-transfer tax return says “multi-family dwelling”; the purchase-and-sale agreement says “lot of land with a two unit apartment building,” and the former owner and the Burnses later executed an addendum saying that the property “had been continuously used as a ‘duplex/multi-family dwelling’ since 1967.”

Saturday, October 22, 2016

Sufficient Supervision?

In re PRB File No. 2016-042, 2016 VT 94

By Andrew Delaney

Every once in a while, the SCOV likes a professional responsibility board (PRB) decision so much that it publishes it as a SCOV opinion. This leads to me making the same Beyoncé-says-put-a-ring-on-it joke ad nauseam. Wuh uh oh uh uh oh oh uh oh uh uh oh.

Respondent is licensed in both of the twin states. He focuses on transactional law. While he was working for a firm, he hired a non-lawyer assistant to work for him. She’d previously worked for his wife and done a good job. She seemed smart and capable, so when respondent started his own firm, he took her with him.

While with the old firm, the employee hadn’t handled the accounts. But at the new firm, she did. Respondent made the deposits himself and confirmed they were recorded in QuickBooks. But employee did most of the other stuff—for example, she opened the monthly statements and reconciled the accounts.

Something tells me this is not going to end well.

Thursday, October 20, 2016

Rate Increase Rules

In re MVP Health Insurance Company2016 VT 111

By Elizabeth Kruska

You know what’s an enormous mess? Health insurance. I like to think I’m a smart person. I am completely confounded by health insurance. I suspect I am not alone.

Here’s what I think happened here. The Green Mountain Care Board (GMCB) is Vermont’s administrative agency charged with allowing/disallowing health insurance companies to provide certain policies in Vermont. GMCB also has to approve rates and any changes in rates. GMCB is supposed to review those filings and allow or disallow the rates and increases. There is a statute that enables GMCB to act, and requires that GMCB determines whether rates are affordable, whether they promote quality care, whether they protect solvency of the insurer, and if the rates are fair. There are timetables for filing, since if there is an issue, it has to be sorted out in a timely way. Insurance companies need to know if they can continue doing business in Vermont, and policyholders need to know if they need to find different coverage.

MVP, a health insurance company, provides health insurance via an association for farmers called Agri-Services. GMCB disallowed a rate increase filed by MVP for the Agri-Services policy. MVP appealed, arguing that it’s an unconstitutional delegation of power for an administrative agency to be able to allow or disallow rate increases. MVP also argued that GMCB didn’t make proper findings to support its conclusion of disallowance. They made a final argument regarding erroneous interpretation of the statute, but SCOV doesn’t even get that far because it reverses based on improper findings.

A Good Kick In The Face

State v. Bean, 2016 VT 73

By Amy E. Davis

Two residents live in a residential facility for persons with mental illnesses. Defendant points his finger at the Claimant. Claimant says, “You need a good ass-kickin’,” and kicks at him. Claimant’s vision goes blurry, and there’s pressure and heat on one side of his face. Defendant gets charged with domestic assault. Defendant testifies that he suffers from schizophrenia and does not remember what started the altercation. A staff member testifies that she saw Defendant punch Complainant in the head.

Defendant’s argument at trial relied on two theories: first, that the complainant was not a “household member” under the domestic assault statute, and therefore could not be convicted of domestic assault; and second, that it was self defense because the complainant had kicked at him and told him he needed his ass kicked.

At the end of the State’s case, the State asked the judge to give a jury instruction on simple assault as a lesser-included offense of domestic assault. The rationale being that all of the elements were the same except the household member element. Defendant’s counsel agreed that simple assault was a lesser-included offense, but objected to the possibility of a second charge so far into the trial. The court instructed the jury on the simple assault after closing argument anyway, saying:

The Procedural Property Paradox

Cenlar FSB v. Malenfant, 2016 VT 93

By Thomas M. Kester

The Supreme Court of the United States has said that “relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case.”1 This quote embodies the legal maxim lex non exacte definit, sed arbitrio boni viri permittit (“the law does not exactly define (this) but leaves it to the judgment of an honest man”), and this case is a great example of when, how much (and to whom) the law should provide relief.

Once again, good ‘ol mortgage issues are back before the SCOV. If I seemed gloomy in my last post, it was mostly due to the SCOV not addressing a specific question . . . that and Tom Brady not playing in the opening four regular season games (#QuadrupleRingBling #199 #IamTheLockerRoomGuy). But my frown has been turned upside down because the SCOV answers the burning question left on everyone’s mind: what is the impact of a court’s dismissal with prejudice of a lender’s claim on a promissory note and accompanying foreclosure action with respect to the lender’s ability to bring a subsequent claim for default on the note?

In 1993, Borrowers executed a promissory note to GMAC Mortgage Corp., the predecessor-in-interest to Cenlar FSB (Lender), secured by a mortgage. On May 1, 2008 Borrowers default on loan and it appears that Lender accelerated the note.


Saturday, October 8, 2016

Developing Duties Deux

Kuligoski v. Brattleboro Retreat, 2016 VT 54A

By Andrew Delaney

For me, this amended opinion is like a frustrating find-the-differences puzzle. We reported on the issued-in-May opinion just a few weeks ago because it took me a long time to work through it. Naturally, I was just thrilled to see that the SCOV had issued an amended opinion.

I’m going to attempt to just highlight the differences in the amended opinion here. If you notice a mistake or something I missed, please let us know in the comments.

The amended opinion starts off with an entry order noting that the amended opinion replaces the issued-in-May opinion. The State’s motion to file for reargument as amicus curiae is granted and the appellees’ and amici curiaes’ motions are denied. Within the entry order, Chief Justice Reiber and Justice Skoglund dissent, opining that while the majority has made changes to “narrow” (their snarky quotation marks, not mine) its holding, that’s not enough. There were “an astonishing number of motions for reargument,” and the State’s motion in particular represents a “clear and dispassionate analysis of both the immediate and long term damage resulting from the majority’s misguided judgment.” The dissenters think the majority should vacate the opinion and get rid of the novel duty it imposes.

Reefer Reboot

C&S Wholesale Grocers, Inc. v. Department of Taxes, 2016 VT 77A

By Elizabeth Kruska

SCOV brings us a sequel to the C&S case from earlier in the summer with an amended opinion. I didn’t print the original opinion, because trees, and now all I can see is the amended opinion. From what I can tell, the amendment didn’t change the overall outcome or much in the way of the rationale.

I’m not going to go over the whole of the opinion; I did that already and although it was fun, it’s the kind of fun you only need to have once.

It looks like the court added some additional rationale regarding the recyclable freezer tubs and why they aren’t exempt from tax. C&S had previously sought to have their freezer tubs exempt from tax. The Commish said, “think again,” and C&S appealed. One argument they raised is that there are some reusable packing materials that are exempt—those are materials that have a usable life of three years. The freezer tubs have a longer life.

I believe the Court added some more language about this “3-year rule” itself. C&S argued it was invalid. The Court got into some details about this rule. It essentially said that whether or not this rule is invalid is irrelevant since the freezer tubs have a longer shelf life than 3 years anyway. Whether or not the tax department enforces the rule consistently is also beyond what the Court would consider.

I think that’s it. If there’s something I missed, leave it in the comments.

Undo

Solomon v. Guidry2016 VT 108

By Elizabeth Kruska

This is a case that got dismissed, and the dismissal was appealed by the plaintiff. My favorite part of this opinion is the footnote on page 1 that says the defendant joined the plaintiff in the appeal, meaning, they both were appealing the same thing. As my favorite movie character, Inigo Montoya, said, “I will sum up.”

Ms. Solomon and Ms. Guidry were a couple and were joined in a civil union in July of 2001. Unfortunately, the relationship came to an end sometime in or around 2014. They wanted to split up, which is a perfectly normal reaction to a relationship ending.

But. In the meantime, both Ms. Solomon and Ms. Guidry moved to North Carolina, which, isn’t exactly “progressive” or “nice to gay people” or “thinking with functional brains when it comes to things like going to the bathroom.” I’m sure there are some nice things about North Carolina, like beaches and barbecue, but we’re not here to talk about that.

Finicky Findings

Lourie v. Lourie, 2016 VT 57

By Amy E. Davis

Husband and Wife married in 1992, had two children together, and separated in 2012. At the time of the final divorce hearing, one child was over 18, and the younger was only a few months shy of her 18th birthday. Parties owned a flooring business together though most of their marriage.

Husband filed for divorce in March 2013, and, two months later, the parties entered into an agreement that addressed spousal support, child support, and business debts. The agreement included a provision that Husband would pay Wife $4,000 per month for support for five years after he paid all of the business and personal debt. This was never incorporated into a temporary order.

By the time the final hearing rolled around, the parties agreed on parental rights and responsibilities, but was divided on the issue of maintenance—mainly, how much support. Wife wanted the pre-divorce agreement of $4,000 per month, but noted that even if the court were to find this was the agreement, the court needed to make an equitable division. Husband did not object to paying support, but thought $4,000 per month was too much.

Statutory Sealing

Seal. Seal? Get it? 
State v. Villeneuve, 2016 VT 80

By Amy E. Davis

In December 2001, Defendant pleaded guilty to lewd and lascivious conduct with a child. The conduct leading to the charge occurred when Defendant was twenty years old. Defendant successfully completed probation, including sex-offender counseling in June 2004, and was successfully discharged from probation that same month. Defendant has no subsequent criminal convictions.

In September 2015, Defendant asked to seal his record under subsection (g) of this statute on the grounds that it had been more than two years since his discharge from probation, and that his underlying conviction occurred before he turned twenty-one. The trial court denied the petition because the underlying offense was a crime listed under this statute, and its reading of the statute was that because the underlying offense was under that statute, the record may not be sealed. Defendant’s interpretation was that this only applied to subsequent convictions, and not the underlying conviction.

Reviewing de novo, the SCOV looks to the plain, ordinary meaning of the applying-for-sealing statute. In reading subsection (g), the SCOV concludes that the language is inclusive of all criminal convictions, and does not limit applicability based on the nature of the initial crime to those not listed under the other statute. Based on the plain language of the statutes read together, the trial court’s denial was in error. But the sealing of the conviction is not automatic: the trial court must also make findings as to whether the Defendant has been rehabilitated. For that, the SCOV reverses and remands so the trial court can make such findings.

A Stressed System

In re A.S., 2016 VT 76

By Amy Davis

In this interesting per curiam opinion from the SCOV, our highest court resolves the actual appeal in a mere five paragraphs, then spends an additional 12 paragraphs addressing a problem we on the juvenile docket know all too well: scheduling.

Mom appeals the adjudication of her children as CHINS, claiming that the court erred in not considering evidence of changed circumstances after the State filed the CHINS petition. The State filed for CHINS based on a history of assaultive and abusive behavior from Mom’s relationship with K.S.’s father, and also on a history of substance abuse. The court adjudicated the children as CHINS on the events that led up the filing of the petition. The SCOV dismisses Mom’s appeal because this objection was not raised before the family court, thus resolving the issue on appeal.

The SCOV goes on to write about the long delay in the merits hearing of this case. The CHINS petition was filed on December 4, 2014. The court held a preliminary hearing on December 17, 2014 granting conditional custody to Mom. The State filed for an emergency care order on January 13, 2015, which the court granted. The court indicated that a 1-½-hour-long hearing was needed, but due to scheduling dilemmas and an overwhelmed juvenile docket, that hearing did not take place until November 5, 2015. The merits hearing was held on January 8, 2016, more than a year after the original petition.

Sunday, September 25, 2016

Reading Too Much Into Things

Town of Milton Board of Health v. Brisson, 2016 VT 56

By Amy Davis

Whenever I see a case involving a Board of Health, my mind jumps straight to those homes in Hoarders that get condemned. Have you ever watched that show? There is nothing like curling up on a Friday night with a bottle of wine and watching Hoarders. Seriously, you will feel so much better for not washing your dishes or vacuuming. Alas, this case is not so much about keeping 60 cats in your bedroom as it is about attorney’s fees.

The (lengthy) facts of this case are straightforward and really not in dispute. And since the legal analysis in this case is pretty short, the facts are really the only interesting part of this case. Defendant owned a two-story brick structure. The bottom floor housed a small bar and restaurant, the defendant lived on the second floor, and the attic was used for storage. In May 2012, the police department notified the health officer that some bricks were falling off the building and onto the sidewalk. The health officer looked at the building, said, “Yep, those bricks are falling on the sidewalk,” and issued an emergency health order condemning the building and declaring it unfit for use or occupancy. The defendant needed to hire a structural engineer to figure out what was going on, and complete all repairs within seven days.

Meanwhile, some more town and state officials came to look at the building. They installed some “Jersey barriers” to create a buffer zone, and determined that the bar/restaurant on the first floor was no longer in operation. The defendant would not allow the officials to inspect his living quarters or the attic. The state fire marshal issued a report saying the building could not be used for occupancy or public use due to the structural problems, heavy rotting in the roof, and moisture damage. The town board held its required hearing on the emergency order where the defendant acknowledged he did not do anything in response to the health officer’s order. The town board issued an order stating the brick wall collapsing endangers the passing motorists and pedestrians, which was an “immediate and substantial public health hazard.” The town board ordered the building remain uninhabited until repairs were made, that the defendant start those repairs within 24 hours, and, if he didn’t make those repairs, the building was to be demolished.

Sunday, September 18, 2016

When (Legal) Worlds Collide

Groves v. Green2016 VT 106

By Elizabeth Kruska

This is actually a very interesting legal issue. I know, I know, you’re expecting a cheeky, plucky summary of a Vermont Supreme Court case. I’m really mostly interested in the nerdy, legal part of this case. Sorry. Next time, I promise.

So, without getting into all the particular facts of this case, it essentially involves Mom and Dad who had children. The relationship appears to have been fraught with abusive behavior over the years. Dad got charged with some criminal offenses relative to Mom. Mom filed a parentage action in the family court, and asked that she be given sole parental rights and responsibilities of the kids. The Family Court granted that, said that Dad could not have contact with the kids, and also said that Dad was welcome to file a motion seeking visitation once his criminal case was done. Dad appealed all that, saying that the Family Court effectively terminated his parental rights using the wrong standard, and that by forcing him to wait until the criminal case was over before he could see his kids, that it created a prerequisite that was beyond his control.

SCOV affirms, and gives a very good explanation of all this, and why this was entirely okay.

Saturday, September 10, 2016

This is also Important

In re Manning, 2016 VT 53

By Andrew Delaney

A plea colloquy has to include a factual basis for the plea. This is important. We’ve talked about it before.

Just what is a plea colloquy? Well, if you break it down, plea means what it means and colloquy is a fancypants word for conversation. There are formal requirements to the “plea conversation.” Maybe that’s why it’s called a colloquy—because colloquy sounds really formal. Or maybe it’s one of those lawyer-job-security things. Who knows? Heretofore and hereon, let us commence with our recitation of the proceedings in the instant matter henceforth and forthwith posthaste.

Mr. Manning filed a post-conviction-relief (PCR) petition after his sentencing on a DUI4, enhanced by his DUI3. He argued that the trial court that took his DUI3 plea didn’t make sure that his plea was voluntary and supported by a factual basis. The trial court ruled in favor of the State and said the plea was good.

Monday, September 5, 2016

Developing Duties (with Dissents)

Kuligoski v. Brattleboro Retreat, 2016 VT 54

By Andrew Delaney

This case is a big development in Vermont tort and mental health law. You haven’t heard from me for a few weeks because I’ve been muddling my way through it. And I am not a smart man. If you think the summary is lengthy, you should see the opinion. Any mental-health practitioner, or lawyer involved in mental-health law or civil litigation touching on these issues, should probably sit down with a cup of coffee (or whatever drink one prefers; I’m not trying to be a coffee supremacist here even though coffee is the best) and work one’s way through it.

Michael Kuligoski was attacked and seriously injured by a former Brattleboro Retreat patient, E.R., who was being treated by Northeast Kingdom Human Services (NKHS). The Kuligoskis sued the Retreat and NKHS for “failure to warn of E.R.’s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking.” The defendants moved to dismiss that complaint and the superior court granted the motion, concluding that the Kuligoskis had failed to state a claim.

In a mixed-bag decision, the SCOV majority reverses on a couple claims and affirms on others. The dissents are fiery. It gets a little heated. (Sorry.)

Saturday, September 3, 2016

Property Division

Casavant v. Allen, 2016 VT 89

By Elizabeth Kruska

When we’re talking about divorces, Vermont is an equitable distribution state. If people split up and can’t figure out how to divide their property, the court is not necessarily going to cut the property in half and give each side 50%. Sometimes that happens—or comes close. The court is charged with the duty of considering various issues in a marriage, and splitting up property so it’s fair to each side.

For example, let’s suppose people get married and divorce after one year. Let’s also suppose Wife is the heiress to the O Henry! candy bar fortune and Husband is the Got No Green Lantern. Wife is obviously better situated, financially-speaking than husband. Husband can ask for half of the O Henry! Candy bar fortune, but he probably isn’t going to get it, because the court is going to say that isn’t equitable. They’d only been married a year, and the money didn’t arise as a result of something within the marriage; giving him half would not make sense. Even though Wife came in to the marriage with lots of money, and even though the marital estate includes all property, regardless of its origin, the court is going to look at a non-exhaustive list of statutory factors when it comes time to divvy up the property.

In this case, Husband and Wife had twin sons and were married for fourteen years before separating. They owned a house, some cars, some bank accounts, and some other miscellaneous personal property that people normally have. They also had a large cash settlement that Husband received as a result of an employment discrimination lawsuit that happened during the marriage. Husband also expected a settlement from an unrelated personal injury lawsuit. Unfortunately, most of the money from the discrimination suit was spent, possibly indiscriminately (depending who you ask), including the portion that the family had set aside to cover the related tax burden. As a result, they had a significant tax debt going in to the divorce.

Sunday, August 28, 2016

Reefer Madness

C&S Wholesale Grocers v. Vermont Department of Taxes, 2016 VT 77

By Elizabeth Kruska

Some of you may have seen this movie.

You know what a reefer is? No, silly, it’s a refrigerated truck! I mean, yeah, it’s also weed, but in the context of this particular opinion, it’s a truck and the fuel that runs the refrigerated part of the truck. Actually, this opinion is more about refrigerated tubs, but I can’t think of anything funny about refrigerated tubs.

C&S is a big wholesale grocer company in Vermont, and with its business headquarters in Keene, New Hampshire. They buy grocery products from producers and re-distribute them throughout New England and New York. I should mention that at one point in the last decade my husband, who is also an attorney, provided some legal services to C&S. I am not sure what he did, and it’s been at least five years since he had any cases with them. I vaguely remember him having to prepare for a trial involving questions about the correct way to weigh cheese. He kept calling it “The Cheese Trial.” I believe The Cheese Trial settled amicably.

Cheese, like many other grocery products, has to be kept cool in order to be safe for distribution, re-sale, and ultimately for consumption by human beings. The trick is that the producers and distributors have to be able to maintain the right conditions from point A to B to C to your fork. That’s more cumbersome and less romantic than “Farm to Table” but I think you know what I mean.

Vesting

Vesting. Vest. Get it? 
Coons v. Coons, 2016 VT 88

By Elizabeth Kruska

This is a short opinion, so hopefully this will be a short summary.

Husband and Wife were married but decided to divorce. They had a final divorce hearing that took place over the course of two days. During the second day of the hearing, an issue came up regarding Husband’s military pension. The judge called a recess and called the parties’ attorneys into chambers, where they discussed the status of the case. In the biz we call this a “weather report.” They can be helpful in moving cases along.

During the chambers conference, the judge said he wasn’t going to make an order distributing the military pension, because Husband’s interest in it had not yet vested. The lawyers said, “thanks for the head’s up,” went back out to their clients, and hammered out a final settlement, which included Husband paying Wife $15,000.

Wetland Woes

Agency of Natural Resources v. McGee, 2016 VT 90

By Elizabeth Kruska

I like horses. Here’s an actual conversation I have had with various horses:
Me: Walk on, we’re going to the paddock.
Horse: But there’s grass.
Me: Walk on, you can eat the grass in your paddock.
Horse: But there’s grass right here.
Me: What part of “walk on” were you not totally understanding?
Horse: You know I weigh 1200 pounds, right? There’s grass. We’re stopping to graze.
Anyone who has led a horse past anything green has had this same conversation. Horses are grazing machines. And who can blame them? If your favorite food grew directly out of the ground and all you had to do was bend your head down and munch on it, you’d be all over it, too. (Note: if your favorite food is lettuce, and you can and have done this in a lettuce patch, please tell us all about it in the comments.)

This is going somewhere, I promise.

Redemption: Tax-Sale Style

Burgess v. Lamoille Housing Partnership, 2016 VT 31

By Elizabeth Kruska

Immediate, up-front disclaimer: I do not do real estate law. To the extent this case has to do with real estate, deeds, and other things to do with land, I’m a touch out of my element. I’m good with the legal part. I might as well be trying to explain the infield fly rule; I get baseball, but the infield fly rule does not adhere to my brain.

Given that disclaimer, here are the facts, basically. Mr. Burgess’s parents bought some property via the Lamoille Housing Partnership (LHP). The land had a house, which they owned, but ownership of the house was severed from the land itself. The Burgesses got a leasehold interest in the land for development for 99 years and had terms and conditions to follow, including that they had to pay the taxes on the whole property.

They later disputed paying taxes and ended up delinquent. They went to court, and the court determined that they did have to pay the taxes and that they did not own the underlying land. There was a tax sale, and the Burgesses’ son, Matthew, went to bid on the land. He was outbid at the sale. The sale was subject to redemption, meaning if the Burgesses paid off their tax debt within a certain period of time, they would not lose the property.

Jurisdiction Justification

Ward v. LaRue, 2016 VT 81

By Elizabeth Kruska

I like the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). I like it because it’s a set of rules that deals with things that happen in real life. Let’s suppose Mother and Father are married and have a child. Then they divorce and Mother gets primary physical custody of Child, but Father gets visitation. These are things that happen to real people. This is normal and part of what goes on in the world. Another thing that happens in real life is that people move. Sometimes people move to different states. This is also normal.

However, there can be complications. With respect to child custody, if people can’t agree on how to solve a problem that arises because one parent or the other has moved to another state, there are rules. Those rules are the UCCJEA.

Here’s what happened in this case. Mother and Father lived in Vermont and had a child who also lived in Vermont. A divorce was filed and granted, and Mother was awarded primary physical rights and responsibilities of Child, while Father was awarded visitation. It’s not stated, but apparently right out of the gate Mother wasn’t allowing Father to have his time with Child, because Father had to file a motion to enforce parent child contact fairly soon after the divorce. Only ten months after the divorce was final, the trial court entered an order that admonished Mother that if she didn’t follow the parent child contact order that the court might change custody. The court also said that Father had full access to medical, dental, law enforcement, and school records of Child.

Sunday, August 7, 2016

Change of Plans

Gould v. Town of Monkton, 2016 VT 84

By Elizabeth Kruska

Mr. Gould owns or owned some property in the town of Monkton and had ideas about how he’d like to subdivide and develop the lots. I’m not sure how long he had the land, exactly what his plans were, or how much work he had put in to making those plans a reality, but he’ll need to have a change of plans.

Let’s back up. The Town of Monkton had some zoning regulations that had been kicking around since 1978. As someone who is also of a 1978 vintage, I see no problem with this. But apparently the town thought the old regulations and their subsequent amendments needed some revamping. The opinion suggests this overhaul had been in the works for several years, and finally got replaced in 2012.

The town’s planning commission held a public meeting in late 2011 on the new regulations, which they called the Unified Planning Document (UPD). After it was approved at the planning commission level, the UPD was sent to the town. At this point—between the times the planning commission approved the document, but before the town formally voted on it—the town reviewed all new building applications under the guidelines of the UPD, not under the guidelines of the older zoning regulations.

Curtilage By Any Other Name Is Constitutional

State v. Koenig, 2016 VT 65

By Amy Davis

This case focuses on a motion to suppress evidence that ultimately lead to a DUI conviction. State Police received a tip about some problem driving in Bethel. The caller gave the vehicle’s license plate number, which the police used to find the registered owner and her address. The trooper parked outside of the residence which consisted of a single-story structure and a garage-like structure open on one side and without doors, making the inside completely visible from the street.

The trooper saw the identified vehicle parked in the garage. He observed two entrances to the building—one on the left that he believed was the entrance to a business, and one on a shared wall, which he believed was the entrance to a residence. The trooper approached the entryway inside the garage area. As he approached the entrance, he observed the vehicle, and some damage to the front-left fender and driver’s side mirror.

Defendant opened the door and identified herself. After some field sobriety exercises and a breath test, the trooper arrested the Defendant on suspicion of DUI. Defendant was arraigned, requested a timely civil suspension hearing, and filed a motion to suppress in the civil and criminal cases, and a motion to dismiss in the civil case. 

Multiple Bites of the Apple

Deutsche Bank v. Pinette, 2016 VT 71

By Thomas M. Kester

Albert Einstein is (allegedly) credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.” This is such a hackneyed quote and reminds me of vaudeville’s approach to comedy. Oliver Wendell Homes Sr.,1 in The Autocrat of the Breakfast-Table (1858), offers—in my opinion—a more discerning (and amusing) explanation: “Insanity is often the logic of an accurate mind overtasked. Good mental machinery ought to break its own wheels and levers, if anything is thrust among them suddenly which tends to stop them or reverse their motion. A weak mind does not accumulate force enough to hurt itself; stupidity often saves a man from going mad.”

“Hey, Tom, what’s the point?” Simply to elucidate that humans are creatures of habit and habit is repetitive, and the vast majority of humans are not insane (albeit we all have our eccentric moments). Who hasn’t explored couch cushions multiple times for one’s key in an almost Sisyphean fashion, knowing you came up empty handed just moments before? Maybe it’s chaos theory, self-doubt, or, because you threw the keys across the room, only Schrödinger and Heisenberg can locate them. Like the great Fonzie, perhaps we also believe that the jukebox will start only after the perfect maneuver is executed. We just need a little more time.

Speaking of time, it’s time to visit the instant case’s topics: real estate transactions and pleadings. On the surface they appear mundane, repetitive, and mainly involve paper pushing. Under the water, these monotonous actions harbor legal benefits. They can provide predictability, ease of process, and, besides, who wants to deal with pedantic legal requirements? If you don’t believe me (or want some reading material that will put you to sleep) I implore you to look up “common law pleading” and “code pleading”—both historically used in American court systems—to understand why “notice pleading” is the preferred method in civil procedure. This case illustrates that doing the same thing over and over again may not—at least after a bit—give you the desired results you wanted (I’m sure there is a Rolling Stones reference that I could throw in here).
 

Monday, August 1, 2016

Blinded by the Light

State v. Howard, 2016 VT 49

By Elizabeth Kruska

How many times has this happened to you? You’re driving at night. It’s dark. You’re minding your own business and paying attention to where you need to go. Then, all of a sudden, some jackpot decides he’s going to ride up on your bumper and tailgate you for what feels like forever. Oh, and of course, said jackpot: (a) has a vehicle that sits higher than yours, so the headlights shine directly onto your mirror; or (b) has his highbeams on; or (c) both. This really grinds my gears.

It also bothered Mr. Stephen Howard, who had the same situation happen a couple summers ago. The only way he could figure to get the lights out of his eyes was to move over. This caught the attention of a Trooper, who pulled over Mr. Howard, assuming him to be impaired. Mr. Howard ultimately got charged with a DUI, but challenged the reason he was stopped, saying that the Trooper really didn’t have a good reason to stop him. The trial court held a hearing, and agreed the Trooper didn’t have a legitimate reason for the stop. The State appeals.

SCOV agrees with the State, and reverses and remands the matter.


Sunday, July 31, 2016

Extracurricular Activities

State v. Graham, 2016 VT 48

By Andrew Delaney

Ms. Graham was charged with three counts of sexual exploitation of a minor. Here’s the thing: generally, in Vermont, 16 is the age of consent (one can also marry one’s cousin legally in Vermont but that’s a topic for another day). That means that if a 17-year-old high school student and a 25-year-old college student want to date, and, ahem, other stuff, it’s not a problem. But there’s an exception. And that’s when the older person is four years or more older and “in a position of power, authority, or supervision” over the sixteen-to-eighteen-year-old minor. This applies to teachers, camp counselors, and others—the statute is fairly broad. But what happens on summer break in a school-year-only-contract situation?

Beginning in 2012, Ms. Graham was employed on a school-year basis by Chittenden South Supervisory Union (CSSU) as a paraeducator and then for the next two years as a program assistant. She worked with K.S., the alleged victim, in a school program during the 2013-14 school year, and in May 2014, her supervisors told her she couldn’t work with him anymore because she “was spending an inappropriate amount of time with him to the detriment of the other students in the program.” So K.S. was transferred to another program. Ms. Graham no longer had supervision over him.

It’s important to note here that Ms. Graham’s employment was always on a school-year basis. She did not have a summer position, nor did she have any supervisory role over students in the summer of ’14.

Saturday, July 30, 2016

Solar Split

In re Rutland Renewable Energy, LLC, 2016 VT 50

By Andrew Delaney

Here we have the Town of Rutland (Town), five adjacent landowners (neighbors), and Rutland Renewable Energy, LLC (RRE) duking it out over a certificate of public good (CPG) for a 2.3 megawatt solar facility. The Town and neighbors say the Vermont Public Service Board (PSB) screwed up when it concluded that the project wouldn’t unduly interfere with orderly development and wouldn’t have an unduly adverse impact to aesthetics and gave RRE the CPG.

Let’s grossly oversimplify ‘cause that’s kinda what we do here. RRE filed a petition to put in a solar facility in Rutland. Neighbors ranged from about 150 feet away to 500 feet away. The neighbors and the Town did not like the idea of the solar facility up in the ‘hood. There are some wetlands on the proposed project site and the parcel is classified as “industrial/commercial” on the Town’s Future Land Use Map. The project includes almost 550 solar panels and accompanying inverters and transformers, plus a perimeter fence, a new curb along one of the roads, and new access areas and extension of existing access areas.

The PSB granted neighbors and the Town permissive intervention, assigned a hearing officer, and had a hearing. The Town and neighbors took particular issue with: (1) whether the project would unduly interfere with the orderly development of the region; (2) whether the project would have an undue adverse effect on aesthetics; and (3) whether the project would have an undue adverse effect on historic sites. The hearing officer took evidence and found that the criteria for a CPG were met provided that certain mitigation measures were put in place—more on that later.

Firefight

Concord Gen. Mutual Ins. Co. v. Gritman, 2016 VT 45

By Elizabeth Kruska

Back in the spring of 2009, a bunch of kids in Ludlow did what kids in towns full of second homes will sometimes do—they went to an empty vacation house to hang out. Some empty vacation houses also have attractive nuisances, like swimming pools, or in this case, an outdoor fireplace. I have always admired outdoor fireplaces, and thanks to this opinion, I now know the name for an outdoor fireplace is chimnea.

Anyway, the kids – and I use the word “kids” loosely—these are young adults, probably in their late teens or early twenties, saw the chimnea on the deck and thought exactly what you would expect, “let’s build a fire!” Because the hanging out included drinking beer (the quantity of which is somewhat disputed) and smoking weed, a couple conclusions were made. First, it’s fair to say that judgment was at least a little bit impaired, and second, there were plenty of lighters available for starting the fire in the chimnea.

So, the kids set about finding some brush and sticks and whatnot for the fire. They put the tinder in the chimnea and someone lit it, although it’s really not clear whose lighter started the fire. The fire got going, and there was apparently testimony at trial that the fire was hot enough that people had to back away from the fire. Eventually, the kids decided to put out the fire by putting some dirt on it, and pouring beer on it. Various kids left at different times.

Domestic Assault is never Simple (or is it)?

State v. Bean, 2016 VT 73

By Ember S. Tilton

The State charged defendant with domestic assault. Defendant lived with the complaining witness at a residential facility. Defendant was apparently schizophrenic. The complaining witness testified at trial that he kicked Defendant's hand and said something to the effect of defendant "needed a kick in the ass." The next thing complaining witness knows it's lights out. A staff member testified that defendant dropped the complaining witness with one blow. The State rested.

Now, defendant argued that they were not really "household members" as the statute for domestic assault required. See they each had their own rooms and it was more like a boarding house or a hospital or something. The State agreed and asked the Court to proceed on a simple assault charge. Defendant agreed that simple assault was a lesser-included offense but that it was a bit late in the game to be adding a second charge. Over defendant's objection, the judge gave a simple-assault instruction and defendant was promptly convicted by the jury.

Now, defendant appeals his conviction. He asks the Supreme Court to reverse the trial court's ruling claiming that it couldn't be simple assault, because the elements of the crime are different. Specifically, Defendant points to the word "willfully." This is because Simple Assault must be done willfully, meanwhile Domestic Assault can be done "purposely." SCOV is not entirely convinced. According to them, (and your humble blogger agrees) these words are used interchangeably. 

Sunday, July 10, 2016

Connecting Conditions

State v. Cornell, 2016 VT 47

By Andrew Delaney

Probation conditions have to be reasonably related to the conviction. It wasn’t always like that from a practical perspective, but the SCOV has recently put its foot down.

Mr. Cornell is back on his conditions for another round. The first time, the trial court imposed a bunch of conditions but Mr. Cornell didn’t know what they were until he got a list post sentencing. There was an appeal and a remand. When Mr. Cornell objected to the conditions, the trial court said, more-or-less, you don’t get to object at this point. Another appeal and remand later, and Mr. Cornell ended up with another set of conditions. On this round, he appeals six probation conditions ordered by the sentencing court.

Mr. Cornell was convicted of lewd and lascivious behavior with a twelve-year-old boy in 2013. He was sentenced to some prison time and some probation time. After the procedural wrangling referred to above, the trial court eventually imposed twenty-one probation conditions, including, over defendant's objections, that: (1) he reside or work where his probation officer approves; (2) attend counseling programs ordered by his probation officer; (3) refrain from violent and threatening behavior; (4) avoid areas where children congregate; (5) his probation officer have warrantless search and seizure privileges; and (6) he is banned from home computer and internet usage.

Saturday, July 9, 2016

Extensions & Excuses

Puppy in Civil Procedure 
Clark v. Baker, 2016 VT 42

By Andrew Delaney

This is an appeal dealing with whether stuff was filed in time. This is like a civil-procedure thrill ride. Please don’t take my sarcasm the wrong way—civil procedure is very important stuff and I sincerely wish that I had paid a lot more attention and played a lot less Yahoo Pool during civ pro in law school. I probably could’ve saved myself a lot of CLE and self-study time later on.

There are two sets of medical defendants in this medical malpractice and wrongful death case. The SCOV helpfully christens them the Baker defendants and the Hospital defendants. Both sets of defendants filed motions to dismiss on the basis that plaintiffs failed to serve process in a timely manner. The trial court denied the motions and both defendants appeal. The Baker defendants’ pitch is that the trial court’s enlargement of time expired before the Baker defendants were served. The Hospital defendants go with a plaintiffs-failed-to-file-the-signed-waiver-in-time argument. Both camps appeal from the trial court’s conclusion that it could retroactively grant a motion for enlargement of time and extend the time-period for service after the running of the statute of limitations based on excusable neglect.

Let’s find out what happened.