Sunday, December 31, 2017

"A Very Difficult Case"

Yep. That's about the sentiment. 
Knutsen v. Cegalis, 2017 VT 62

By Andrew Delaney

This case has previously been described as “heartbreaking.” This is the fourth published opinion in this case I’m aware of. You can read summaries of the second and third opinions by clicking on the respective links. The first opinion predated this blog.

This time mom is appealing from the trial court’s denial of her motion to modify parental rights and responsibilities. She argues that the trial court’s findings don’t support its conclusions. Specifically, even though the trial court found that mom had shown a real, substantial, and unanticipated change in circumstances, and that dad and stepmom weren’t credible, the court nonetheless chose not to modify parental rights and responsibilities because it reasoned that transferring custody to mom wasn’t in the kiddo’s best interests. SCOV says, more or less, “We guess that’s within the trial court’s discretion, but if dad and stepmom keep up the alienation stuff, then that’s probably going to warrant a change.”

Mom also appeals the trial court’s denial of her motion for attorney’s fees. On that point, SCOV sides with mom, reasoning that she’s “entitled to such fees given father’s egregious and ongoing effort to alienate her from” kiddo, which is what brought all this about.

Sunday, December 10, 2017

Roof not Required

State v. Lampman, 2017 VT 114

By Elizabeth Kruska

Any time I see a last name ending with “-man” I tend to think that person might be some sort of superhero, like Spider-Man or Superman. I don’t know Mr. Lampman, but I immediately envisioned him like this: all dark clothing* with red gloves, and an emblem of an old-timey gas lantern on his chest that has a yellow glow around it. And obviously there’s a cape, because I suspect nobody gets into the superhero business without the promise of a cape.
Superhero Interviewer: “You’ll bring lightness to the world.”
Potential Superhero: “Do I get a cape?”
Superhero Interviewer: “No, sorry, our cape budget is maxed out.”
Potential Superhero: “You know, I have a degree in electrical engineering. I don’t need this nonsense.” *storms out*
(*Anyone able to tell me why superheroes always wear tights? Can’t someone be super in, say, a pair of Levi’s and a hoodie? I’m wearing a hoodie right now with a big outline of the state of Michigan on the front, and I gotta say, it’s comfy and I feel pretty super. Also, as an expatriated Michigander and Wolverine, I am duty bound to add, “Go Blue!”)

Anyway, it appears that Lampman in this case has a completely different superpower, which is stealing building materials from partially constructed structures.

Form Over Substance

You can't ride a bicycle with one
wheel because then it's a unicycle. 
State v. Heffernan, 2017 VT 113

By Elizabeth Kruska

This is what happens when a rule is followed to the letter and ends up having an unfortunately bad effect in the long run.

Mr. Heffernan was charged with simple assault and disorderly conduct in 2015 after he and another man got into a sidewalk fight in Burlington. Mr. Heffnernan worked (maybe still works, I don’t know) at Nectar’s. He wears glasses and usually rides his bike to work. The complainant in the case often went to Nectar’s. A bouncer recognized them both.

The bouncer’s version of the facts is that at some point on the night in question, he saw Mr. Heffernan and the complainant having a “close conversation” but he couldn’t really hear what they were saying. A fight started, but he couldn’t see exactly how. A patron at Esox, another bar nearby, also saw the fight and had a similar story.

Sunday, December 3, 2017

Take It or Leave It

Because when there’s no applicable photo,
we go with a photo of a cute puppy.
State v. Love, 2017 VT 66

By Elizabeth Kruska

Here’s a new twist on an old theme: probation. For a little while there SCOV was deciding a probation-related case almost every other day. This case answers a probation-related question that does come up from time to time but isn’t as common as some of the other probation issues we frequently see.

When we’re talking about probation, there are a couple different ways to get there in Vermont. Someone could be sentenced to a suspended sentence and supervised on probation with a requirement to complete certain conditions for a period of time. Often, it’s a fixed period of time, sometimes it’s an indefinite period. Let’s suppose someone gets a sentence of 6-12 months, all suspended, and a probation term of 2 years. That means they’re on probation for 2 years, and if they screw up on probation, they could have to serve that 6-12 month sentence in jail. If the person does well, or with permission of the court, they can be discharged from probation supervision earlier than their ordered term.

The other way someone ends up on probation is with a deferred sentence. Deferred sentences operate a little differently. A person is adjudicated guilty, but isn’t sentenced just yet. Sentencing gets deferred for a certain period of time. During that period of time, he or she could be supervised on probation, and have to follow certain probation conditions. When the person reaches the end of the deferred sentence period, if they’ve complied with their conditions, the conviction gets expunged from the person’s record and the matter is treated as if it didn’t happen. The other side of the sword, though, is that if the person violates probation, since they’ve already been adjudicated guilty, they just get sentenced at that point and the conviction stays on their record.

Sunday, November 26, 2017

Bail, or Not?

Hay! That’s the wrong kind of bail!
State v. Orost, 2017 VT 110

By Elizabeth Kruska

This is a bail appeal across four different dockets. Two get reversed, and that’s really only just so that bail can be imposed in those two particular cases.

Right-o. So, Mr. Orost was charged with a whole bunch of offenses. On October 16, 2017, he was arraigned on Docket 357 (the docket numbers are helpful because there are many of them). Three of the seven counts were punishable by life imprisonment. Two were counts of sexual assault of a child under the age of 18 entrusted to defendant’s care, and one count of aggravated sexual assault.

I already see where this is going.


Why does the caged bird sing?
Wait. What? 
In re B.K., 2017 VT 105

By Elizabeth Kruska

Between basically the dawn of time and 2015, the Vermont Supreme Court didn’t overturn any termination of parental rights orders from the lower courts. Since then they’ve overturned several, including the one here.

So, here’s what happened. B.K. and L.K. were two little kids—ages six and seven—taken into DCF custody in 2014 on allegations that they were children in need of care and supervision (CHINS). This filing was because parents had apparently not engaged in services meant to rehabilitate them for domestic violence and substance abuse. The kids suffered trauma as a result of the violence in the home. They missed a lot of school during the 2013-2014 school year.

DCF created a case plan with services for the parents, and a concurrent goal of adoption and reunification with either parent. For those not mired in the fun that is juvenile court, a concurrent plan means DCF simultaneously plans for multiple outcomes. If the parents get it together and can reunify—great. If they can’t, plans to move forward with adoption happen. It’s not fair to little kids to keep them in the system for a long time while parents try one thing, potentially fail, and then a new plan has to start.

Timing is Everything

Does the clock keep ticking? 
State v. Villar, 2017 VT 109

By Andrew Delaney

This case is interesting (I’d drop a footnote here that says “If you’re a nerd,” but footnotes are a pain in these posts, so we’re going with a parenthetical). Can the prosecution dismiss a case while it’s on appeal? The trial court judge said, “Nope.” SCOV disagrees.

Mr. Villar was convicted of DUI in 2015. He was sentenced to six months to three years, all suspended but 15 days. Though the opinion doesn’t say so, I assume it must’ve been a DUI3 or more given the upper limit of the sentence.

Mr. Villar appealed. His sentence was not stayed pending appeal. The appeal process was like a slow ping-pong match. There were several requests for additional time that were granted. At one point, before briefing was complete, the parties tried to enter a stipulation and plea agreement. SCOV pinged the ball back to the trial court, but the trial court denied the agreement. The ball ponged back to SCOV. More time for briefing, then a ping back to the trial court for an agreed-upon dismissal. The trial court denied the motion to dismiss and a motion to reconsider.

Barred From the Bar

Careful with your words here. 
In re Brittain, 2017 VT 31

By Eric Fanning

Eric Brittain applied for admission to the Vermont Bar and was denied because he failed the Character and Fitness review. He wants SCOV to let him practice law in Vermont, and so he appeals.

SCOV has original jurisdiction because it is responsible for regulating the practice of law in the State of Vermont, and has disciplinary authority concerning lawyers. One of the requirements of admission to the Bar is demonstration of good moral character and fitness, which is decided by the—wait for it . . . Character and Fitness Committee.

The Committee vets would-be-licensed attorneys, and tries to make sure that lawyers who actually are admitted have decent character and ethics. For example, applicants with a lengthy history of felony convictions or bearers of false witness (if I may get biblical for a moment) will have a hard time being accepted to practice law, even assuming they’ve already satisfied the educational requirements for admission. You don’t have to be Mr. Rogers to pass the Character and Fitness review, but somebody with the ethics of, say, Daniel Plainview probably won’t make the cut. The “fitness” part doesn’t mean fitness like this, it just means means that you have to be physically and mentally capable of doing a lawyer’s job—but that’s not our focus here.

Sunday, November 5, 2017

You Can’t Go Home Again

This puppy is unbearably cute. It has
nothing to do with the story.
State v. Shores, 2017 VT 102 (mem.)

By Andrew Delaney

Thomas Wolfe’s posthumous novel of the same title as this post is 743 pages long. So don’t say we never taught you anything. I really wanted to put "nothin" at the end of the last sentence but that would be a double negative and double negatives, sadly, are wrong—even if they sound way more entertaining than proper English. 

In February, Ms. Shores was charged with second-degree murder and held without bail pending a weight-of-the-evidence hearing. After the hearing, Ms. Shores was continued held without bail, she appealed, and SCOV affirmed. Allegedly, this is in a published entry order. Guess where it’s not? On the judiciary website.

Ms. Shores filed a motion for home detention. It was denied after a hearing and she didn’t appeal. A few months later, she filed a second motion for home detention. There was another hearing, an agreement that the evidence from the prior hearing could be factored in, some more testimony, and some agreed-to proffer from a Trooper, though it’s not clear what it was. The court issued a written decision denying the motion.

Saturday, October 28, 2017

Country Roads

Road or path? Wouldn't you
like to know. 
Granville v. Loprete, 2017 VT 101

By Andrew Delaney

Ancient roads can haunt you.

The Town of Granville put together an Ancient Roads Committee and a process for identifying said ye olde wagon-paths. In 2009, the Committee made some recommendations and added roads to the Town Highway Map after notice and several public hearings. (There’s an Ancient Roads Act that gave all towns until mid-2015 to get these Ancient Roads on town highway maps (see subsection (c) of this statute for more information)).

Well! One of those identified wagon paths in Granville went through Mr. Loprete’s property. Mr. Loprete decided that he’d block off the road with a storage container. The selectboard asked him to remove the storage container. Mr. Loprete was not interested.

So the Town sued for declaratory judgment, asking the court to declare that the road was a proper road dating back to 1850—and that by implication Mr. Loprete couldn’t use the road for his storage-container-placing activities. In order to be a proper road, under the applicable 19th-century law, there had to be (1) an official recorded survey; (2) a formal act by the selectboard; and (3) a certificate of opening.

But Her Emails!

Does it matter where? 
Toensing v. The Attorney General of Vermont, 2017 VT 99

By Elizabeth Kruska

This decision seems like a big deal, but when you boil it down, it actually seems a lot more like common sense. I will sum up: sometimes state officials use their personal email accounts to send “work email” and if they do, sometimes those documents are public records. If those documents are public records, and if someone makes a Public Records Act request for them, they may have to be disclosed.

Vermont has the Public Records Act (PRA), which governs disclosure of, well, public records. The point is that we, as the citizenry, have the right to know what our government officials are doing. The PRA sets forth what is a public record, and what kinds of records are exempt from disclosure. For various reasons the public doesn’t get the right to see everything generated by the government. But if a citizen makes a request for certain documents, the government has to either (a) turn them over or (b) say why they shouldn’t have to turn them over.

So, apparently Brady Toensing wanted to see some government-related emails and made a PRA request. The request included disclosure of emails sent by certain government officials through their state email addresses as well as certain emails they sent using their private email accounts. The Attorney General’s Office (AGO) did a search and identified something like 13,000 state emails that fit the bill. Some were disclosed, some were exempt, all came from the government officials’ official state email addresses.

The Gaps Between

Coverage Subject to Change
Progressive Cas. Ins. Co. v. MMG Ins. Co., 2014 VT 70

By Nicole A. Killoran

Ever wondered what happens when you’re one of several passengers in a car crash, your driver is the jerk who’s responsible, and his liability insurance doesn’t pay for everyone’s injuries? Well, I hope you’re all hydrated, because we’re about to dive into a very dry area of law to find out the answer from a case that came out a few years ago.

The particular facts of this accident—you know, the grim details that make it onto the evening news and leave you feeling protective of your family—are not explained in this opinion. Even if they were, I doubt they would have made the topic, the enforceability of an “owned-vehicle” or “covered-auto” underinsured motorist coverage exclusion in Vermont, any sexier. All we know is that some poor shmuck passenger riding in his mom’s car found himself one of several victims of a one-car crash, the driver’s liability coverage was woefully short of paying for everyone’s injuries, and passenger had to tap into his underinsured motorist (“UIM”) coverage under his own car insurance to make up the difference.

Now, Progressive had both the tortfeasor driver’s insurance and passenger’s (both $500k policies), and passenger had twice the Progressive coverage under a MMG policy he had the foresight to buy. Progressive being the carrier for two of the three policies makes it a bit confusing, but here’s how this played out. Progressive paid out to all the victims under the tortfeasor’s policy to the liability limits ($500k), including roughly $250k to passenger. This still left passenger short about $400k, and it looked like he had three policies’ UIM coverage (the driver/host vehicle’s, and both of his) to tap into. Progressive ended up paying half, and MMG paid the other half, leaving room to spare out of the $1.5 million he had available.

Forever Temporary

Crossover Law Enforcement
Brown v. State, 2013 VT 112

By Nicole A. Killoran

Today’s case, an employment dispute that came out a few years ago, is a fact-specific look at one soon-to-be-deployed National Guardsman’s time as a temporary correctional officer (TCO). The majority offers us a window into servicemen employment protections. The dissent gives us a peek into evidentiary infighting among the SCOV’s esteemed justices.

Plaintiff Brown was a TCO at the Department of Corrections’ (employer’s) Southern State Correctional Facility in Springfield. If you noticed the “was” there, you’ll recognize that this is a dispute that arose when plaintiff was fired. And fired he was, as well as passed over for promotion, just a few months after he was tagged for deployment to Afghanistan. Therein lies the dispute.

TCOs are at-will, non-union employees that fill in where necessary for regular correctional officers (COs). Plaintiff started working as a TCO with employer at the end of 2008, and did some training at the Vermont Corrections Academy in early 2009 with generally good marks (and a few bad ones). Shortly after returning from the Academy, employer learned that plaintiff would be one of several officers at the facility that would be deployed to Afghanistan.

Saturday, October 21, 2017

In the Kitchen

We're well past the curtilage
at this point
State v. Allis, 2017 VT 96

By Elizabeth Kruska

Ever have it when you don’t expect to find police in your kitchen? But then you leave the room for a second, and bam! Cops in the kitchen.

That’s sort of what happened here. Christian Allis lived with his girlfriend. Back in October of 2015, police got a call about what looked like a car crash. They arrived on scene and found Christian’s pickup truck in a ditch, and some evidence nearby suggesting the truck had crashed. They ran the plate, learned who the owner was, and learned where he lived. They travelled to the house to try to find out what was going on.

The police knocked on the door, which was answered by Christian’s girlfriend. They asked for him, and she said he was upstairs. She turned to go get him, and unbeknownst to her, they came in behind her. When she returned, she was a little surprised to find a pair of cops in her kitchen. The police believed that when she said she’d go get him and turned that it was an implied invitation for them to come in behind her.

Your Shrink Or Mine?

No extra letters. 
State v. Sharrow, 2017 VT 25

By Eric Fanning

This case is relatively simple, folks, so I’ll keep this one short and sweet. 

Defendant Christopher Sharrow was charged with second degree murder in July 2013. While he was awaiting trial, his lawyer requested a competency hearing. A quick digression for the readers out there with no criminal law background: a criminal defendant cannot stand trial if he or she is found mentally incompetent. The two-prong analysis for incompetence is: (1) can the defendant understand the nature of the charges against him or her; and (2) is the defendant capable of consulting with his or her attorney? Don’t confuse this with insanity, which is a defense to a crime. A finding of incompetency merely delays the trial until the defendant regains competence; it doesn’t mean the defendant is not guilty.

Anyway, the court ordered an evaluation pursuant to this law, which we’ll get to in a second. The Department of Mental Health had an expert conduct a competency evaluation, but Sharrow’s lawyer wasn’t present when the evaluation was done, and so he moved for a reevaluation. The court ordered another evaluation and the Department of Mental Health selected another expert. This time, the expert requested a neuropsychological examination, but the Department declined to provide funding for that examination. The second doctor bailed and suggested they find someone else, because they believed that a neuropsychological examination was crucial for completing their evaluation. The third court-appointed expert concluded the Sharrow was not competent to stand trial for the alleged offense.

Saturday, October 14, 2017

What Choice Does One Have?

The boot. Get it? 
In re Durkee, 2017 VT 49

By Andrew Delaney

The Department for Children and Families (DCF) provides temporary housing assistance under its General Assistance (GA) program. The program is for folks that are in bad situations and need temporary emergency financial help getting or maintaining housing. The program doesn’t provide housing directly, just financial assistance. People who meet the criteria for the program can get up to about a month’s worth of financial assistance.

Ms. Durkee is a single mother who rented a mobile home with her three children. The family’s resources were limited. One child received social security benefits. Mom got food stamps but no longer qualified for certain benefits as she’d timed out of a program.

At the end of April 2015, landlord served mom with a no-cause notice of termination and gave her three months to get out. Rather than waiting for an eviction order from the court, mom moved out the day after the end-of-tenancy date specified in the notice. 

Home State Blues

Reverse Stork
In re M.S., 2017 VT 80

By Elizabeth Kruska

Hey! It’s another UCCJEA case! I happen to like the UCCJEA because it gives a nice clear, concise set of rules about what state has jurisdiction in child custody matters. But, there’s a tricky part of the UCCJEA which is perhaps less likeable, and which is a fairly big issue in this case. And that’s the issue of where a newborn baby lives. What?

Mom and Dad have a total of four kids. M.S. is the youngest of those kids, having been born in January of 2015. The thing about 2015, from a juvenile court perspective, is that it was when Vermont saw an enormous explosion of child-in-need-of-care-and-supervision (CHINS) petitions. This was likely part of that giant CHINS boom. I say this only for some context. For other context, this particular case originated in Windham County which, as people with maps know, borders New Hampshire. It’s pretty common for people who live on or near the Connecticut River to have friends, family, jobs, services—whatever—on both sides of the river.

Mom and Dad’s oldest two kids were subject of Vermont DCF proceedings in 2008, and then of New Hampshire DCYF proceedings later on (at that point the family lived in New Hampshire). Ultimately termination of parental rights petitions were filed in New Hampshire, and the parents’ rights to those two children were terminated. Then there’s a third child, who was taken into Vermont DCF custody in 2013 at a time when the parents lived in Vermont. 

Saturday, October 7, 2017

Cumulative Capacity Contracts

Catching some rays of hope?
In re Programmatic Changes, 2017 VT 77

By Amy Davis

Allco appeals from the Public Service Board which apparently denied some sort of request, and then denied a motion to reconsider its original denial. Allco argues that the Board was supposed to award standard-offer contracts to several solar projects because they provided “sufficient benefits” to the operation of Vermont’s electric grid.

The projects Allco refers to are part of Vermont’s Sustainably Priced Energy Enterprise Development (SPEED), which promote renewable energy in Vermont. The program is so important that the Legislature made it official in this statute. It allows the Public Service Board the authority to offer power-purchase contracts to new renewable-energy plants. There are two types of contracts included in subsections (c) and (d). Each contract has specific qualifications. These subsections require the Board to issue standard offer contracts until a certain cumulative plant capacity is reached. The first type of contract, under subsection (c), involves the Board sets a capacity and then receives proposals to fill that capacity. The second type of contract, under subsection (d), applies to plants that do not count towards cumulative capacity, including the plants that provide “sufficient benefits” to the electric grid. Sufficient benefits means that the plant must be “intended to mitigate transmission and distribution constraints, as opposed to those that provide more generalized benefits.”

On to the facts of the case!

Friday, October 6, 2017

Exemption Exceptions

Tax law is exhausting
Vermont College of Fine Arts v. City of Montpelier, 2017 VT 12

By Amy Davis

Normally I try to pick topics to summarize in areas of law I know pretty well so I don’t have to think too hard. This time I decided to challenge myself. Now I’m sleepy and want a whiskey.

Vermont College of Fine Arts (VCFA) is a nonprofit corporation formed in 2007. In 2008, VCFA purchased a bunch of buildings and some acreage in Montpelier, including Schulmaier Hall. This all is a two-story building with classrooms, faculty lounges, a basement, and an unused attic.

VCFA provides graduate degrees in fine arts. Students only need to reside on campus twice per year for 7-10 days at a time. Because not many students need to reside there, VCFA does not use the majority of the campus. For 2013-2014, 62% of the building space was open for lease. VCFA’s rental income can generate up to $2.8 million in revenue.

Saturday, September 16, 2017

Prospective Duties

This draft isn't going to work
Strong v. Fitzpatrick, 2017 VT 35

By Andrew Delaney

This case is about whether a lawyer owes a duty to a potential beneficiary when drafting—or more specifically not drafting—a will. Spoiler alert: there’s no duty when not drafting a will; there can be a duty when a will is actually drafted.

Let’s back up a bit for some context. Mr. Strong’s mom and stepdad got hitched in the ’60s. Mr. Strong and his siblings grew up on the homestead property, which consisted of two sections: “(1) a portion where the house was situated (House Portion), and (2) a large tract of undeveloped land (Upper Meadow).” In 1992, Mr. Strong moved back to the homestead to care for his mom and stepdad. According to Mr. Strong, stepdad told Mr. Strong that he was to inherit the entire property when stepdad and mom died.

Stepdad died in 2000 and mom inherited the entire homestead. Mom had executed a will in 1999 that left everything equally to Mr. Strong and his siblings. Mr. Strong didn’t like this plan and he discussed it with mom. According to Mr. Strong, mom said “I will leave you the house, the barn and the lower meadow, and you three kids can divide up the upper field.”

Sunday, September 10, 2017

Direct Harm

In the immortal words of the
Wu-Tang Clan: "Dollar dollar bill, y'all."
State v. Stewart, 2017 VT 82

By Elizabeth Kruska

In criminal cases, the court has to consider the question of restitution if there is a victim that suffers uninsured losses. Let’s use an easy example. Suppose Danny Defendant goes out and smashes up Victor Victim’s mailbox. Sure, Danny gets charged with unlawful mischief, and maybe he pays a fine or goes to jail as a sentence. But where does that leave Victor? He’s got no mailbox through no fault of his own, and if he has to replace it because of what Danny did, he’s out the cost of a new mailbox.

Enter restitution. The court can order that Danny pay Victor the cost of the mailbox.

In criminal court restitution is very narrow and is only limited to uninsured losses suffered by a direct victim of the crime. So if Victor’s neighbor, Noreen Neighbor, decides to go get a new, ultra-strong mailbox because she’s afraid that Danny might damage her mailbox, she doesn’t get restitution for that, since she’s not a direct victim of the crime. And if Danny had a no-deductible insurance policy that covered his mailbox, he wouldn’t be able to collect restitution because he’d have insurance available to pay for the loss.

Saturday, September 9, 2017

What Is Love? (Baby Don’t Suspend my License)

Just in case you didn't get the
reference in the title . . .
State v. Love, 2017 VT 75

By Amy Davis

This case considers when the court must hold a final hearing on a civil suspension of a driver’s license. Does the court have to hold it within 21 days of the preliminary hearing, and, if it’s not, does the civil suspension need to be dismissed. Yes and yes!

So, this statute says that when you violate this statute, meaning that if you drive under the influence, then the State has to notify you that they intend to suspend your driver’s license. If it’s your first time drinkin’ and drivin’, the suspension takes place within 11 days of receiving notice, unless you ask for a suspension hearing. Then, your license isn’t suspended unless the the court orders so, after a hearing. However, if you’ve been caught a second time, then your license is automatically suspended within 11 days of the notice, regardless of whether you ask for a suspension hearing or not.

This suspension hearing is a two-part process: a preliminary hearing and a final hearing on the merits. The preliminary hearing “shall be held within 21 ones of the alleged offense.” Then the final “to be held within 21 days of the date of the preliminary hearing” but no more than 42 days after the alleged offense without the defendant’s consent or for good cause shown. When it comes to a first offense, these limits are directive and not mandatory. The SCOV here reasons that these limits are mandatory for second or subsequent violations.

Intended Consequences?

Leave the gun at home
State v. Baird, 2017 VT 78

By Charlie Buttrey

When recently retired Vermont Supreme Court Justice John Dooley and longtime trial Judge Michael Kupersmith both take your side in a legal dispute, you’re usually in pretty good shape.


Keith Baird discovered that truism the hard way. 
The Baird matter involves the somewhat unusual and arcane matter of the “felony-murder rule.” Vermont law provides that a defendant can be convicted of murder, even if he did not commit the murder and even if he had no intention of committing a murder, if the State can prove three things: (1) that he intended to commit the felony of arson, sexual assault, aggravated sexual assault, burglary or robbery; (2) that he exhibited the necessary mental state for second-degree murder (intent to kill, intent to do great bodily harm, or “a wanton disregard for human life”); and (3) that someone was killed in the course of the crime. Under the felony murder rule, whether the defendant actually committed the murder, or even intended for a murder to be committed, is immaterial.

Sunday, September 3, 2017

Family Trust Issues

Allegedly, there are people who
like to drive these things. 
Lamson v. Lamson, 2017 VT 41

By Andrew Delaney

Love. It’s what makes a Subaru a Subaru. If you listen to VPR, you’ve heard this tagline. I’m guessing the Lamson brothers might have a couple things to say about that. Personally, I hate Subarus.

Roger and Frank were both beneficiaries and trustees of a trust established by their mom. Roger sued Frank in the probate division, saying that Frank’s personal use of mom’s cars violated the trust. The probate division found for Roger. Frank appealed to the civil division, which gave Frank summary judgment on the use-of-cars issue. Roger appeals.

Let’s back up. Frank, Roger, and a bank were all trustees of mom’s revocable trust. In 2012, Roger filed for an accounting, later amending his complaint to argue that Frank had breached the trust and distributed funds in Frank’s self interest. The probate division removed Roger, Frank withdrew, and the probate division appointed an independent institutional trustee and a guardian for mom.

A Tale of Two States

Virginia or Vermont? 
Pierce v. Slate, 2017 VT 63

By Eric Fanning

I’ll bet everyone reading this has heard the old saying, “Home is where the heart is.” Right now you might be asking yourself why I bothered to begin this post with possibly the most clichéd of all clichés. 

 I’ll tell you why—because in a sense that’s pretty much what this case is about: Where is home? And just as I’m sure all of you have heard that saying before, I’m also willing to bet that every single family law attorney who is reading this post wishes the law were as simple as, “Home is where the heart is.”

Coming back to the land of reality, we have the case of parents Laurie Pierce and Josh Slate. These two had a child who was born in Vermont in June 2016. Soon after the baby was born, the family moved to Virginia, where Father had been a long-time resident. Upon arriving in Virginia, mother signed a lease for an apartment, got a job, transferred her address with the US Postal Service, applied for and started receiving welfare benefits, and transferred the child’s medical records from Vermont. If I didn’t know any better, I’d say that at this point mother seemed pretty darn determined to stay and raise this kid in Virginia. Turns out, I’d be wrong.

Saturday, September 2, 2017

Ice, Ice Baby

The ice is back with a
not-so-brand-new invention
Abajian v. TruexCullins, Inc., 2017 VT 74

By Elizabeth Kruska

Nothing like a good Vermont Supreme Court opinion in the waning days of summer to remind us about what inevitably lies ahead: winter. In the abstract, Vermont winter is beautiful. Crisp, brilliant days. Sparkling, swirling snowflakes. Cozy evenings with cocoa and a good book. In reality, it’s the longest eleven months we have here, or however long that dang-blasted season runs. It’s dark. It’s so cold sometimes you wonder if your lungs are going to ice over when you breathe outside. Oh, and then there’s the snow. Mountains and piles and buckets of snow. And ice.

And that brings us to the problem here. The Abajians own a house in Williston, and in 2001, decided to put on an addition and also to repair the roof. They hired an architect to design the roof. The prior roof had shingles, and as shingled roofs sometimes do, this one had the propensity to get ice dams. For those unfamiliar with ice dams, here’s what they are: they’re a pain in the tuches. They’re big wedges of ice that form in crevasses, or by the eaves of a roof. Then when snow melts and starts to slide, or water slides down (gravity! Yay!), the ice dam prevents the snow or water from moving. It’s gotta go somewhere, so it starts to leak into the roof. Nobody wants a leaky roof.

So, the decision was made to replace the shingled affair with a standing seam roof. Standing seam roofs are cool. The snow just slides right down to the ground with a loud and sometimes terrifying thud. No muss, no fuss, no ice damming, and no leaking.

Juror Issue Resolved

White Rabbit
State v. Perrault2017 VT 67

By Elizabeth Kruska

Long story short—this case gets affirmed.

Mr. Perrault was convicted after a trial for three counts of drug possession. Three counts, three different drugs (marijuana, a depressant, and a stimulant). The basic facts are this. Mr. Perrault was hanging out in a convenience store parking lot in downtown Burlington. A police officer drove past a few times, and each time saw Mr. Perrault sort of hanging around, looking generally suspicious. The police officer finally decided to pull in to the parking lot, and found Mr. Perrault sitting in the front seat of a car with a backpack between his knees. The officer asked the driver if he could search the car, and consent was granted. Then he asked Mr. Perrault if he could search the backpack. Eventually Mr. Perrault agreed.

The police found two jars of marijuana in the backpack along with a prescription bottle bearing Mr. Perrault’s brother’s name. Inside were blue pills and red pills. One pill makes you larger, and one pill makes you small. And the ones that mother gives you don’t do anything at all. Wait, no. Those are different pills; ask Alice about them. The pills in this case turned out to be Valium and Ritalin.

Mr. Perrault said the pill bottle was his brother’s (seems true, since it had the brother’s name on it) and he had forgotten to give it to him. It appears the prescription was written for Valium. What wasn’t clear, though, was why the Ritalin was also in the bottle. And also, why it was inside a little plastic baggie inside the bottle. Mr. Perrault gave a story that I won’t try to recreate here, except to say it feels a little bit like a rabbit hole and the police weren’t buying it.

Saturday, August 12, 2017

Things You Can Do In Half An Hour

In re: D.H. and S.C., Juveniles

Run a 5k. Bake a couple batches of chocolate chip cookies. Drive from Montpelier to Stowe. Watch a rerun of The Golden Girls on some random cable channel (we’ve all done it).

What could have happened in this case, but did not – which prompted a reversal – was to wait half an hour for a Mom to show up for court. SCOV says the fact the trial court did not grant a 30-minute continuance in a termination of parental rights hearing was reversible error.

For readers who don’t go to juvenile court, let me tell you how it goes. It is long. It takes forever. The cases never really go away. And there are far, far too many of them. Some parents really get it together and work hard and try to have their families together. Some parents find that the procedure is a punishment, and fade away as the case progresses.

Saturday, July 29, 2017


State v. Joseph2017 VT 52

By Elizabeth Kruska

Mr. Joseph owns some land in Bennington County. He had some trees he wanted to cut down. Unfortunately, he strayed onto his neighbor’s land and cut down three of his neighbor’s trees.
He is all pine, and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He was charged with a type of trespass that forbade entering property and taking something of value which is parcel of the realty. Trees fit that description. While Mr. Joseph’s trial was pending, the legislature passed a timber trespass law that seemed to conflict with the existing law.

Sunday, July 23, 2017

You Can Bite This Apple Twice

"See that? Looks like a clerical error."
McLaughlin v. Pallito, 2017 VT 30

By Andrew Delaney

Most of the time, you only get one bite at the proverbial apple. I’ve always wondered about that phrase. Who doesn’t take more than one bite of an apple? I consulted the Google and the results are inconclusive—several folks think it’s a biblical Garden of Eden reference, a few think it’s a Snow White thing, and then there are some weird sexual theories out there. (Because aren’t there always?) This has nothing to do with this case. But I’ll be damned if I’m going to be the only one wasting time on this phrase.

The issue is this case is whether a prison superintendent can order a second hearing on a rule violation when the first hearing panel gives a not guilty based on a clerical error. SCOV says the second hearing is okay, which instinctively seems a bit strange, so let’s dig into it.

Mr. McLaughlin is a guest at state-subsidized housing—the kind very few people willingly live in. He got hit with a DOC charge—commonly referred to as a “D.R.”—for fighting. As is required in such cases, the prison held a hearing.

Friday, July 14, 2017

Bites at the Apple

That's it! No more biting! 
Deutsche Bank National Trust Company v. Watts, 2017 VT 57

By Elizabeth Kruska

How many bites at the apple are authorized? One.

Sort of related. I’m currently surrounded by Apple Products. I’m like that guy in the old commercials: I’m a Mac. But I just noticed that the ubiquitous Apple logo has one bite taken out of it, and now I wonder why. I wonder if it’s simply because it’s good design, or if it’s something larger. Maybe it means you only get one bite at the apple, so make it count. I don’t know. Maybe that’s a little too deep for right now.

Anyway, the Wattses—Paris and Skip—had some property and executed a mortgage back in 2006, and the note ultimately ended up with Detusche Bank, who we’ll just call “Lender.” The Wattses, or the “Borrowers” didn’t make their mortgage payment that was due on December 1, 2008. The Lender wasn’t hip to this action and filed a complaint in the appropriate Vermont Superior Court seeking foreclosure and all sorts of associated fees. In February of 2010, Lender filed an affidavit with the court indicating that service was complete.

Then for a very long time, just like in Vermont itself, nothing happened.

Sunday, July 9, 2017

Show Your Work

"And then the calculator said . . ."
Stevens Law Office v. Symetra Assigned Benefits Service Co., 2017 VT 61

By Andrew Delaney

When I was younger, I was quite good at math. The thing I never liked was having to show my work. If I got the right answer, what did it matter? Then, when I was headed to law school, I was told something like, “Now, it doesn’t matter if you get the right answer—the right answer is largely irrelevant. The important thing is to show your analysis.” I thought that seemed doubly silly. Now that I teach college classes, I think I know why: answers are boring but analysis can be entertaining. I’m kidding . . . sort of. The bottom line is that in law—like in math class—it’s important to show your work.

Here’s the story. Mr. Larock hired Stevens Law Office to represent him in a case. Stevens Law Office required a $16K nonrefundable retainer. Mr. Larock has a structured settlement, and the way the $16K would get paid is in 2022, the settlement funding company would pay the $16K directly to Stevens Law Office. Mr. Larock agreed to these terms.

Stevens Law Office then asked the trial court to approve the deal as required by this statute. There was a brief hearing, and an inquiry with bar counsel about the propriety of nonrefundable retainers (they’re okay as long as there’s notice of nonrefundability, scope, and the fee is reasonable). The trial court then issued a decision, concluding that because Stevens Law Office’s representation was ongoing, any determination of whether the fee was reasonable would be necessarily speculative.

Saturday, July 8, 2017

Keeping Tabs on Mom

Unfortunately, the kind of GPS
featured in this summary does
not come with detailed maps 
State v. Kane, 2017 VT 36

By Eric Fanning

What we have here, folks, is a violation of probation (VOP) appeal. Probation is a court-imposed criminal sentence where the convicted offender is released into the community instead of going to jail. Virtually all probationers have to abide by certain conditions while serving their sentence. If the probationer violates those conditions or fails to regularly check in with their probation officer (PO), they get a complimentary extended stay at the Big House, courtesy of the State.

Defendant/appellant Patricia Kane plead guilty to custodial interference (she took her son from his legal custodian and crossed state lines). She was sentenced to two to five years, all suspended except for one year. After serving the unsuspended portion of her sentence in prison, she was released on probation. As a condition of her probation, Kane was required to stay 500 feet away from her son’s school and home, avoid contacting him without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. She was also required under Condition 32 to submit to electronic monitoring as directed by her PO.

Under Condition 32, the Department of Corrections (DOC) required Kane to wear a GPS unit. One of the components needs to be charged twice a day for two hours at a time or else it loses juice and the signal is lost. The details of the alleged VOP’s aren’t terribly important here, but basically, the State says Kane willfully disregarded Condition 32 by doing such a terrible job of keeping the GPS unit charged. Kane claims the charging station made her phone unusable, and that it made weird fax machine-like sounds, and so she had to unplug it to make phone calls. At her probation revocation hearing, State put on evidence that the unit was disconnected on multiple occasions for lengthy periods of time, and that this, along with the testimony of her corrections officers, was enough to conclude that she was willfully disrupting her GPS monitoring. The criminal division found that Kane did willfully violate her conditions of probation.

The All New Let’s Make A Deal

Weaver . . . get it?
Weaver v. Weaver, 2017 VT 58

By Elizabeth Kruska

My husband and I have a deal in our marriage. Whoever cooks dinner is absolved of cleanup duties. If I cook, he cleans up. If he cooks, I clean up. There was this fabulous time right after Hurricane Irene when our town didn’t have water. That was also the exact same day he decided to make a delicious chicken and vegetable stir fry, using—and I am not making this up—seven bowls, three pans, two cutting boards, and all the spoons. But because we didn’t have running water I couldn’t wash the dishes. I had to rinse off the dishes in the stream behind our house because if I didn’t they’d get funky in the sink, and because a deal is a deal. He cooked, I cleaned up. In the days following we ate a lot of PBJ’s until the town felt it was safe to turn the water back on. I’m not at all ashamed to admit that PBJ and PBR is a perfectly adequate dinner in August. (Do not confuse Pabst Blue Ribbon with the Professional Bull Riders Association. Both are PBR’s, both are great, but they are significantly different in terms of thirst quenching and contact with very large, horned animals.)

This deal is not a big deal. And in terms of marriage-related agreements, it’s fairly minor. A bigger, and very common agreement often has to do with raising children. It’s completely normal for one spouse to work while the other either works part time or stays home if a family has kids. There are loads of reasons for this, and all are completely valid.

The spouse who doesn’t stay home gets a significant benefit. Although it’s a one-income situation, it ensures that the kids are home and raised according to how the family wants to do that. It also potentially means that the spouse at home keeps the home in working order. It also means the working spouse has the benefit of continuity of career, which leads to advancement and higher rates of pay.

Sunday, June 25, 2017

Lesson Learned

And . . . done.
In re Pope, 2017 VT 55 (mem.)

By Andrew Delaney

I am not a fan of the way SCOV is publishing decisions these days. I’m not sure why SCOV is self-publishing like a struggling pulp fiction author, but when the Department of Libraries was in charge, at least there was some semblance of method to the madness. And now that there’s a new website, none of the old links work. Go ‘head, click a link on any summary more than a few months old or any case link on the older summaries. Also, published entry orders like this one somehow end up in some black hole in Googletopia and not on the browse-by-date list. At any rate, this has nothing to do with the opinion, but if someone out there would like to really scour the site and make a comprehensive index so we can cross-reference it in connection with our mission to keep the public informed that’d be cool. Just shoot me an email.

We now return to our regularly scheduled programming.

In this decision, SCOV puts its seal of approval on the Professional Responsibility Board’s decision to reinstate Attorney Pope’s suspended law license. 

Saturday, June 24, 2017


Bifurcated Avocado
State v. Bangoura, 2017 VT 53

By Elizabeth Kruska

This opinion is really short. In fact, it will probably take me longer to write about it than it does to read the actual opinion. So, go read the opinion, too.

Mr. Bangoura appealed his conviction for a second-offense DUI. SCOV affirms.

The issue here has to do with bifurcation of the trial. There are some crimes that someone can commit multiple times and the maximum possible punishment doesn’t change. For example, someone can commit petit larceny over and over by stealing multiple times, and the maximum possible penalty allowed by law doesn’t change. On the other hand, our criminal code has other crimes that are known as predicate offenses, and DUIs fall into this category. If someone gets charged with a first offense DUI, there’s a particular punishment available. If a person gets charged with a DUI when they already have a prior DUI conviction, the penalty steps up to a higher level.

Keep Doing What You’re Doing

Keep on keepin' on
North Country Sportsman’s Club v. Williston, 2017 VT 46

By Elizabeth Kruska

Long story short: the North Country Sportsman’s Club is allowed to keep doing what it’s been doing.

Here’s the longer version. The North Country Sportsman’s Club, which I’ll just call the Club, has been around for some fifty-odd years. There isn’t a super-clear description of the Club in the opinion, but I take it from the description that it’s a shooting range available for skeet shooting. People probably also do shooting practice there with targets and whatnot.

In 2004 the Town of Williston made an ordinance prohibiting certain levels of noise. However, the ordinance exempted certain noise, including sport shooting under certain permitted conditions. The ordinance also specifically called for an agreement to be made between the Town and the Club to outline when the Club could operate. The ordinance doesn’t mention this particular club by name, which makes me wonder if there are multiple shooting clubs or ranges operating in Williston, or if the Town just didn’t want to call out this particular club specifically in the ordinance. Not that it’s super relevant; it just made me wonder.

Sunday, June 18, 2017

Paperwork Problems

Ruh roh! Rat's rot ronrurrent!
Perron v. Menard, 2017 VT 50

By Andrew Delaney

This case has some moving parts that could be hazardous to small children. Let’s hope I get the story straight.

New York wants Mr. Perron to come do time in the Empire State on a grand larceny bid. Mr. Perron was “initially detained on a prerequisition warrant”—whatever that is—but then the Vermont Governor issued two different warrants for Mr. Perron’s arrest. Best I can figure, the trial court denied Mr. Perron’s petition for a writ of habeas corpus and then denied his challenge to the governor’s warrants. How did we end up here?

Back in 2014, Mr. Perron was indicted in New York on a bunch of charges. Then he got hit with a federal wire fraud charge out of Florida. He was taken into New York custody and took a plea in New York on one count of grand larceny, for which he got a two-to-four-year bid. Mr. Perron was then shuffled off to the feds and convicted on the federal charge, racking up thirty months on the federal side. The sentencing documents didn’t say anything about whether it would be concurrent or consecutive to the New York sentence. As Scooby Doo might say, “Ruh roh. Rat’s rot rood.”

Sunday, June 4, 2017

Up On The Roof

LeClair v. LeClair, 2017 VT 34

By Elizabeth Kruska

This case reads a lot like a law school hypothetical. In fact, part of me wonders if there’s a Vermont Law School professor of torts out there reading this opinion thinking, “This is a mighty fine way to teach premises liability.”

The facts here are fairly simple. Plaintiff is the grandson of Defendant. Defendant is an experienced builder and Plaintiff is an experienced roofer. Defendant went to his own son, Plaintiff’s dad, and wanted to get some work done on the roof of his place of business. Plaintiff’s dad went to Plaintiff, who wasn’t working at the time, and let him know about a roofing job for Grandpa.

One day in October, Plaintiff and a friend of his went to Defendant’s building to work on the roof. They’d already started the job, and had taken off some of the shingles, leaving only the underlay material exposed. Being October, it was chilly and some frost had formed on the roof. Plaintiff didn’t want to go up on the roof, because the conditions made it slippery. Defendant told him to wet down the roof and get to work. Plaintiff did as he was instructed, and unfortunately, fell to the ground below, injuring his head and neck.

DCF Jumps the Gun

And, we're off to the races . . .
In re A.M., 2017 VT 5

By Amy Davis

As any parent can attest, once in awhile you make mistakes and aren’t a very good parent. This case focuses around whether one slip-up during a juvenile case is enough to make you lose your rights to your kids. It’s not, usually.

These two teenagers had some kids, and at the time of the proceedings, the kids were 8, 6 and 2 ½ years old. Babies having babies, man. At one point, the Department of Children and Families (DCF) got involved with the two older kids, but parents made progress and the case got dismissed.

Mom and Dad tended to fight a bit, would separate, then Dad would say, “you’ve been screwing around on me” so Mom would say, “well yeah but you hit me.” It went on like this for several years, but summer 2012 to summer 2014 seemed calmer. Mom was the one who cleaned and fed the kids, while Dad didn’t do much. Then in July 2014, Dad left and moved to New York about 90 minutes away with Mom. Kids stayed with Mom. Mom filed, and the court granted, a relief from abuse (RFA) order to her in September 2014. That order gave Dad regular visits with the kids. Dad also tried to modify the custody order in family court, but the State intervened with a CHINS petition, so his motion was never heard.

Sunday, May 21, 2017

Solar Flare

Get it? 
Russell v. Hernon, 2017 VT 45

By Andrew Delaney

The most-important lesson in this case is that the basis for a prejudgment-interest start date has to have a discernible basis.

Mr. Russell was involved in efforts to develop solar facilities and possibly sell solar tax credits. I keep getting calls from folks with interesting accents trying to get me to put solar panels on my house. I don’t believe these are related, but I do enjoy messing with people who call me up and try to sell me stuff. There is nothing more entertaining than exasperated telemarketers (email me for NSFW link to a conversation with “Microsoft”). Digression is a way of life here at SCOV Law.

Back to the story . . . so Mr. Russell, Mr. Hernon, and a couple business entities are involved in this solar-facilities-and-tax-credits project. According to Mr. Russell he was the concepts guy and the head admin person.

Sunday, May 14, 2017

Some Assembly Required

"Umm, I think we're missing a piece."
Airi v. Nagra, 2017 VT 42

By Andrew Delaney

The lesson from this appeal is that if you appeal a trial court judgment and don’t order transcripts, you’re gonna have a bad time.

Mr. Nagra appeals from the trial court’s judgment in favor of Mr. Airi. Briefly, Mr. Airi agreed to do some hotel-management work for either Mr. Nagra or for Mr. Nagra’s companies. There were FBI raids and restructuring, a receivership, and some other twists and turns along the way. During that time, there were two periods during which Mr. Airi contracted to do stuff with the receivership, complete certain hotel management tasks, and to complete hotel financing projects—stuff Mr. Nagra couldn’t do because of pending criminal charges and other legal issues.

Mr. Airi never got paid. So he sued Mr. Nagra. Mr. Nagra didn’t show up for the court trial. The court took evidence and entered judgment against Mr. Nagra for just shy of thirty grand for the work Mr. Airi did.

Key Party

"Seriously, do not lose
this key: it's the only
one we've got."
State v. Giguere, 2017 VT 40

By Elizabeth Kruska

The Canaan, Vermont police department—in sparsely-populated Essex County—gets locked at night. To get in after hours, you have to locate the key. You don’t need to resort to extremes or anything, you just need to call the police chief.

This system works great except that sometimes the chief goes out of town. And from what I can gather from this opinion, if the chief is out of town, and he has the key, ain’t nobody getting in to the Canaan Police Department. This likely isn’t a big deal except for the fact that in this sparsely-populated part of Vermont, there aren’t a lot of police departments, which means there aren’t a lot of breath-testing machines in the area that can be used during a DUI processing.

Let’s be fair. I have never been to Canaan, Vermont. I’d like to go there sometime. In fact, I’d like to visit all the towns in Vermont. We even have a club for people who do that. The thing about Canaan is that it is far away. You may think there are places close to Canaan. Yes. It is close to Canada. In fact, it touches Canada. Canaan, in fact, not only touches Canada, but it is somehow partly oddly north of New Hampshire. It’s the town way up in the northeast corner that curls over and sort of wraps around New Hampshire a little bit. It’s all the fun of being in New Hampshire, except you still have to pay sales tax and it’s not New Hampshire.

The Art of Business and Insurance Policy Coverage

'Business' as Usual? 
Shriner v. Amica Mutual Ins. Co., 2017 VT 23

By Thomas M. Kester

“Choose a job you love, and you will never have to work a day in your life.” This sentiment also  applies to part-time jobs—and maybe, by extension, to your insurance policy exclusions.

Plaintiff, a retired physician, is a glassblower who moved his equipment onto his residence, specifically, his garage. Plaintiff blew glass with a friend and the two operated a glassblowing enterprise. Plaintiff identified himself as a “artisan” on his tax forms and filed a Schedule C form for business profits with the Internal Revenue Service, describing his business type as “blown glass manufacturing.”

On January 12, 2012, “The furnace exhaust system in a piece of glassmaking equipment malfunctioned and caused a fire that destroyed the garage and all the property and equipment inside it.” Plaintiff was covered by a homeowner’s policy issued by Defendant. “The policy carried a $25,000 deductible and contained an exclusion from coverage for structures from which a business was conducted.” I smell trouble brewing. Plaintiff claimed $88,354.91 in personal property lost. Defendant accepted Plaintiff’s claim and calculated replacement cots at $42,422.97. After applying the policy’s deductible, Defendant made an advance cash payment of $1,460.53.