Tuesday, April 25, 2017

Estoppel Denied


State v. Nutbrown-Covey


If you went to law school, you likely remember that hazy, confusing time during the first semester when nothing makes sense and when it feels like you’re trying to study and learn a new language all at once. This is around the time first year students learn about claim preclusion and issue preclusion. Your brain probably fogged over and you thought, "wha?" Luckily, it's one of those things that in practice makes perfect sense. 

This is an issue preclusion case. Issue preclusion, or collateral estoppel, is part of the legal doctrine that allows a party to litigate a matter once. This generally pops up in civil cases, but sometimes there’s cross-over into criminal cases, as you’ll see here. The point is that a party doesn’t get to keep litigating the same thing over and over if generally all the moving pieces to the matter are the same.

Sunday, April 23, 2017

Silence is . . . Problematic

To speak or not to speak? Now that
is the question . . .
State v. Ladue, 2017 VT 20

By Andrew Delaney

First, the story. Once upon a time, or more specifically, at around 11:00 p.m. in Burlington on January 27, 2014, a woman heard a crash outside of her house. She then saw a late-90s silver-colored Honda with a loud exhaust backing away from a Subaru. The police were summoned. 

Mr. Officer showed up and chatted with Ms. Witness. Mr. Officer went looking for the Honda, was not successful in his efforts, and so returned to the scene of the crime. Lo and behold, a silver Honda was parked nearby. So Mr. Officer talked to Ms. Witness and she said, “That’s the car, officer!”

So, Mr. Officer ran the plates, identified Mr. Ladue as the registered owner, and moseyed over to Mr. Ladue’s house. Mr. Ladue was not home, but his mom was. As Mr. Officer was getting into his patrol car, however, Mr. Ladue pulled into the driveway driving the silver Honda. So Mr. Officer stopped his egress and walked up the driveway and confronted Mr. Ladue. The first question Mr. Officer asked him was whether anyone else had driven the car that night. Mr. Ladue allegedly said, “No.” Mr. Officer didn’t see any visible damage to the vehicle.

Friday, April 21, 2017

The Debt That Doesn't Die

H&E Equipment Services, Inc. v. Cassani, 2017 VT 17

By Andrew Delaney

I know a thing or thirty about debt following one around. Thanks to law school, I’ll be paying on loans until I die. There’s no sense in filing bankruptcy because student loans generally don’t go away even then. I’m not complaining. But debt can be a bit of a pain in the you-know-what. I’m not a fan. I’m guessing Mr. Cassani also is not a fan.

H&E Equipment Services, Inc. (H&E) got a judgment against Mr. Cassani in Arizona in 2001, and renewed the judgment twice in Arizona. In early 2015, H&E filed a complaint in Vermont to collect the judgment—a little over $56K plus interest—and attached a 2011 “judgment renewal affidavit” from Arizona.

Mr. Cassani moved to dismiss the complaint under this statute, which gives one eight years to collect on a judgment in Vermont or else it’s game over. Mr. Cassani apparently argued that the original 2001 date was the controlling date rather than the 2011 renewal. The trial court said, “Nice try, but no cigar.” Mr. Cassani moved for reconsideration. Still no cigar.

Broad Questions

In re Atwood, 2017 VT 16

By Elizabeth Kruska

I am a sports fan. I like some sports better than others, of course, but I think I can safely say I generally “like sports.” I don’t especially like the post-game interview, though. You know, the one where someone who works for a television network goes over to the winning coach or player, and asks completely ridiculous, unanswerable questions. They’re always along the lines of, “how special is it for you that you’ve won the Big Game?” As if the player or coach is going to say, “meh, this wasn’t that big a deal.” Instead, the answer is always a Grandpa Simpson-style rambling non-answer like, “I just want to give a shout out to my teammates about how we overcame adversity and stuck together to win this game.” That is not an answer to the question, and quite frankly, doesn’t answer any question anyone asked ever.

That’s maybe a little bit like what happened in this case. Atwood Enterprises, Inc. (Atwood) acquired 28 acres of land in Jericho where they planned to build a housing planned unit development (PUD). In order to do this, of course, Atwood needed to get a permit from the local board, and before they did that they had to provide appropriate notice to the surrounding landowners. The neighbors learned about the permit and showed up at the meeting to voice concerns and objections. The local Development Review Board took the neighbors’ concerns into consideration and ultimately gave the green light to Atwood to start the building.

Neighbors (there are several, and it’s easier to call them “Neighbors”) appealed the DRB’s finding to the Environmental Division. When an opposing party appeals to the Environmental Division, the party has to sent a Statement of Questions and this creates the framework for any future evidentiary hearing. Neighbors asked an incredibly broad question. “Does the six-unit, three-duplex PUD subdivision on a 28.5 acre portion of an approximate 123 acre parcel of land owned by Atwood Enterprises, Inc. satisfy the requirements of the Jericho Land Use and Development Regulations?”

Thursday, April 20, 2017

Remand for Sentencing


State v. Sullivan, 2017 VT 24


I want to make sure this is really clear: this case involves a remand for sentencing. That means his sentencing hearing is supposed to happen again. Not that he’s not getting a sentence, not that he’s “getting off for free,” not that he’s getting his conviction overturned. It’s that he’s getting another sentencing hearing.

I point this out, because by the time I’m writing this summary, I’ve seen the news articles about the SCOV decision in our local media. I also read the comments people posted in reaction to the story. Some people are really upset that he gets a new sentencing hearing, and perhaps misunderstand that the court’s decision doesn’t change the defendant’s guilt or innocence in the matter. This is because either a) they didn’t actually read the news story indicating that there’s a new sentencing hearing or b) the news story somehow made it seem like someone got away with something.

Sunday, April 16, 2017

Justice Delayed?

State v. King, 2016 VT 131

By Andrew Delaney

Does a three-year-plus delay in bringing charges after an investigation concludes violate due process under the U.S. or Vermont Constitutions? As always, it depends, but the short answer is no.

Back in ’08, the Department for Children and Families (DCF) started a sexual assault investigation, which DCF sent over to a detective. The detective interviewed the complainant, sent the case to the State’s Attorney’s office, and interviewed a couple more witnesses. From what I can gather, the complainant and her friend (one of the witnesses) were teenagers in 2008-09 and the alleged acts occurred in the early 2000s. And then the case kinda sat around from 2009 until 2012.

In the meantime, DCF sent a substantiation letter to Mr. King. Though Mr. King never appealed the substantiation, he did ask for it to be expunged. The DCF Commissioner denied the request.

Saturday, April 15, 2017

Responsibility

In re PRB No. 2013-145, 2017VT 8

By Elizabeth Kruska

Let me sum up (or tl;dr, in the parlance of our times), attorneys have to keep their client trust accounts up-to-date, accurate, reconciled, and accurate. Did I mention accurate?

As a lawyer, I know that one thing we lawyer-types like to joke about is how we don’t like numbers. I used to have lots of cases with a particular former prosecutor who would frequently say things like, “I’m a lawyer! I don’t know anything about counting!” This is someone who is a good lawyer, who I like very much, and yes, who was no good at counting. Numbers are no joking matter, though, when it comes to other people’s money. And by people, I am referring to a specific group of people: clients.

I know we have a pretty varied audience, including lawyers and non-lawyers alike. For non-lawyers, and for readers who haven’t experienced how hourly legal fees generally work, I’ll be glad to explain. Suppose Client hires Lawyer to represent him in a case and Lawyer will charge an hourly fee. Lawyer gets a retainer from Client and bills hourly against the retainer. The retainer is always Client’s money, and Lawyer has to earn the money by doing the work. If the case is finished before the retainer runs out, Lawyer gives back to Client what’s left. In the meantime, though, the retainer sits in Lawyer’s client trust account. This is also sometimes referred to as an IOLTA (interest on lawyers’ trust accounts) account. Any interest that gets generated by the money in the account doesn’t belong to either the client or the lawyer; the bank collects it and distributes the interest to the Vermont Bar Foundation, which uses that money for funding various low-income legal assistance projects.

Saturday, April 8, 2017

Will be Conditional or Not

In re Holbrook, 2017 VT 15

By Thomas M. Kester

Tom Sawyer watched his own funeral. 

But Dr. Alfred Nobel most likely read his own obituary in April 1888. How was that possible? Alfred’s brother, Ludvig, died in Cannes, France in April 1888 and the French newspapers mistakenly thought the deceased “Nobel” to be the more famous one (talk about fake news). This journalistic specter of death is bad on its own, but the French newspapers’ headlines would have stopped Alfred Noble cold in his tracks. 

One in particular proclaimed: Le marchand de la mort est mort (“The merchant of death is dead”). For those who don’t know, Alfred Nobel was the inventor of dynamite. Alfred thought himself a great inventor, as he believed his invention was for betterment of humankind—like to move earth for monumental construction projects such as the Panama Canal. The mistaken obituary may have led Alfred Nobel to rethink his life’s work and its lasting impression on the world. He changed his will sometime after April 1888 and, upon his real death on December 10, 1896, his fortune funded and ultimately created the Nobel prizes. Scholars on this subject don’t know for sure if reading his own obituary and the dissonance between its macabre reflection and his own personal views caused Alfred Nobel to use his will to create the Nobel prizes—a symbol of having accomplished extraordinary and noble acts in one’s life. 

Prison Presumed

State v. Henault, 2017 VT 17 (mem.)

By Andrew Delaney

Mr. Henault was held without bail. He appeals.

He’s charged with four counts, including a sexual assault charge that carries a potential life sentence. 

There’s a general presumption that bail will be granted. But when a crime carries a potential life sentence and the State can show “great” (I’ve griped about this terminology before) evidence of guilt, that presumption gets flipped on its head, and the presumption is that the defendant will be held without bail. The trial court has discretion, however, to impose conditions of release and allow bail. In making that determination, the trial court can look at the nine factors listed in subsection b of this statute, though it’s not required to. This is because the statute, by its terms, applies only when there’s a constitutional right to bail.

Use it or lose it

Pratt v. Pallito, 2017 VT 22

By Andrew Delaney

In appellate procedure, an issue not raised below becomes the proverbial snowball in hell. This is a constant. There’s the rare exception for clear error and manifest injustice, but for the most part, the phrase “an issue raised for the first time on appeal” is the death knell for an appellate argument. I think of Rule 75 petitions as (more or less) appeals of administrative proceedings.

This case deals with whether a petitioner can challenge a Department of Corrections’ (DOC) disciplinary conviction in the trial court on grounds not preserved in the DOC proceedings. The SCOV says “Nope.”

Disciplinary convictions in the DOC system follow a step-by-step path. When an inmate is charged with violating a rule, a hearing officer holds a hearing on the alleged rule violation. If the violation is upheld, a report is submitted to the Disciplinary Committee, which reviews the hearing officer’s decision. Then it goes to the Superintendent for review. Then the decision goes to the inmate. The inmate has a week to appeal. The Superintendent has to specifically address all appeal issues raised by the inmate in the appeal. After that, an inmate can challenge the conviction in the superior court, civil division with a Rule 75 petition.

Probation Conditions . . . Again

State v. Albarelli, 2016 VT 119

By Elizabeth Kruska

I know what you’re thinking. You’re thinking it’s been a little while since there was a case about probation conditions from the Vermont Supreme Court. That’s a little inside joke around here, because there have been something like eleventy-jillion cases about probation conditions in the last couple years. Here’s another one. Well, there are two parts to this case, and one of them involves probation conditions.

Backing up. Cameron Albarelli got charged with simple assault, disorderly conduct, and providing false information to a law enforcement officer. The facts alleged were that he was with a group of guys bar hopping on Church Street in Burlington one night. They were celebrating an upcoming wedding, which was the following day. Albarelli had a lot to drink. At one point, his group confronted a man sitting on a bench. Another group of people saw this confrontation and tried to intervene. That led to Albarelli and a person in the second group getting into a fight. It ended and Albarelli ran down the street. Someone called the police, and they were able to identify Albarelli by his clothing.

Albarelli initially told the police his name was “Cameron Mitchell” and gave a date of birth that was 1 year off his actual date of birth. His full name is Cameron Mitchell Albarelli. He didn’t exactly admit that he was in a fight, but alluded to the fact that he ran away to get away from the confrontation. He had a trial in his case and was convicted on all three counts. He got a sentence that included probation and work crew.

Sunday, April 2, 2017

Nope, nope, nope

State v. Richard, 2016 VT 75

By Andrew Delaney

Mr. Richard wasn’t interested in being pulled over. He ran a stop sign, so a trooper started following him. Mr. Richard was allegedly driving erratically. When the trooper turned on the blue lights, Mr. Richard kept going until he reached his driveway. He got out and started walking up the ramp to his house. The trooper stopped him.

The trooper testified that Mr. Richard smelled like booze and seemed out of it. Mr. Richard repeatedly said “don’t do this,” and when the trooper said, “C’mon let’s go,” Mr. Richard said, “Nope, nope, nope.” Now it’s been a little while since my drinking days and I don’t want to sound like I’m on the trooper’s side here, but “nope, nope, nope” is—in my, uh, training and experience—classic Drunkanese for “no, thank you, sir.”

The trooper thought so too, and cuffed Mr. Richard and gave him a ride to the police station. To be fair, Mr. Richard was already home, so I can understand why from his perspective this was a nope-nope-nope situation. There was an exchange after the breath test at the station about a trip to the hospital for an independent blood test but Mr. Richard didn’t have the supposedly required seventy-five bucks. So Mr. Richard said, “Well, I don't have seventy-five bucks, so.” My wife hates when I talk like that. I can always expect a, “So, what?” The trooper apparently did not have my wife’s pet peeve so that was the end of the conversation.

Sunday, March 26, 2017

Double Jeopardy Dilemma

State v. Dow, 2016 VT 91

By Andrew Delaney

Mr. Dow was charged with a smorgasbord of crimes after a fight with his wife and a later conflict with police. There was a partial mistrial, a couple convictions, a subsequent motion to dismiss, and a direct and interlocutory appeal—it all seems a bit messy to yours truly.

Let’s see if we can’t sort it out, huh?

Back in 2014, Mr. Dow’s wife posted a “revealing photograph” of herself on the interwebs. Mr. Dow became angry and this led to yelling and knocking items off of shelves. Mrs. Dow called the police and the police showed up. Mr. Dow was in a bedroom down the hall. The police officers asked him to come out and talk. Mr. Dow said, “No!” and told the officers to get out of his house.

No Cigar

State v. Haskins, 2016 VT 79

By Charlie Buttrey

Perhaps the only thing worse than losing in front of the Vermont Supreme Court, particularly after it agrees with you that the trial judge made a mistake, is losing by a split decision.

Glen Haskins knows the feeling.

Haskins was convicted of attempted murder, following a wild brawl in downtown Burlington at 2:00 a.m. on a cold January night in 2012 during which the victim was stabbed in the stomach. (Fun aside: On Youtube, there are at least three different songs with the lyric “Nothing good happens after 2 a.m.”).

Be There Or Be Square

State v. Grace, 2016 VT 113

By Elizabeth Kruska

Woody Allen is credited with saying that 80% of life is showing up. That’s largely true of criminal court, as well. There’s a whole lot of showing up involved in court cases. Except for when it isn’t required, and that isn’t all that often. And as it turns out in this particular case, the fact that Mr. Grace didn’t show up at one point was enough for SCOV to reverse the case.

Here’s what happened. Mr. Grace lives in Ohio, but back in 2013 visited Vermont. He got pulled over and was ultimately arrested for and charged with a DUI. He didn’t feel the reason he was initially stopped was lawful, so he challenged the validity of the stop with a motion to suppress. The motion to suppress was scheduled for a hearing, which went forward in early 2015.

Quick break for readers who aren’t lawyers or who aren’t familiar with how our court system’s notices work. At the time of Mr. Grace’s case (and now), courts electronically send notices to attorneys, who then provide notice to the clients. Every attorney or firm has some method of providing notice—whether it is to send it electronically, or by a letter through the US Mail, or some other system. Hearing notices usually specify that defendants must be present, and warn that a warrant could be issued for failing to appear. SCOV has dealt with this issue in the past.

Certifiably Procedural

McClellan v. Haddock, 2017 VT 13

By Elizabeth Kruska

Ever have it when you just can’t seem to get out of the house? Or the office? Or wherever? You check all your pockets to make sure you’ve got your keys, your phone, your wallet, your whatever, and then you have them or you don’t, or worse yet, you leave and one of the things is left behind? It’s a long, sort of anxiety-filled day when you realize you left your wallet on the kitchen table and you just hope you don’t get pulled over or need to pay for anything before you get home. I don’t know about you, but I feel a little less than whole if I don’t have all the pieces with me.

Unfortunately, some parts of civil procedure are also a little bit like this. You need all the parts in order to make a go of things. For certain kinds of cases, including wrongful death actions, in order to pass go, a plaintiff has to attach certain additional pieces of proof to the complaint at the time it is filed. For a wrongful death case to go forward, it’s got to include a certificate of merit from the attorney certifying that the attorney has consulted with a doctor in the field, that the doc has set forth the necessary standard of care, that the doc accused didn’t meet that standard of care, and that the plaintiff can probably prove it.

This certificate of merit requirement was added to the Vermont statutes back in 2011 in an effort to get a handle on filing frivolous claims. About half the states have this requirement. It’s not terribly onerous, especially considering the fact that a plaintiff is going to have to hire an expert most of the time to testify about the appropriate standard of care anyway. I suppose there are going to be times when the action is so egregious that no expert is needed, but that’s not going to happen very much. If a prospective plaintiff can’t find an expert to consult for the certificate of merit, chances are pretty good the case doesn’t have legs and the plaintiff wouldn’t be in a spot to file it anyway. That’s the whole point of the requirement; don’t file non-meritorious claims. It keeps the courts free of those cases, and it saves prospective defendants from the time and expense of defending them.

Thursday, March 16, 2017

Bail, Revisited

State v. Bailey, 2017 VT 18

By Elizabeth Kruska

William Bailey is accused of manslaughter of his buddy, Daniel Hein. The facts, essentially, is that Bailey, Hein, and a couple other friends were out driving around the greater Rutland County, Vermont/Washington County, New York area (this appears to take place  all within the span of a few miles, albeit across state lines), and generally causing trouble. They broke into a farm stand to steal money to buy alcohol and then they were going to go break into another farm stand. They were smoking pot, too. So, not awesome decision making, but so far not inconsistent with being young and looking for something to do, where “something to do” includes burglary.

Somewhere along the way the crew went to a house to get a gun. A gun they had previously stolen. One of the kids came out with a gun, but it had no magazine inserted. There was some discussion about whether the gun was loaded or not. Daniel Hein challenged Bailey, and said something along the lines of, “if it isn’t loaded, pull the trigger.”

Saturday, March 11, 2017

Judge Talk

In re Guardianship of N.P.2017 VT 14

By Elizabeth Kruska

This is a reverse and remand to the Probate Division.

Here’s the scoop. The Probate Division has exclusive jurisdiction of guardianships. But, if there is also a pending child in need of supervision (CHINS) case happening in the Family Division, the Family Division gets jurisdiction of the situation. The reason is so that kids involved in the juvenile justice system aren’t stuck in a spot between two different courts, and also so that one court doesn’t make orders that are inconsistent with another court about the same matter.

Here, N.P. was taken into DCF custody in the fall of 2014 on a CHINS petition. Somewhere along the way, some people (relatives? Friends? Don’t know, and it doesn’t totally matter here) who were involved in N.P.’s life filed a petition for a guardianship of N.P. in the Probate Division.

Officer Negligent

State v. Hayes2016 VT 105

By Eric Fanning

Ok, so just to be clear at the outset, this case does not involve a cop on trial or under sanctions; I just like the sound of that name.  But it does involve a police officer and, you guessed it, whether or not some of his actions (or omissions, as you’ll soon see) amount to negligence.  If this is enough to tickle your fancy, read on.  If not, well you should keep reading anyway, because there’s more to this case that might interest you.

Ms. Hayes appealed her conviction of driving while intoxicated (DWI), second offense.  The fact that this is her second offense is worth pointing out because a DWI is what’s called a ‘predicate offense,’ which means it’s a crime that can be used to enhance the sentence of any later conviction.  In other words, if you have a DWI on your record, and then you got popped for another one, your penalty goes up, up, up!

Wednesday, March 8, 2017

Two Problems in One Appeal

State v. Scales, 2017 VT 6

By Elizabeth Kruska

Remember that time Prince changed his name to an unpronounceable symbol? Yeah, I remember. He did it because of issues with his recording contract, and you can read about that here. But, it didn’t change the fact that he was Prince and people still knew he was Prince, and people even referred to him as “The Artist Formerly Known As Prince.”

And lots of women! It’s still considered customary for women to change their names when they get married. Although, I told my mother when I was five I wasn’t doing that, and I stuck to it.

All this to say that sometimes people change their names, and that’s just how it goes. It doesn’t mean, necessarily, that someone’s being elusive, it just means they have a different name. Or sometimes people go by nicknames or just prefer to be called something other than the name on their birth certificate. And as someone named Elizabeth, there are probably no fewer than 27 different name-based nicknames I could have, not the least of which is Lizard-Breath, and which Every Elizabeth Ever (even this one and this one I assume) has been called.

Tuesday, March 7, 2017

Quiet, Please

State v. Prue, 2016 VT 98

By Charlie Buttrey

I have been practicing criminal law in Vermont since 1986. As a seasoned criminal defense attorney, I have a couple of suggestions to those who are considering committing a crime. One, do it alone. Two, don’t talk about it.

Allen Prue did not abide by either of these principles and is now serving a life sentence for his role in the brutal murder of 32-year-old Melissa Jenkins, a popular teacher at St. Johnsbury Academy in May of 2014.

After being convicted by a jury of first-degree murder, conspiracy to commit murder and attempted kidnapping, Prue appeals to the Vermont Supreme Court, raising four grounds for his appeal.

Proportions, Pockets, and Paybacks

Conant v. Entergy Corp., 2016 VT 74

By Thomas M. Kester

While in her employer’s parking lot, the claimant injured her ankle. The injury was reported to her employer, who reported the injury to its worker’s compensation insurer. Employer’s policy with the insurer required employer to reimburse all workers’ compensation benefits paid by insurer up to a capped amount. Essentially, the employer is the insurer.

There are two payment avenues for claimant’s injury in this matter: Vermont’s Workers’ Compensation Act (“Act”) and a Collective Bargaining Agreement (“CBA”). How the injury is classified also affects the type/amount of disability benefits an injured worker can receive. The classifications are broadly “occupational injury” (worked-related injury and unable to work) and “non-occupational injury” (non-work-related injury and unable to work). The CBA contains an offset for workers’ compensation benefits for occupational disabilities, meaning “a worker injured on the job will receive, subject to the terms of the Act and the CBA, 100% of his or her wages through a combination of benefits from both sources.” This table broadly summarizes the CBA’s and Act’s benefits for occupational and non-occupational injuries for this matter:



Evaporating COAs

State v. Atlantic Richfield Co., 2016 VT 61

By Thomas M. Kester

Tick. Tock. 

Interlocutory appeals are nifty legal devices that allow an appeal during a proceeding, in this case, to determine whether the State is exempted from a six-year limitation for claims arising from damages to State waters due to groundwater contamination from gasoline additives. I’m not going to recount the facts here because I already did that and they don’t matter as much here. This is a statutory examination case. For you non-hyperlink clickers, here is the ten-cent factual recitation: chemical added to gasoline makes cars vroom-vroom better, chemical leaks into water sources, science people’s science shows chemical pollutes water sources, and VT legislature enacts law to stop using chemical. 

On June 5, 2014, the State sues Defendants and Defendants move to dismiss the complaint as being time-barred under the general six-year statute of limitations for civil actions. Why, you ask? Because the Vermont Legislature banned the chemical in May 2005 and the law become effective January 1, 2007. Let me show what this means with some lawyer math: six years + May 2005 = May 2011, and six years + January 1, 2007 = January 1, 2013. According to the Gregorian calendar system and because the 2012 Mayan apocalypse didn’t happen, June 5, 2014 occurred after both May 2011 and January 1, 2013. Defendant’s argue that the countdown began when the statute banning the gas chemical was either passed or effective, making the complaint filed after either [date + six-year] period. 

Sunday, March 5, 2017

Jailhouse Rock

In re Morales, 2016 VT 85

By Andrew Delaney

I argued before the SCOV when I was a law student. I also appeared on behalf of clients in court through working at my law school’s legal clinic. It was allowed because there was a rule that said it was okay so long as I got all my permission slips signed by responsible adults, which I’d done. But if I had just skipped all that and pretended to be a lawyer, that would’ve been unauthorized practice of law.

This case is interesting for a couple of reasons. First, it’s a criminal charge filed in the SCOV. You don’t see that every day. Second, it explores what unauthorized practice of law (UPL) means in relation to so-called “jailhouse lawyers”—probably not the ideal term to use in this case, but it’s what we’ve got and I’m getting a little off track.

Serendipity Morales is an inmate. She helped some of her fellow inmates with legal research and motion drafting. The Bennington State’s Attorney filed an information in the SCOV charging Ms. Morales with six counts of UPL. The basis was that she’d helped five other inmates. She didn’t request payment or get paid. The SCOV notes, “The State does not allege that Morales ever signed pleadings on behalf of the other inmates, held herself out as a licensed attorney, or received any payment for her services.”

Road Rage Reversal (in part)

State v. Gagne, 2016 VT 68

By Andrew Delaney

Mr. Gagne, in an apparent fit of road rage, “chased a couple across town, eventually pulling up next to their truck and pointing a rifle at them.” He filed a motion to suppress his alcohol breath test based on lack of a meaningful opportunity to consult with counsel. He believed that he was being recorded during his phone call. As it turns out, he was. The trial court denied the motion. Mr. Gagne was tried and a jury convicted him of “aggravated assault, simple assault, reckless endangerment, driving under the influence, and negligent operation of a vehicle.”

He appeals, arguing that (1) the trial court should’ve granted his motion to suppress; (2) the jury instructions were wrong; and (3) the aggravated assault, simple assault, and reckless endangerment convictions for the same conduct violate double jeopardy. The SCOV reverses the suppression ruling; upholds the jury instructions; and kicks out the simple assault charge on double jeopardy grounds.

Let’s go back to the beginning, shall we?

ABC

Great Northern Construction, Inc. v. Department of Labor, 2016 VT 126

By Elizabeth Kruska

Here’s an unemployment case! And it’s not even about someone being unemployed, it’s about a company getting audited by the state for allegedly having not paid its unemployment taxes with respect to two employees. The Employment Security Board (ESB) the company didn’t pay for 2 employees for a couple years, and as a result owed the principal and penalties. The employer and the employees said this wasn’t necessary because the employees were actually independent contractors. SCOV, like the Jackson 5, said this is as easy as A, B, C. And as simple as do re mi. No, SCOV didn’t say that second part, but I wish they had.

The employer here is Great Northern Construction, or GNC. This has to do with construction, not vitamins and supplements—that’s the other GNC. The employees/contractors were O’Connor and LaPointe. Using a test called the ABC test, SCOV determines that with respect to O’Connor, ESB got it wrong and that he actually is an independent contractor. They affirm the ESB with respect to LaPointe, saying he really is an employee.

GNC does general construction, and has been in business in Vermont since the 70s. O’Connor also does construction, and specializes in historic renovation. He has an LLC and is available to work for any company that needs him. He owns specialized equipment to help with his work. Over the years he has built a good relationship with GNC and does a lot of work for them. It’s common for them to get in touch with him before starting a project to see if it’s something he can do. If he can, and when he works on a project, he sets his own hours and schedule, and gets paid by the project. At one point GNC tried to hire O’Connor, but he preferred to continue as an independent contractor, as that was more financially beneficial for him.

It Doesn’t Fit

In re B&M Realty, LLC, 2016 VT 114

By Elizabeth Kruska

Full disclosure: I live in Windsor County and for many years have regularly traveled past the parcel of land at issue in this case.

Exit 1 on Interstate 89 actually dumps out in two places. If you’re involved in the northbound side of 89, you enter or exit at a ramp on Route 4 which is about three miles west of White River Junction. If you’re involved in the southbound side of 89, your entrance and exit is on a different spot of Route 4 about five miles west of White River Junction. There’s a gas station and a couple other businesses near this exit, but no other commercial development to speak of.

Between the two exits there is a fairly large, sweeping curve, and an overpass bridge that is somehow inexplicably always icy. I also once randomly saw a sheep on that bridge. I called the Hartford police because I didn’t want the animal to get hit, and the dispatcher immediately said, “Are you calling about the sheep? We know all about it.” All that to say (sheep not withstanding) that this isn’t exactly an ordinary interstate interchange.

The Condition of Being a Boy

In re D.C., 2016 VT 72

By Elizabeth Kruska

You know you’re in for a treat when a SCOV opinion refers to an “ancient, constitutionally enshrined right” and also specifically quotes a case so a reference to Chief Justice Marshall can slide in.

D.C. got charged with simple assault in juvenile court when he was 14, almost 15. He admitted to the offense and was put on juvenile probation until he was 18. Not knowing any of the facts of this, I’m just going to say that 3 years of juvenile probation seems like an awfully long time. Anyway, one day before his 18th birthday—so, one day prior to his probation expiring, he filed a petition for post-conviction relief (PCR) alleging that his plea colloquy was inadequate.

Juvenile court handles a couple different things. On one hand, there’s the CHINS and TPR beat, which is where children are taken into custody by DCF for various reasons and the families work together to be reunited or not. That’s sort of a Pollyanna version of the CHINS docket, which often feels more like a soul-sucking meat grinder. But we’re not here to talk about CHINS cases, except to say that CHINS cases are civil in nature and subject to the rules of civil procedure (this is a hint about how this is going to come out in the end, by the by).

Saturday, February 25, 2017

Shotgun

State v. Buckley, 2016 VT 59

By Andrew Delaney

The song “Shotgun” by Southern Culture on the Skids—besides being a great song with some as-always-fantastic guitar work by Rick Miller—starts with the lyric: “Trouble, love, trouble, love, trouble loves that trouble.”

And a shotgun is exactly how Mr. Buckley got hisself in trouble. Mr. Buckley lives in Bennington. He owns a house where he lives with his brother Peter, and also owns an apartment building next door. There’s a parking lot by the house that the tenants use. One day, at around five in the morning, two repo guys showed up to take a lady’s car. The lady was visiting one of Mr. Buckley’s tenants. Mr. Buckley knew the lady, knew she was a guest, and knew it was her car.

The repo guys were getting ready to put the car on their flatbed. The noise woke brother Peter up and he went outside to see what was going on. One of the repo guys testified that Peter was aggressive; Peter said the repo guy was aggressive and said a bunch of nasty stuff.

Enforcement Error

Citimortgage, Inc. v. Dusablon, 2015 VT 68

By Andrew Delaney

You may have noticed, dear reader, that we’re doing a bit of spring cleaning here at SCOV Law. That’s because we really do try to summarize every published case that comes out. This is one of those lost-in-the-shuffle cases but that doesn’t make it any less boring exciting than it was when it greeted the world for the first time.

This case is between the Horizon Heights Condominium Association and the Dusablons. Citimortgage, Inc. isn’t even part of this dispute—pay no mind to the case name. See, what happened was that there was an agreed-to foreclosure judgment between Horizon Heights and the Dusablons for past-due assessments. In between the date of that agreement and the trial court’s entry of judgment, a year passed and new assessments accrued. The SCOV says, “At the bottom of procedural muck lies the principal question of this case.” That question is whether the foreclosure judgment can be used to avoid those interim assessments. The SCOV says, “Nope.”

The Dusablons are required to pay monthly assessments. There’s some stuff about Title 27A and Horizon Height’s declaration, bylaws, rules, and regulations, but the bottom line is that there are assessments, those assessments are valid, and the Dusablons are required to pay. Nobody is arguing about that, uh, as a general concept.

Evidentiary Error

State v. Cameron, 2016 VT 134

By Elizabeth Kruska

This case is really sad. Tristan Cameron, a 17-year-old kid, got a new car, and while driving it got into a crash that killed his friend. He got charged with grossly negligent operation with death resulting as a result of the accident. He had a trial and was found guilty. He appeals on two issues. SCOV affirms on one issue, but reverses and remands on the other.

As I understand the facts, Tristan drove on Duffy Hill Road in Franklin County. This is apparently a gravel road that had recently been re-graveled. The road has curves and hills (because, Vermont), and at one point has a very sharp right-hand bend. As he drove around the bend, he encountered two farm trucks. One truck veered to the right to avoid a collision. Tristan steered, too, but this caused the car to fishtail, and ultimately it hit the second farm truck. His passenger was really seriously hurt and later died from his injuries.

At trial, those are the facts that came out, along with additional facts about Tristan’s speed being way too fast, and a statement by Tristan to the effect that he may have fallen asleep.

After the Fact

Chandler v. Pallito, 2016 VT 104

By Elizabeth Kruska

Mr. Chandler, the petitioner, thought he was getting one thing. In reality, he got something different. I totally get where he’s coming from. That doesn’t mean he’s legally correct. SCOV agrees he isn’t legally correct and affirms the lower court.

Here’s what happened. Mr. Chandler got charged with some crimes—some bad ones—in the late 90s. Aggravated sexual assault, kidnapping, and burglary formed the Chandler trifecta of criminal activity. Full disclosure: I use horse-betting references because I love horse racing, and I have a fantasy list of race horse names; aggravated assault, kidnapping, and burglary are not on that list. Well, maybe Burglary could be a good horse name, but I’d really need the right circumstances to suggest that. I will gladly discuss Kentucky Derby prospects with anyone who is interested.

Anyway, back in the spring of 1997 (when Silver Charm won the Derby), Mr. Chandler got sentenced to 25-60 years to serve for his offenses. This is a big sentence.

Mother Knows Best?

Clark v. Bellavance, 2016 VT 124

By Eric Fanning

There are times when our family courts have the good fortune to dispose of cases that involve neither long arduous battles over parental rights and responsibilities (or PR&R, a.k.a. custody) nor a bitter deterioration of the parents’ relationship. There are cases that grace their dockets where the parents get along famously and have no trouble coming to a mutually agreeable parenting arrangement with court approval.

This is not one of those cases.

The parties are the parents of a daughter, who was born in 2009. They were never married, and in fact they had broken up by the time daughter was born. Even though their relationship had come to an end, they were able to arrange a parenting agreement in 2011, giving mom sole physical and legal rights and responsibilities, and dad getting parent-child contact. Both parents were committed to fostering a “healthy, respectful, and supportive” co-parenting relationship, and for a while everything went well. That is, until things started going not-so-well.

Calculation Connundrum

Merchant v. Merchant, 2015 VT 72

By Elizabeth Kruska

Sometimes we here at SCOV Law lose track of things and realize we’ve got an old case or two kicking around that needs addressing. Sort of like in Home Alone when they realize they got to Paris and left Macaulay Culkin in Chicago. Hilarity ensues. This case is about child support, though, so there probably won’t be any Wet Bandits and probably not much will be hilarious. Hey, I’m trying here.

The Merchants were married in 2000 (so, ten whole years after Home Alone came out, if we’re keeping with a theme, which apparently I am) and divorced in 2008. In the 8 years of their marriage they had two kids. Initially they agreed they’d have joint custody of the kids, and that they’d each pay for child care as needed during their respective times. A child support calculation was done and came out to show that Dad would have to pay Mom $112 per month in support. However, they agreed to deviate from that, and that Dad would pay $200 per month plus $43 in arrears. Once the arrearage was paid off (over 42 months), Dad agreed he would just keep paying $243. This is in addition to each parent footing the bill for their own respective child care costs. They also agreed that Mom would get to claim the kids at tax time to get the benefit of a deduction.

A few years later, Dad filed a motion to modify the child support. Reading between the lines a little bit, I think Dad had some changes to his work after his divorce that may have brought his income down and so he tried to get his out-of-pocket child support reduced.

Monday, February 20, 2017

Permit from the Past

In re Musto Permit, 2014 VT 103

By Andrew Delaney

This is old news—not “fake news” but definitely old news. The case was decided about two-and-a-half years ago, and we’re just finally getting around to it. Look. You get what you pay for.

The Mustos applied to the Agency of Natural Resources (ANR) for a permit for a wastewater system and a water supply for their home on Lake Bomoseen. In the application, they described the project as “reconstruction of a 3 bedroom year-round single use family residence using a new wastewater disposal system and drilled bedrock water supply well.” When I first skimmed through the opinion, I thought this was an odd thing for the SCOV to quote directly. As we’ll soon find out, however, this is important.

The ANR granted the permit. Neighbor who, along with her brothers, owns the parcel next door filed a petition with ANR to revoke the permit about five months after it was issued. She claimed that the Mustos lied about the number of bedrooms in the camp. The ANR had a hearing and denied the request to revoke the permit. Neighbor appealed to the environmental court—both the permit and the ANR’s denial of revocation. The environmental court did a de novo review on the record and concluded that there wasn’t any reason to revoke the permit.

Sunday, February 19, 2017

A Bail Appeal

This photograph of hot chocolate
 has nothing to do with bail.
It’s cold and windy when I’m
writing this, and I think hot
chocolate would be nice.
State v. Bullock, 2017 VT 7

By Elizabeth Kruska

Bail, of course, is not meant to serve as punishment before someone is convicted. That’s not the point and it’s not what bail is for. Bail is meant to ensure that someone is going to show up for trial. But, there are going to be times when someone is accused of something so serious that no amount of bail is going to ensure his or her future appearance. Why would someone show up for trial only to be convicted and sent to jail? The likelihood of that defendant deciding to beat feet and make a run for the border goes up as the seriousness of the case goes up. Nobody’s outrunning the marshals over stealing a pack of gum. That might happen, however, if someone’s looking at spending life in prison.

That’s why Vermont has a specific section of the bail statutes specifically for lif- imprisonment situations.

The State can (but is not required to), seek to have a defendant held without bail if the defendant is charged with an offense where the maximum possible penalty is life imprisonment. There’s a separate section having to do with hold without bail requests in violent crimes; that’s not what was considered here, so we’re going to save that for another day.

A Spoonful of Sugar Helps The Meds Go Down

"So what exactly is in this?"
In re I.G., 2016 VT 95

By Amy E. Davis

This is a case in which the SCOV Justices reverse one of their own. Justice Skoglund presided over the case below. The SCOV releases opinions on Friday morning. I picture Justice Skoglund walking into Justice Eaton’s office and saying, “Dammit Scoop!” (Side note: I imagine Justice Eaton’s nickname around chambers is “Scoop.”) I should probably just shaddap and get to the case.

Patient is 32-years old and was hospitalized for psychiatric care in Berlin, Vermont in April 2016 following a court order. Patient had spent another stint in the psychiatric unit about a year prior in 2015, for 2 months. During his last stay, Patient was diagnosed with schizophrenia, and the hospital unsuccessfully sought an order to medicate him. The court had rejected the request because the State did not show Patient was incompetent nor that the potential side effects of medication outweighed its potential benefits.

Right after the 2015 case, Patient went to live at Soteria House, a residence for people with mental illness in Burlington. While there, Patient signed a document that looked and smelled like an advance directive. Patient stated that he did not want medication because it made him angry and murderous, and it inhibits “the limbic system from powering organs.” He also indicated that he was aware he might be involuntarily committed or treated then listed his preferred interventions: (1) seclusion; (2) seclusion plus physical restraints; or (3) physical restraints with medication. The document did not meet the statutory requirements of an advance directive because it needed to be signed by two witnesses, and it was not.

Saturday, February 18, 2017

Attachment Agitation

Estate of Lott v. O’Neill, 2017 VT 11

By Elizabeth Kruska

Easy facts. Robin O’Neill is accused of having murdered two men, one of whom is Jamis Lott. She got charged with two counts of murder (one aggravated, one second degree), and the murder charges are pending. She hired a lawyer to represent her in the criminal cases.

I have worked on a murder case, up to and through trial. I wasn’t the primary lawyer on the case—there were two of us working on it. I did a lot of work on the case. A barnload. Maybe several barnloads. And that’s just me; the other attorney did at least twice as many barnloads’ worth of work as I did. I can’t even start to guess how much that would have cost if someone was paying full-freight out of pocket for that defense. I say this not to pat myself on the back, but because I know that these cases take a lot of work, and consequently, would cost a lot of money if someone was paying for it out of pocket.

So. Robin not only got charged criminally, but she also was sued by the estate of Jamis Lott in a wrongful death action. Lott’s estate attached all her money, including the retainer she paid to her lawyer for her defense in the criminal case. The trial court said, “Ayup, that’s fine” and permitted the attachment. Robin, unsurprisingly, said, “I haven’t been convicted of anything, and under the Sixth Amendment I get to be represented. Attachment is unconstitutional because it affects my right to counsel.”

Blast from the Past

"Okay. But NOT if they're on furlough."
State v. Bogert, 2013 VT 13A

By Andrew Delaney

Here’s a blast from the past. Sometimes an opinion ends up in our we’ll-get-to-it-soon pile and languishes there for several years. That’s sorta what happened with this one.

The first time we wrote about this case was in March of 2013. We’re going to play spot the differences. Luckily, it’s an 11-pager and it shouldn’t take too long.

A brief synopsis of the previous opinion is in order. Mr. Bogert pleaded guilty to two counts of possession of child pornography and no contest to two counts of sexual assault. One of his probation conditions included warrantless searches. He signed off on the conditions. As our previous summary puts it: “Basically, he signed away his Fourth Amendment rights.” He served some time and was released on furlough. When a warrantless search turned up evidence of violations of his conditions, he got in hot water and ended up back in jail. He appealed his violations, arguing that the search violated his Vermont and federal constitutional right to be free from unreasonable searches and seizures. The SCOV concluded that the State can make furloughees submit to random, suspicionless searches under a “special needs”—that of effectively supervising furoughees—exception to the warrant requirement. Neither the Vermont nor federal Constitution was violated.

Friday, February 17, 2017

Tree Line

In re Wagner and Guay Permit, 2016 VT 96

By Elizabeth Kruska

Back in 1995, Wagner subdivided some land into six parcels which were suitable for building houses. Apparently, this land is partly wooded and also has a meadow. Wagner created some rules, or covenants, regarding building. There’s a tree line, and in addition to required setbacks (road, wetlands, etc.), any houses constructed have to be built “within the tree line.” The point of building within the tree line was so as not to obstruct the view of the meadow.

Now, I’m not a builder, nor do I play one on television. I am, however, a person of ordinary sensibility, and before I read this I thought I understood what a tree line is. I also am a lawyer, and I know that if there’s an argument to be made about words, that someone of my ilk will make such an argument. I also know that those arguments can take a year or more, travel to a few different courthouses, cost thousands of dollars, and can end up in exactly the same place as where they started. Guess what happened here?

Wagner had plans to sell two lots to Guay, whose plan was to have the lots merged into one big lot and to build a house and a garage on the big lot. The rule appeared to be that Guay would have to build the house “within the tree line.” A neighbor (Neighbor), who owns a nearby lot (next door, to the proposed building lot, from what I can gather), objected to the issuance of the building permit. She objected on nine different grounds, four of which were dismissed pretrial. Both sides filed motions for summary judgment on the remaining grounds. The summary judgment motions were denied, so there was a trial in the Superior Court, Environmental Division.

Tuesday, February 14, 2017

Try your hand?

Dear Reader:

I'm going to go out on a limb and guess that you enjoy reading this blog. Or at least you enjoy trying to sell knockoff handbags in the comments. Anywho . . . we haven't really advertised in the past when we're looking for new talent. But we're almost always looking for new talent. 

The criteria isn't stringent. A healthy sense of humor, a legal background, and an ability to translate from legalese to human speech are all that's required to get your foot in the door. You also have to be willing to work for no pay and no benefits. You will get your name in the "SCOV Law lights" and a link to your website out of the deal.  

If you're interested, send me an email and I'll give you a tryout case.

—Andy       

Sunday, February 12, 2017

Service Station Scrap

In re Costco, 2016 VT 86

By Andrew Delaney

Every time I hear “Costco,” I think of this scene from Idiocracy:


That has little to do with this opinion. If that bothers you, you’re welcome to take it up with management.

This is an appeal by Costco’s neighbors—specifically, gas-station companies R.L. Vallee and Timberlake Associates—from a superior court decision affirming several permits issued to Costco for Costco’s new gas station. Let me grossly oversimplify. Vallee raises four issues related to traffic mitigation and stormwater impacts, and Timberlake says the trial court screwed up when it relied on “on a presumption with respect to the project's impact on water pollution and waste disposal under Act 250.”

Saturday, February 11, 2017

You’re Fired

In re Lepore, 2016 VT 129

By Amy E. Davis

Mr. Lepore, or as the SCOV calls him “Grievant,” worked as an environmental biologist for the Vermont Agency of Transportation from 1992 to July 2015. Mr. Lepore evaluated the potential environmental impact of potential transportation projects, created reports, and applied for and prepared environmental permits. He worked with state and federal employees. That is, until he got sacked.

The fact that Grievant was fired is not particularly interesting in my opinion. But the reason for his termination is fascinating and worthy of a Lifetime movie. In 2005, Grievant served as a juror in the criminal trial of Donald Fell. Fell, as you may recall from the news and/or internet, was convicted of all criminal charges and sentenced to death. Five years after his conviction, a juror came forward and informed Fell’s attorneys that the juror had visited the crime scene and shared their observations with the other jurors.

I’ll give you three guesses, and the first two don’t count. Guess who the juror was? Yes, indeed, it was Grievant.

Restitution Reversal

State v. Charbonneau, 2016 VT 83

By Elizabeth Kruska

Sometimes criminal cases involve a loss to another person. That person—the victim of the crime—is entitled to be made whole. If the defendant is convicted of a crime where there was a loss, the defendant has to make restitution to the victim. This could take a couple forms. Suppose someone breaks into my house and steals my favorite painting. If the painting is recovered and returned to me, I’ve been made whole. If the painting cannot be found or returned for whatever reason, the defendant has to pay me the value of the painting.

That’s sort of what happened here. Toby Charbonneau was charged with possession of stolen property. There was also a co-defendant, who is mentioned in a footnote, but who is not a part of this appeal. She’s important in the long run, though, because of what happened at her restitution hearing.

The victims in this case are homeowners in Franklin County. They discovered that their home had been burgled and that they had considerable losses. The opinion doesn’t give a lot of details about this, but I suspect they were away over a weekend and came home to this situation. They figured out their loss was in the neighborhood of $52,000, and made insurance claims. Their insurance paid out a portion of the loss, leaving a balance of about $31,000. That means whoever is responsible for the loss is on the hook for restitution of $31,000.

Tax on the Water

TransCanada Hydro Northeast v. Rockingham, 2016 VT 100

By Elizabeth Kruska

Here’s what you’re going to like about this summary: its summary nature. This is a very long, thorough, and well-written opinion and is very detailed on valuations and expert findings. It is really accessible and understandable on complicated property valuation issues. I cannot do as good a job summarizing the finer details as the opinion has, so I’ve kept this brief and urge people to read the actual opinion for these details.

TransCanada (“Taxpayer”) owns a hydroelectric dam on the Connecticut River at or near Bellows Falls, which is situated in the Town of Rockingham. Before we go any further: this dam is partly in New Hampshire and partly in Vermont. I assume TransCanada has some set of issues relative to land use and tax and whatnot in New Hampshire with respect to this dam, but someone a few miles east of me can talk about that. Or not. Live free or die, you know?

Town of Rockingham (Town) valued the dam at $130,000,000, with $108,000,000 being taxable. Taxpayer thought this was too high and appealed to the appropriate local board, and then to the superior court in Windham County. The State intervened on behalf of the town, and there was a trial. I’m not immediately sure if this was a jury trial or if there even could be a jury trial. This strikes me as a situation best suited for a bench trial.

Sometimes You Can’t Go It Alone

In re G.G., 2017 VT 10

By Elizabeth Kruska

GG is hospitalized for his mental health issues. He’s been in the Vermont Psychiatric Care Hospital (VPCH) since September 2015 and has remained there under a series of renewed orders.

GG’s case had been reviewed in court several times, and the State sought to extend his hospitalization order again. These orders can only be extended for short periods of time because people can’t be committed indefinitely without periodic judicial review. The State also sought to have GG medicated involuntarily. This is a big deal; people can’t be medicated against their will without a court order.

GG didn’t want to be medicated, and he didn’t want to stay at the VPCH. And a bit before his hearing on the matter, he decided he didn’t want to be represented by a lawyer, either. Consistent with his wishes, his lawyer filed a motion to withdraw.

Saturday, February 4, 2017

Ensuring Insurance

In re J.H., 2016 VT 122

By Elizabeth Kruska

Here’s a case about the Affordable Care Act.

J.H. is a young woman who married a young man. As a kid, J.H. got health coverage under Dr. Dynasaur. That coverage was supposed to end when she turned eighteen, but because of an administrative error it continued for a couple years. When she reapplied for insurance when she was about 21 (I think), she put on her application for state health insurance that she was recently married. Between she and her husband, they had a household income of about $36,000, and he had a health insurance plan available through his job. This was all disclosed on her application. The State said she didn’t qualify because of her husband’s insurance.

J.H. could only enroll in her husband’s job’s plan if he also enrolled in the plan. Husband didn’t enroll in the plan for a very good reason. He had grown up in foster care (at least in his teens) and was never adopted before he “aged out”—meaning, turned eighteen while still in State custody. Because of this, under a different rule, he’s entitled to significant Medicaid coverage until he’s 26. Also, because of this status, he’s entitled to Medicaid coverage regardless of his household income. He could be a billionaire and still be allowed to get Medicaid coverage because he was an unadopted foster child. Why on earth would he pay for insurance coverage through his job if he gets Medicaid because of his situation? I can think of several very good reasons very quickly why he wouldn’t.

Fact Finding Needed

State v. Anderson, 2016 VT 127

By Elizabeth Kruska

Here’s a bail forfeiture case that gets reversed and remanded for further findings. Bail is very important; it’s the stage in a criminal proceeding that determines if someone is going to go home during the pendency of his or her criminal case, or if he or she is going to wait in jail. Bail is very fact-specific in each case. The court is required to weigh various factors related to a Defendant’s risk of flight; if the court finds facts tending to show that a defendant is not likely to appear for court in the future, the court can set bail.

The concept of bail is simple. People generally don’t like being in trouble. In a huge percentage of cases, the court trusts that someone accused of a crime will show up to deal with the situation. But there are defendants who don’t show up, or who are not likely to show up. Without getting into the entire history of bail (goes back to before the Magna Carta, so it would be a lot), the way it has evolved is as an incentive system. The court says, “Hey, Defendant, we don’t trust you to show up. But if you give us something of value—like money—and we promise you’ll get it back in the end as long as you keep showing up, we’ll let you go home.”

But, by and large, you know who ends up in the criminal justice system? Yep. People who don’t have bail money. The point of bail is not to create a system of pretrial incarceration, although that is often the unintended effect. The Vermont Constitution provides that someone can post bail with “sufficient sureties” and SCOV (in one of my favorite SCOV opinions) said, “Hey trial courts: that means people can use a bail bondsman, and ‘cash-only’ bail is unconstitutional here.”

Sunday, January 29, 2017

What do you need to know?

State v. Witham, 2016 VT 51

By Andrew Delaney

This is kind of a “wha’ happen” appeal. Does one need to know that something is wrong to be criminally culpable? Not necessarily.

Mr. Witham had pled guilty to home improvement fraud over a decade ago. He did what he was supposed to do, got put on the home-improvement-fraud registry, and stayed out of trouble until someone reported that he was doing home-improvement work without having notified the Attorney General and filing a surety bond or letter of credit. See, if you’ve been convicted of home-improvement fraud, you have to notify the AG and file a bond or letter of credit before you start doing home-improvement work again.

Mr. Witham talked to a lawyer and found out that he was supposed to do the notify-and-surety thing. Oops. There was an investigation and he got hit with three counts of violation of the notify-and-surety requirement based on three different jobs.