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.

Usually.

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

Harmony

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 vermontjudiciary.org-associated 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 vermontjudiciary.org 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

Bifurcation

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.

Thursday, May 11, 2017

Language Wrangling

This is not the same Carter.
State v. Carter


Lawyers learn very early in their careers that words need to mean what they are supposed to mean, and if there’s ambiguity everything stops. Legal writing tends to be short and to the point. Sentences are subject-verb, and that’s about it. That way the writer and the reader know what the words mean.

There can be a bit of a collision when a statute isn’t written clearly, and it can lead later to some legal word wrangling. The folks under the golden dome say, “hey, we need a law about [insert topic here] and this is what we want it to do.” They write something and they have their legislative counsel look at it and as the sausage gets made, things get added or taken out, and eventually they get to a statute that seems to achieve the goal. This can be a problem when the new statute doesn’t seem to square with another one that already exists.

Damned If You Do, Damned If You Did

You get TWO opinions in one post! That's some deal we're
offering here at the SCOVLawBlog. Just pay separate
shipping and handling.
State v. Rondeau


This case feels like a long and winding road (sorry, Beatles), so stay with me.

Defendant Michael Rondeau was convicted of two counts of aggravated sexual assault following a jury trial.  The victim in this case is his daughter.  Count One of the State’s information (an information contains the charges which the prosecutor submits to the court – this gets the prosecutorial ball rolling) alleged that he committed aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(8) at some time between October 1989 and October 11, 1997, when the complainant was under thirteen years old and defendant was at least eighteen years old.  This charge carries a potential sentence of ten years to life.  Count Two alleged that he committed aggravated sexual assault of a child as part of a common scheme in violation of 13 V.S.A. §3253a(a)(8), during the period between October 12, 1997 and October 11, 2000, when complainant was under sixteen and defendant was at least eighteen.  This charge carried a harsher sentence: twenty-five to life.  Needless to say, Rondeau was facing some hard time.

Monday, May 1, 2017

Wave That Waiver

Wave (waive?) it wide, and high.
In re: Jankowski


Let’s stroll through how a criminal case proceeds. Normally criminal cases start with an allegation, which must be proven by the State. If the defendant is convicted, then he or she gets sentenced. If there’s a sentence that involves probation, there will be probation conditions or requirements. If the defendant then violates one or more terms of probation, we sort of start over again with having a hearing where the State has to prove the merits of the violation allegation. If the State proves the violation the case goes to sentencing. If something goes legally wrong relative to legal issues within the merits or sentencing hearing, normally the defendant is allowed to appeal. If something goes wrong collaterally to the proceeding, the defendant can file for post-conviction relief (PCR). If the PCR is granted, the case jumps back to the stage of the case where things went sideways.

In this case, Mr. Jankowski filed a PCR based on things that happened during a probation violation. In 2010, he pled guilty to a sexual assault charge and was sentenced to 5-20 years, split with 3 years to serve. That means he’d serve 3 years in jail and then be released on probation. If he were to violate his probation and have his probation revoked, his full sentence of 5-20 years could be imposed. Under normal circumstances he’d be eligible for release at his minimum, or, the 5 year mark, but would be on supervision for the balance of time between 5 and 20 years.

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.