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.

Saturday, January 28, 2017

Mr. Blue Sky

State v. Cleland, 2016 VT 128

By Elizabeth Kruska

Mr. Blue Sky . . .

In the summer of 2013 police got wind of Mr. Stuart Cleland’s ongoing attempt to become Vermont’s own Walter White, and did some investigation that led to the issuance of a search warrant. The warrant apparently turned up some evidence that led to Cleland’s being charged with a whole basket of meth-related charges. He filed a motion to suppress the search warrant and to dismiss. Makes sense: if the evidence gets suppressed, there’s no evidence upon which he could be convicted, so the case would have to get dismissed.

The trial court denied his motion to suppress. He appeals on several grounds. First, he says the search warrant, which was for his house, didn’t establish a connection between the house and the alleged crime. Also, there were hearsay statements in the search warrant application affidavit, and he took issue with their reliability and the basis for the statements. SCOV is unpersuaded and affirms.


Leitgeib v. Leitgeib, 2016 VT 97

By Elizabeth Kruska

Mr. Leitgeib (Husband) used to be married to Mrs. Leitgeib, also known as Mrs. Shattuck (Wife). Husband and Wife got divorced in 1989. They had a minor child who turned eighteen in 1998. For those who are keeping track at home, that was eighteen years ago. Minor child is now thirty six or thereabouts. I point that out only because this is a case about child support and is still going on eighteen years after the child turned eighteen. Things can get away from you if you’re not careful.

Husband paid his child support, but had a really large arrearage—something in the neighborhood of $11,000. About half of that was the principal; the other half (or so) was a surcharge. Here’s the thing with child support; if you don’t pay it, not only do you have to pay previously-accrued support, but you also have to pay a surcharge on top of that.

Husband went back to Family Court in 2008. He had paid down the principal, but there was still an outstanding surcharge arrearage. He tried to get that eliminated; by that point he was living on Social Security benefits due to a disability. The Family Court didn’t eliminate the payments, but instead made Husband pay $50 per month toward the obligation.

Things Were Working Just Fine

In re B.G., 2016 VT 107

By Elizabeth Kruska

I struggle with why this case was a thing, because without court intervention, things were working just fine. There’s a dissent, which I noted below, and for what it’s worth, I’m completely in the dissent camp on this one. But that’s just my personal disclaimer.

BG was born in 2006. From the description of Mom in the opinion, she had problems. She had a series of abusive partners. She was overprescribed opiate painkillers that led to a heroin addiction. She tried medication-assisted treatment, but couldn’t stop smoking marijuana so she lost her ability to have take-home doses and had to travel to Rutland every day to get dosed.

But, despite Mom’s shortcomings, she apparently recognized that she couldn’t be a good parent to B.G., and had him go live with his step-grandmother. For sake of ease, I’ll call her Grandmother going forward. She also signed some documentation allowing Grandmother to be involved in school and medical decisions for B.G. Mom didn’t participate at all, really, and Grandmother did pretty much all the parenting for B.G.

Rubber Stamp Reversal

In re D.S., 2016 VT 130

By Elizabeth Kruska

It’s not often the Vermont Supreme Court reverses a termination of parental rights (TPR) decision. Like, years and years go past between TPR reversals. Then it happened twice in 2016. One such case was this one.

I’m reading some subtext here from SCOV: TPRs aren’t meant to be rubber stamped.

Here’s what happened here. D.S. and his younger brother W.S. were taken into DCF custody in 2014. D.S. was 2 ½ years old. W.S. was 5 months old. At the time the family came onto the radar, D.S. was found unattended at a post office. DCF investigated and found W.S. wrapped up in a blanket with a bottle propped up. This was concerning enough that DCF sought to have both kids taken into DCF custody. DCF combined this with the fact that Dad had a prior domestic assault conviction (although it had nothing to do with this family) and some under-addressed mental health needs. The kids were placed with their paternal grandparents.

The Price of Admission

State v. Powers, 2016 VT 110

By Elizabeth Kruska

Four admissions, two chats with probation officers, one interlocutory appeal. No partridges, no pear trees, just admissions. This opinion is long, which means my summary is also long. Let’s go.

Mr. Powers was on furlough for a sexual assault conviction. Furlough is a community-supervision status that’s like house arrest. It’s a lot like being in jail but at home. Someone on furlough is going to be subject to pretty intense supervision. Usually a furloughee has to provide a daily schedule of his or her whereabouts, often has to submit to GPS monitoring, and has frequent visits with his or her supervising officer or PO. Furlough is more rigorous than is probation supervision (generally speaking).

Mr. Powers was on furlough for five years when in 2014 his PO learned that Mr. Powers was possibly engaged in behavior that would violate his furlough and would probably be a new crime. The point of community supervision is to be rehabilitative and to steer the person into a law abiding life. Mr. Powers had been supervised by the same PO for five years and they had a good working relationship. The PO was clear that he wanted Mr. Powers to feel he could talk to him so they could address any issues.

Saturday, January 21, 2017

The Best Laid Plans

In re P.K., 2017 VT 3

By Elizabeth Kruska

I like juvenile court, and so do quite a few other lawyers. I don’t know anyone who practices in juvenile court who actively enjoys litigating termination of parental rights (TPR) cases. TPRs are a necessary part of the practice and they happen sometimes, but they’re usually very sad.

For those who don’t get to go to juvenile court, here’s how a TPR works. Usually a CHINS (child in need of care and supervision) petition is filed as a result of some sort of issue in the family causing the state to intervene on behalf of the child. Most of the time, families are able to get it together and get on track and be reunited. But sometimes it is in the best interest of the child that the parents’ rights be terminated so the child can be adopted by someone else.

In order for a child to be adopted in this way, first the current legal parents’ rights must be terminated. I say it that way because parents who have adopted a child can have those rights terminated the same way a biological parent can. Once the termination is ordered, the previously-legal parent has no rights at all with respect to the child in question, including the right to have visits or other contact with the child.


In re William O’Brien, 2016 VT 133 (mem.)

By Elizabeth Kruska

William O’Brien was a lawyer, but resigned his license, so the Supreme Court agreed he would be disbarred.

No really, that’s the whole of the opinion. We here at SCOVLaw don’t go behind the opinion and analyze the briefs and whatnot, but we will tell you that if you’re interested in how this came to be, there is ample information over at the Judiciary’s Professional Responsibility Board Decisions page.

*The photograph of raspberries has nothing to do with this opinion. I just like raspberries.

Friday, January 20, 2017

To Be Enforceable, Or Not To Be Enforceable—That Is The Preliminary Question

Miller v. Flengenheimer, 2016 VT 125

By Thomas M. Kester

Wu-Tang Clan’s “C.R.E.A.M.” (“Cash Rules Everything Around Me”) is a crisp reminder of the everyday drive to “get the money” and exchange “dollar dollar bills” for goods and services (even though “mo money” can mean “mo problems”). We contract for goods and services every day—everything from coffee to expensive houses—sometimes without really thinking about the transaction or how it transpired (hopefully you remember buying a home). Normally, there's a straightforward and delineated “offer” that is followed by (if agreeable) the “acceptance.” But complicated matters can blur the lines of what is an “offer” and what is “acceptance.” Albeit, the complexity of contracting for a cup of joe differs from the complexity of contracting for a home, but that doesn’t mean the tug-and-pull negotiation between the parties can’t be present. I once witnessed someone heatedly negotiate Willy Wonka’s entire warehouse into their coffee with a barista. Because 2% milk was used instead of skim, it was ultimately a contractual and caloric deal breaker.

Putting aside flippant frappuccino fiascos, typical signals of contract formation can be signing on the dotted line, a handshake, or your raised hand triggering an auctioneer’s incoherent babbling. E. Allan Farnsworth (an eminent Columbia Law professor on contracts) described complex modern contracting as “a gradual process in which agreements are reached piecemeal in several ‘rounds’ with a succession of drafts” replacing the simplified scenarios of yesteryear. So at what point does the back-and-forth result in a contract if telltale signs are missing? What things (at a minimum) need to be established so that it can rightfully be said to be “in the bag,” “the deal has been sealed,” or accepted because it is “an offer that you cannot refuse”? This case looks at whether an enforceable contract was created with just such actions.

Buyer and Seller are joint owners of a document shredding company and each owns 50% of the company’s stock. Buyer and Seller don’t get along. The parties attempted (but ultimately failed) to create a “buy-sell” agreement, whereby one party would sell all their shares and the other party would buy them. The “buy-sell” agreement contained a “claw-back provision,” didn’t name a fixed price, or include a non-compete clause.

Monday, January 16, 2017

Is It True, Is It Kind, Or Is It Necessary?

Rounds v. Malletts Bay Club, Inc., 2016 VT 102

By Thomas M. Kester

One must read contracts carefully. Sometimes reading between the lines and sometimes between the documents. The case essentially boils down to what an “if necessary” clause means in a sentence. Let’s look at a nifty lens through which this agreement’s clause can be understood, to wit: contemporaneous writings.

George purchased property in Malletts Bay Club, Inc. (MBC) in 1968 and received 27 shares of MBC stock. in 1975, he gave four shares of stock to his kids. Prior to 1992, the MCB bylaws required real property transfers to also include (at a minimum) seven shares of MBC stock. With a 1992 amendment, the real property sale must also include all shares of MBC stock. Both pre- and post-1992, MBC had a right of first refusal to purchase property or stock to anyone other than certain family members.

In 1997, George transferred his residence to his daughter, Sandy, as trustee of George’s personal residence trust (Trust). In 1998, the Trust sold the property to Douglas. In the Trust-to-Douglas transaction, MBC’s president signed a “Waiver and Agreement” okaying the transfer of the property and seven shares of MBC stock from Trust to Douglas and waived MBC’s right of first refusal to purchase the 23 shares and property.

The Eye of The Beholder

Myrick v. Peck Electric Co., 2017 VT 4

By Elizabeth Kruska

Ugly does not equal nuisance. That pretty much sums up this whole case.

Some individual landowners sued a couple different solar companies over the installation of solar arrays near their homes. They argued that the solar arrays were unsightly, and as a result, drove down their property values because the arrays took away from the local rural aesthetic.

Beauty, of course, is in the eye of the beholder. The Supreme Court isn’t about to get in to what looks good or what doesn’t look good. That becomes weird judicial micromanagement of things that just aren’t any of SCOV’s business. I used to work for a law firm in White River Junction. In 2005 I got to move from one office to another office within the building. The new office needed to be painted, and I was given permission to paint it whatever color I wanted. I painted one wall my favorite color—spring green. Once it was on the wall I loved it. One of my co-workers looked at it, snorted a little bit and said, “well, at least you like it.”

Thursday, January 5, 2017

In The Name Of The Court

Turner v. Shumlin, 2017 VT 2 (also, 2016 VT 135, 2016 VT 136, and 2017 VT 1)

By Elizabeth Kruska

No, you may not appoint a Vermont Supreme Court Justice where there is no vacancy.

In a 21-page per curiam decision (including a 2-page footnote!) grounded in the Vermont Constitution, the Vermont Supreme Court unanimously decided that under our state constitution, the now-former governor could not make an appointment to replace soon-to-be-former Associate Justice Dooley when the latter leaves his position on March 31 of this year.

Let’s back up. Way back in 1968 the legislature created a Constitutional Commission to address how judicial appointments were made. Up to that point, the legislature was charged with the duty of electing justices for vacant judicial seats. The Commission recommended changes that were ultimately adopted in 1974. From that point forward, the process was that upon a vacancy, a nominating board would recommend candidates to the Governor. The Governor would then appoint someone from that pool of candidates. In the case of a Supreme Court justice, the Senate approves the nomination and the person becomes a Supreme Court justice. This was the process for certain other appointments that required advice and consent of the Senate, and with the 1974 amendment made it the process for the Supreme Court, as well. This two-step process took politics out of the appointment procedure, since it requires not only a nomination but also a confirmation. Read the long footnote. It’s very good.

Sunday, January 1, 2017

Calendar Magic

Barron v. Menard, 2016 VT 123

By Elizabeth Kruska

David Barron is a guest of the State at one of our fine penal institutions. Back in October of 2015, he was with a group of other guests being escorted to the facility’s kitchen. As the group walked past a certain employee, Mr. Barron became agitated and started making some threats. The alleged threats were sort of along the lines of, “You make sure he’s never around me. I’ll beat him up.” This came with a gleam in his eye and a clench to his fists.

Another corrections officer was with the group and overheard Mr. Barron. She reported him, and he was subject to disciplinary action. Disciplinary actions in the jails often work as a package deal. Mr. Barron not only got to go before a hearing panel, but he also got to move to a segregation unit within the facility.

In our hustle-and-bustle life, it’s probably tempting to think, “yes, I could stand to spend some time segregated from pretty much everyone for a few days.” And you’d be right. But you don’t really want to spend that time in the segregation unit of a jail. It’s loud. It can be violent. It’s full of already-pissed off people who are now even more pissed off because they’re in a worse part of a place that already is generally terrible.