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.”