Sunday, March 26, 2017

Double Jeopardy Dilemma

State v. Dow, 2016 VT 91

By Andrew Delaney

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

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

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

No Cigar

State v. Haskins, 2016 VT 79

By Charlie Buttrey

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

Glen Haskins knows the feeling.

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

Be There Or Be Square

State v. Grace, 2016 VT 113

By Elizabeth Kruska

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

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

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

Certifiably Procedural

McClellan v. Haddock, 2017 VT 13

By Elizabeth Kruska

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

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

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

Thursday, March 16, 2017

Bail, Revisited

State v. Bailey, 2017 VT 18

By Elizabeth Kruska

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

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

Saturday, March 11, 2017

Judge Talk

In re Guardianship of N.P.2017 VT 14

By Elizabeth Kruska

This is a reverse and remand to the Probate Division.

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

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

Officer Negligent

State v. Hayes2016 VT 105

By Eric Fanning

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

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

Wednesday, March 8, 2017

Two Problems in One Appeal

State v. Scales, 2017 VT 6

By Elizabeth Kruska

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

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

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

Tuesday, March 7, 2017

Quiet, Please

State v. Prue, 2016 VT 98

By Charlie Buttrey

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

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

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

Proportions, Pockets, and Paybacks

Conant v. Entergy Corp., 2016 VT 74

By Thomas M. Kester

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

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

Evaporating COAs

State v. Atlantic Richfield Co., 2016 VT 61

By Thomas M. Kester

Tick. Tock. 

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

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

Sunday, March 5, 2017

Jailhouse Rock

In re Morales, 2016 VT 85

By Andrew Delaney

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

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

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

Road Rage Reversal (in part)

State v. Gagne, 2016 VT 68

By Andrew Delaney

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

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

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


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

By Elizabeth Kruska

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

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

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

It Doesn’t Fit

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

By Elizabeth Kruska

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

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

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

The Condition of Being a Boy

In re D.C., 2016 VT 72

By Elizabeth Kruska

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

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

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