Saturday, October 28, 2017

Country Roads

Road or path? Wouldn't you
like to know. 
Granville v. Loprete, 2017 VT 101

By Andrew Delaney

Ancient roads can haunt you.

The Town of Granville put together an Ancient Roads Committee and a process for identifying said ye olde wagon-paths. In 2009, the Committee made some recommendations and added roads to the Town Highway Map after notice and several public hearings. (There’s an Ancient Roads Act that gave all towns until mid-2015 to get these Ancient Roads on town highway maps (see subsection (c) of this statute for more information)).

Well! One of those identified wagon paths in Granville went through Mr. Loprete’s property. Mr. Loprete decided that he’d block off the road with a storage container. The selectboard asked him to remove the storage container. Mr. Loprete was not interested.

So the Town sued for declaratory judgment, asking the court to declare that the road was a proper road dating back to 1850—and that by implication Mr. Loprete couldn’t use the road for his storage-container-placing activities. In order to be a proper road, under the applicable 19th-century law, there had to be (1) an official recorded survey; (2) a formal act by the selectboard; and (3) a certificate of opening.

But Her Emails!

Does it matter where? 
Toensing v. The Attorney General of Vermont, 2017 VT 99

By Elizabeth Kruska

This decision seems like a big deal, but when you boil it down, it actually seems a lot more like common sense. I will sum up: sometimes state officials use their personal email accounts to send “work email” and if they do, sometimes those documents are public records. If those documents are public records, and if someone makes a Public Records Act request for them, they may have to be disclosed.

Vermont has the Public Records Act (PRA), which governs disclosure of, well, public records. The point is that we, as the citizenry, have the right to know what our government officials are doing. The PRA sets forth what is a public record, and what kinds of records are exempt from disclosure. For various reasons the public doesn’t get the right to see everything generated by the government. But if a citizen makes a request for certain documents, the government has to either (a) turn them over or (b) say why they shouldn’t have to turn them over.

So, apparently Brady Toensing wanted to see some government-related emails and made a PRA request. The request included disclosure of emails sent by certain government officials through their state email addresses as well as certain emails they sent using their private email accounts. The Attorney General’s Office (AGO) did a search and identified something like 13,000 state emails that fit the bill. Some were disclosed, some were exempt, all came from the government officials’ official state email addresses.

The Gaps Between

Coverage Subject to Change
Progressive Cas. Ins. Co. v. MMG Ins. Co., 2014 VT 70

By Nicole A. Killoran

Ever wondered what happens when you’re one of several passengers in a car crash, your driver is the jerk who’s responsible, and his liability insurance doesn’t pay for everyone’s injuries? Well, I hope you’re all hydrated, because we’re about to dive into a very dry area of law to find out the answer from a case that came out a few years ago.

The particular facts of this accident—you know, the grim details that make it onto the evening news and leave you feeling protective of your family—are not explained in this opinion. Even if they were, I doubt they would have made the topic, the enforceability of an “owned-vehicle” or “covered-auto” underinsured motorist coverage exclusion in Vermont, any sexier. All we know is that some poor shmuck passenger riding in his mom’s car found himself one of several victims of a one-car crash, the driver’s liability coverage was woefully short of paying for everyone’s injuries, and passenger had to tap into his underinsured motorist (“UIM”) coverage under his own car insurance to make up the difference.

Now, Progressive had both the tortfeasor driver’s insurance and passenger’s (both $500k policies), and passenger had twice the Progressive coverage under a MMG policy he had the foresight to buy. Progressive being the carrier for two of the three policies makes it a bit confusing, but here’s how this played out. Progressive paid out to all the victims under the tortfeasor’s policy to the liability limits ($500k), including roughly $250k to passenger. This still left passenger short about $400k, and it looked like he had three policies’ UIM coverage (the driver/host vehicle’s, and both of his) to tap into. Progressive ended up paying half, and MMG paid the other half, leaving room to spare out of the $1.5 million he had available.

Forever Temporary

Crossover Law Enforcement
Brown v. State, 2013 VT 112

By Nicole A. Killoran

Today’s case, an employment dispute that came out a few years ago, is a fact-specific look at one soon-to-be-deployed National Guardsman’s time as a temporary correctional officer (TCO). The majority offers us a window into servicemen employment protections. The dissent gives us a peek into evidentiary infighting among the SCOV’s esteemed justices.

Plaintiff Brown was a TCO at the Department of Corrections’ (employer’s) Southern State Correctional Facility in Springfield. If you noticed the “was” there, you’ll recognize that this is a dispute that arose when plaintiff was fired. And fired he was, as well as passed over for promotion, just a few months after he was tagged for deployment to Afghanistan. Therein lies the dispute.

TCOs are at-will, non-union employees that fill in where necessary for regular correctional officers (COs). Plaintiff started working as a TCO with employer at the end of 2008, and did some training at the Vermont Corrections Academy in early 2009 with generally good marks (and a few bad ones). Shortly after returning from the Academy, employer learned that plaintiff would be one of several officers at the facility that would be deployed to Afghanistan.

Saturday, October 21, 2017

In the Kitchen

We're well past the curtilage
at this point
State v. Allis, 2017 VT 96

By Elizabeth Kruska

Ever have it when you don’t expect to find police in your kitchen? But then you leave the room for a second, and bam! Cops in the kitchen.

That’s sort of what happened here. Christian Allis lived with his girlfriend. Back in October of 2015, police got a call about what looked like a car crash. They arrived on scene and found Christian’s pickup truck in a ditch, and some evidence nearby suggesting the truck had crashed. They ran the plate, learned who the owner was, and learned where he lived. They travelled to the house to try to find out what was going on.

The police knocked on the door, which was answered by Christian’s girlfriend. They asked for him, and she said he was upstairs. She turned to go get him, and unbeknownst to her, they came in behind her. When she returned, she was a little surprised to find a pair of cops in her kitchen. The police believed that when she said she’d go get him and turned that it was an implied invitation for them to come in behind her.

Your Shrink Or Mine?

No extra letters. 
State v. Sharrow, 2017 VT 25

By Eric Fanning

This case is relatively simple, folks, so I’ll keep this one short and sweet. 

Defendant Christopher Sharrow was charged with second degree murder in July 2013. While he was awaiting trial, his lawyer requested a competency hearing. A quick digression for the readers out there with no criminal law background: a criminal defendant cannot stand trial if he or she is found mentally incompetent. The two-prong analysis for incompetence is: (1) can the defendant understand the nature of the charges against him or her; and (2) is the defendant capable of consulting with his or her attorney? Don’t confuse this with insanity, which is a defense to a crime. A finding of incompetency merely delays the trial until the defendant regains competence; it doesn’t mean the defendant is not guilty.

Anyway, the court ordered an evaluation pursuant to this law, which we’ll get to in a second. The Department of Mental Health had an expert conduct a competency evaluation, but Sharrow’s lawyer wasn’t present when the evaluation was done, and so he moved for a reevaluation. The court ordered another evaluation and the Department of Mental Health selected another expert. This time, the expert requested a neuropsychological examination, but the Department declined to provide funding for that examination. The second doctor bailed and suggested they find someone else, because they believed that a neuropsychological examination was crucial for completing their evaluation. The third court-appointed expert concluded the Sharrow was not competent to stand trial for the alleged offense.

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.