Sunday, October 21, 2018

Violence, Clarified

Violent or no? 
State v. Bryan, 2016 VT 16

By Christopher A. Davis

Probation can be a confusing system to navigate. Rules, regulations, contracts, supervisors, fees, costs . . . it can begin to sound less like punishment for your DUI and more like the job site of a metropolitan construction company. But in a 2016 decision, the SCOV clarified one point and emphasized another: first, groping the breasts of your partner’s 14-year-old daughter is considered “violent” behavior for purposes of probation; and second, if you want to fire your assigned attorney, and the court says no, it’s up to you to convince the SCOV that the trial court was unreasonable.

The facts are straight-forward. Defendant is convicted of larceny from a person and given a sentence that is mostly suspended (hanging over his head, so to speak) while he serves a period of probation. One of his probation conditions is that he not engage in “violent or threatening behavior.” This is coincidentally one of the most heavily-litigated probation conditions in recent SCOV history, mostly in the context of whether certain speech may be viewed as “threatening” (not the issue here, as you will see). Once placed on probation, he spends a week with a woman at a hotel in Berlin and on multiple occasions watches her two children, a girl age 14, and a boy age 9, at the hotel while she goes to work. On two occasions, according to a later report by the girl and investigation by local law enforcement and DCF, he touches the girl’s breast over her bra; this behavior occurs in conjunction with statements reportedly made by defendant to the girl encouraging the touching, discouraging the girl from reporting it, and attempting to blackmail her if she does report it by disclosing sensitive information he learned from spying on her use of his cell phone.

In what must have been a shock to local dating circles, defendant’s relationship with the children’s mother independently comes to a close a short time later and he is subsequently incarcerated for reasons undisclosed by the Court. After this point the girl discloses the touching, authorities investigate, and the probation officer responsible for supervising defendant files a violation of probation alleging two counts of violations of the condition prohibiting “violent or threatening behavior.” 

Go to the Tape

"Well, who else had access to the jar?"
State v. Manning, 2017 VT 90

By Eric Fanning

It’s your lucky day, devoted SCOV Law readers, because today we get to discuss an embezzlement case! People commonly think of embezzlement as a rich person’s crime—only occurring on Wall Street in large banks or brokerage firms where the trusted young executive skips town to his own private island with millions of dollars in ill-gotten wealth. However you don’t have to steal a lot of money to be guilty of embezzlement, and you sure as heck don’t have to be in a big city working for a big bank to commit the crime.

Case in point: Gregory Manning. Mr. Manning worked at the Corner Stop Mini Mart in Royalton- hardly a Wall Street behemoth. He was a Mini Mart employee for several years, and was also friends with the owners of the store. Manning was so close with the owners in fact, that he was the only employee allowed to make after-hours bank deposits for the store. This entailed counting the money in the cash register at the end of his shift, filling out a deposit slip, putting the money and deposit slip in a zippered bag to be deposited, and then depositing the money and slip at the bank’s after-hours deposit box.

At some point, the store owner who did the bookkeeping noticed some irregularities, namely that there were a few deposits missing: four to be exact, totaling over $10,000. As fate would have it, all four of the missing deposits were on dates when Manning was working. The bank’s search of the deposits came up with nothing. Then they went to the bank security footage, which appeared to show Manning basically pretending to drop the bags in the deposit box, putting the money in his jacket, and walking away.

Saturday, October 13, 2018

Admission Ticket Required

"I'm sorry, sir, but you need a
complete ticket to take a seat."
In re Hamid-Ahmed, 2018 VT 113

By Andrew Delaney

Mr. Hamid-Ahmed applied to take the Vermont bar exam. The board rejected his application based on its assessment that Mr. Hamid-Ahmed didn’t meet the educational requirements.

He appeals.

Mr. Hamid-Ahmed has a bachelor’s degree and an LLM. What he doesn’t have is a JD or something like it. He isn’t enrolled in the law-office-study program and he hasn’t been admitted to any other bars. But he argues Vermont’s bar admission rules allow him to sit for the Vermont bar (specifically the “curing provision” in Rule 8(c)(4)). He also argues that the board violated his due process rights when it didn’t explicitly tell him about the process for appealing to SCOV.

Sunday, October 7, 2018

Notice Needed

Static Caravan
Shires Housing Inc. v. Brown, 2017 VT 60

By Andrew Delaney

Here’s a blast from the past—March 2017 to be precise.

Landlord (Shires) tried to boot Brown and her cotenant from the mobile-home park. There was no written notice of termination of tenancy. Brown filed a motion to dismiss on the no-notice basis. The trial court found this statute (subsection (a)(3) to be precise) provides an exception to pre-eviction notice. “Nuh-uh,” says the SCOV majority. “Still gotta give notice even if there’s some ambiguity there.” And this one gets turned around on the trial court.

Brown leased a lot in a Bennington mobile-home park. The lease said that criminal and drug-related activity were grounds for termination of tenancy. It also required written notice of the reason for an eviction. Shires filed a complaint for eviction alleging that Brown and cotenant had engaged in drug-related activity. Landlord did not provide written notice before filing in court.

Saturday, October 6, 2018

CHINS Reversal

Not having it
In re M.L., 2018 VT 32

By Elizabeth Kruska

Let’s pretend for a moment you’re a parent. You’ve got a child, and the child breaks an arm. You take the child to the hospital and get treatment. This is exactly what you’d expect a parent to do. Let’s make the facts a little more serious. Let’s suppose the child has cancer and has to be admitted to the hospital. Parents take the child to the hospital and admit her. Sometimes the parents have to go home, so the child stays at the hospital because that’s where the treatment happens. This is exactly what you’d expect a parent to do.

In fact, if a parent didn’t do that, you’d expect that the state might step in and try to make sure the child got medical treatment. You’d expect this because, as a society, we are actually decent people and we don’t want to see kids harmed or hurt.

Let’s suppose instead that the child has some serious mental health issues and needs some residential psychiatric treatment. Again, probably you’d expect that everyone would be in favor of a parent making this treatment happen, and you wouldn’t think that the state would intervene and somehow say the parent was . . . . Not doing the right thing.

But that’s basically 100% what happened here. And SCOV is not having it.

Probation Predicament

These are probably prettier than the
"Northern Lights" in the case
State v. Stuart, 2018 VT 81

By Elizabeth Kruska

I happen to like probation violation hearings.

Not because of what they are, but I like how they operate. It always feels to me like there are discrete steps to violations of probation (VOPs, for short), and that is somehow oddly satisfying. If someone is on probation, it’s basically a contract between the defendant and the state. In exchange for the State not seeking to have someone go to jail, the defendant agrees to abide by certain terms and conditions. Potentially a win-win situation. If the defendant violates one or more of the terms, then the State can seek to have the court find a violation. From there, if the court does find a violation, it can impose the underlying sentence and the defendant could have to serve that sentence in jail.

VOP hearings are a little bit civil and a little bit criminal, and the rules of evidence don’t apply. That doesn’t mean this is the wild west of court proceedings. Just because the rules of evidence don’t apply doesn’t mean that every piece of evidence is admissible.

And If You Don’t Know, Now You Know

Won't you be my neighbor? 
In re Mahar, 2018 VT 20

By Elizabeth Kruska

Notice is important. With the possible exception of FISA court, parties to legal proceedings are supposed to have notice when a court is asked to make an order or determination affecting the parties’ rights. So, how does a party get notice?

Lucky thing—we’ve got rules for that.

Here’s what happened here. Mr. Mahar owns some property with his own house on it in Jericho. He wanted to add an additional structure and apartment on his land. The opinion isn’t totally clear about exactly what he was building, but I’m envisioning maybe a garage with an in-law apartment above, or something like that. Anyway, he had to apply for a permit with the Jericho Development Review Board (DRB), which he did.

After Hours

Moonlight in Vermont
State v. Morton, 2018 VT 22 (mem.)

By Elizabeth Kruska

In a perfect world, we’d all have perfect information upon which to make our decisions. But our world is far less than perfect, and sometimes decisions have to be made on the information we’ve got.

Before I was a lawyer I didn’t totally understand how it was that someone who was arrested would then end up in court. Turns out, there’s a procedure for that. Sometimes people are given a citation and told to show up later, and generally they do. Sometimes, though, a situation is such where a person might not show up for various reasons—they’re not from the area, they have a history of not showing up, they’d be afraid to show up because the charge against them is really serious, just to name a few. If that’s the case, bail might be set and the person held until their initial appearance.

Who sets bail? The court. Not police. The court. It was decided in Merry Olde England before the Magna Carta that bail couldn’t be set by the same police who were arresting people for crimes. That had happened before and was rife with problems, as you can probably imagine. 

Sunday, September 30, 2018

Something Smells

Can you smell what
the Rock is cookin'?
In re North East Materials Group LLC, 2017 VT 43

By Andrew Delaney

This is the third case in this trilogy, and yes, it’s over a year old. Nobody was jumping at writing these cases up. You can read about the first case here, and the second case here. I’ve been told I’ve gotten much wrong in those summaries. Perhaps I have. You get what you pay for here.

In this round, the neighbors (aka Neighbors for Healthy Communities) “appeal the Environmental Division's decision granting North East Materials Group, LLC, (NEMG) an Act 250 permit for operating an asphalt plant.” The neighbors specifically challenge the court’s findings and conclusions under two Act 250 criteria. They claim “conditions imposed by the court pursuant to these two criteria repeat existing requirements that NEMG did not or could not comply with and, thus, were insufficient to meet Act 250’s criteria.”

A slight SCOV majority is unpersuaded.

Telephone

An antique? 
Wool v. Menard, 2018 VT 23

By Elizabeth Kruska

Know anyone in jail? I do. I mean, I’m a lawyer, so it goes with the territory. My jail calls usually go like this, “hey, it’s Elizabeth. I’m calling to tell you (insert one very specific piece of information). I’ll try to come see you sometime soon.” And that’s that.

Sometimes clients call me. And I am often pretty quick with these calls. Couple reasons. First, these calls are recorded. There’s a warning to the caller and to the recipient of the call that the call is recorded. If you are Suge Knight’s lawyer, this might even land you in jail, depending on what you’re alleged to have said (btw, Mark Geragos gives a really good explanation of this weird case in Episode 138 of his podcast, “Reasonable Doubt” with Adam Carolla).

The other reason I’m quick with these calls is because I know it costs my clients money. A client who is in jail doesn’t really have a lot of options in terms of contacting people who aren’t in jail. They can write a letter, but that takes a couple days. If the communication isn’t urgent, this is fine. If it’s more pressing, though, a good ol’ phone call makes more sense. But it’s not as if someone in jail is able to shop for the best pricing on phone plans. No, people in jail have to use the phones they have access to, which are the phones provided by the jail.

We All Grow Up

Immortally Goofy 
Terino v. Bleeks, 2018 VT 77

By Elizabeth Kruska

I’m sure this has happened to everyone. When I was a kid, I did my best to understand the world around me. There were times I thought I understood something, and then as I grew up, as kids do, I realized I either misunderstood something before or didn’t have the context for it.

Let me give you an example. The Peter, Paul and Mary song, “Puff The Magic Dragon” was always a very sad song for me. The line, “Dragons live forever, not so little boys” made me cry once because I thought it meant that little boys who believed in dragons would die. Or maybe that dragons were out there eating little kids. I’m not sure exactly what it was, but the point in my mind was that dragons live and kids don’t, and if kids don’t live it means something bad happened, like they died.

It wasn’t until I was older that I realized that line was about growing up and not being a kid anymore, not about certain death at the hand of a dragon. But, hey, I was four (or thereabouts) and I had absolutely zero context or understanding about aging. It wasn’t until I was five that I learned the word regret and immediately sent myself into a complex because I realized I regretted not trying a banana chip when one was offered to me. Heady stuff. 

Saturday, September 29, 2018

Pictures and Penalties

I'll just leave this here . . . . 
State v. VanBuren, 2018 VT 95

By Andrew Delaney

The main question in this case is whether a statute prohibiting revenge porn is constitutional on its face. The short answer is yes. Let’s find out why.

The SCOV majority starts with a definition of what this statute—Vermont’s revenge-porn statute—prohibits. In SCOV Law’s gross-oversimplification tradition, here’s a Wikipedia entry. You’re not supposed to send nekkid pictures of anybody to other people without the nekkid person’s consent. There’re exceptions of course, but we don’t need to get into too much detail here other than to say the exceptions serve to narrow the scope of the statute. The statute provides a private cause of action for a person victimized by revenge porn, which I think is a good thing.

This case stems from Ms. VanBuren getting into her maybe-but-it’s-not-entirely-clear boyfriend’s Facebook Messenger account and finding nekkid pictures of complainant. Hence the meme headlining this post. Naturally, Ms. VanBuren posted the pictures on maybe-boyfriend’s account and “tagged” complainant. When complainant found out and tried to get Ms. VanBuren to take the pictures down, Ms. VanBuren not-so-politely refused to do so, threatened to send the pictures to complainant’s employer (a childcare facility), called complainant a “moraless pig,” and told complainant that she was going to ruin her and get revenge. Whoof.

Monday, August 27, 2018

Service Snafu


Messier v. Bushman, 2018 VT 93

By Elizabeth Kruska

Civil litigation is not something I do as a part of my practice. Much of this particular opinion is entirely about a very specific part of civil practice. I’m just going to describe this as easily as possible, since I know if I wander into the weeds on various details things are not going to go well for this summary and it’ll end up being less summary than it ought to be.

Mr. Messier and Ms. Bushman got into a car collision in 2014. They were each driving their own cars, and at the time, both were Vermont residents as far as we know. Mr. Messier filed suit against Ms. Bushman in 2017, 3 days before the statute of limitations ran. Herein lies the problem.

He sent a sheriff over to serve Ms. Bushman. Nobody at the home accepted service on her behalf. The sheriff was informed that Ms. Bushman was out of the country on a study abroad semester. No worries, though. There’s an alternative method of service available that involves serving the Commissioner of Motor Vehicles, which Mr. Messier says he tried to do. There are rules about this – you have to serve the Commissioner, pay a fee, get a copy of the service return and send all this to all the parties and the court.

Tuesday, August 21, 2018

Not in My Backyard

This seems like a pleasant backyard.
In re PATH at Stone Summit, Inc., 
2017 VT 56



Appellants here are a group of neighbors opposed to the placement of a mental health and substance abuse treatment center (called PATH) near their homes in Danby.  They ask SCOV to reverse the Green Mountain Care Board’s decision to green-light the proposed project without a certificate of need (CON).
The first question you’re probably asking yourself is- what the heck is a certificate of need?  You may also be wondering why is the Green Mountain Care Board involved here?  Both perfectly reasonable questions- so let’s tackle those first.  The Green Mountain Care Board performs a variety of statutory functions.  Most of us are probably most familiar with how they are tasked with regulating insurance rates for Blue Cross Blue Shield and MVP’s Vermont Health Connect plans.

Sunday, August 12, 2018

Agree to Agree

So, just check the box? 
Penland v. Warren, 2018 VT 70

By Elizabeth Kruska

Life is pretty grand when people agree. That’s partly why this particular case got reversed.

Sandra Penland and John Warren were previously married and got divorced. As part of their divorce, the agreement was that they would each get 50% of Mr. Warren’s pension that he got from working as a teacher. The parties took the appropriate steps to divide the pension, the divorce was final, and they moved on.

Some years later, Mr. Warren discovered he had a health issue that may jeopardize the pension. If I read this correctly, if he dies, the pension payouts would end. That would mean Ms. Penland’s portion of the pension payouts would also end—and likely much sooner than both parties anticipated—which isn’t what either of them wanted. So, he and Ms. Penland discussed the matter and agreed they would change the divorce order so that he would keep the pension, making it only pay out to him during the rest of his lifetime, and he would give Ms. Penland a cash payment in the sum that would have been half the value of the pension. They both agreed this was a win-win situation; Ms. Penland would be made whole with the amount of money she believed she’d get, and Mr. Warren would be able to maintain the pension during his life. 

Auction Rules

How did BOA feel? 
Bank of America v. O’Kelly, 2018 VT 71

By Elizabeth Kruska

Ever been to an auction? They’re kind of fun, depending on the type of auction. Want some steers? Go to a cattle auction. Want some art? Go to an art auction. Want hidden treasures? You can often find those at an estate auction.

You can also buy real estate at auction. As you may imagine (for all those times you imagine real estate auctions), those have rules. Can you picture all the shenanigans that might go on if there weren’t real estate auction rules? I’m guessing probably not, since likely you’ve thought about real estate auctions fewer than four times in your lifetime, up to and including right now. But, to prevent issues with sale and title and all that happy stuff, we’ve got rules.

All right. So, the O’Kellys—Seamus and Jennifer—had a piece of property in Washington County that was subject to a foreclosure in 2015. They, and the Vermont Department of Taxes, were given a six-month redemption period in which to redeem the property. Everybody was noticed that if they didn’t redeem within six months the property would be sold at auction.

Who’s an Employee?

A little guidance
Perrault v. Chittenden County Transportation Authority, 2018 VT 58

By Elizabeth Kruska

This is a workers’ compensation case. In the interest of full disclosure, I am married to an attorney who defends workers’ compensation cases (or, as those in the biz call it, “comp”). I don’t pretend to understand comp like a pro, but I know basically how it works and I know a lot of the words. At my house we talk an awful lot about “medical end” and “permanent total disability” (which I’d like to call “perm totes” and on rare occasions “perm totes McGoats” but that hasn’t caught on) and that sort of thing.

Workers’ compensation is purely a creature of statute. It’s meant to provide compensation (obviously) for workers (obviously) in the event of workplace injuries. Suppose you’re walking up a flight of stairs at work and you slip and sprain your ankle. You need to be out of work for a couple days while your ankle heals and you need to go to the doctor to get it checked out. Easy-peasy lemon squeezy. That’s a workers’ comp claim, and you would get certain benefits for this. But they’re not all this obvious. And that’s because the Legislature, in creating the workers’ comp statutes, chose to define who is eligible for what and when.

Joanne Perrault was a volunteer driver for the Chittenden County Transportation Authority (CCTA). CCTA runs the buses in Chittenden County. It also has a program that provides transportation to certain eligible riders through a network of volunteer drivers. The volunteers have to pass a background check and are subject to rules and regulations set by CCTA in order to do the volunteering. They use their own private vehicles, which they use to pick up and drop off riders. They don’t get a salary, but they do get mileage reimbursement, and are required to log the time they spend waiting for riders.

Sunday, August 5, 2018

Something About Standing

A different kind
of standing
In re Guardianship of C.H., 2018 VT 76

By Andrew Delaney

What exactly is an “interested person” in the context of a guardianship for a developmentally disabled adult? I’m glad you asked because it just so happens that’s just what SCOV considers in this case.

C.H. is a developmentally disabled adult and has been under a guardianship since 2009. In 2015 her first guardian—an immediate family member—was removed for financial exploitation, and the Department of Aging and Independent Living (DAIL) became C.H.’s guardian. In 2017, Ms. Boulet aka “petitioner” moved to modify the guardianship so she could be C.H.'s guardian, alleging that she had known C.H. since C.H. was a child; that she is C.H.’s godmother and had known C.H.’s mother since they were little kids. Ms. Boulet also noted that C.H. is her “honorary niece,” and that she cared greatly about what happened to C.H.

C.H.’s counsel filed a motion to dismiss, arguing that Ms. Boulet lacked standing. The trial court agreed and dismissed petitioner’s motion to modify without any hearing because it concluded that petitioner lacked standing to modify a guardianship.

Substantiation Situation

Can't let that clock run out

In re M.S., 2017 VT 64

By Elizabeth Kruska

Here’s something you probably have not thought about: DCF substantiations.

There’s this odd creature of statute called the Substantiation. It’s part of child protection and happens largely off-screen. It’s like the Wizard of Oz behind the curtain.

There’s a child protection registry (let’s call it “the Registry” from here on out because that’s what it’s called). It’s a confidential list and is not accessible to the general public. If someone engages in certain behavior (or doesn’t, as the case may be) that causes a DCF investigation to take place, that person could be substantiated for his or her behavior. It’s a low standard to be substantiated—it’s based on the evidence obtained, that a reasonable person could conclude that a child was abused or neglected. 

Ability to Pay

This is a case about bills. Get it?
State v. Dwight, 2018 VT 73

By Elizabeth Kruska

Eisenhower. Howard. Schrute. These are some of your more well-known Dwights.

This case is State v. Dwight and it’s about restitution. It’s not about inventing the Interstate Highway System, or getting picked first overall in the NBA draft, or growing beets.

Basically, it’s this. Mr. Dwight punched a Mr. Richards. This resulted in Mr. Dwight being charged with an assault charge and Mr. Richards having some pretty significant damage to his teeth and gums. It cost him about $21,000 for treatment to fix his teeth. Mr. Richards doesn’t have a money tree growing in his yard, or sufficient (if any) dental insurance to cover the expense. Mr. Richards was a college student when this happened. His parents were helping him pay for school. His dad also doesn’t have a money tree and gave him a choice: use the money the parents would have used for school for school, or use it for fixing your teeth. Mr. Richard went with the teeth option and took out a loan to pay for school. He went to the dentist, and dad paid the dental bill.

Sunday, July 29, 2018

Tax Trouble

Uncle Sam wants his money
In re Canney, III, 2018 VT 69 (mem.)

Attorney Canney had some tax trouble. He admitted in Vermont Federal District Court to filing fraudulent individual and corporate tax returns. SCOV "found clear and convincing support for the conclusion that respondent violated the Vermont Rules of Professional Conduct and that he posed a substantial threat of serious harm to the public. His license to practice law was suspended pending final disposition of a disciplinary proceeding."

Attorney Canney submitted an affidavit resigning from the bar. Disciplinary counsel filed an additional statement of facts (in case Attorney Canney ever goes for reinstatement). Attorney Canney didn't respond to the additional facts.

SCOV accepts the resignation and Attorney Canney is disbarred.

Sunday, July 15, 2018

Mixed Signals

You have to pick a door. Any door
is fine. Except the wrong door.
Lillie v. Dept. of Labor, 2018 VT 66

By Andrew Delaney

Have you ever ended up in trouble for doing something you were told to do? I’ve been married a few years now, so I know I have.

Mr. Lillie knows what that’s like. He got burned at work. This isn’t a joke. He worked for a propane company and he actually got burned. He continued to work but at a limited capacity. A few months later, he got fired for an alleged safety violation. Due to his work injury, during this same time period, he was taken out of work by his doctors. While there was some dispute about his worker’s compensation eligibility, he went to the Economic Services Division (ESD) to try to get some financial help. ESD told Mr. Lillie to apply for unemployment if he wanted to receive any benefits. So Mr. Lillie did as he was told. Those of you that have some experience with how unemployment works might be thinking, “Why’s he applying for unemployment if he can’t work? He’s not gonna get it.” That’s right.

The Unemployment Insurance Division calculated “monetary eligibility” based on Mr. Lillie’s wages earned during the immediately previous June-July year. And he qualified under that calculation. This triggered a “benefit year.” (If you’d like to learn more about how a benefit year and eligibility are calculated, here’s a handy-dandy link to a previous post on the issue). However, he wasn't able and available to work due to his work injury and so wasn't able to get unemployment.

We'll See

We're not entirely sure
what is going on here. 
Clark v. Menard, 2018 VT 68

By Elizabeth Kruska

For all our gentle readers unfamiliar with the Vermont Department of Corrections’ phenomenon known as “work camp,” I’ll explain how this works. It’ll be helpful for future reference throughout the course of this summary.

In Vermont we have what’s known as “truth in sentencing” which is that if someone gets a sentence, that’s their sentence. There’s no longer “good time” which is a way to reduce someone’s sentence. There are some places where it’s basically understood that if you get a 1 year sentence you serve 8 months. Vermont is not such a place. Well, subject to some minor exceptions, and work camp is one of those exceptions.

Certain offenders with nonviolent offenses and/or nonviolent records might be allowed to go to work camp. It’s exactly what it sounds like. It’s a part of one (sometimes more than one) correctional facility where sentenced inmates get to work in order to earn “day-for-day” credit toward their sentences. This is arguably a good thing. Inmates who are eligible want to go to work camp and once they’re there, they want to stay. Participants get not only the benefit of credit toward their sentences but also get to spend their days working and being productive. The state benefits because it gets some people out of jail sooner, thus costing less, while having inmates work on certain state projects, also costing less. I once got to see the license plate shop when the women were making plates and signs at the Windsor Farm. It was very cool.

Saturday, July 7, 2018

The Power of Contractual Obligations Compels You!

Well, why wouldn't you press it? 
People's United Bank, NA v. Alana Provencale, Inc., 2018 VT 46

By Thomas M. Kester

You can buy tons of cool stuff at auctions: cop cars, finger traps, and the like, but be careful what you do buy. You don't want to be labeled a “genuine idiot” like Cary Grant. Within a split-second you can buy whatever is on the auction block. But be forewarned: you are now on the financial chopping block too, and hopefully in all the flutter and excitement of bidding you didn’t stretch yourself too thin.

Banks and lending institutions really like it when mortgage holders pay their debts, especially in a predetermined and consecutive nature for many years. What happens if you stop paying and get foreclosed upon? One possibility is that the property goes up for auction and the highest bidder gets to buy the property from the Bank. That’s what happened here but, like with a good martini, there is a little twist added.

Out of seven bidders, Buyer wins the property in question in September 2016. Thereafter, Buyer made the required deposit and signed an auction purchase and sale agreement (“P&S”). The P&S states that Buyer is obligated to purchase the property (pending the court’s confirmation) and the Bank has the “right . . . to request relief from the court in the event buyer fails to pay the balance of the purchase price.” The trial court confirms the sale by order and the confirmation order “names buyer and states that ‘the sale reported is hereby confirmed and title to the lands and premises shall be transferred to’” Buyer and the order also “refers to buyer by name and indicates buyer as the high bidder at the public sale” and also “listed the property’s sale price and confirmed buyer’s obligation to purchase the property.” Everything is going swimmingly and Buyer and Bank schedule the closing for February 10, 2017. Now would be a good time to start shaking up that martini (I like my martinis “dirty as the Hudson river” but you can concoct whatever you want).

Friday, July 6, 2018

Know Your ABCs!

When it all comes together . . .
In re Bourbeau Custom Homes, Inc., 2017 VT 51

By Eric Fanning

In Vermont, unemployment benefits are funded through a system of payroll taxes. Our state’s Unemployment Compensation law requires employers to pay taxes on wages paid to their employees. Following an audit conducted by the Department of Labor, Bourbeau Custom Homes, Inc. was assessed just over $7,000 for unpaid unemployment taxes on wages paid to nine people, five of whom are at issue here. Bourbeau says that these people aren’t “employees” within the definition of the law, and so the company should not have been liable for said taxes.

In many situations, this isn’t a hard issue to resolve. If you’re a Regular Joe with a 9-to-5 job, of course you’re considered an employee of Company X. Company X has to pay taxes on Regular Joe’s wages—which go to the Unemployment Compensation Fund. But alas, it is rarely the “easy” cases that reach SCOV (or that end up as published opinions).

Bourbeau Custom Homes is a Swanton-based company that is in the business of building “dream homes” for its customers. Sounds pretty sweet to me. Anyway, here’s what we know about the company: they have a foreman on staff to visit job sites and monitor progress on its projects. Mr. Bourbeau, the company’s owner, establishes the project schedules (they aim to finish homes in 12 to 16 weeks). The workers involved in this appeal are independent contractors, according to the agreements they signed with Bourbeau. They set their own hours at the job sites and provide their own hand tools. 

Saturday, June 30, 2018

Frequent Fliers

It's a cycle . . .
Weaver v. Weaver, 2018 VT 56

By Chris Larson

In family court, when hunting in my mind for support for a proposition I hope is legally sound, I’m tempted (I’ve actually done this) to cite Weaver. Odds are, this reference is correct, as the Weavers have been to the Supreme Court so many times that any proposition is probably supported in one of their cases. To the list of such citable propositions, add this: think twice before representing your spouse in the spouse’s divorce proceeding.

The most recent iteration of this long-standing battle (this one) upholds a trial court decision holding mother in contempt for failing to comply with an order placing the parties’ minor child in father’s care.

Curiously, or perhaps not, the Court also remands the case to determine whether father’s attorney, also his spouse, should be disqualified from further representing him.

Sunday, June 24, 2018

Easements: Is The Usage Conducive?

Still a Park? 
In re Vermont Gas Systems, Inc., 2017 VT 83

By Thomas M. Kester

The question is whether land dedicated to public use may be condemned for another public use when the new use does not materially interfere with the prior use. Intervenors are a group of Hinesburg residents who use Geprags Park (“park”) and they are appealing a Public Service Board (“Board”) order. On the other side is Vermont Gas Systems, Inc. (“VGS”). Intervenors take issue with the Board’s decision to condemn an easement through the park for the purpose of installing a natural gas pipeline, and argue the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. § 112(a)(2).

Background: VGS wanted to expand its Canada-to-Burlington pipeline to Addison county and, to that end, filed a petition with the Board for approval of a forty-one mile pipeline expansion that would run from Colchester to Middlebury.

The park was devised (a.k.a. transferred by will) to Hinesburg and the probate documents stated that park was to “be used only as a public park or school or for public recreational or educational purposes.” VGS sought an easement through said park but the Town wouldn’t convey the easement “because it determined that the decree’s covenant restricted its ability to do so.” But later on, VGS and the Town agreed to a condemnation of an easement and in October 2015, VGS petitioned the Board to condemn a 1,987-foot-long easement through the western portion of the park. In March 2016 several residents petitioned to intervene and, after initially denying their requests, the Board allowed some of the residents to intervene. Also in March 2016, the Board held a meeting and voted against the stipulation with VGS. 

Writ Large Too

There's gotta be something in
here that'll work . . .
State v. Cady, 2018 VT 61

By Andrew Delaney

All you lawyers who know what a “writ of coram nobis” is without looking it up, raise your hands. If you did raise your hand, then chances are you paid more attention in law school than I did, or you studied Latin, or you occasionally look up legal words and phrases on Wikipedia.

That’s exactly what I just did. Turns out, it’s just a writ of error—a formal way to ask the trial court to correct a previous error. I guess we could call it a “writ of mulligan” or a “writ of do-over” if we wanted to have a little fun. Only fifteen states and DC recognize the writ—and Vermont is one of the fifteen states. New York also happens to be one of the states that recognizes it. This may not mean much to you, dear reader, but the writ is recognized in all three states that I hold licenses in. Awkward. And here I am making jokes about its rarity. Well, crud. I guess I learned something today. Thanks, Wikipedia!

My lack of esoteric legal knowledge aside, let’s move on to the case at hand.

Mr. Cady was convicted of DUI in 2006. He was convicted of DUI-2 after a 2012 guilty plea. During the 2012 plea colloquy, the trial court recited a few facts and asked Mr. Cady whether he agreed that the State had enough evidence to prove the case beyond a reasonable doubt. He agreed. He was convicted, completed probation, and did not appeal.

Sunday, June 17, 2018

Certification Required

If you do med mal, a reminder string
tattoo isn't necessarily out of the question
Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53

By Andrew Delaney

A medical malpractice complaint generally requires a certificate of merit. You might think this isn’t a big deal. After all, it’s just a one-pager (or so) that says the lawyer or plaintiff has consulted with a medical expert and the medical expert has said the case has merit. But, it’s a big old deal. We’ve written about it before. If you do any medical malpractice work, memorize this statute, boys and girls. It may just save you from very uncomfortable conversations with your client and your malpractice carrier.

So, in this case, Mr. Quinlan’s wife, Lincy Sullivan, went to see a physician’s assistant on October 21, 2014. She had shortness of breath, leg pain, and chest pain. The PA concluded that it was allergies, prescribed an inhaler, and sent Ms. Sullivan home. She died three days later from a blood clot in her lung.

Mr. Quinlan hired an attorney. The attorney consulted with a PA and the PA wrote an opinion letter opining that the defendant’s treatment of Ms. Sullivan didn’t meet the standard of care on a number of levels. That letter and Ms. Sullivan’s records were provided to the defendants pre-suit.

Hold the Phone

Orange is for voluntary dismissal . . .
because we say so

Federal National Mortgage Association v. Johnston, 2018 VT 51

By Elizabeth Kruska

I’m writing this post while I’m on hold. Fortunately for me (and by extension, for you, gentle reader), this particular company with whom I’m on hold has something better than hold music: hold facts! Since I’ve been on hold I’ve learned about the origin of Flag Day, the exact time of the summer solstice this year in the Central Time Zone, fireworks injuries, and the meanings of various colors of roses during the Victorian Era.

Here’s the scoop in this case. Federal National Mortgage Association (let’s call them “the Bank” because that’s loads easier) owned a particular parcel of property in Rutland, which was mortgaged by the defendants, the Johnstons. Reading between the lines, it would appear the Johnstons got behind in making their payments, and in June 2016, the Bank filed an eviction action. There was an issue with service (that issue being “service did not happen”), and as a result the action was dismissed in November of 2016.

In March 2017, the Bank filed another eviction action, alleging that the Johnstons were the former mortgagors and current occupants of the property. The Johnstons didn’t answer the complaint right away, and in June 2017 (possibly on Flag Day, but the opinion doesn’t mention this), the Bank moved to dismiss the action. The court entered a dismissal without prejudice.

Saturday, June 2, 2018

First Amendment Fiasco

There's not much you can't say . . .
State v. Schenk, 2018 VT 45

By Charlie Buttrey

Writing for the majority in the 2012 case United States v. Alvarez, Justice Anthony Kennedy wrote that “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”

William Schenk took Justice Kennedy’s remarks to heart when he distributed flyers advertising the Ku Klux Klan to the homes of two women, one a Mexican-American, the other an African-American. The one-page flyer depicted a hooded and robed Klansman mounted on a horse, holding a burning cross. Behind the rider were images of the Confederate flag and the colonial thirteen-star American flag. Across the top of the flyer were the words: “Join the Klan and Save Our Land.”

For doing so, Schenk found himself charged with two criminal counts of disorderly conduct. The complaints alleged that he “recklessly created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO WIT, by anonymously placing a flyer endorsing the Ku Klux Klan.” Schenk moved to dismiss on the grounds that his conduct was protected under the First Amendment. The trial court denied the motion, ruling that the conduct was not protected speech since Schenk allegedly used the flyer as a tool to convey a strong message of intimidation and the potential for harm. Schenk entered a conditional guilty plea, reserving the right to appeal the trial court’s decision, and was sentenced to concurrent terms of 119 to 120 days, with credit for time served.

Factoring the Factors

This is a red factor canary.
It's just a cool bird. 
Bratton v. Holland, 2018 VT 54

By Elizabeth Kruska

This case is a pretty good example of how hard custody cases can be when figuring out what is really best for kids. There are lots of different pieces a court needs to take into consideration when it needs to figure out what is really in the best interest of the child.

Mom and Dad were married. They had a child, D, in 2007. In 2011, Mom and Dad divorced. Mom got sole physical custody subject to visitation with Dad. Dad lived in Vermont, and Mom moved to North Carolina. The plan was that Dad would have contact with D by Skype and would also get several weeks of in-person visits per year.

This didn’t work. Mom withheld and prevented visits between Dad and D, and also prevented Dad from having Skype sessions with D. Dad filed a number of motions to enforce and motions for contempt. Mom didn’t appear for any of the hearings that were held over the course of a couple years. Finally the court found Mom in contempt, finding that she had willfully violated the visitation order. The court ordered that it was no longer in D’s best interest to live with Mom, and issued an order requiring that D be returned to Dad.

Guess what didn’t happen.

Saturday, May 19, 2018

Suit For the Sewer

Did someone say "sewer"?
Hayes v. Mountain View Estates Homeowners Association, 2018 VT 41

By Elizabeth Kruska

Longtime readers of our fair blog know that we here at SCOV Law keep an eye on Vermont Supreme Court trends. We know the current hot issues tend to be shenanigans with probation conditions and shenanigans with homeowners associations. This is the latter. Sort of.

Did you know—and it is entirely possible you did not know this—that individual people are allowed to own sewer systems? I’m looking around my workspace right now and I see that I own a lot of things, many of which I probably don’t need. One thing I know I don’t own, nor do I want to, is a sewer system. Because the problem, apparently, is if you own a sewer system, that when you die (and really, I’m not trying to be grim but we’re all going to die), it probably ought to be clear what’s going to happen with that sewer system. And you know what, as an added bonus, let’s throw in some roads and a water system, also, just so that we’ve got a big problem to untangle.

Let’s back up to the late 1970s. Mr. and Mrs. Hayes owned some land in Manchester and decide to develop that land in to a housing subdivision. It was a different time. There was still lead in our gasoline. Coca-Cola came in glass bottles. “Bad President” was defined as “Peanut Farmer.”

Unstated Intent

Need to shed some light here.
In re Cynthia Pinheiro, 2018 VT 50

By Elizabeth Kruska

Ms. Pinheiro filed a motion for post-conviction relief (PCR) based on a defective plea colloquy. Specifically, her position was that during the plea colloquy where she pled guilty to an assault charge, the trial court didn’t identify the mental element of the crime.

Backing up. In 2014 Ms. Pinheiro pled guilty to aggravated domestic assault for shooting her ex-boyfriend in the leg. When a defendant pleads guilty to a criminal charge, the trial court has to go through a colloquy with the defendant. This is done so that it’s clear that the defendant knows he or she is giving up his or her Sixth Amendment trial rights and in some cases, appeal rights. The court has to be satisfied there are actual facts to back up the charge. Generally, this must be done in open court and the defendant must acknowledge that she is giving up these rights and the facts.

Here, the court asked the State’s Attorney to indicate on the record what it would have to prove at trial, and the facts backing it up. There was some discussion, and in this, the court never advised Ms. Pinheiro of the mental element of the charge she faced.

Alexa, Get Me Off the Registry

Careful what you say . . .
State v. Charette, 2018 VT 48

By Amy Davis

The Vermont Sex Offender Registry is a website available to the public that contains information about sexual offenders in Vermont who are required to register. This case questions whether an individual is required to register if the “victim” in the case wasn’t actually a kid, but an undercover police officer. In other words, does it really count if it’s just a sting? Why yes, yes it does.

Defendant pleaded guilty to attempting to lure a child based on his attempt to meet someone be believed was a minor. Supposedly, this wasn’t the guy’s first time trying to do that. Apparently, someone complained about him talking to minors inappropriately, so an investigator posed as a 13-year-old girl named “Alexa” and reached out to him on Facebook. Honestly, the guy should have just asked an Echo Dot to talk dirty to him (NSFW)—it would have ended better. But he asked “Alexa” to meet up with him for sex and he got arrested when he showed up for the meeting.

The plea agreement called for a to-serve sentence, but the parties disagreed as to whether Defendant was required to register as a sex offender. Defendant argued that the plain language of 13 V.S.A. § 5401(10)(B) requires a minor victim. The statute reads, “A person who is convicted of any of the following offenses against a victim who is a minor… (v) sexual exploitation of children as defined in chapter 64 of this title… (x) an attempt to commit any offense listed in this subdivision.” The court concluded that Legislature intended "minor victim" to include an undercover police officer posing as a minor. Defendant appeals.

Monday, May 7, 2018

Picky Pleadings

Are you sure about this? 
Bonk v. Bonk, 2018 VT 15

By Amy Davis

My primary focus in my law practice is divorce and everything that comes with it, such as, what do we do about the kids? Even if we work out a parenting agreement to finalize the divorce, things can change over time, sometimes warranting a change in the parenting schedule. This case looks at whether the trial court can modify parental rights and responsibilities when it’s not specifically raised in the parents’ pleadings.

Mom and Dad divorced in August 2016. They have two children. The parents resided in Enosburg while married, and after their divorce, Dad remained in Enosburg, and Mom relocated to St. Albans. The children continued to attend the same child care and school programs they did prior to the divorce.

The final stipulation ordered that the parents share legal and physical custody (we call it “rights and responsibilities” in Legal Land). The children’s primary residence was with Mom, and the children would attend school in the town where Mom resided (except St. Albans—apparently the parents didn’t like that school).

Sunday, April 29, 2018

Missing a Piece

You need all the pieces . . .
State v. Sawyer, 2018 VT 43 (mem.)

One day after the shooting at Stoneman Douglas High School in Parkland, Florida left seventeen people dead, Jack Sawyer was arrested and was charged with four felony complaints for allegedly attempting to cause a mass shooting at Fair Haven Union High School. One count alleged that he attempted to cause bodily injury to another with a dangerous weapon. Another alleged that he attempted to commit first-degree murder. The remaining two counts alleged that he attempted to commit aggravated murder.

At his arraignment, Sawyer entered pleas of not guilty, and the trial judge ordered him held without bail.

Vermont law generally prohibits defendants from being held without bail, but makes an exception when two elements are satisfied: one, the defendant is charged with an offense punishable by life imprisonment and, two, the evidence of guilt is great. In Sawyer’s case, the trial judge ruled that the State had satisfied its burden with respect to both prongs.

Credit for Custody?

The "fence" has to be intact
State v. Byam, 2017 VT 47 

By Eric Fanning

Defendant/convict Dale Byam appeals a trial court’s denial of his motion seeking credit for time served while he was under pretrial conditions of release. SCOV affirms—but let’s look at the facts of the case first.

Byam was charged with aggravated domestic assault and cruelty to a child. The Orange County Criminal Division imposed conditions of pretrial release including a 24-hour curfew (with exceptions for legal and medical appointments), and that he had to stay in Orange County. The court allowed two exceptions to his curfew. The first allowed him to leave home on Saturdays from 9:00 a.m. to 12:00 p.m. to run errands like checking his mail, going to the bank, and visiting his mother, etc. The second allowed him to visit one of his kids in Washington County.

While he was out awaiting trial, Byam was arrested in Windsor County after being caught driving with a suspended license, and the State charged him with five misdemeanors: two counts of violating conditions of release, driving with a suspended license, resisting arrest, and escape. He posted bail and the Windsor Criminal Division released him on conditions similar to the ones the Orange Criminal Division had imposed, namely a 24-hour curfew with exceptions for medical and legal appointments. The Windsor court referred his case to the Orange Court, and he ended up pleading guilty to the original charges, as well as escape, and violating his conditions of release. 

Competency Conundrum

Owl give you one chance . . .
State v. Sharrow, 2017 VT 25

By Elizabeth Kruska

Let’s have a little bit of a refresher about competency in criminal cases. The government cannot prosecute someone who is not competent to be prosecuted. Competence in the criminal court context is a little different than competence in other areas. Someone could need to have a guardian for purposes of their finances, but be perfectly competent to stand trial in a criminal case. The relevant question is whether a defendant has the present ability to consult with his lawyer with a rational degree of understanding, and whether the defendant has a factual understanding of the proceedings.

Sometimes a person just can’t do it. Whether it’s because of mental illness or even potentially because of organic brain issues, like dementia, a person just might not be able to communicate with his or her lawyer or understand what’s going on.

Even though sometimes it seems clear that someone is or isn’t competent, the court needs to make findings before ruling on the question of competence. The way to get to that ruling is to have testimony from someone qualified to make that determination. That person usually is a forensic psychiatrist.

Sunday, April 22, 2018

Overlooked Objection

Any objections? 
In re Sharrow, 2017 VT 69

By Andrew Delaney

This is a “Yeah, but . . .” appeal.

Attempted second-degree murder is one of those charges that requires the State to prove that there wasn’t any passion or provocation. And attempted voluntary manslaughter is generally a lesser-included offense. Mr. Sharrow’s trial counsel failed to object to jury instructions that didn’t have these elements, and Mr. Sharrow was convicted of second-degree murder.

So Mr. Sharrow filed a post-conviction-relief (PCR) complaint. The PCR court said, “Yeah, that’s not good. We’re going to vacate your conviction because trial counsel was ineffective.” The State appeals, arguing “Yeah, counsel was ineffective, but it wasn’t prejudicial, so the conviction shouldn’t be vacated.” SCOV disagrees with the State and affirms the PCR court.

Sunday, April 15, 2018

Crushing Expectations

It puts the granite in the crusher.
In re North East Materials Group LLC, 2015 VT 79


This is a prequel. I’m no George Lucas, but I can do things out of order too. Here’s the aftermath, which I’ve been told I missed some of the facts in. I can’t promise this one is going to be any better in that regard. Grossly oversimplifying is kind of what we do here. 

This case is about whether multiple quarries and one stone-crushing operation before 1970 grandfather a post-1970 rock-crushing operation. The trial court concluded that “pre-1970 dimension-stone-quarrying operations included intermittent crushing operations throughout the large tract, and that the new crushing operation thus fell within the grandfathered development and did not constitute a cognizable physical change to that preexisting development.” The SCOV majority concludes that the trial court used the wrong legal framework and one of its critical findings wasn’t supported by the evidence. So the whole thing gets kicked back to the trial court (and then goes back to the SCOV, which you can read about here).

So . . . between ’08 and ’12, district coordinators issued a series of jurisdictional opinions with the same conclusion” that North East Materials Group LLC’s (NEMG) rock-crushing activities didn’t need an Act 250 permit because there wasn’t a cognizable change from pre-1970 stuff. Thirteen neighbors calling themselves Neighbors for Healthy Communities (Neighbors) appealed a 2012 decision to the Environmental Division, which reached the same no-cognizable-difference conclusion.

Bail Affirmed

What's the connection? You tell us. 
State v. Stimpson, 2017 VT 97 (mem.)

By Elizabeth Kruska

This is a bail appeal, so it’s fairly short and was heard by three justices.

Mr. Stimpson was initially charged with domestic assault in June of 2017. He pled not guilty to the charge and was released on some conditions of release, including that he could not have contact with the complainant and had to stay at least 300 feet away from her, her home, and her workplace. No monetary bail was set.

This is pretty common. What is less common is what happened next. 

Service Smirkus

Redo? 
Cramer v. Billado, 2017 VT 38

By Eric Fanning

I’d hate to be accused to beating a dead horse right off the bat here (no pun intended), but if you’re served with a lawsuit, you gotta show up to court. That’s day one stuff, people. Yet, here we go again!

The parties in this case divorced in 2007. As part of the original divorce decree, they agreed that the defendant, James Billado, would pay the plaintiff, Laura Cramer (formerly Billado) $50,000 to buy out her share of their business. Billado asked the court to set aside the stipulation after he signed it because he found out that Cramer had been stealing money from the business. The court had a hearing and decided that they were both up to some funny business with the books, and at best, Billado turned a blind eye to Cramer’s poor bookkeeping, since he benefited too. So, the court affirmed the order, and Billado was stuck with a $50,000 judgment as part of the divorce.

The divorce judgment went unsatisfied for years, and in 2015, Cramer brought a foreclosure action against Billado after recording the judgment lien in the Bakersfield land records. She couldn’t get proper service on him (which usually means a sheriff physically hands you the summons and complaint), so she got the court’s permission to serve him by alternative means—in this case, by tacking a copy of the summons and complaint to his front door.