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

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. 

Misplaced Reliance

Just pretty. Nothing to do with probation
State v. Stern, 2018 VT 36

By Elizabeth Kruska

The takeaway message I get from this particular opinion is this: If you have a legal question, ask a lawyer. Because if you ask someone else, they might give you an answer that isn’t correct, and you might do something (or not) because you think it’s legal but it’s really not.

Here’s what happened to Mr. Stern. He pled guilty to a domestic assault charge and received a deferred sentence. He was on probation for one year. At some point during his probation he asked his probation officer if he could possess a firearm. The PO is recalled as having responded along the lines of, “I’m not a lawyer, but I think it’s okay.” Nope. Not legal. In possibly more than one way.

But, Mr. Stern didn’t call his lawyer to find out the answer to the question. Instead, he motored forward, possessing a firearm in violation of state law (and possibly also in violation of federal law, but that’s not the question we need to deal with in this particular case). On three different occasions he encountered the State police, and each time he told them he had a firearm.

Slide Away

Slide, Slide . . .
Perron v. Menard, 2017 VT 50

By Elizabeth Kruska

I happen to like extradition cases. I like them because extradition is really very technical and very precise (except for when it’s not, but this is not one of those times). Sometimes it’s a little bit like solving a puzzle, which I also find very appealing.

Basically, extradition is like a slide. It’s meant to slide someone to a state where they’ve got legal troubles from the state where they were found. If a person is found in State A, but has an outstanding warrant for a crime in State B, extradition is the means by which the person gets back to State A to clear up whatever the problem is. State A doesn’t have any jurisdiction to hear the case that originated in State B. State A does have an obligation to make the person available to State B so that State B can come get them to deal with their State B charges.

It’s sometimes referred to as a fugitive case. It’s not really as romantic as it sounds; rarely does it involve Dr. Richard Kimble or a one-armed man. And it doesn’t even necessarily involve someone fleeing a jurisdiction, running for a border, or being hotly pursued by law enforcement. It just means that someone’s alleged to have committed a crime in State B and then is later found in State A.

Here Comes the Sum

So many puns, so little time
Russell v. Hernon, 2017 VT 45

By Elizabeth Kruska

This is a civil case concerning a breach of contract or contracts. There was a trial, the jury found for the plaintiff, and the defendant appealed. To skip ahead to the fun part, SCOV affirms most of it, but reverses a portion and remands the matter to the trial court to re-calculate pre-judgment interest.

Mr. Russell and Mr. Hernon decided in 2011 or so (probably before, but 2011 is the earliest date I see in the opinion) to develop commercial solar panel installations and possibly sell some solar tax credits. Mr. Russell was the Ideas Guy, and came up with the concept and acted as administrative head of the effort. He got the permits, found engineering support, and worked with Mr. Hernon and his lawyer and accountant to come up with information for prospective investors.

Mr. Hernon formed an LLC called Springfield Net Metering. For tax reasons it elected to be taxed as a subchapter “S” corporation. Because of this, it turned out that Mr. Russell didn’t have a tax basis, and therefore no direct investment. Therefore, they decided Mr. Russell would get paid in cash. But then he didn’t get paid in cash or in any other way, so he filed suit. 

Saturday, March 31, 2018

Just the Facts, Ma’am

To, too, two. 

In re Gabree, 2017 VT 84

By Elizabeth Kruska

Basic facts: Alexis Gabree was charged with two counts of grossly negligent operation with death resulting when she drove her car seventeen miles per hour over the speed limit, nine feet left of the centerline, and with eleven different drugs in her bloodstream. When she did this, sadly, she hit another car and two people in that car died.

She was charged, and ultimately pled guilty to two counts of grossly negligent operation with death resulting. She negotiated a resolution where she would be sentenced to 6-15 years to serve and also agreed she could not drive a vehicle without express permission of the court.

When someone pleads guilty to a charge the court is required to engage in a verbal colloquy in order to make sure the court is satisfied the person understands what they’re doing. In Vermont we often refer to this as a “Rule 11” because the proceeding tracks Vermont Rule of Criminal Procedure 11. And because I can’t say how many times I love the Sixth Amendment, I’ll just add that much of this colloquy is basically a recitation of the rights guaranteed to a criminal defendant by the Sixth Amendment. 

Disposition Report Review

And one thing led to another . . .
In re Kane, 2017 VT 48

By Elizabeth Kruska

One thing the Vermont Supreme Court is called upon to do is to review Judicial Conduct Board opinions and decisions. That’s what they do here.

Let’s back up. We have judges—some are appointed, and some are elected, depending on the situation. Regardless, both flavors of judge are bound by the Code of Judicial Conduct. It’s made of several canons, all of which, when read together, are meant to control and govern judges’ behavior and conduct. The Code applies to elected judges as soon as they declare candidacy for the position. The Board retains jurisdiction if a complaint is made within three years of the discovery of grounds for the complaint.

I’m not going to re-hash the facts here, because the Board wrote a little over twelve pages of facts, and it’s worth reading. To boil it way down, a complaint was filed against Paul Kane, a former assistant judge, for his handling of and involvement in an estate. This isn’t an estate that he handled as a judge—it was a family friend’s estate where he had personal involvement. The best way I can envision this estate is like a radar depiction of a hurricane; there was the main issue in the middle, but several smaller arms of issues sort of radiating off and spinning out of the center.

Tuesday, March 27, 2018

Arbitration Initiation

I'd call this extreme.
Hermitage Inn Real Estate Holding Co., LLC v. Extreme Contracting, LLC, 2017 VT 44

If you can say that title five times fast I’ll give you the deed to my house.  Just kidding—I rent. [Pause for laughter] . . . All jokes aside, we have a contract dispute to suss out folks, so let’s get serious.

We see a lot of contract disputes and arbitration clauses around here at SCOV Law (for example, this recent piece from our editor), so I’m not gonna reinvent the wheel.  Hermitage Inn Real Estate Holding Co. hired a firm called Extreme Contracting (yikes!) to do some work on the Hermitage Base Lodge Project.  (Just as an aside, I’ll never make enough money to even set foot on the grounds there, but from the website it looks like a very nice place!)  (Just as another aside—as this piece was being written, news came out that the Hermitage Club is facing bankruptcy, so I might not have a chance to visit there anyway!).  The contract was for $681,987.81.  Not quite up to Dr. Evil’s standards, but still a good amount of cash.

Saturday, March 17, 2018

Same as the Other

And so, as the force transfers . . .
In re Moyer, 2018 VT 29 (mem.)

By Andrew Delaney

If a lawyer has multiple law licenses, and the lawyer gets in trouble in one of the places he has a license, then he’s generally subject to reciprocal discipline. It’s kind of like if you lose your driver’s license in one state, you generally lose it in all states. This case is not an exception to the rule.

Side note: when available, I tend to link to the Google Scholar versions of cases. That’s because the links are to regular webpages as opposed to the Vermont Judiciary links which are to PDF files and can be problematic. The Google version of this case linked above does have a big ol’ “Do Not Publish” on its version. I assure you that the PDF on the Judiciary site has the “Publish” box checked. I don’t know as anyone besides me really cares . . . but now you know. Google? If you’re listening, could you fix that, please?

Attorney Moyer is licensed in Tennessee and—one must assume—Vermont. The Tennessee Board of Professional Responsibility found that Attorney Moyer collected partial fees from bankruptcy clients and requiring installment payments on the remaining fees after their bankruptcy petitions were filed.

One For You, Nineteen For Me

That is one weird mug. 
Vermont Department of Taxes v. Montani, 2018 VT 21

By Elizabeth Kruska

In the spirit of maple-sugaring season, I’m going to boil this way, way down. Then I might have some pancakes, because they’re basically just a syrup delivery system, and syrup is delicious and magical. I tend to prefer Grade B, which I think now is called Very Dark. Whatever it’s called now, it tastes very, very good.

Here’s what happened. The Vermont Department of Taxes tried to collect on some old tax debts from a handful of taxpayers who didn’t file tax returns. The Tax Man* is allowed to do this, because the Commissioner of the Department of Taxes is charged with the duty of collecting taxes.

So, three separate taxpayers didn’t file returns over various years in the early 2000s. The Tax Department sent notice, and the taxpayers didn’t do anything in response to that notice. The Tax Department then went to court to enforce those defaults as collection actions.

Friday, March 16, 2018

Probation Conditions: A Perennial Favorite

Is this necessary? Maybe. 
State v. Urban, 2018 VT 25

By Elizabeth Kruska

Probation conditions! Again! We should be good at this by now!

So here we go into this one. Mr. Urban was convicted of some assault offenses and received a suspended sentence with probation. With probation comes probation conditions. As we know, probation conditions are supposed to be tailored to the individual situation so as not to be overbroad.

During Mr. Urban’s sentencing, he reserved the right to appeal the imposition of the so-called “no alcohol” condition. It’s called that because it prohibits the purchase, possession, or consumption of alcohol. We lawyer-types don’t always overthink everything, I promise. Mr. Urban argued that the “no-alcohol” condition couldn’t be imposed because of a SCOV decision in State v. Albarelli, which struck down a similar condition for a defendant on public policy grounds.

Monday, March 5, 2018

A Question of Time

Skidmore v. Dept. of Labor, 2017 VT 65

Appellant Margaret Skidmore, otherwise known by SCOV here as “Claimant,” was injured on the job in April 2013, and hasn’t had full-time work since then.  She comes before SCOV pro se (without a lawyer) to appeal the decision of the Department of Labor’s Unemployment Insurance and Wage Division denying her continued weekly unemployment benefits.

For the sake of consistency- I’ll continue to call Skidmore “Claimant.”  So, anyway, Claimant was injured and left work in April 2013 and started receiving workers comp.  She received temporary total disability wage replacement benefits until March 20, 2015.  Remember that date, because it becomes important later.

On May 18, 2015, she called the Unemployment Division of the Department of Labor to ask about unemployment benefits.  Unbeknownst to her, the Unemployment Division, which oversees unemployment benefits, opened a claim after taking down her Social Security number and other relevant information.

Friday, February 23, 2018

Keep Your Hands To Yourself

It's all connected in some way
State v. Discola, 2018 VT 7

By Elizabeth Kruska

Here are the basic facts. Mr. Discola was charged with multiple counts of lewd and lascivious conduct. The State alleged that during the Burlington Marathon in 2015, Mr. Discola, in apparently a few different locations along the marathon route, touched three female spectators on their respective rear ends. A runner in the relay saw one of the touching episodes and also took a photo.

A police officer saw this fellow sort of hanging around a group of girls and became suspicious based on this man’s behavior. He asked Mr. Discola what he was doing and Mr. Discola said he was meeting a friend for burritos. I suppose this makes sense where “meeting a friend for burritos” is code for “touching women inappropriately during the Burlington Marathon.” The police officer, apparently not entirely convinced, took a photo of Mr. Discola. You know, just in case it turned out something was afoot.

I’ll interject here and say that I really enjoy running in road races. I am not fast, but I enjoy training for and running in races. Lots of other people feel the same way I do. These are events that bring that bring out big crowds, and big crowds often need police to help keep things under control, which is how the officer I mentioned above came in to contact with Mr. Discola.

Not Much to Talk About . . . Yet

And . . . we're done. 
Wash. Super. Union v. Cabot Teachers' Ass'n, 2018 VT 24 (mem.)

By Andrew Delaney

This is my favorite kind of opinion to summarize—one paragraph long. The Board of School Directors of Washington Northeast Supervisory Union appeals the Labor Relations Board conclusion that the Cabot Teachers’ Association didn’t commit an unfair labor practice by declining to engage in collective bargaining in a public session.

Because SCOV issued another opinion today that resolves the whole negotiating-sessions-are-subject-to-public-meeting-requirements argument (based on this one-paragraph opinion, I’m guessing that’s a no), the Labor Relations Board’s decision is affirmed.

And we're done . . . for now. Stay tuned for the actual opinion that dictated this one.

Sunday, February 4, 2018

Delay of Game?

Better figure somethin' out soon. 
Adams v. Barr, 2018 VT 12

By Andrew Delaney

The lesson in this case is: “Don’t wait until the last minute.” I suppose, in life, that’s a universally applicable lesson. In this case, for Mr. and Mrs. Adams and their construction company, it’s an expensive lesson as well. And in the spirit of Super Bowl Sunday, we could say, “Don’t let the play clock run out before calling a time-out.”

Barr Law Group filed an arbitration demand against Adams Construction with the American Arbitration Association (the “other” AAA) “claiming that Adams Construction had failed to pay Barr Law Group more than $40,000 in fees for legal services.” Adams Construction filed an answer and counterclaim for $97K. There was discovery, conferences, scheduling, rulings, and yadda, yadda, yadda the case headed to hearing.

But one week before the scheduled three-day hearing, Adams Construction said something like, “Whoa. Hold up. We never should’ve agreed to this arbitration thing. It’s unfair and Barr tricked us into it. We object.” Adams Construction filed an objection to the arbitration and moved to dismiss it. Adams argued, for the first time, that the arbitration provision in the fee agreement was unenforceable. Adams Construction cited legal authority that arbitration provisions are supposed to be fully explained and disclosed. Adams Construction said Barr didn’t do any of that stuff. As to its delay in raising the issue, Adams Construction indicated that it had only recently learned of the legal basis for objection before raising it. 

Sunday, January 28, 2018

Timing Is Everything

Like sands in an hourglass . . .
State v. Scarola, 2017 VT 116

By Elizabeth Kruska

OK, maybe timing isn’t exactly everything, but timing is a big piece of why this particular case got affirmed. Timing is also the reason this case might have burst into a fiery mess of a procedural sideshow, but didn’t because SCOV affirmed.

The underlying facts are horrible, In 2013, Mr. Scarola beat up his wife with a baseball bat, nearly killing her. By some miracle, she survived, and he was charged with aggravated domestic assault and attempted second degree murder. That later got upgraded to attempted aggravated murder. There are lots of news articles about the facts; they need not be fully recounted here.

The case headed toward trial, and in March of 2015, the parties had a pre-trial hearing on some evidentiary issues. After that hearing, the judge called the attorneys in to chambers to inquire if the case was going to go forward to trial, or if there was some sort of plea agreement also being discussed. The judge apparently suggested that 20 years to life seemed like a reasonable sentence, given the situation.

Saturday, January 20, 2018

Needy or Not?

What's in your wallet? 
State v. Kittredge, 2018 VT 6 (mem.)

By Andrew Delaney

Mr. Kittridge got charged with a bunch of crimes, including neglect, manslaughter, and welfare fraud. He requested a public defender and the trial court denied the request at arraignment. Mr. Kittredge was released on a $25K unsecured appearance bond. He reapplied for a public defender and the trial court again denied the request because Mr. Kittredge’s income exceeded the financial guidelines. He moved to reconsider the public-defender denial. Again, the trial court denied the request because Mr. Kittredge’s “income and family size disqualify him from receiving a public defender.”

That brings us to SCOV’s door.

Generally, denial of public-defender services is left to the trial court’s discretion. In this case, however, SCOV considers “whether the trial court conducted the proper analysis in determining whether to appoint counsel.” This is a no-deference analysis.

Who’s on Your Ballot?

Decisions, decisions . . .
Paige v. State, 2017 VT 54

By Eric Fanning

Get ready, SCOV Law readers, 2016 is back . . . with a vengeance!

Appellant H. Brooke Paige is a Vermont voter, and was a candidate in the state’s 2016 presidential Republican primary. Back in December of 2015, when primary season was in full swing, he filed a declaratory judgment action and asked for a temporary restraining order against the State of Vermont, the Secretary of State, and the Attorney General. 

Paige sued to block the inclusion of Senators Marco Rubio and Ted Cruz on the Republican primary ballot on the basis that they were not qualified to run for President of the United States (Paige is playing the you’re-not-a-natural-born-citizen card). His complaint claimed that, by putting unqualified candidates on the ballot, he would be deprived of his 5th and 14th Amendment rights as a citizen, and, as a candidate, he would “suffer the prudential debilities of having to contend with candidates who are not qualified” like competing for signatures, money, media coverage, votes, and all that jazz.

Sunday, January 7, 2018

Location, Location, Location

What's goin' on in that spot? 
In re North East Materials Group LLC, 2016 VT 87

By Andrew Delaney

Sometimes it takes us a little while to get around to cases here at SCOV Law. This is a late-2016 decision, and for some reason it’s never been picked up by any of our writers. But it’s 2018 now, so we need to get 2016 wrapped up.

Location matters. That’s the two-word version of this case. 

This is the second round, but we haven’t gotten to the first one yet either, so we’re starting from scratch here. Briefly, in the first round, a group of neighbors appealed and SCOV reversed because the environmental division has used the wrong legal standard in determining that North East Materials Group LLC (NEMG)’s rock-crushing operation didn’t “constitute a cognizable physical change to the preexisting development.” SCOV also concluded that one of the factual findings in support of the environmental division’s conclusion was “totally whack.” So, the case went back to the environmental division, which on remand again concluded that the rock-crushing operation was exempt from Act 250 as a preexisting development. The neighbors appeal again and the majority goes with the neighbors. Here we go again.