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.