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| Same calendar |
I used to wake up early in the morning on Saturday to watch Saturday morning cartoons. Now I wake up early and read SCOV opinions. Last week, I imagined a conversation between my 40-year-old self and my six-year-old self. I could see the look of horror and disbelief on my six-year-old self’s face followed by a declaration of, “Well, then I’m never growing up!”
June has been busy in SCOV land.
Yesterday, SCOV issued a dram-shop case on the discrete issue of whether an unborn child has a dram-shop claim when her father is killed in a wreck. Some of the defendants in this case argue that unless the child is a “viable fetus” at the time of the wreck, then she has no cause of action. The trial court disagreed, concluding that the child’s cause of action accrues when she’s born. SCOV goes with the trial court’s reasoning. Elizabeth Kruska’s full summary is here. Boland v. Estate of Smith, 2020 VT 51.
Next is a case where SCOV considers the statutory deadlines for town listers to commence the grievance process. The long and short of it is that SCOV concludes the deadlines are directive rather than mandatory and the property owner doesn’t win by default because of a late start. Hartland Property, LLC v. Town of Hartland, 2020 VT 56.
Third on the list for yesterday is an attorney-discipline matter. The professional responsibility board handed respondent a one-year suspension. SCOV took the case up on its own as it is wont to do. Disciplinary counsel argues for an eighteen-month suspension. Respondent argues for six months. SCOV rejects both those positions and disbars respondent. Here are the basics: bad notarizations, dishonest default, failure to inform, and lack of remorse coupled with significant prior discipline for similar conduct puts it over the edge. As they say, “Honesty is the best policy.” This case proves the point. In re Wysolmerski, 2020 VT 54.
Six new opinions and one new entry order came out last week.
We’ll start with the entry order. As you may remember from May 29, lawyers must cooperate in disciplinary investigations or risk getting suspended. The suspended attorney from May 29 filed a confidential motion to dissolve the suspension. SCOV denies the motion and, naturally, publishes the entry order with its reasoning. Here’s my unsolicited opinion on any disciplinary proceeding: if you messed up, admit it, take responsibility, and do what you can to fix it. Excuses and clever technical arguments will rarely make any difference. On the other hand, showing that you understand what you did wrong and making an effort to address the concern will go a long way to mitigating the negative consequences that are headed your way. Of course, I’d be interested in other takes on this issue. In re Legus, 2020 VT 49 (mem.)
Our next case is an appeal by the State in a civil-suspension proceeding. The trial court granted defendant’s motion to suppress and dismiss, finding that the smell of burnt marijuana alone was not enough to justify an exit order. SCOV reverses, not because it necessarily concludes that the trial court’s conclusion was wrong, but because the trial court didn’t make enough factual findings to support its conclusion. This is the legal equivalent of a teacher writing on an assignment “SHOW YOUR WORK.” This one gets reversed for further factual findings. State v. Huston, 2020 VT 46.
Next, we have a decision on a bad inspection. Here, SCOV sides with the trial court which granted summary judgment to defendants, finding no duty owed to third parties when a recently inspected truck splits in half when put on a lift and injures somebody. The basis for the opinion is that there’s not enough of a tie between safe operation of the vehicle (what inspection is for) and what happened in this case. Newton v. Preseau, 2020 VT 50.
Third or fourth for last week, depending on how you’re keeping score at home, is a decision dealing with “a collateral attack on a zoning decision barred by the exclusivity-of-remedy provision in 24 V.S.A. § 4472.” I would pretend to know something about this, but that would be misleading. This case appears to be about an arborvitae screen’s adequacy and boils down to SCOV’s reasoning that the appeal isn’t addressed to the right permit. Y’all know there are no warranties with these snippets, right? Good. In re Hopkins Certificate of Compliance, 2020 VT 47.
Our next opinion is about the Champlain Parkway and some of the land that’s being taken to build the road. In this case, SCOV affirms the trial court’s dismissal on standing grounds, reasoning that the appellant landowner doesn’t own any of the land being taken (though it does own some abutting property) and so, no standing. Fortieth Burlington, LLC v. City of Burlington, 2020 VT 45.
Next, we have a companion case to the case above. This one involves a group of citizens who, by statute and organization, have a right to participate and comment on the Champlain Parkway proceedings. They do not, however, have standing to appeal. Again, there’s no legal interest in the condemned properties and that pretty much resolves it for SCOV, though SCOV also notes that the group hasn’t presented enough to raise any constitutional issues. Friends of Pine Street d/b/a Pine Street Coalition v. City of Burlington, 2020 VT 43.
Our final case for this update is a juvenile delinquency appeal. There’s a messy procedural history and I’m not going to get into it too far. Here are the basics. The kid was being held in a secure facility in one case and had another pending case. There’s a statutory timeline that applies to cases where a kid is being held in a secure facility. The kid here argues that the statutory timeline applies to all cases when a kid is being held; the State responds that it applies only to the case that has the detention order. Here, SCOV sides with the State and so, the kid doesn’t get a didn’t-meet-the-timeline dismissal of the trial court’s delinquency ruling (“pending case” referenced above) he was looking for. In re A.A., 2020 VT 48.
Yesterday, SCOV issued a dram-shop case on the discrete issue of whether an unborn child has a dram-shop claim when her father is killed in a wreck. Some of the defendants in this case argue that unless the child is a “viable fetus” at the time of the wreck, then she has no cause of action. The trial court disagreed, concluding that the child’s cause of action accrues when she’s born. SCOV goes with the trial court’s reasoning. Elizabeth Kruska’s full summary is here. Boland v. Estate of Smith, 2020 VT 51.
Next is a case where SCOV considers the statutory deadlines for town listers to commence the grievance process. The long and short of it is that SCOV concludes the deadlines are directive rather than mandatory and the property owner doesn’t win by default because of a late start. Hartland Property, LLC v. Town of Hartland, 2020 VT 56.
Third on the list for yesterday is an attorney-discipline matter. The professional responsibility board handed respondent a one-year suspension. SCOV took the case up on its own as it is wont to do. Disciplinary counsel argues for an eighteen-month suspension. Respondent argues for six months. SCOV rejects both those positions and disbars respondent. Here are the basics: bad notarizations, dishonest default, failure to inform, and lack of remorse coupled with significant prior discipline for similar conduct puts it over the edge. As they say, “Honesty is the best policy.” This case proves the point. In re Wysolmerski, 2020 VT 54.
Six new opinions and one new entry order came out last week.
We’ll start with the entry order. As you may remember from May 29, lawyers must cooperate in disciplinary investigations or risk getting suspended. The suspended attorney from May 29 filed a confidential motion to dissolve the suspension. SCOV denies the motion and, naturally, publishes the entry order with its reasoning. Here’s my unsolicited opinion on any disciplinary proceeding: if you messed up, admit it, take responsibility, and do what you can to fix it. Excuses and clever technical arguments will rarely make any difference. On the other hand, showing that you understand what you did wrong and making an effort to address the concern will go a long way to mitigating the negative consequences that are headed your way. Of course, I’d be interested in other takes on this issue. In re Legus, 2020 VT 49 (mem.)
Our next case is an appeal by the State in a civil-suspension proceeding. The trial court granted defendant’s motion to suppress and dismiss, finding that the smell of burnt marijuana alone was not enough to justify an exit order. SCOV reverses, not because it necessarily concludes that the trial court’s conclusion was wrong, but because the trial court didn’t make enough factual findings to support its conclusion. This is the legal equivalent of a teacher writing on an assignment “SHOW YOUR WORK.” This one gets reversed for further factual findings. State v. Huston, 2020 VT 46.
Next, we have a decision on a bad inspection. Here, SCOV sides with the trial court which granted summary judgment to defendants, finding no duty owed to third parties when a recently inspected truck splits in half when put on a lift and injures somebody. The basis for the opinion is that there’s not enough of a tie between safe operation of the vehicle (what inspection is for) and what happened in this case. Newton v. Preseau, 2020 VT 50.
Third or fourth for last week, depending on how you’re keeping score at home, is a decision dealing with “a collateral attack on a zoning decision barred by the exclusivity-of-remedy provision in 24 V.S.A. § 4472.” I would pretend to know something about this, but that would be misleading. This case appears to be about an arborvitae screen’s adequacy and boils down to SCOV’s reasoning that the appeal isn’t addressed to the right permit. Y’all know there are no warranties with these snippets, right? Good. In re Hopkins Certificate of Compliance, 2020 VT 47.
Our next opinion is about the Champlain Parkway and some of the land that’s being taken to build the road. In this case, SCOV affirms the trial court’s dismissal on standing grounds, reasoning that the appellant landowner doesn’t own any of the land being taken (though it does own some abutting property) and so, no standing. Fortieth Burlington, LLC v. City of Burlington, 2020 VT 45.
Next, we have a companion case to the case above. This one involves a group of citizens who, by statute and organization, have a right to participate and comment on the Champlain Parkway proceedings. They do not, however, have standing to appeal. Again, there’s no legal interest in the condemned properties and that pretty much resolves it for SCOV, though SCOV also notes that the group hasn’t presented enough to raise any constitutional issues. Friends of Pine Street d/b/a Pine Street Coalition v. City of Burlington, 2020 VT 43.
Our final case for this update is a juvenile delinquency appeal. There’s a messy procedural history and I’m not going to get into it too far. Here are the basics. The kid was being held in a secure facility in one case and had another pending case. There’s a statutory timeline that applies to cases where a kid is being held in a secure facility. The kid here argues that the statutory timeline applies to all cases when a kid is being held; the State responds that it applies only to the case that has the detention order. Here, SCOV sides with the State and so, the kid doesn’t get a didn’t-meet-the-timeline dismissal of the trial court’s delinquency ruling (“pending case” referenced above) he was looking for. In re A.A., 2020 VT 48.
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