Weekly(ish) Update: July 11, 2020

Still a calendar

By Andy Delaney

No opinions issued last week, presumably due to the holiday weekend. SCOV made up for it this week, however, with a half-dozen new, published decisions.

Numero uno is a criminal appeal that turns on proper authentication of Facebook messages. Here, Ms. Allcock was convicted of several charges stemming from an altercation with police. The trial court admitted Facebook messages over Ms. Allcock’s objection. The SCOV majority reasons that the State could have—and should have—properly authenticated the messages but failed to do so. Accordingly, because the objectionable messages included references to the act (holding a lit lighter to the police officer’s arm) that formed the basis for an aggravated-assault-on-a-police-officer conviction, the majority reverses that conviction but affirms on the others. Chief Justice Reiber, joined by Justice Eaton, chimes in with a short dissent, arguing that the Facebook messages were authenticated enough to be admissible. Ms. Allcock also argues that the State’s late amendment of the information prejudiced her. But there was no new charge added and neither the majority nor the dissent see any prejudice, so that argument doesn’t get very much traction. State v. Allcock, 2020 VT 60.

Numero dos is a post-conviction relief (PCR) appeal. Mr. Benoit was charged with DUI4 and pleaded guilty to DUI3. Before the plea, his lawyer sent a letter to the prosecutor noting “potential PCR issues” regarding the predicate convictions. After sentencing, Mr. Benoit filed a PCR attacking the underlying convictions. The State moved for summary judgment, which the trial court denied. SCOV allows an interlocutory appeal. In determining this case, SCOV has to harmonize between case law on waiver and collateral attacks on underlying convictions. Splitting the proverbial baby, SCOV reasons that “a defendant can plead guilty but preserve a PCR challenge to a predicate offense by providing clear notice on the record when entering a guilty plea.” This one gets remanded for a trial-court determination of whether Mr. Benoit’s plea to DUI3 was knowing and voluntary. In re Benoit, 2020 VT 58.

Numero tres is a relatively long opinion about forced mergers of school districts. A number of independent school districts, school boards, parents, students, and citizens challenged forced mergers under Acts 46 and 49. The trial court dismissed several counts and later granted summary judgment to defendants. On appeal, the majority—led by Chief Justice Reiber—affirms, concluding that the forced mergers are okay. Justices Eaton and Cohen dissent. Of note, Justice Eaton quotes Joni Mitchell’s Big Yellow Taxi in his dissent. I’d be hard-pressed to analyze this entire decision properly in a one-paragraph summary, so we’re going with: majority says forced mergers okay; dissent disagrees. Athens School District v. Vermont State Board of Education, 2020 VT 52.

Numero cuatro is about wills and contracts. In this case, an ex-husband and ex-wife with three children executed reciprocal wills in Arizona in the late 90s. Both wills established a testamentary trust for the support of the other ex-spouse and divided everything else amongst the three children. Both included a provision that the wills were made in consideration of the other’s reciprocal will. In 2006, while living in Vermont, ex-wife executed a new will and cut out the ex-husband (who died in 2010) and the third child. Ex-wife died in 2016 and the new will was allowed through probate. SCOV affirms the proving of the will, concluding that the will was in proper order, but also that child three—appellant here—has a claim for breach of contract against the estate. So, this one gets “affirmed and remanded” which is a phrase rarely seen in judicial opinions. In re McHugo, 2020 VT 59.

Cinco de Julio is a companion case to Athens School District above. The additional claim here, not resolved by Athens, is that State Board of Education exceeded its delegated authority under Act 46 when it rolled an independent elementary school district into a larger district and thereby allowed the larger district to force a merger. Once again, the majority reasons that was okay. The dissent says “see the dissent in Athens.” Huntington School District v. Vermont State Board of Education, 2020 VT 53.

Numero seis, our last opinion this week, is about who can take the bar exam. Vermont, as you likely know, is one of the few states that allows an apprenticeship of sorts to stand in for law school. This is a four-year program under the tutelage of a practicing lawyer and is called the Law Office Study of LOS program. Mr. Birt completed the LOS program in 2000. He took the bar exam four times between 2002 and 2004. He did not pass. Flash forward to 2019, when Mr. Birt filed an application to sit for the February 2020 bar exam. Two problems: (1) the rules say one has to take the bar exam within five years of graduating from law school or completing the LOS program absent good cause; and (2) the rules also say no more than four attempts on the bar exam unless the Board of Bar Examiners (BBE) waives the limit for good cause shown. The BBE denied Mr. Birt’s application because of those two issues. Mr. Birt appeals, arguing that the old rules should apply and that he did apply within five years of Vermont adopting the Uniform Bar Exam (2016). SCOV doesn’t bite, and holds that the BBE was justified in not allowing Mr. Birt to sit for the bar exam. In re Birt, 2020 VT 55.