Weekly(ish) Update: August 1, 2020

Same . . . different . . . never mind. 

By Andy Delaney

I didn't post an update last week, so there's some ground to cover here.

This week, SCOV first takes care of some housekeeping from last year. Remember the Sutton decision from 2019? Me neither. And that’s why I’m glad I can text search my sent email. My emailed summary to the Vermont Association for Justice list from October 2019 posed the question:

How about if investors make claims against the state and current and former employees in the EB-5 scandal and the trial court dismisses all the counts after several amendments to the complaint? Let’s say the State actors may’ve made some representations that “everything is cool, man” and the like or even actively promoted a shady project. Well, in that case, SCOV might just revive some negligence, negligent misrepresentation, gross negligence, and breach of contract and the implied covenant of good faith and fair dealing claims, but the other claims will stay dead. An interesting and long read but definitely some good stuff about the discretionary-ministerial distinction and immunity in this one. Sutton v. Vermont Regional Center, 2019 VT 71.

In its amended opinion issued yesterday, SCOV clarifies that though it reversed on the negligent-misrepresentation claims in its original opinion, defendants moved for reargument on that point, and plaintiffs withdrew their appeal on that claim. And that’s why we read the footnotes. I’m not going to go through the entire amended opinion and play "spot the differences" because I’m lazy and it’s Saturday. I will note that the amended opinion is one page short of the original opinion with at least one new footnote. Sutton v. Vermont Regional Center, 2019 VT 71A.

This week, SCOV did also issue a new opinion. This one’s a criminal case dealing with escape from furlough, the retroactivity of the Legislature’s 2019 amendment to the statutory penalties, and whether a case on direct appeal gets retroactivity applied. The short answer is no. Mr. Hinton was on furlough and went on a little burglary spree. He was charged with several crimes, including—you guessed it—escape from furlough. He pled guilty, was sentenced, and then appealed his sentence on the escape charge. While his appeal was pending, the Legislature amended the escape statute, reducing penalties for escape from certain types of furlough. Mr. Hinton argues that because the amendment occurred while his case was on direct appeal, he gets retroactivity. SCOV disagrees. There’s a saving statute that applies to statutory amendments and SCOV reasons that because Mr. Hinton’s acts, conviction, and sentencing all happened before the effective date of the amendment, this isn’t a retroactivity-applies type of situation. SCOV also rejects Mr. Hinton’s abuse-of-discretion argument. State v. Hinton, 2020 VT 68.

Four opinions issued last week (July 24), with a published entry order for good measure.

We'll start with the memorandum opinion. Mr. Booker got into some trouble and had a weight-of-the-evidence hearing. He was released on conditions. Less than 24 hours later, he managed to rack up another four misdemeanor charges. The trial court held him without bail because of the new charges. SCOV opines that was not the way to do it (there are paths to this result suggested in the opinion, but none of those paths were present in the record below). SCOV reverses the trial court’s hold-without-bail order and kicks the case back to the trial court to have a bail-review hearing. State v. Booker, 2020 VT 67 (mem.).

The first regular opinion for last week is a criminal matter revisiting the infamous probation Condition N—“violent or threatening behavior is not allowed at any time.” Here are seven links if you want to explore the vagaries of Condition N further: one, two, three, four, five, six, seven. In the matter at hand, Mr. Harwood was in prison, and on conditions of probation, when he more or less threatened to have a correctional officer whacked. The trial court found this was a violation of Condition N. SCOV affirms. State v. Harwood, 2020 VT 65.

The second case for the week deals with Act 250. In a nutshell, Mountain Top Inn and Resort has a deal with a number (24 or so) of neighboring homeowners to rent out private homes. One neighbor (presumably not in the rental program) argued that the resort had to amend its Act 250 permit to include those homes. The trial court disagreed and granted summary judgment to the resort. On appeal, the SCOV majority affirms, concluding that the resort doesn’t exercise the requisite control to require the resort to add the rental homes to its permit. Specially assigned retired Justice Dooley, joined by specially assigned retired Judge Wesley, dissents on that point, reasoning that the resort did exercise enough control to require adding the rental homes to the permit. I’ve glossed over a few things here in case you were wondering. Why? Because, that’s why. In re Mountain Top Inn and Resort, 2020 VT 57.

Case three considers the argument that furlough is a form of incarceration and therefore the sex-offender-reporting requirements—which exempt persons from reporting while “incarcerated”—don’t apply. SCOV considers and rejects this argument, concluding that the plain language of the statute applies reporting requirements to furloughed individuals living in the community. State v. Gauthier, 2020 VT 66.

Our final case for last week is a punt. SCOV notes the questions in this interlocutory appeal of a pending divorce are: “(1) ‘whether a competent plaintiff may dismiss her divorce action against her incompetent spouse, when the competent spouse wishes to preserve her marriage to her incompetent husband,’ and (2) ‘whether a guardian can pursue a counterclaim for divorce once the divorce action has been initiated by the ward’s spouse.’” Sounds like a bar exam question, right? Well, husband died before SCOV decided the case. So, SCOV concludes that the issues are moot, dismisses the appeal, and sends the case back to the family division to sort out. Maier v. Maier, 2020 VT 63.