Weekly(ish) (Actually, more like nearly-two-month-ish) Update: October 11, 2020

Same calendar, different day

Well, it appears I haven't done an update since August 14. This post should catch us up.   

Two new decisions on October 9.

First, we delve into corporate capital gains taxes. In 2013, Vermont National Telephone Company (VNT) sold some FCC licenses that covered broadcasts in New York. The company checked with its accountant and VNT’s accountant opined—with a standard disclaimer of course—that the nonbusiness-income sale wasn’t subject to Vermont business capital gains tax because the licenses were located in NY. Flash forward to a recent audit and it turns out that was an oopsie. The Commissioner found that “situs” is a term of art and because VNT never used the licenses in New York, and VNT was—according to the commissioner—commercially domiciled in Vermont, VNT was liable for just north of $2.7M in taxes, penalties, and interest. Ouch. VNT was not happy about this tax liability and appealed to the superior court, which affirmed with a slightly different rationale—that “situs” just means location but that licenses have no intrinsic location so we go back to the commercial domicile, which, as the commissioner found, was Vermont. The trial court affirmed and VNT appeals. The third time is not the charm and SCOV affirms in a 30-page romp through the exciting world of business taxation. If you can’t hear the sarcasm while reading that last line, trust me—it’s there. Vermont National Telephone Company v. Dept. of Taxes, 2020 VT 83.

Second, we have an appeal from a juvenile delinquency finding of lewd and lascivious behavior. The trial court concluded that juvenile had touched complainant’s breast in a hallway at school. Juvenile and complainant were the only witnesses. Juvenile appeals, arguing that his conduct was neither open nor gross and that the rule of lenity requires conviction under a lesser misdemeanor statute because the statute he was convicted under is void for vagueness. The majority affirms, concluding that “the statute unambiguously proscribes the type of conduct at issue here.” Justice Robinson dissents. She notes: “For over 150 years, we have upheld the crime of ‘open and gross lewdness and lascivious behavior’ against repeated vagueness challenges, while simultaneously refusing to define its terms.” Justice Robinson would strike the statute under the void-for-vagueness doctrine. In re A.P., 2020 VT 86. 

Four opinions issued on October 2, two of which concerned the Alpine Haven community. I'm not sure exactly what it is about Alpine Haven, but there are a pile of decisions about it. I'd go so far as to say that being involved in some aspect of the Alpine Haven litigation saga is a rite of passage of sorts for Vermont lawyers. Perhaps someone should start a club. 

The October 2, 2020 foray into the Alpine Haven saga deals with assessments and fees on deeded lots. To be fair, most of the Alpine Haven saga is about the deeded assessments in some form or another. This round deals with nearly a decade of challenged assessments, with the trial court ultimately granting summary judgment to the Alpine Haven Property Owners' Association, Inc. on the fees' reasonableness. There's a lot of history to review and the Deptula decision has some extra history and some third-party claims against AHPOA's former lawyer's estate and his firm (the trial court dismissed those claims). SCOV affirms all around. If you'd like to delve a little deeper, that's why we include the links. Khan v. Alpine Haven Property Association, Inc., 2020 VT 90; Deptula v. Alpine Haven Property Owners' Association, Inc., 2020 VT 88. 

Case number three for October 2 is a criminal matter. In a nutshell, defendant was convicted of sexual assault based on a drug-deal-related encounter in a stairwell. He raises a number of arguments, none of which sway SCOV in his favor. The more-interesting among these arguments is one that requires SCOV to look up "ass" in the dictionary and an argument that the trial court erred when it excluded a nine-months-prior alleged sexual encounter between defendant and complainant. While interesting, there's no reversal for defendant and no dissent. State v. Stephens, 2020 VT 87. 

Fourth and final for October 2, we have an opinion dealing with a certificate of need (oh, the acronym cracks me up: CON) for a new health care project. I was this many days' old when I learned that there is such a thing. Applicant's initial CON identified five practice areas, which the Green Mountain Care Board approved. Applicant then tried to add some more stuff to its CON (still making me laugh) and the Board allowed some of it but not all and extended applicant's reporting period. Applicant appeals, arguing that the Board exceeded its authority. On appeal, SCOV affirms the Board's decision, explaining that the Board had the power to do what it done. This opinion is interesting as heck because of the certificate of need piece. I'm sure some of you knew this was a thing; I, however, did not. In re ACTD, LLC d/b/a The Green Mountain Surgery Center, 2020 VT 89. 

Two cases on September 25, both about kids.

First is a juvenile case. Dad appeals termination of his parental rights (TPR) on a number of issues, many related to not allowing his mom to have guardianship of the child during the pendency of the CHINS proceeding. SCOV considers dad’s arguments but rejects all of them and affirms. This opinion is notable for its discussion of the 2014 and 2016 changes to the minor guardianship statutes and the interplay between those changes and juvenile proceedings. In re C.B., 2020 VT 80.

Second is a divorce case, and more specifically, post-divorce modification of parental rights and responsibilities. Plaintiff appeals an order modifying PR&R on the basis that the trial court messed up when it found a real, substantial, and unanticipated change in circumstances. Both parents lived together and got along. They got divorced with the help of “Wevorce” and agreed plaintiff would have legal and physical parental rights and responsibilities while they continued to live together and co-parent. Then plaintiff moved out and things got weird. Plaintiff would not agree to any kind of visitation schedule. Both parents lawyered up and ultimately, the trial court modified parental rights and responsibilities. This one has some fun procedural twists—including Rule 60 and the law-of-the-case doctrine—but ultimately SCOV affirms, concluding that the trial court didn’t abuse its discretion in modifying parental rights and responsibilities in this case. Fabiano v. Cotton, 2020 VT 85.

The lone case that issued on September 18 is a bit different. Defendant was charged with aggravated sexual assault based on his nondisclosure or concealment of his HIV-positive status. The trial court eventually declined to find probable cause, and dismissed the case with prejudice. The State appeals. On appeal, SCOV holds that consent and informed consent are two different things and that while defendant’s concealment of his status might have been morally wrong, it’s not criminally culpable—at least under our aggravated-sexual-assault statute. State v. Billington, 2020 VT 78.      

Two opinions issued on September 11.

First, we have a driveway, runoff, and fence dispute. I’m not going to dig too deep on the facts because I just don’t find it that interesting (read, I'm lazy): two neighbors, each with business entities fighting over who can park where and do what on the land. The upshot is that SCOV reverses a little, affirms a little, and these neighbors still hate each other. VTRE Investments, LLC v. MontChilly, Inc., 2020 VT 77. 

The second opinion deals with the factual basis for a plea colloquy. For those that don’t practice criminal law, Rule 11 (not the civil rule 11) requires a number of things. One of the most-important things is that a plea of guilty must have a factual basis. Here, defendant pled guilty to, among other things, sale of heroin and fentanyl, death resulting. He ultimately admitted that he sold heroin laced with Fentanyl to the decedent’s girlfriend but he denied he knew the heroin was laced with Fentanyl when he sold it. And that’s the issue on appeal. SCOV reasons that there was not a factual basis for defendant’s plea and reverses that conviction. SCOV also—although there’s an interesting discussion about how it might not have to—vacates all of defendant’s convictions and remands for sentencing. State v. Rillo, 2020 VT 82.  

Another two-case week for the week of September 4, 2020. 

Shortly before plaintiff Jane Doe married her husband John Doe (not their real names), allegations were made against John that resulted in criminal charges. The charges were dropped and the record was sealed. But DCF got involved and concluded that John posed a risk to Jane’s kids, who he’d be living with after he and Jane got married. DCF told Jane that if John moved in, it’d be filing a children-in-need-of-supervision (CHINS) petition. So Jane sued DCF. Without getting too far into the procedural maneuverings below, Jane ultimately sought a declaratory judgment that John didn’t pose a threat to her kids and that it’d be okay for them to live together as a family without DCF running to the courthouse. The State moved to dismiss and the trial court denied the motion, but granted interlocutory appeal. On appeal, SCOV reverses and remands. SCOV reasons that because the harm hasn’t occurred yet—DCF filing a CHINS petition—there’s no justiciable controversy, and the State’s motion to dismiss should’ve been granted. Doe v. Department for Children and Families, 2020 VT 79.

Our second case for the week of September 4 explores hold-without-bail orders and the effect of COVID-19 on motions for bail and the like. In this particular case, defendant has been held without bail ever since his at-the-time-seventeen-year-old stepdaughter accused him of sexual assault over two years' time. He was charged with three potential-life-imprisonment charges. Because the trial court found that the weight of the evidence was great and that defendant’s history did not inspire confidence in his ability to follow conditions, the trial court ordered defendant held without bail. None of that has really changed since, though defendant does argue that without any trial date on the horizon, he should be released. SCOV reasons that the trial court’s analysis and orders based on the facts of this case were within the trial court’s discretion. Of note, SCOV does attribute the COVID-19-related delays to the government, which is something to keep in mind. State v. Labrecque, 2020 VT 81 (mem.) 

One opinion issued on August 28. It's not complicated. 

The case turns on whether a setoff provision in an underinsured insurance policy that purports to apply to “all sums . . . paid” from any source can be used to aggregate all sums previously paid by the liability insurer when there are multiple claimants. Lord, I think I just made it sound complicated!  

In this case, there was a terrible wreck. Husband and wife were injured badly. GEICO, the liability insurer for the at-fault driver, had a $100/300K policy (the opinion doesn’t explicitly state that but this ain’t my first rodeo). GEICO paid $100K each to both husband and wife. Husband and wife had a $300K single-limit policy, and a $500k single-limit excess policy through Progressive. So, the $300K is the underinsured-motorist-coverage limit in this situation. Progressive took a $200K setoff (both GEICO payments) on the $300K policy, paid $100K and paid out the $500K excess. Progressive then filed a declaratory judgment action alleging it was entitled to aggregate the two $100K payments as a setoff based on the plain language of the policy. Husband and wife argued that the setoff language was ambiguous, at least insofar as it applies in the context of a single-limit policy with multiple claimants. The trial court granted summary judgment in favor of Progressive. Husband and wife appeal. SCOV affirms, finding the setoff provision clear and unambiguous. Progressive Northern Insurance Co. v. Muller, 2020 VT 76.

One opinion issued on August 21, 2020. I’ve said this in some form or another several times. When it comes to bar admissions and disciplinary proceedings, ninety-nine percent of the time, it matters far less what you did and far more how you handled the aftermath. The biggest obstacle to getting or keeping a law license is often an attempt to justify or rationalize past behavior. Save your “clever” legal arguments for regular cases. Character and fitness and disciplinary proceedings are a different animal. 

I’m not only a client of the Hair Club for Men, I’m also the president. I’ve been through the bar admission character and fitness process four times in four jurisdictions. I’ve seen my files. Taking full responsibility for past behavior may not be the only thing that matters, but it’s always in the top three.

Mr. Anderson applied to the Vermont bar in 2018, while a student at Valparaiso University School of Law. He passed the Vermont bar exam. A Character and Fitness (C&F) Committee member reviewed Mr. Anderson’s file. The committee member had some concerns about Mr. Anderson’s past criminal behavior and his conduct during a civil case against Valparaiso, and declined to certify Mr. Anderson’s good moral character. The C&F Committee held a three-member hearing for Mr. Anderson and certified his good moral character despite some stated concerns—specifically, that Mr. Anderson “showed little if any remorse or understanding of the problematic nature of his [past] conduct.” SCOV ordered review of the certification on its own motion. 

And here’s where things fall apart. Mr. Anderson’s first argument is that SCOV has no jurisdiction to review the C&F Committee’s certification. “Poking the bear” is an apposite idiom here. SCOV does not care much for this argument and it shows. Mr. Anderson’s quoted argument that the Vermont Rules of Admission “may as well end with a final section that reads ‘none of the above rules apply if the Supreme Court doesn’t like you’” does not advance his cause. 

On the merits, I won’t get too far into the factual weeds, but one incident of particular concern for SCOV is Mr. Anderson’s lawsuit against his law school for alleged refusal to reimburse him for pizzas. The way Mr. Anderson told it, the school tried to bully him but the evidence suggests that all the school did was ask for an itemized receipt and Mr. Anderson filed suit instead of providing that receipt. There are other incidents too, but the unifying thread is that Mr. Anderson doesn’t feel that he did anything wrong. And that’s a big problem for SCOV.  

So, SCOV concludes that Mr. Anderson has failed to demonstrated his good moral character and denies his application to the bar. In re Anderson, 2020 VT 75.