Weekly(ish) Update: November 7, 2020

At some point, we're going to have
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By Andy Delaney

Just a handful of opinions over the past few weeks. 

On October 19, SCOV issued an entry order. Defendant was charged with aggravated assault, burglary, and a handful of other charges stemming from a serious attack and follow-up threats to his victim’s mother (and police). The trial court held him without bail, both initially and after an evidentiary hearing. Defendant makes three arguments. One, that the weight of the evidence is not great because even though he attacked a guy and punched him repeatedly, the State didn’t show that defendant intended more than simple assault. Two, defendant argues that he can’t be held at all because he’s unlikely to get a trial within sixty days. And three, defendant argues that the clock on the sixty days should run from the date he was initially held without bail, not beginning after the hearing.

Long story, short—SCOV buys exactly none of it. SCOV holds that the weight of the evidence is great; defendant can be held without bail even though he’s unlikely to get a speedy trial; and defendant doesn’t get credit for his sixty-day stint at Grande Maison Vermont until after the hearing. State v. Downing, 2020 VT 97.

But wait! There's more. As noted above, Mr. Downing was held without bail and SCOV upheld the trial court’s three rulings on that front. In its first decision issued in November—snuck in on November 2^nd—SCOV changes its collective mind and decides that the clock starts running from when defendant is first held without bail, not after the hold-without-bail order (as it held a couple weeks ago). Kind of a fitting journey given this week’s political events. I’m too lazy to pick this one apart in detail, so if you’re so inclined, here’s the link. State v. Downing, 2020 VT 101.

At any rate, Kruska has already done that for us. You can read the full rundown of the two opinions above by clicking here. 

Our next opinion deals with Act 250 and Criterion 1. This is another one that I’m going to be lazy about because I just don’t care. I know that might sound callous, but seriously, this is an opinion dealing with whether the environmental court properly analyzed potential phosphorus and chloride discharges for an interstate on ramp under Act 250 and I just can’t gin up any enthusiasm for it. If you’re so inclined, you know the drill. In re Diverging Diamond Interchange Act 250, 2020 VT 98.

The next opinion is a family law case that’s interesting. I didn’t know there was a de-facto-parent statute in Vermont until a couple weeks ago and that was a wild introduction (see the October 17 update). This is more pedestrian but nonetheless of note. In this case, Mr. Peralta has acted as child’s dad for most of her life. Mom and Mr. Peralta also have a kid together. There was a 2012 New Mexico parentage action between mom and the biological father, but child hasn’t seen her biological dad since then. Mr. Peralta really has been her de facto parent. Child and kid are sisters and are close. Mom tries to argue that the NM order means that Mr. Peralta can’t assert any rights, but the trial court and SCOV both reject that argument, concluding that child can have two biological parents and also a de facto parent (or parents, I suppose). Mom also argues that the trial court improperly evaluated the de-facto-parent factors, but that goes nowhere. SCOV affirms the trial court and Mr. Peralta is child’s de facto dad. Peralta v. Brannan, 2020 VT 100.

Our last case for this week’s batch is round three in an ongoing dispute between the founder of a company and the investor who took the company over and squeezed the founder out. You can catch up on the background here. This decision’s focus is on the trial court’s two findings that the founder violated injunctions. Ultimately, SCOV concludes that there were violations and affirms. Kneebinding, Inc. v. Howell, 2020 VT 99.