By Andy Delaney
Betcha didn't see the
different picture comin'!
Well, here we are a full month into 2021. Time sure flies when . . . uh. Never mind.
Two opinions on the 29th, both in the criminal-law realm.
First up, we have a case dealing with whether Miranda warnings are relevant in a resisting-arrest case. To be clear, the issue didn’t come up at trial—the jurors had a question about it during deliberations. The trial court ultimately told the jurors it wasn’t relevant. Defendant was convicted and he appeals on the basis that the warnings provide notice to a reasonable person that the person is being arrested and the absence of warnings goes to the defendant’s intent. I’ll buy that. SCOV does not, though it does not that Miranda evidence may be relevant to the intent question in certain cases. SCOV affirms, noting that the argument wasn’t properly preserved and further reasoning that in this context—with no Miranda evidence introduced at trial—whether the officers gave defendant his Miranda warnings or not was irrelevant to the elements of the charge. State v. Spencer, 2021 VT 5.
Case number two is primarily about speedy-trial rights. Defendant was in jail for about eighteen months before his trial. At trial, he was convicted of numerous offenses stemming from twice entering his former girlfriend’s apartment without permission to try “renewing affections.” Defendant might have done better calling into the Delilah show and dedicating a song. You remember those math problems in elementary school like: “A train is approaching the station at 65 mph and is 300 miles away. Another train is approaching the same station at 30 mph and is 700 miles away. Meanwhile a duck and a toaster are riding a goat down a country road at 2.5 mph . . .”? That’s what this opinion reads like. SCOV first notes that an 18-month delay—while going through four assigned lawyers—is significant. SCOV then chunks the 18-month period into various math-word-problem segments and assigns responsibility to the State and the defense. Ultimately, SCOV concludes that less than half the delay is attributable to the State and that the delay-attributable-to-the-State factor does not weigh heavily in favor of the defense. SCOV then looks to whether defendant “aggressively” asserted his right to a speedy trial. SCOV answers this question with a resounding “kinda” and reasons that the aggressive-assertion-of-the-right factor doesn’t weigh heavily in defendant’s favor either. Finally, SCOV considers the prejudice to defendant. While the SCOV reasons there was some prejudice to defendant, it’s still not enough to tip the scales in defendant’s favor. And so, SCOV reasons that there’s no Sixth-Amendment-right-to-a-speedy-trial violation and affirms the trial court on that point. Defendant also raises some evidentiary issues related to his ex’s testimony—mostly about him being in trouble before and an implication that at one point, he was in jail at Marble Valley. These land in plain-error territory and SCOV concludes that none of the statements require reversal. State v. Lafaso, 2021 VT 4.
Similarly, two opinions on the 15th.
First up is a case about some horrific high school hazing. You may remember that there was a 2018 decision involving a student at Milton High School who committed suicide in 2012—a year after being sexually assaulted by football team members. In that case, SCOV ruled in favor of the school district, concluding that the assault wasn’t foreseeable and that the school therefore did not have a duty to prevent it. This case is a little bit different. Plaintiff here was also sexually assaulted by members of the Milton High School football team. This happened at an off-campus team dinner, after the other student’s suicide. In part, the events leading to the other student’s suicide provide the necessary notice to make this assault foreseeable.
Plaintiff prevailed at trial and the jury allowed $280K in damages, attributing 40% fault to plaintiff. This led to post-trial motions. The trial court reasoned that it was wrong to put the comparative-negligence question to the jury in the first place, removed the comparative-negligence determination, and increased the verdict proportionately. Defendant and plaintiff appeal a number of issues. First, the defense argues that it had no duty to protect plaintiff. Without getting into the weeds, SCOV concludes this argument was not preserved. Next, the defense argues that the trial court erred when it got rid of the jury’s comparative-negligence determination. SCOV doesn’t buy it, agreeing with the trial court that under the facts of the case, the comparative-negligence question ought not have gone to the jury in the first place—there wasn’t any comparative negligence in this case.
SCOV then moves to plaintiff’s cross-appeal. Plaintiff argues that the introduction of excerpts from his disciplinary records was reversible error because they violated the prior-bad-acts rule. SCOV disagrees here, reasoning that the excerpts were introduced to counter plaintiff’s I-was-a-pretty-nice-kid assertion, were carefully curated, and there was no abuse of discretion in doing so. Plaintiff also argues that the trial court erred in failing to direct a verdict for the plaintiff post-trial on his Vermont Public Accommodations Act claims and that the court’s jury instructions went beyond the law’s requirements. Neither argument gets much traction and SCOV reasons that most of plaintiff’s arguments on those points are either precluded by the invited-error doctrine or don’t demonstrate enough prejudice. Finally, SCOV rejects plaintiff’s we-should-have-gotten-a-punitive-damages-instruction argument. SCOV explains that punitive damages are to punish the wrongdoer and that when the defendant is a municipality, it’s not the actual wrongdoer that gets punished but the taxpayers. So that goes nowhere. Blondin v. Milton Town School District, 2021 VT 2.
Our next opinion is a book about a certificate of public good (CPG). The opinion weighs in at 49 pages and that’s almost enough to keep me from my usual skimmin’ and summarizin’. Nobody wants a solar array next door. The appellants (neighbors to the south) here challenge the Public Utility Commission’s (PUC) issuance of a CPG for a bunch of reasons, including that: (1) the application was incomplete; (2) there were major changes that the PUC treated as minor amendments; (3) the site was not a preferred site (whatever that means); (4) the setbacks were no good; and (5) there’d be an undue adverse effect on aesthetics, orderly development, wetlands, air pollution, greenhouse gases, and traffic. It’s Saturday morning and I’m just going to skip to the punchline. SCOV affirms. There’s background on what the PUC does and the criteria for issuing a CPG. SCOV also gives the factual and procedural background and analyzes the individual claims of error. It’s your classic appellate opinion. But don’t just take my word for it! The link follows if this kind of administrative-agency-law stuff tickles your ivories. Obviously, mine it does not. I swear to God I tried. In re Petition of Acorn Energy Solar 2, LLC, 2021 VT 3.
SCOV issued one opinion on the 8th. This one’s about access to the Lake—the lake being Lake Champlain, naturally. Plaintiff’s predecessor-in-interest had granted defendants’ predecessor-in-interest an easement for access to a beach on plaintiff’s property. Plaintiff wasn’t thrilled with the situation and filed a declaratory judgment action to determine the extent of what rights, if any, the defendants had to access the beach. The trial court issued partial summary judgment to defendants concluding that the easement was appurtenant (if it’s been awhile for you since the bar exam like it has for me, just think “belonging”) to the defendants’ land. The trial court left alone the issue of whether the defendants’ use of the land had overburdened the easement, however. Plaintiff moved to reconsider and the trial court—it seems—reopened the whether-the-easement-was-actually-appurtenant-to-the-defendants’-land issue. Before final hearing, the parties stipulated that the easement was appurtenant and that defendants could use the easement for boat-related activities. Jet skis and such were left for the final hearing.
Side note: even SCOV drops a footnote explaining the difference between an appurtenant easement (“runs with the land”) and an easement in gross (“runs with the person”). This makes me feel not-quite-so dumb.
Ultimately, the parties had settlement discussions mid-final-hearing and mostly worked things out. Plaintiff, however, claimed the parties had agreed to binding arbitration—said so in the hearing—and submitted a proposed final order with a binding-arbitration provision. Defendants never affirmed that representation however. When the arbitration discrepancy came up in the final-order-signing process, the trial court told the parties to get a copy of the transcript. The transcript showed that plaintiff’s attorney said they’d all agreed to binding arbitration for further disputes. Defendants’ attorney never confirmed that representation but also didn’t make a big ol’ stink about it. The trial court did a steamroller and signed the binding-arbitration-included order.
Defendants moved for reconsideration and asked the trial court to enforce the order because plaintiff had already thrown up posts in the right-of-way in contempt of the order. The trial court said, “Nope. Arbitration.” So, defendants moved to have the arbitration provision struck because Vermont law requires a written acknowledgement of arbitration and there wasn’t any such acknowledgement here. Defendants also filed a notice of appeal. The trial court denied the motion.
So, defendants appeal. The issue is whether a trial court
can order binding arbitration for future disputes based on one party’s
representation that there was an oral agreement for the same. As it turns out,
the trial court ought not do that.
SCOV begins by acknowledging that arbitration is generally a good thing in its view. But, SCOV explains, arbitration is an agreement and you can’t just force it without that agreement. Because there’s no statute or law identified by the parties that would authorize this type of court-ordered binding arbitration, SCOV narrows the issue to “whether the parties’ alleged oral stipulation was sufficient to create an enforceable agreement.”
SCOV notes that generally, an arbitration agreement must be in writing to be enforceable. SCOV also notes that Vermont’s Arbitration Act requires the signed acknowledgment of arbitration so that folks don’t unwittingly waive their right to address grievances in court. As we already know, there’s no acknowledgment of arbitration in this case.
Plaintiff tries to argue that the defendants’ failure to object acts to estop defendants from arguing that they never agreed to arbitration. While SCOV agrees that an on-the-record agreement could, in theory, create a binding agreement to arbitration, there was no such affirmative agreement on the record from the defense here. SCOV holds: “for a party to effectively waive the statutory requirements of a written arbitration agreement and acknowledgement, the waiver must be clear and unequivocal.” Consequently, SCOV reasons that the defendants here did not unequivocally agree to the material terms of an arbitration agreement, nor did they “waive their statutory right to a written acknowledgement of arbitration.”
SCOV rejects any argument by the plaintiff that the defendants failed to preserve their right to appeal, noting that the defendants repeatedly attacked the arbitration provision and in no way acquiesced to it.
So, this one gets sent back to the trial court to strike the
arbitration provision and make a determination whether the remainder of the
order should stand. Knaresborough Enterprises, LTD v. Dizazzo, 2021 VT 1
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