Monthly-ish Update: February 2021 +


By Andy Delaney

While I write these up weekly, I don't always post them. Hence, once again, we have a month and change to run through today. Let's get to it.  

One opinion this past week. It’s one of those tragic cases that doesn’t lend itself to humor. I’m sure most of us remember the wrong-way driver who killed five teenagers speeding the wrong way on the interstate, stole a police cruiser, again drove the wrong way on the interstate and slammed into the wreckage he’d caused at 100 miles an hour, injuring several more people. He was charged with and convicted of five counts of second-degree murder, one count of grossly negligent operation, and one count of operating a vehicle without the owner’s consent. He appeals and SCOV affirms. The arguments on appeal mostly revolve around whether the State proved the necessary intent for second-degree murder (it did), whether the trial court erred when it admitted undisclosed expert testimony or when it instructed the jury (it didn’t), and whether the trial court needed to grant defendant’s motion for a mistrial based on alleged discovery violations where the prosecution failed to turn over a witness interview (it needn’t). There is a lengthy discussion of diminished capacity and insanity and how those defenses interact with the proof of intent, which is worth a read. Just a sad, sad case. State v. Bourgoin, 2021 VT 15.     

March does not come in like the proverbial lion at 111 State Street in Montpelier. SCOV issued one opinion yesterday. This week’s installment is really about the consequences of getting mouthy with the cops. Those of you that know my personal history know that I’ve managed to talk—well, berate—the police into arresting me more than once as a teenager and young adult. You might also know that my grandfather—who was a traveling salesman—on two occasions in the deep south managed to turn a speeding ticket into a night in the county lockup with sarcastic quips to the officers who pulled him over. So, I can empathize with the defendant in this case to a degree.        

Patrol officer pulled defendant over for a bad headlight. Defendant started off with the well-known “Why did you pull me over?” line. Generally, this can be an acceptable approach. Here’s a one-minute NSFW video about one way to handle being pulled over. An aside: when a police officer catches you dead-to-rights speeding, I believe the best approach is to admit you were speeding, apologize sincerely, and be cooperative. In contrast to my youthful approach, the last time I was pulled over for speeding and used the you-got-me-I’m-sorry approach, I was given a warning when I could have been given a whopper of a ticket. Your mileage may vary.  

Back to our story. There was some back and forth about whether the headlight was a good enough reason for a stop. When it turned out that defendant’s registration and insurance had expired in 2016, defendant moved on to his constitutional right to travel and asked to speak with a supervisor. The supervising officer showed up and talked with defendant for almost forty minutes. The officers decided to “ground” the car for the defective equipment and the expired documentation. Defendant was not pleased with this decision and used one of the most versatile words in the English language in various contexts to express his displeasure with said decision, note that he had an AR-15 in the back seat, that he would “defend himself,” and that the officers should not have his vehicle towed. Eventually, after allegedly trying to access the back seat where the AR-15 supposedly was, more cops showed up, defendant was arrested, and he was charged with impeding an officer and criminal threatening among other offenses. He was ultimately convicted of the impeding and threatening charges.

Defendant appeals, arguing that the evidence was insufficient to prove that he threatened or impeded the officers. SCOV affirms.

On the threatening charge, SCOV reasons that defendant’s reference to the gun and his “question” of “Do we need that?” constituted a “true threat” unprotected by the First Amendment. There’s a good discussion of the limits of free speech and the constitutional parameters for what constitutes a threat versus “political hyperbole” and other types of protected, not-prosecutable speech. Here, defendant made what could reasonably be construed as a threat that he was capable of carrying out. So that conviction stands.

On the impeding charge, defendant first challenges the jury instructions. Specifically, he attacks the definition of “hinder” in the jury instructions, arguing that it allowed the jury to convict for causing mere delay in the officer’s performance. He also argues the “conduct in defiance of a command that interferes with the officer’s ability to complete his lawful duty” language in the jury instructions is insufficient to establish that defendant engaged in an unlawful act; that the jury instructions did not guarantee unanimity; and that the instructions allowed the jury to convict defendant based on lawful conduct.

Because defendant didn’t object below, we’re in plain-error territory. SCOV first explains that while the trial court’s definition of “hinder” was less robust than it could have been, it’s not plain error on the facts of this case. On the unlawful-conduct language, SCOV spends a little more time, noting that the trial court was clear in the instructions that disobeying an order from a police officer alone is not sufficient for a conviction. While the quoted language is problematic in some respects, in the full context, we don’t meet the plain-error threshold. SCOV also rejects the remaining jury-instruction challenges with “little analysis” because the trial court’s instructions were that the jurors needed to be unanimous on what specific acts impeded the officers.

Defendant also challenges the sufficiency of the evidence for the impeding charge. Here, both defendant and the State seem to agree that State v. Berard, 2019 VT 65 supports conviction for impeding only when the defendant’s act arises to the level of removing or disabling the officer’s weapon. Defendant wants a reversal of his conviction; the State wants SCOV to overrule Berard. SCOV says “You’re both wrong.” SCOV emphasizes that its holding in Berard was narrow and limited to the idea that a civil motor vehicle violation standing alone is generally not enough to uphold an impeding-an-officer conviction. Ultimately, SCOV holds that the evidence here was enough to sustain defendant’s conviction under both impeding theories the State set forth below and on appeal. State v. Blanchard, 2021 VT 13.       

The first SCOV opinion issued February 26 is about a Cadillac that was a Brand New Cadillac when this album came out. This “Clash” is over ownership of said Cadillac, with one daughter arguing that Dad’s registration listing her as a co-owner defeats dad’s will (that gave the Cadillac to another daughter). SCOV says no, doing a “Clampdown” on title transfers, reasoning that the 2006 registration was not an effective transfer of ownership, and that daughter failed to prove by clear and convincing evidence that dad gave her an inter vivos gift. Dad was free to leave the Cadillac to another daughter in his will. Accordingly, SCOV affirms the probate and civil divisions’ determinations in this case. In re Estate of George, 2021 VT 12.

Next up we have a case about (un)Happy Trails. Mr. Demarest owns some property in Underhill, adjacent to (former) Town Highway 26. Before Mr. Demarest bought the property, the Town reclassified TH26 into three segments, one of which was a trail. There was some—okay, a lot of—fighting about this, with Mr. Demarest and neighbors challenging the Town’s “trail” reclassification and looking for the Town to maintain the whole road. Ultimately, the Town’s reclassification-to-partial-trail decision gets upheld by SCOV in 2013. In 2015, Mr. Demarest wanted to subdivide his property and use the trail for highway access for the proposed subdivision. The Town said no to both the subdivision and vehicle-over-the-trial access. And so the parties ended up back in court—“back” being the operative word here. The trial court granted summary judgment to the Town, reasoning that Mr. Demarest’s right-to-access claims were suspiciously similar to his prior claims and could have and should have been litigated before. The SCOV majority affirms the trial court (there’s also a scuffle over selectboard discretion when it comes to allowing vehicle access over the trial, which goes nowhere). Justice Robinson dissents, reasoning that the two proceedings were different and that Mr. Demarest’s claims for right-to-highway access were neither logically tied to nor reasonable to anticipate in the prior litigation. Demarest v. Underhill, 2021 VT 14.     

Four opinions—or more accurately, three opinions and a paragraph—the week of February 19.

If you’ve never seen the Rick & Morty version of the Denver Fenton Allen transcript, here’s your chance. It’s NSFW, from a real court transcript. I mention it because I have a dark sense of humor and the claim in our first case is that attorney didn’t turn over all the discovery. Defendant is an attorney who was assigned over a decade ago to represent client-plaintiff in a federal narcotics case. Attorney provided a large portion of the file on an iPod and later on a thumb drive to client. He also apparently turned over some materials on paper. There were some materials that attorney wasn’t supposed to copy (Jencks materials) and he didn’t provide that stuff. When client went to bar counsel claiming that attorney had failed to turn over the file, bar counsel took a look and declined to refer for disciplinary proceedings, reasoning that attorney had in fact turned over the file (minus the Jencks materials). Undeterred, client filed a case in superior court for conversion against attorney. The trial court, similarly to bar counsel, reasoned that attorney had turned over everything that needed to be turned over to client and granted summary judgment in favor of attorney. Client appeals. On appeal, SCOV holds that “the file”—in this case, save for the Jencks materials—is client’s property and that while the trial court’s reasoning was correct to a point, the trial court shouldn’t have granted summary judgment without resolving whether client was entitled to a copy of the paper file attorney allegedly created for use at trial and whether client had received certain trial exhibits. This one gets kicked back to the trial court for further proceedings. Aguiar v. Williams, 2021 VT 8.    

Next, we have an opinion on the Vermont Constitution’s right-to-bear-arms clause. This behemoth challenges the constitutionality of Vermont’s large-capacity-magazines ban and weighs in at 51 pages, though to be fair the first page and a half is the caption and a list of amici. The short version here is that SCOV concludes the ban does not violate the Vermont Constitution and affirms the trial court’s denial of defendant-appellant’s motion to dismiss his charges based on his purchase of a large-capacity magazine from New Hampshire. SCOV reasons that Vermont’s right to bear arms is subject to “reasonable regulation” and that the State’s interest in preventing mass shootings meets the “reasonableness” requirement here. State v. Misch, 2021 VT 10. The opinion also touches—to the extent necessary—on the referenced paragraph-length entry order I mentioned at the beginning of our February 19 section of the update: Vermont Federation of Sportsmen’s Clubs v. Birmingham, 2021 VT 11 (mem.).

On our fourth down, SCOV punts. The final opinion for the week deals mostly with an arbitration clause. SCOV reasons that the parties’ contract affects interstate commerce in this case, and is therefore governed by the Federal Arbitration Act (FAA), not the more-exacting Vermont Arbitration Act (VAA). Briefly, homeowners hired a home inspector to give a house they were buying an inspection. The two-page inspection agreement contained an arbitration clause and excluded assessment of environmental hazards including asbestos. Lo and behold, when the homeowners started renovating, they found asbestos in the stucco ceilings. When they sued the home inspector, the home inspector argued that the case needed to go to arbitration pursuant to the contract. Homeowners argued that the agreement lacked the acknowledgement of arbitration required by the VAA. The trial court agreed with inspector, reasoned that the FAA controlled, and kicked it over to arbitration. The arbitrator concluded that the asbestos claim was excluded, and the trial court confirmed and dismissed homeowners’ claims. Homeowners appeal, arguing that the VAA should apply to void the arbitration clause and that the arbitrator ignored the law. SCOV affirms, reasoning—and I’m grossly oversimplifying here—that the FAA applies (inspector was a franchisee) and that arbitrators aren’t bound by the rules of civil procedure (12(b)(6) standard). Masseau v. Luck, 2021 VT 9.           

The February 12 edition was another one-opinion week in SCOV land.

All us lawyers learn about conflicts of interest in law school. And all of us should know that we can’t use information obtained during a representation to disadvantage a former client. Respondent here is a lawyer who’s been practicing since I was wearing Smurfs™ Underoos and  causing trouble in Mrs. McCormack’s first-grade class at East Elementary in Torrington, Connecticut. But that’s a story for another time. Respondent primarily practices in real estate law but also offers other services “typical of small-town Vermont lawyers.” In a nutshell, respondent first defended a married couple in an action to foreclose against their undeveloped lot. Then he represented husband in the couple’s divorce and in post-divorce proceedings, running the meter north of eleven grand. Husband a.k.a. “former client” never paid.

There’s already at least one glaring ethics violation here. Without looking at the opinion can you guess what respondent ought to have done before representing husband but didn’t do?  

But wait, there’s more! Next, former client puts the bad-penny lot on the market and some buyers want it, so they enter a purchase-and-sale agreement with husband. Guess who buyers hire to represent them and guess what he doesn’t tell “new client” and guess what he doesn’t get from former client? If that weren’t enough, respondent sees an opportunity to collect that unpaid fee and puts a lien on the property right before closing that he insists be paid. (There’s more than that to it, including delays in the closing and some back and forth between lawyers, but you get then short version here.)  

Long story short, respondent lands a three-month suspension from the Professional Responsibility Board (PRB). And, you know, that should probably be the end of it, but respondent tries to make a no-real-harm-no-foul argument to SCOV. And we get a published opinion because of it. SCOV notes that respondent conflates “disadvantage” with “injury,” and affirms the PRB. Can’t say I’m surprised. In re Bowen, 2021 VT 7.  

One opinion on February 5th. I’m not sure why I feel compelled to make some kind of Harry Nilsson joke here, but I do.

This week’s decision is a civil procedure case cloaked as an appeal from a child-support magistrate’s decision. If I’d known how important civil procedure was going to be in practice, I would’ve spent a lot more time in my first-year civ pro class taking notes and a lot less time playing Yahoo Pool against my classmates. Or maybe not. I remember sitting in the back of the class and looking over a sea of laptops with not one screen displaying anything remotely related to civil procedure. And we all had close-to-dial-up-speed internet connections back then. But I digress.

Our parties are Mr. Baron and Ms. McGinty. They got married in ’96 in Utah and separated in 2015. In 2016, Ms. McGinty got a Virginia divorce while Mr. Baron was in the pokey. Ms. McGinty was awarded sole physical and legal custody of the kiddos. The child-support order required Mr. Baron to pay $1757 per month in child support. About a year later, Ms. McGinty got a Texas court to enforce the Virginia judgment and she obtained a ~$22K judgment against Mr. Baron. Ms. McGinty then moved to Vermont. So, Mr. Baron filed a petition to register and retroactively modify the Virginia child-support order in Vermont. He alternatively argued that the Virginia order should be modified under Rule 60 because it was based on a “clerical error”—his pre-incarceration income. Ultimately, the family court magistrate opined that the Virginia order was not based on a clerical error and declined to exercise jurisdiction to register or modify the Virginia order because Ms. McGinty said she was moving back to Texas. Mr. Baron appealed directly to SCOV (a procedural error), and SCOV threw a boomerang—sending it back to the family division, which affirmed, and put the case back on SCOV’s doorstep.

SCOV affirms the magistrate on the Rule 60 decision, though on different grounds. SCOV reasons that the Uniform Interstate Family Support Act (UIFSA) lays out how an out-of-state order can be modified under the act and it does not authorize modification under Rule 60. SCOV drops a footnote to explain that the magistrate’s decision to rule on the Rule 60 motion’s merits was inconsistent with the not-exercising-jurisdiction aspect of the rest of the magistrate’s decision. SCOV reasons that while the UIFSA allows for new-jurisdiction modification of orders, it doesn’t allow for new-jurisdiction Rule 60 modifications—which would be retroactive by nature—in a new forum because that would encourage forum shopping and inconsistent application of the law.

Turning to the registration-and-modification analysis, however, SCOV departs from the family division’s reasoning. The UIFSA has a “shall” when it comes to registration and SCOV concludes there’s no discretion to deny a petition to register a child-support order unless a statutory exception applies—and no such exception applies here. In other words, mom saying “I’m gonna move” doesn’t defeat registration. There’s a small detour where SCOV deals with the family division’s finding of mootness on appeal—because mom did, in fact, move to Texas like she said she was going to—and SCOV reasons that because jurisdiction existed in the initial registration proceedings, it continues through all proceedings stemming from the petition. Ms. McGinty can’t defeat personal jurisdiction, once established, by moving out of state.

While modification of the child-support order is not mandatory (the difference between “shall” and “may”), all the elements necessary to modify the order were present here. The magistrate was required to register the order—this is an automatic process—and the magistrate had no discretion to decline to exercise jurisdiction. Accordingly, SCOV sends this one back to the magistrate to consider whether the child-support order should be modified. Baron v. McGinty, 2021 VT 6.            

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