Monthly-ish Update: March and April 2021

This is not a SCOV . . . really. 

By Andy Delaney

Once again, we have a month-plus of opinions to run through in a haphazard manner. Let's get to it. 

No opinions issued the week of April 23, 2021. I know it's a little weird to say "week of" when talking about a Friday, but that's the day the SCOV drops happen and that's what I'm going with. 

One decision April 16, and it’s one of those alphabet-soup opinions dealing with the Public Utility Commission’s (PUC) denial of an application for a certificate of public good (CPG) with a homeowner’s association (AHHA) and a country club (MACC) thrown in the mix. This leads to a build-absolutely-nothing-anywhere-near-anything, but especially not-in-my-backyard situation, also known as (AKA) BANANA-NIMBY.    

 

Briefly, applicant sought a CPG for a new solar facility and the PUC denied it, reasoning that the proposed site and an adjoining proposed facility counted as a single “plant” for purposes of the application. The PUC also allowed neighboring folks in AHHA and MACC to intervene, though it rejected their arguments on CPG factors. Applicant appeals arguing that the PUC shouldn’t have done the one-plant analysis and that it shouldn’t have allowed AHHA and MACC to intervene. AHHA and MACC, for their part, argue that the PUC pucked up when it rejected their arguments. SCOV concludes that the PUC was justified in treating the adjoining facilities as a single plant for its analysis, that the PUC was okay in allowing the intervention, and punts on whether the CPG factors analysis was wrong because the single-plant-analysis denies the permit anyway. In re Chelsea Solar, LLC, 2021 VT 27.     

 

One opinion Friday, April 9 and an entry order Wednesday, April 7.

 

The opinion first. It’s a juvenile case where dad’s parental rights were terminated and kiddo was adopted. Twenty days after kiddo was adopted, dad moved under Rule 60 to vacate the termination of his parental rights on the basis that his lawyer was ineffective at various points in the proceeding. He included an affidavit from a lawyer opining that his counsel’s performance fell below the necessary standard. The trial court concluded it lacked jurisdiction to consider the motion and dad appeals. SCOV more or less says that kids need certainty and post-adoption, the trial court was correct—based on the applicable statutes—in determining that trial courts lack jurisdiction to reopen a termination proceeding based on ineffective assistance of counsel. Justice Robinson dissents, noting that it would be a very rare case where ineffective assistance would warrant reversal of a termination of parental rights, and the avenue to do so should not be considered statutorily foreclosed. In re C.L.S., 2021 VT 25.

 

The April 7 memorandum opinion deals with denial of home detention. Briefly, defendant is charged with attempted murder and simple assault based on a seemingly random stabbing. Her cash bail is set at $100K. She filed a motion for home detention and proposed her mother’s residence. The trial court held a hearing and considered the home-detention factors, ultimately concluding that home-detention was not appropriate for defendant. On appeal, defendant argues that the trial court improperly relied on attachments in the Department of Corrections’ report. Because this argument was not raised below, we’re in plain-error AKA “snowball’s chance in hell” territory. Not surprisingly, SCOV affirms, reasoning that even if the trial court made a mistake in relying on a report that was questionable in its credibility, the totality of the evidence considered by the trial court supported the decision to deny home detention. State v. Lesage, 2021 VT 26 (mem.).

 

One opinion issued April 2. This is an appeal by some neighbors over the environmental court’s approval of a conditional use permit for a fuel-trucking facility in Ferrisburgh. Without jumping too deep into the facts because I’m lazy I don’t practice environmental law, the environmental court found that the trucking facility: (1) complied with the necessary conditional-use zoning provisions; (2) wouldn’t have an undue impact on noise during the day; and (3) that the noise impact at night could be dealt with by a condition requiring the company to “minimize” operations and not allow Sunday and holiday operations except in “emergencies.” While SCOV is cool with most of the environmental court’s decision in the matter, it’s not convinced the nighttime-noise conclusions are legit. There wasn’t enough evidence on the issue and that—in SCOV’s view—led to a lack of analysis resulting in the condition’s ambiguity and unenforceability. SCOV affirms most of the environmental court’s decision, but kicks it back for more development (see what I did there?) on the nighttime noise issue. In re JSCL, LLC, 2021 VT 22.        

 

Three opinions March 26.

 

First is a criminal case where smoking weed in a parking lot, and saying “for protection” to a cop who searches you and finds brass knuckles and asks you why you have ‘em will get you the intent element for possession of brass knuckles with intent to use—a felony, BTW—from the trial court and a SCOV majority. Justice Cohen dissents because he thinks you need a bit more than an amorphous, maybe-at-some-time-in-the-future statement regarding use to satisfy the intent element. Justice Robinson joins in the dissent. I wonder whether a “God forbid” would’ve swung the pendulum a bit further either way. State v. Hale, 2021 VT 18.

 

Our second case emphasizes that a tax sale has a different statute of limitations than an action to recover lands. Plaintiffs find out the hard way. Their properties were sold at tax sale to the Town itself. Seems like a conflict of interest but this ain’t my area of practice. The plaintiffs brought suit after more than a year had passed, arguing that the sale was void because the reports of sale weren’t recorded within the prescribed thirty-day period for recording such things. The trial court granted summary judgment to the Town, reasoning that the one-year statute of limitations applicable to tax sales had passed. Plaintiffs appeal, arguing that the three-year-limitations period applicable to recovery of lands applies. SCOV sides with the trial court, tosses a maybe-the-legislature-will-address-this aside in, and affirms. Billewicz v. Fair Haven, 2021 VT 20.

 

Our final case for the week is about a kid who, presumably, doesn’t want to be in a psychiatric residential treatment facility. SR is sixteen years old. The trial court placed SR in a treatment facility in Virginia at DCF’s request. There was no evaluation from a qualified mental-health professional that supported the placement and SR objected but everyone else involved in the case seemed to be cool with it. On appeal, SCOV concludes that placing a kid in a psychiatric residential treatment facility requires a supporting evaluation and remands the case. For the time being—due to the difficulties with placement and the kid’s concerning behaviors, the kid stays in the facility in Virginia. SCOV notes that, by now, DCF and the trial court should have plenty of expert-evaluation stuff to work with. In re S.R., 2021 VT 21.     

 

There opinions also the week of March 19.

 

First is an entry order that SCOV snuck in (snuck out?) on Monday. Defendant is held without bail for allegedly sexually assaulting his daughter. He contends that the trial court abused its discretion when it didn’t consider the impact of COVID-19 and the indefinite suspension of jury trials when determining the least-restrictive means possible to protect the public and ensure defendant appears for court proceedings. SCOV reasons that the trial court actually did—to some extent—consider the COVID-19 argument and that there was no abuse of discretion. State v. Boyer, 2021 VT 19 (mem.)

 

Next we have a law-firm-employment dispute. In a nutshell, the trial court found that defendant law firm was entitled to summary judgment because, grossly oversimplified, a partnership-track conversation between plaintiff and one of the partners was not an enforceable agreement. As always, there’s more to it than that, but that’s the gist of it. SCOV affirms the trial court, reasoning that none of plaintiff’s claims survive summary judgment. Pettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16.

Our last opinion for the week is a little complicated. Plaintiff and defendant dated in high school and according to plaintiff, defendant was not willing to let plaintiff move on. Plaintiff got a no-findings relief-from-abuse order (RFA) against defendant in 2019. Just over a year after it expired, she moved to extend it. The trial court did extend it, reasoning that plaintiff’s failure to request an extension before the RFA expired on its own terms was excusable because she was diligently trying to find defendant’s address (SCOV drops a footnote that an address is unnecessary to seek an extension) and that defendant’s post-order conduct warranted extension. Defendant appeals, arguing that the trial court lacked jurisdiction to extend the order. SCOV, in a per curiam opinion, concludes that the RFA-extension statute is ambiguous and reasons the trial court can extend an RFA whenever necessary. In this case, however, SCOV agrees with defendant that the evidence the trial court relied on to extend the order was insufficient. But this isn’t the “win” defendant is looking for. Here, SCOV concludes that the case needs to go back to the trial court for a hearing on whether extension of the initial order is justified under the circumstances. An important point here is that with a no-findings order, a plaintiff can—and should—present evidence of the original conduct warranting the RFA when seeking an extension. Always read the footnotes. Forrett v. Stone, 2021 VT 17.