By
Andy Delaney 
A different kind of courting
Here we go again. I apologize to our faithful readers that we haven't been cranking out the full summaries lately. If you'd like to try your hand at summarizing cases and help with the backlog, please shoot me an email. We're happy to bring on new talent and there's no shortage of work. Pay and benefits are competitive with similar all-volunteer ventures. Flex your creative muscles and get some name recognition to boot!
While I've titled this May to Mid-July, there are actually a half-dozen opinions from the last week in April that are at the bottom. This is one of the many benefits of writing for SCOV Law: you can practice your creative titling.
Tres opiniones hoy or something like that for July 16, 2021.
Numero uno es a criminal case where defendant appeals convictions for unlawful restraint, unlawful trespass, and obstruction of justice. This is a weird one. The unlawful restraint gets affirmed. The other two charges stemmed from dude telling his girlfriend he was hitchhiking home to New York from her place and sending her status updates on his progress. But wait! It’s an elaborate ruse! Dude is hiding under his girlfriend’s bed (to make sure she doesn’t bring someone else home), listening to her make phone calls, coming out of the hiding spot and then asking girlfriend not to tell the police there are any problems when they show up. Like I said, weird. And more than a little creepy. He was convicted of the aforementioned three crimes. On appeal, SCOV reverses on the unlawful trespass and obstruction charges, reasoning that they’re not supported by the evidence. Muy loco. State v. Kuhlmann, 2021 VT 52.
Numero dos es an opinion about standing. In a nutshell, an elementary school student doesn’t have standing to sue the State Board of Education over local school board elections. Yeah, I know. The trial court reasoned that even assuming there was an injury, plaintiff didn’t pin it on the State. On appeal, SCOV affirms—and concludes plaintiff lacks standing—but does so on alternate grounds. Specifically, SCOV concludes that there’s no injury in fact. And that’s that. Vasseur v. State, 2021 VT 53.
Numero tres es a juvenile delinquency case dealing solely with the issue of whether a juvenile is entitled to a hearing under a statute post disposition. The procedural posture is a little wonky because instead of an appellate brief, juvenile filed a motion for an evidentiary hearing (something he contends he didn’t get, but should’ve gotten, below). SCOV concludes that the statute juvenile relies on is inapplicable in post-disposition proceedings, denies the motion, and as a result, dismisses juvenile’s appeal. In re N.M., 2021 VT 54.
El fin. No mas!
One opinion July 9. I would have written about it sooner, but I’m lazy I was busy.
Defendant was convicted of repeated sexual assault of a minor. On appeal, he argues that the trial court messed up when it didn’t grant his motion for a mistrial when the State’s expert testified about some hearsay in violation of a pretrial order; when it allowed the expert to testify about behavioral traits of sex offenders; and when it allowed the jury to view the video of the complaining witness’s police interview in addition to her live testimony—or some combination of all of the above warrants vacation of his conviction.
The short version is that the SCOV majority does not agree. On the hearsay, the substance of the very limited testimony came in through several other witnesses and was therefore cumulative and nonprejudicial (quick refresher: 804a provides an exception to the hearsay rule when the victim is a child, meaning that if there’s substantial indicia of truthfulness, people can testify about what a child told them about an assault, and there were several of these witnesses here). The trial court also shut it down and told the jury to disregard what the expert had said. There was no indication that the testimony was offered by the prosecution in bad faith.
On the behavioral-traits piece, the majority notes that while “profile” evidence is generally not allowed to show that a defendant acted consistently with “the profile,” it can be used to explain a victim’s behavior. The expert actually testified that when a sex abuser is going to repeatedly abuse a child, they’ll be careful to not leave physical evidence. Here, the majority reasons that the expert’s testimony fell into the explain-the-victim’s-behavior category. It’s a bit thin but I’m not the one slicing the bologna here. The majority really doesn’t even get into the video evidence other than to say no error and that SCOV is not even sure what the defense’s “unfairly prejudicial” argument is here. Without a basis to find an error, the High Court won’t find an error. Finally, the majority addresses the cumulative-effect argument. If you’ve been keeping score at home, you know that’s going nowhere.
Justice Robinson dissents on the behavioral-traits piece. As Justice Robinson explains, it’s one thing to explain why a kid might not have physical evidence of an assault, it’s quite another to say the absence of physical evidence is evidence that the defendant is a sex offender—and that’s kinda what happened here. While Justice Robinson is careful to explain that the testimony might not be barred under all circumstances, she can’t say its admission here was harmless. State v. Noyes, 2021 VT 50.
Two opinions issued July 2nd.
Our next case is about a traffic circle that's a private road, almost became a public road, but then the selectboard members changed their minds about going through with the deal. The development company that built the road sued the town and the trial court ultimately dismissed the complaint. The procedural twist here is that the town first filed a motion for summary judgment and then filed a motion for judgment on the pleadings. Development company argues that it had already started responding to the motion for summary judgment and that's not fair. On appeal, SCOV affirms, reasoning that the case lacked legally workable claims. Of note: SCOV throws shade at the trial judge for belittling plaintiff development company in the decision dismissing the complaint. Judges are supposed to be even handed. Island Industrial, LLC v. Grand Isle, 2021 VT 49.
Three fresh drops on June 18 from SCOV.
Uh oh. I find myself in my forties trying to sound hip (and failing). I’ve become that proverbial dad I used to laugh at. And yet I’m going to leave it.
Anywho . . . first up is the driveway dispute that doesn’t die. This neighborly feud over commercial property is on its third round at SCOV (you can read all about round two here). This time, the lesson is that if you want to prove you own some land, then put the deed into evidence. Plaintiff didn’t here and even though the testimony regarding his ownership went unchallenged, the trial court didn’t buy it. The trial court basically said nobody gets nothin’. Plaintiff appeals and doesn’t get anywhere other than with his claim for contribution to maintenance costs. On that front, SCOV reasons it doesn’t have enough information to sort it out and kicks it back to the trial court. Moyers v. Poon, 2021 VT 46.
Next up is a case dealing with whether “incurable imbecility or insanity” or “permanent and severe cognitive, physical, or psychiatric disabilities” is the proper standard to apply to a pre-2014 traumatic brain injury in a workers’ compensation case. Spoiler alert: it’s the latter, even though the statute in effect at the time of injury was the former. In this case, the Commissioner of the Department of Labor reasoned that the old language applied. SCOV reverses, reasoning that the legislature explicitly said it was fixing the language, that it was not a substantive change, and concluding “that the 2014 amendment applies retroactively because it is a remedial change and a modern, more respectful articulation of the incurable imbecility or insanity standard.” An interesting procedural fact here is that claimant moved for summary judgment in favor of employer because he didn’t want to have to try to prove he was an imbecile or insane. Hard to argue that point. The decision gives a pretty comprehensive overview of the offensive language, the reasons for the change, and has some potentially useful statutory-interpretation pieces. West v. North Branch Fire District #1, 2021 VT 44.
Finally, this week, we have a criminal and appellate procedural question. Is a SCOV entry order dismissing an appeal (at appellant’s request) “any order or judgment of the Supreme Court upholding a judgment of conviction”? The answer, according to SCOV, is yes. In this case, appellant filed a motion for sentence reconsideration within 90 days of such an order but because the trial court reasoned the clock started running at the time of the original conviction under this scenario, the trial court dismissed the motion as untimely. SCOV reverses, reasoning that the motion was timely under the statutory scheme because it was filed within 90 days of SCOV’s entry order dismissing the appeal. Back to the trial court for this one. State v. Stearns, 2021 VT 48.
Five opinions on June 11.
First up is a memorandum opinion dealing with bail. The facts are violent and salacious and I won’t get into them. The bottom line is that defendant was held without bail and SCOV affirms. By the time you finish the first page, the ending is no surprise. State v. Blodgett, 2021 VT 47 (mem.)
Next, we have an appeal from the Human Services Board (HSB) regarding licensing and placement and the limits of the HSB’s jurisdiction. The HSB dismissed grandparents’ appeal to the HSB on DCF’s placement of one of their grandchildren. HSB reasoned that it has jurisdiction over licensing decisions but not placement decisions. SCOV agrees, reasoning that the proper place to challenge a DCF placement decision is in the underlying case in the family division and not before the HSB. In re T.O., 2021 VT 41.
Third in the lineup is a foray into family law, worker’s comp, debt collection, and statutory exemptions—even delving into Medicare set-aside accounts briefly. To some degree, assets purchased with post-divorce workers’-compensation-
Fourth, we have a somewhat decent decision on the recreational-use statute. A 14-year-old boy was riding his motorbike up and down a road in a residential development where his family owned property near Lake Memphremagog. There was a chain that could be put across the road but was not up during his initial passes. On his last pass, someone had put the chain up and the boy was seriously injured. He sued several corporate entities as well as individual defendants. The trial court decided that all claims were barred by the recreational-use statute and dismissed everything on summary judgment. On appeal, SCOV reasons that the recreational-use statute doesn’t apply because—and here’s a shocker—the land here isn’t open to use by the public. SCOV reverses on the recreational-use statute and remands as to the corporate defendants. SCOV affirms on the individual board-of-directors claims, however, reasoning that there’s no way for plaintiff to prove gross negligence (required here for liability to attach) on the factual record. On the whole, a positive decision, curbing back the recreational-use statute’s application at least a little bit. Crogan v. Pine Bluff Estates, 2021 VT 42.
Fifth and finally for this week, we have a DNA-database appeal. This one gets into whether an inmate who gives a DNA sample while incarcerated under a Vermont sentence in another state doesn’t have to give another sample. The bottom line here is that defendant has to give a DNA sample to Vermont even if he did give one to Florida (which apparently won’t share with Vermont). That’s where the trial court landed ultimately, and SCOV affirms, though SCOV does note that the trial court’s determination of the limited scope of a sampling-compulsion hearing was error but harmless error in context. State v. Bruyette, 2021 VT 43.
No opinions June 4.
Three decisions May 28 from SCOV.
First up is a bit of an odd land-purchase situation where even though the trial court found—on warring motions for summary judgment—that the purchase-and-sale agreement was unenforceable, it still awarded attorney’s fees based on the seller’s refusal to participate in mediation under the contract. SCOV essentially says, “No enforceable contract, no mediation requirement,” and reverses. Judge Tomasi, specially assigned, concurs in the result, but notes that summary judgment was probably premature in this case because it wasn’t totally clear that there wasn’t an effective and enforceable amendment to the underlying contract. Wark v. Zucker, 2021 VT 37.
Next is a case dealing with whether misdemeanor unlawful trespass requires an intent element. Spoiler alert: it does not. SCOV notes that the legislature apparently left the intent element out of the misdemeanor subsection (but included an intent element in the felony part). Defendant was convicted of the misdemeanor unlawful trespass charge and acquitted of other charges stemming from an alleged altercation with his girlfriend at her apartment. At the jury charge conference, he requested the court include an intent instruction on the trespass charge. The trial court declined. At sentencing, the trial court imposed a no-criminal-behavior probation condition. On appeal, defendant challenges both the jury instructions and the probation condition. Long story short, SCOV reasons that no intent instruction was necessary because the legislature didn’t require it for the specific charge and that the probation condition is reasonably related to ensuring the defendant lives a “law-abiding” life. State v. Richards, 2021 VT 40.
Rounding out the week, we have a case for damages under Vermont’s Innocence Protection Act (VIPA), or perhaps more specifically, about the broadness of those “general releases” many attorneys skim and have clients sign without a second thought. Briefly, plaintiff was charged in 2010 with two counts of sexual assault against a person under the age of sixteen, when he himself would have been fifteen or sixteen. He pleaded to a lewd-and-lascivious charge and got 2-5 years. While he was in jail, he filed a post-conviction relief (PCR) proceeding. When he was released (at his max sentence), he found out that he didn’t get proper “good time” credit. The PCR court was also going to vacate his conviction on grounds that his plea colloquy wasn’t compliant with the rules. On the credit stuff, he settled with the State and signed a general release. He then brought a claim under VIPA, arguing that he was actually innocent and entitled to damages. The trial court concluded that his claim was barred because of the general release on the time-credit piece. On appeal, SCOV agrees. The general release is for all claims and that’s that. Justice Robinson concurs in the result only. She disagrees with the majority that the general release is effective under VIPA because of VIPA’s language. However, because VIPA requires that a claimant show that they didn’t engage in illegal conduct, the claim would fail. While claimant’s conduct was not criminal in this case, it was nonetheless illegal. Scott v. State, 2021 VT 39.
Two decisions on May 21.
The first is a worker’s compensation appeal. I don’t do worker’s comp anymore because there are plenty of lawyers out there that are way better at it than me. But I still find worker’s comp issues interesting most of the time. This opinion, however, is about statutory interpretation, and specifically, about which court has jurisdiction over worker’s compensation appeals. I almost fell asleep reading the first paragraph of the majority opinion. Now, the factual issue—whether a subarachnoid hemorrhage can be causally related to a low-back work injury—is interesting, but we don’t really go there. After a hearing, where the Commissioner of the Department of Labor found in favor of the defense, claimant appealed to the superior court and asked the Commissioner to certify three questions to the superior court. The third question was whether the Commissioner should have used a “plausibility” rather than “probability standard on the medical piece. The Commissioner, without explanation, didn’t certify the third question to the superior court. So claimant appealed that non certification to SCOV, which makes sense because the statutory appeal process makes a distinction between fact, fact and law, and law appeals—with the latter going to SCOV. The punchline, according to the majority, is that in worker’s compensation appeals, the appeal is either to the superior court or SCOV, but it ain’t both at the same time. The majority dismisses the appeal. There’s a Robinson concurrence and dissent, and she uses a fantastic line from Justice Breyer: “Statutory interpretation is not a game of blind man’s bluff.” While Justice Robinson agrees that SCOV lacks jurisdiction, there needs to be some clarity as to where the appeals in these cases go. The statutes for the appellate process here are confusing. Where the majority punts, Justice Robinson would at least have the superior court take up the third question. The dissent would at least explain who does have jurisdiction in this case and if that’s the superior court, then the superior court can rule on the issues raised, and the appeal to SCOV is clean and proper and the next claimant doesn’t have to roll the dice also. Zebic v. Rhino Foods, Inc., 2021 VT 35.
Our second opinion is an appeal from the environmental division dealing with an Agency of Natural Resources (ANR) stormwater discharge permit. There’s a bunch of stuff going on here. But very briefly, a quarrying operation gets a stormwater permit from ANR amidst a bunch of other legal maneuvering. Neighbors—they’ve been there all along—appeal ANR’s approval to the environmental division. Long story short and grossly oversimplified, the environmental division reasons that neighbors lack standing, boots the ANR appeal, and also gets rid of the other pending stuff as moot. The environmental division also allows landowners—the folks the quarrying operation is buying less-than-one acre from—to intervene. Still with me? Good. If only this were so straightforward, the environmental division would have been really efficient. On appeal, however, SCOV reasons that the environmental division screwed up on standing and most flowing from that—the dismissal and the mooting—are no bueno. But SCOV does affirm some of the environmental division’s rulings (the intervention thing for example) and sends parts back to the environmental division to sort out. Have I told you not to cite these summaries in court? I hope so. In re Snowstone LLC, 2021 VT 36.
Two opinions and an entry order the "week of" May 14.
The entry order issued on May 11. Defendant—a 22-year-old—was held without bail based on several charges based on his alleged sexual encounter with a 15-year old. At his bail hearing, he argued that it wasn’t him and that the inconsistencies in the various statements meant that he shouldn’t be held. He introduced some statements that appeared to contradict the police affidavit. The trial court reasoned that the evidence from defendant was modifying evidence and ordered him held without bail. On appeal, SCOV affirms, reasoning that the trial court didn’t abuse its discretion when it concluded defendant’s evidence was modifying evidence. I will say that the inconsistencies do trouble me, though defendant allegedly confessed to complainant’s mom. State v. Lafayette, 2021 VT 38 (mem.).
Next up is a 4-1 decision dealing with a Public Records Act request. Grossly oversimplified, a retired UVM professor used her UVM email to correspond with journals with which she had an editorial role. She did this both before and after retirement. For some reason, U.S. Right to Know (USRTK) a nonprofit public-health research organization, wanted these emails. After getting shot down at the admin levels within UVM, USRTK filed suit. Summary judgment went to UVM. On appeal, a majority affirms, reasoning that the emails were not “produced or acquired in the course of public agency business,” but were related to private activities. Justice Eaton dissents reasoning that the majority builds “a bridge too far” in classifying the emails as not being within the scope of public records. U.S. Right to Know v. University of Vermont, 2021 VT 33.
To round out this week’s triad, we have an issue with ANR stormwater regs, a deadline, a waiver, and an objection to the waiver. Spoiler alert: the deadline’s waiver stands and SCOV affirms. I’d get into it more, but I’m lazy and I’m taking the day off. Also, I apparently have an aversion to environmental law. I should probably talk to a professional about that or something. In re Champlain Parkway SW Discharge Permit, 2021 VT 34.
May started off slow with a simple but important lesson. If you’re going to practice law, you need to be responsive to your clients. A lack of responsiveness could lead to sanctions. Respondent was feeling some dissatisfaction with the practice of law and did a turtle of sorts—he did not respond to clients despite their repeated attempts to contact him. The Professional Responsibility Board received complaints about the lack of responsiveness from clients, staff, and other lawyers. SCOV notes that some of the matters respondent is responsible for are time sensitive and that respondent seems to have gone AWOL in many respects. SCOV appoints a trustee to help respondent get his affairs in order and immediately suspends respondent’s bar card. In re Carris, 2021 VT 32 (mem.)
April 30th was a busy week. Five opinions and one entry order.
We’ll start with the entry order. This is fairly simple. Defendant argues that the trial court erred in holding him without bail because the state didn’t introduce enough evidence of intent on a second-degree murder charge. Long story short, running an airport shuttle bus in the direction of a state trooper that gets caught on a cruiser cam is probably going to be enough to get a hold-without-bail order. That’s what SCOV does with this one anyway. State v. Book, 2021 VT 31 (mem.).
Next up, we have a case dealing with state retirement benefits. And I guess the lesson here is to fill out your beneficiary-designation forms. Husband in this case did not. When he died, his accumulated contributions went to his estate. His widow filed for his retirement allowance and other benefits and was turned down. Ultimately, she filed several claims in court related to, grossly oversimplified, the benefits that she would have been entitled to had the proper forms been filled out. An important point here is that an estate can’t be a dependent beneficiary, which means that the retirement allowance—with widow not being designated—gets kept by the fiduciary. The trial court granted the State’s motion to dismiss. Widow appeals. The majority affirms, reasoning that widow’s statutory, breach-of-contract, and breach-of-fiduciary-duty claims fail to state a claim. Chief Justice Reiber dissents in part, reasoning that widow’s breach-of-fiduciary-duty claim shouldn’t have been dismissed because there was a viable argument for it. The communications from the retirement system weren’t exactly clear (for example, the docs do say that the benefits will go to the estate if no beneficiary is designated but fail to explain the import (see above) of that event) and we’re a notice-pleading state. Baldauf v. State, 2021 VT 29.
Third, we’re dealing with expungement of escape-from-furlough convictions. I’ll make it simple. According to the majority, the trial court should deny a motion to expunge an escape conviction, even when the Legislature has decriminalized the conduct underlying the previous convictions and when those potentially expungable convictions form the basis for a habitual-offender charge because the underlying conduct is still unlawful. This isn’t exactly an easy issue. SCOV says: “At the outset, we acknowledge that the disputed language is not a model of clarity and could be read to support either petitioner’s or the State’s position.” Remember Bill Clinton’s “it depends what the definition of ‘is’ is” statement? That’s pretty much where the majority opinion goes. Here’s another quote: “The dictionary provides the example: ‘The child never smiles or laughs’ . . . The two conditions follow a verb made negative by its preceding adverb, and thus the ‘or’ effectively becomes an ‘and’: the child never smiles and never laughs.” (at least while reading this opinion). For the dissent, “or” retains its traditional meaning as a conjunction providing an option. In the dissent’s view, the trial court should get to whether expungement in this case is in the interests of justice. State v. Turner, 2021 VT 30.
Fourth is an opinion dealing with the “Vermont Public Utility Commission’s (PUC) decision establishing the avoided-cost price caps and parameters of the 2020 standard-offer program.” Allco Renewable Energy Limited (+1) argues “the PUC failed to make a required annual determination that its pricing mechanism complies with federal law, and that its 2020 standard-offer request for proposal (RFP) was invalid because the market-based pricing mechanism used in the standard-offer program violates federal law.” If you understand that on a more-than “those are words and appear to make a sentence” level, congratulations. I don’t. SCOV rejects the arguments and that’s all I’m going to say about that. As SCOV warns: “A general understanding of applicable federal and state law is critical to understanding the facts and issues in this case.” It’s Saturday morning and we’re not going there. In re Allco Renewable Energy Ltd, 2021 VT 28.
Fifth, we have another case dealing with the underlying convictions that support a habitual-offender conviction. Petitioner filed a post-conviction-relief (PCR) complaint and the trial court denied it. He appeals on three primary issues: (1) that a 2005 predicate conviction (for a 2009 habitual-offender enhancement) lacked a factual basis; (2) that he didn’t verbally enter a plea to three of his 2009 convictions, rendering them invalid; and (3) the trial court skipped over some of his issues it ought not have. SCOV is not persuaded and reasons: (1) he waived his right to challenge the 2005 conviction when he pled to the enhancement in 2009; (2) the verbal plea wasn’t necessary in context; and (3) the PCR court wasn’t required to address issues raised at argument but not in his amended petition. There’s more to it than that, as always, but you’ll have to wait for the full-length summary for the extra nuance. In re Lewis, 2021 VT 24.
Finally, we have an opinion dealing with Miranda and a smattering of evidentiary claims. Defendant was convicted on two counts of sexual assault on a minor. He appeals, arguing that statements he made to police should have been suppressed based on Miranda. He also argues that the trial court’s limiting of cross and exclusion of two witnesses was an error. Defendant was interviewed by two detectives in an unmarked car at his workplace. He was sat in the passenger seat with an unlocked door and he was told he was free to leave. One of the detectives lied to defendant about what a supposed witness saw. Defendant maintained his innocence throughout. SCOV reasons that defendant was not in custody and that the detectives were not so coercive as to render defendant’s statements involuntary. Defendant also argues that he should have been able to cross-examine his ex (the victim’s mother) more and that two witnesses should have been allowed to testify about his ex’s attempt to get on the deed to his property and her statement that she’d make his life a living hell if he ever broke up with her. On the more-cross point, SCOV reasons that there was no error and defense counsel even wrapped up before the last time limit of the day (which makes getting into the next day more difficult). On the other witnesses’ statements points, SCOV reasons that though the statements were likely admissible, defendant failed to preserve his claims of error and that there’s no plain error here. State v. Lambert, 2021 VT 23.
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