The you-must-be-really-bad-at-counting-to-call-this-a-monthly(ish)-update Update

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I'm slacking on keeping this site updated. It's gone from weekly, to monthly, to pretty-close-to quarterly updates this year. Sure, I'm busy. We all are . . . but I'll strive to do better. Well, actually, let's go with "update the site more frequently." Better would violate the spirit of this blog.    

Two opinions this past week, issuing on October 8. 

Plaintiff is a correctional-facility resident, presumably not of his own volition. One day, during his required sex-offender-treatment programming, he turned to a fellow inmate and made (according to plaintiff) a wisecrack about "escape" in response to a group leader's question. I have to mention here that were I in plaintiff's DOC-issued slippers, I would likely make the same joke. The joke did not land well. Plaintiff was cuffed, segregated, and booted from the program. He was supposed to get a hearing but didn't. DOC put together a laundry list of reasons why plaintiff was getting kicked out, including the escape comment. Plaintiff went through channels trying to get back into programming, but didn't get back in. So, he filed a Rule 75 (aka review of governmental action) complaint arguing that booting him from programming was punishment and he should have at least gotten a hearing. The trial court ultimately granted summary judgment for DOC. On appeal, a unanimous SCOV reverses and remands, reasoning that factual disputes exist and neither party is entitled to summary judgment at this stage of the proceedings. Rose v. Touchette2021 VT 77.   

Next up is a challenge to remote hearings. Father's contact with children was limited by the court after a relief-from-abuse hearing to weekly telephone calls. Without going too far into it, there was an incident where father allegedly absconded to New York with the kiddos and mom had to get the police involved. Father attempted to call in to the court but the call was dropped and when he called back, the judge caught him up on the testimony. The trial court issued the order. Father appeals, arguing that he was denied due process in the hearing and that the trial court's order is not supported. "Look," says SCOV, "You could have shown up. That was an option. You weren't denied due process by choosing to call in to the hearing." On whether the order was supported, SCOV defers to the trial court's factual findings and affirms. Peachey v. Peachey2021 VT 78.

One Article 11 opinion issued the week of October 1.

This one is about a bullet that was found off to the side of defendant’s girlfriend’s driveway during an officer’s-choice combined welfare check and follow-up visit after an alleged incident where defendant supposedly ordered some folks off the property at gunpoint. And I say alleged with some emphasis because there were a few different stories about what happened. The latter part—the follow-up looking for the bullet—causes some issues.

Defendant filed a motion to suppress. The trial court denied it. Trial, convictions, appeal—y’all know the drill.

The majority, led by Justice Robinson, first deals with standing. Here’s the short version. A defendant has standing under Article 11 if the defendant has an interest in the thing or place seized—so long as it’s possessory, proprietary, or participatory. That last one’s pretty broad. Here’s an example: Assume Cinderella’s glass slipper was full of cocaine and the castle was in Vermont. If the po-po had seized that glass slipper and charged Cinderella with possession with intent or something, Cinderella might have standing to challenge the seizure itself due to her participation in the unlawful activity. (But under federal law, she likely wouldn’t have standing.)

Next, the majority concludes that the police officer—presumably walking down the driveway as part of a welfare check, but really looking for evidence of the alleged assault a few days earlier—when he “found” the bullet exceeded the limited scope of the license he had to perform the welfare check. In doing so, the majority overrules 2019’s deer-jacking-peeking-in-the-garage case where the majority went with “the man” and said it was cool for police officers to go peeking in people’s garages looking for evidence of nefariousness.

Because the officer here exceeded the scope of his license, his while-I’m-here . . . looky-loo gets the bullet suppressed and the case remanded for a new trial without the offending bullet.

Apparently, defendant’s probation officer testified that defendant used the infamous n-word referring to the complaining witness at trial. The majority cautions the trial court that—while it’s not ruling specifically on whether defendant’s statement should have been kept out or not—the trial court should be damned careful allowing that kind of testimony and should be sure that it weighs the probative value against the prejudicial effect, like that rule says.

Justice Eaton dissents. Justice Carroll joins him. The dissent argues that the bullet was in plain view, assuming defendant even has standing here. The dissent also sees nothing wrong with admitting defendant’s n-word statement and would affirm defendant’s convictions. State v. Calaberese, 2021 VT 76.  

Only one opinion the week of September 24, but it’s an interesting one.

If you’ve had even tangential contact with the criminal-defense community in Vermont in the past 40ish years, then you’ve likely heard of Article 11 of the Vermont Constitution. It’s a big deal because Article 11 is Vermont’s search-and-seizure corollary to the Fourth Amendment. But where the Fourth Amendment provides a foundation of sorts, Article 11 builds a whole house above it. It’s why, in Vermont, no-trespassing signs protect your pot patch, err, I mean your reasonable expectation of privacy that you wouldn’t have under the “open fields” doctrine of federal law. It’s why the gummint can’t do a low flyover to get a warrant to search your property for the aforementioned pot patch. It’s why the cops here can’t go through your (opaque) trash bags for evidence of a grow operation to get a warrant without having a warrant first or go rifling through a backpack within a car—even when the police potentially have a warrant or other good reason for searching the car. All the cases that illustrate these examples (and a few more for good measure) are cited in this opinion. Simply put, Article 11 provides a lot more protection, sometimes, than the Fourth Amendment can or does under federal law.

This week’s case puts that concept in stark relief. The defendants here were stopped by Border Patrol on a so-called roving patrol. Border Patrol (BP) searched the car and found some pot and ‘shrooms. BP handed the evidence to local law enforcement on the proverbial silver platter. And defendants were charged in state court. The BP search did not comport with Article 11. The defense filed a motion to suppress and dismiss. Without getting too far into the weeds, the trial court judge reasoned that “the Vermont Constitution does not apply to evidence seized by federal officials pursuant to their exclusive federal authority to safeguard the border and independent of state actors.” Nice loophole, huh?

The SCOV majority (Justices Cohen, Robinson, Reiber) expressly holds “that where federal border officials on roving patrol obtain evidence in a manner that violates Article 11, that evidence may not be introduced at trial in a state criminal proceeding.” That’s the punchline. There’s a lot more to this opinion and it’s worth a read, but it’s a beautiful day and I’m going outside as soon as I finish off this post. This one gets the ol’ reverse and remand.

Justice Carroll dissents, joined by Justice Eaton. The dissent argues that the evidence was lawfully seized as a function of BP’s protection of the borders and that the trial court got it right. There’s more to it than that but we only do the highlights here. State v. Walker-Brazie2021 VT 75.

September 17 was also a one-opinion week.  One is the loneliest number . . . .

This one covers an important point. Since February 2013, when you’re filing any type of medical negligence case, you must—not “should” or “ought to” or “should consider”—must include a certificate of merit. There is one exception to the requirement when the “court determines that expert testimony is not required to establish a case for medical malpractice.” Personally, I wouldn’t rely on it. In addition to yesterday’s decision, there’s this one and also this one (where the plaintiff sent a doctor’s opinion with the demand but failed to include a certificate of merit with the complaint). A certificate of merit—a one pager that says, more or less, “I talked to a doctor and the doctor said my case was legit”—is a strict jurisdictional requirement according to the SCOV and when it mixes with the statute of limitations, you can end up, well, SOL.

The underlying case here is for wrongful death because of the medical and mental health care decedent received—or didn’t receive—while in custody of the Department of Corrections. The trial court was equivocal about whether the case fell into the it’s-totally-obvious exception to the certificate-of-merit requirement and declined to grant defendant’s motion to dismiss, leading to this interlocutory appeal. The SCOV majority holds that plaintiff’s claims, because they’re based on a breach in the standard of care, required a certificate of merit with the filing of the complaint (there was an amended complaint but we needn’t get into that because the determination is made at filing). Accordingly, the majority holds that the case was not filed correctly and the defendants’ motion to dismiss for lack of compliance with the certificate-of-merit statute should have been granted. This effectively ends the case.

Justice Robinson concurs with the majority for several claims where expert testimony was clearly required, but notes that some of the claims involve allegations of malpractice that would be obvious to a layperson. That’s where Justice Robinson departs from the majority, opining that the on-their-face obvious claims are “rare instances where expert testimony is not required” and should survive the motions to dismiss. And Chief Justice Reiber joins Justice Robinson in her concurrence and dissent. Estate of Bittner v. Centurion of Vermont, LLC2021 VT 73.

While there were zero opinions the week of the 10th, eight opinions issued on Friday, September 3rd. Reminds me of a terrible eighties song.

Anyway, as before, I’m going to rip through these and enjoy the sunshine today.

First up, speaking of sunshine, we have an appeal on what constitutes a “single plant” for purposes of solar generation. Portland Street Solar doesn’t like that the Public Utility Commission determined that its proposed solar-generation facilities fall under the single-plant rule for purposes of determining capacity. There’s a lot of regulatory mumbo-jumbo—30 pages of it, in fact—if you’re into that sort of thing. The bottom line is that SCOV defers to the Public Utility Commission and affirms the single-plant finding. In re Portland Street Solar, LLC2021 VT 67.

Our next case deals with whether a prison healthcare contractor is subject to a public records request on the lawsuits it’s settled. At the trial-court level, the contractor got summary judgment in its favor. SCOV concludes that the contractor was an instrumentality of the DOC and reverses and remands for the trial court to figure out whether an exemption applies. Human Rights Defense Center v. Correct Care Solutions, LLC2021 VT 63.

Third is a case about telecommunications and the scope of conditions that may be imposed on a carrier applying for certification under the Federal Lifeline program. Turns out that, according to SCOV, requiring a free handset to all customers is not one of the conditions that the Public Utility Commission can impose. SCOV reverses and remands this one also. In re TruConnect Communications, Inc.2021 VT 70

Fourth, we have a case that  lets landlords—or more accurately, their insurers—off the hook if they don’t know about a dog’s vicious propensities. The landlords live in Arkansas. Their former tenant found a replacement tenant. Turns out the replacement tenant needed a new place in part because his dog had bitten a kid in the face, but the landlords didn’t know that. When the dog bit a woman and caused serious injuries, she sued the landlords and the tenant for negligence. The trial court granted summary judgment in the landlord’s favor because the landlords had no actual notice of—and made no discernable inquiry as to—the dog’s vicious propensities. SCOV affirms. There’s a bit more to it than that, but we’ve got a lot to get through today. Higgins v. Bailey2021 VT 62.

Fifth on the docket is another solar case. I’m going to be very brief. A slim SCOV majority reverses and remands this one because it concludes that significant portions of the Public Utility Commission’s rationale for denying  petitioner’s application for a certificate of public good were not well grounded. Justice Cohen, joined by Chief Justice Reiber, dissents on grounds that the Public Utility Commission had good reasons for its determination.  In re Apple Hill Solar, LLC2021 VT 69.

Our sixth opinion for September 3, 2021, is an Act 250 appeal that isn’t really an Act 250 appeal. SCOV holds that a quarrying operation on less than an acre of land in a municipality without permanent subdivision and zoning bylaws doesn’t require an Act 250 permit. And that’s the gist of it. That’s what the environmental division determined and SCOV affirms. The rest of the issues are kinda moot. In re Snowstone, LLC2021 VT 72.

Opinion seven is about whether a late-disclosed—and excluded—entrapment defense is ineffective assistance when—in the majority’s view—not enough evidence is presented at trial to support it. The trial court granted summary judgment, reasoning that even if trial counsel erred, it wasn’t prejudicial. No big surprise here that a SCOV majority affirms. We all know that post-conviction relief is tough. Also, not too surprising that Justice Robinson dissents. And Chief Justice Reiber joins her. The dissent reasons that there was enough evidence at trial to support an entrapment defense (the informant was a friend and said she was in pain and needed defendant to help her out with narcotics). In re Hernandez2021 VT 65.

Finally, opinion eight deals with discretionary functions of DCF and proximate cause. In a nutshell, the trial court granted judgment as a matter of law after trial based on a loose interpretation of DCF’s discretion under various statutes. Whereas DCF has to investigate all reports, here it investigated some and didn’t investigate others. Here, the trial court reasoned that there was no way for the jury to come to a conclusion on proximate cause without speculation. A SCOV majority affirms. Chief Justice Reiber (surprising me again today) dissents. He reasons that this was not an appropriate case for judgment as a matter of law (or JMOL as the cool kids say) because “the jury should have decided whether plaintiffs’ injuries were proximately caused by the Vermont Department for Children and Families’ (DCF) failure to respond to numerous reports of suspected abuse.” Stocker v. State2021 VT 71.

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Description automatically generatedThree opinions issued on Friday, August 27 (with an entry order snuck in on Wednesday the 25th).


We’ll start with the entry order. This is—surprise, surprise—a hold-without-bail order. Defendant appeals. You know when SCOV starts an order with the defendant’s current 10-11 active charges, his potential habitual offender status, and that the court held a weight-of-the-evidence hearing, the defendant likely is not going to win this round. The three-justice panel affirms the trial court’s decision to hold defendant without bail. State v. Tarbell2021 VT 68 (mem.).


Next up, we have an opinion on double jeopardy and probation conditions. In an unusual move, SCOV agrees with defendant on both points. Defendant was convicted of two counts of aggravated sexual assault based on the same act. SCOV reasons that when two subsections of the same statute require proof of the same facts such that one subsection is essentially a lesser-included offense of the other, then there ought not be two convictions on the same set of facts. Reversal for the defense, with instructions to the trial court to pick the one it wants to stick. Bonus points if anyone can identify the case that sounds reminiscent of a failed video-rental chain and tends to be the case that often controls in these double-jeopardy situations. Justice Robinson concurs but notes that the majority’s reasoning could be problematic with distinct aggravating factors leading to multiple convictions for the same act under subsections of the same statute. She encourages the legislature to act. SCOV also knocks back a probation condition that didn’t have findings, reasoning that the trial court can revisit that issue and straighten it out. State v. Hovey2021 VT 64.


We also have a case dealing mostly with juvenile procedure. C.L. appeals on a few different procedural and substantive grounds, arguing that he should be returned to his mom’s care. In a somewhat lengthy opinion, SCOV affirms the trial court in all major respects. In re C.L.2021 VT 66.


Finally, we have a criminal case dealing with the admissibility of videos under the “silent witness” doctrine. So, read this one if you’re looking at introducing video evidence in court because this case speaks about what’s necessary to authenticate surveillance video—and I have to assume the same standard is going to apply in civil cases (at minimum you need some testimony about how the video was made and transferred to the witness). Here, the police officer who testified about the video wasn’t enough to get it in. The majority reverses and remands for a new trial. Justice Eaton, joined by Justice Carroll, dissents, reasoning that the video was admitted in error but that it was harmless error because the jury would have had good reason to convict defendant without the video. State v. Hiltl2021 VT 60.   


One opinion on August 20, 2021.


Where to begin? I think of Vermont as a neighborly state. That’s probably because I’ve not yet had awful neighbors—or a serious dispute with a neighbor. This week’s case is about a long-running—and when I say long-running, I mean like 30-plus years because some of the parties prevailed on adverse possession claims filed in 2012—dispute over a neighborhood on a private road called the Welch Loop. Because this is a summary, I’m not going to outline every claim and counterclaim. The present case involves plowing charges, private nuisance, trespass, prescriptive easements, retaliation for the 2012 suit, timber trespass, and abuse of process. It’s a lot to unpack. Mr. Rogers would throw up his hands on this one. For the most part, defendant prevailed on his counterclaims in the trial. One important point in this opinion is SCOV holds: “that a sustained and intentional campaign to annoy a neighbor by interfering with the use and enjoyment of the neighbor’s property can amount to a private nuisance.” While this broadens the scope of private nuisance to a degree, SCOV limits the application to those intentional and continued courses of conduct that go beyond occasional annoyance. Another interesting point in the opinion is that even though the counterclaims were brought by defendant as trustee of a trust, technically, and the trust wouldn’t have standing to pursue the personal claims, the parties all understood that the counterclaims were really being brought by both by defendant in his individual capacity and as trustee. It helped that the parties all articulated this understanding on the record before trial, even though a formally amended counterclaim complaint was never filed. SCOV invokes Rule 15(b), which as you likely know is the pleadings-conform-to-the-evidence-presented-and-impliedly-tried-issues provision in the Rules of Civil Procedure. Those are the highlights. If you have a property-dispute case, I encourage you to read the whole thing as there’s a lot of helpful-to-clarifying-property-claims discussion in it. Jones v. Hart2021 VT 61.        


One opinion Friday, August 13 and one entry order Thursday the 12th (I'm not sure why I feel compelled to point out that the Thursday before Friday the 13th was the 12th, but I do).


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Description automatically generatedI don’t even understand the caption of the opinion. But I’ll attempt to break it down. Allco is a renewable energy provider. It doesn’t like that the Public Utility Commission (PUC, which makes me think of Puck from MTV’s The Real World, but as always, I digress) awarded two contracts to Green Mountain Power under the standard-offer program. While SCOV does explain what that is, I’m not going to. Let’s just say it’s magic and it involves money. Sometimes I picture myself as Calvin’s dad from Calvin & Hobbes when I’m explaining this stuff. At any rate, Allco argues that the PUC was wrong in determining that the proposals submitted by Green Mountain Power on behalf of an undisclosed independent developer were proper provider-block projects (another term that I will not deign to explain). SCOV goes through the by-necessity-ultra-boring analysis and ultimately defers to the agency’s interpretation of its statute. Now there’s something I actually remember from law school. In re Investigation to Review the Avoided Costs that Serve as Prices for the Standard-Offer Program in 2020 (Allco Renewable Energy Limited & PLH LLC, Appellants)2021 VT 59.


Our memorandum opinion for the week is a criminal case, and more specifically, a hold-without-bail appeal. Defendant is charged with attempted second-degree murder stemming from a fight in public followed by a gunshot. The kicker? It’s all on camera. Defendant was held without bail. On appeal, he argues that the trial court was required to consider the strength of the State’s evidence as well as his potential defense of self-defense. SCOV says, and I am paraphrasing here, “Yeah, no.” SCOV reasons that the requirements for a hold-without-bail order aka a “HWOB” are met here and defendant remains in the pokey awaiting trial. State v. Vialet2021 VT 62 (mem.)

Nothing August 6. One entry order July 30th. 

In a sentence, the trial court needs to do a little bit more before defaulting to the old hold-without-bail order. The issue in this case is that defendant was accused of some horrific crimes and held without bail in July 2018. Time passed. Then the pandemic came. Then some more stuff happened. And here we are. Throughout the time he was held without bail, defendant filed motions to be let out on bail. SCOV looked at it once or twice and said it was okay. Eventually, this year, he filed a motion to be let out with round-the-clock electronic monitoring. And here’s where the trial court’s discretion gets pushed back on a bit. Here, the three-justice panel reasons that the trial court’s reasoning doesn’t hold up as well when the proposal is for 24-7 electronic monitoring. SCOV concludes that the trial court needed to hold an evidentiary hearing and consider whether the electronic-monitoring proposal affects defendant’s due-process arguments. Back to the trial court for this one. State v. Lebrecque2021 VT 58 (mem.)      

There were three orders issued the week of July 23, but it’s more like one opinion and two notes.


The first entry order establishes a trustee’s authority in an ongoing license suspension. Nothing much to see here, folks. In re Carris2021 VT 55 (mem.)


The only real opinion is a constitutional issue dealing specifically with Vermont’s luring-a-child statute. Appellant was convicted of luring a child because he tried to get someone he thought was a fourteen-year-old boy (but was really a taskforce law-enforcement officer) to meet up and perform a sex act on defendant. After his conviction, he argued that the statute was an unconstitutional infringement on his right to free speech and that the statute was void for vagueness. I can’t say I’m disappointed that SCOV rejects these arguments. Perhaps defendant did not have a lawyer that went to Harvard in the 1970s. There’s a probation conditions issue too. It’s about restrictions on where defendant may live. That piece does get sent back for findings because there were none in the first place. State v. Masic2021 VT 56.


Our final entry order is a one-paragraph note that the luring-a-child statute doesn’t violate the First Amendment like SCOV just said above in the Masic case. State v. Curtis2021 VT 57 (mem.)


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