2021 Wrap-Up (It's About Time)

Not even close
By Andy Delaney

Well, this is long overdue. As I have said before, you get what you pay for around here. Maybe I should say something more like, You gets what you get and you don't get upset. Let's wrap up 2021. I'll do 2022's first post in a few minutes.  

SCOV issued its last published entry order for 2021, appropriately, on December 21st.


While I could do a “Night Before Christmas” theme here, I’m hoping to have a fighting chance to plead my case when I end up at the gates of hell, so we’ll skip it this time. Defendant and his ex-wife (complainant) were trying to co-parent their young child and that included defendant sometimes staying over at complainant’s place. Defendant decided to crawl into bed with complainant and put his hand in her underwear. Complainant woke up, told him “no,” and pushed him away. There were text messages following up that appeared to confirm what happened. Complainant reported the incident to the police and defendant was charged with some hefty offenses. He was held without bail after the court considered the evidence and weighed the factors under the statute. He appeals. SCOV affirms. SCOV reasons that the trial court properly found that the evidence of guilt was great and that at least one of the offenses with which defendant was charged is a life-imprisonment offense. So defendant stays locked up. State v. Rivera-Martinez2021 VT 96.      


Two opinions on December 17th.


First up, we have a case that—reading between the lines—stands for the proposition that procedure can be unforgiving. And the appellate realm can be a bit of a black hole when dealing with a post-conviction-relief proceeding (PCR). Here, petitioner filed a PCR, arguing there was a plea deal nobody told him about. Sometimes that will be ineffective assistance of counsel. But here, the state moved for summary judgment and petitioner didn’t file a response—for a really long time. So, the trial court finally granted summary judgment to the state, reasoning that defendant testified at trial and there was nothing in the record to indicate an Alford plea was on the table (convenient Wikipedia link if you don’t know what that is. And if you don’t know, don’t feel bad. A good friend of mine—a career public defender in California—heard about it the first time from a mutual friend about two weeks ago). Petitioner immediately filed a motion to set aside the judgment and the trial court denied that motion. Petitioner then appealed the summary judgment ruling in favor of the state but not—and this is important—the denial of the motion to set aside the judgment. SCOV says, “Thank you for playing. You lose.” SCOV reasons that because petitioner tried to do an end run around the denial of the motion to set aside the judgment, SCOV won’t even touch it. I half expected a Robinson dissent, but she’s not involved in this one. In re Piquette2021 VT 95.


Our second and final case—haha “final case” seem a bit dramatic, but we’ll go with it—for the week is another prisoner case and also heavy on the procedure. Mr. Davey’s furlough was revoked and the DOC didn’t tell him about his hearings, moved things around, and more or less blamed him for it. Understandably frustrated, he filed a habeas corpus petition. Well, the trial court reasoned he had another statutory option to pursue and therefore didn’t qualify for habeas. It’s a mess—as SCOV points out—but SCOV ultimately agrees and affirms. To its credit, SCOV does note: “The facts petitioner alleges—many of which the State does not dispute—reveal a bureaucracy that comes very close to the sort of ‘procedural mockery’ we have previously warned against.” Cold comfort to Mr. Davey, I’m sure. In case you’re curious, footnote 1 tells us that Justice Robinson was present for oral argument but did not participate in the decision. While I half expected a dissent on the last one, I fully expected one this go-‘round. Davey v. Baker2021 VT 94.   


One opinion December 3rd.


I’m entertained, in part, by this one because of the factual and legal posture. Allco—for the sake of clarity and brevity, we’ll just call Allco a solar company—started some site work for solar-generation projects before getting a certificate of public good. Now, because I’m not steeped in the regulatory morass that is the solar-generation-regulatory framework, my first thought is, “That’s good. Be prepared. Good thinking.” But, apparently that’s a no-no. So, Allco got sent to its room, and told to think about what it done, while the Public Utility Commission decided on a punishment. Allco appeals. SCOV is not having it. There’s no final, appealable order yet, so Allco’s appeal is premature. Without a final order, SCOV ain’t about to jump into the “piecemeal appeals” arena (an aside: is that Piecemeal Pies place in WRJ still open? That place is pretty good). SCOV dismisses the appeal. FinIn re Allco Renewable Energy Ltd.2021 VT 92.


Just one opinion November 19 and a short one at that. 

The better half of a decade ago, Mr. Shannon was a two-time felon when he got charged with a whole bunch of crimes—lucky number 13—and based on a threat from the State that he’d be sentenced as a habitual offender (potential life in prison), he pleaded out to all of them: no contest to three felonies and deferred sentences on no-contest please on the remaining ten charges. Well, it turns out that he would not have landed in the habitual offender bucket and nobody caught it at the time. So, he filed a post-conviction-relief proceeding and got his plea thrown out. Now, in the meantime, he’d completed the deferred sentences on the ten other charges, so naturally, he wanted to keep those expunged and get his credit for that. So he filed a motion arguing that the deferreds don’t get modified in the PCR and the trial court went with it. The State got its knickers in a twist because if Mr. Shannon gets his plea reversed, then the whole thing should be reversed and Mr. Shannon should be back where he was before he entered the plea. SCOV disagrees with the State. The trial court doesn’t have any jurisdiction to modify the deferred sentences, so they stay intact. In re Shannon2021 VT 91.


Two opinions on November 12, 2021.


First is a case about the interplay between no conviction, sealing, and expungement of a criminal charge and public records requests. Long story short, a request for expungement is not limited under the applicable statute in this case only to cases where no charges were filed. The trial court went the opposite direction and SCOV reverses. The wrinkle here is that there were pending public records requests when the trial court ordered the files sealed. State v. A.P.2021 VT 90.


Second, we have an attempt by grandparents to get a guardianship going in the probate division on the eve of parents’ rights being terminated in the family division. DCF managed to get the guardianship proceeding dismissed after some preliminary moves. Grandparents appeal. SCOV affirms. In a nutshell, the grandparents’ attempt doesn’t garner the legal support it needs to succeed. The child has been with the same family since birth and has bonded with that family. SCOV concludes that the statutes were followed and the trial court got it right. In re S.O.2021 VT 89.


 Two opinions Friday, November 5th.


First, we have a public records act appeal. I was going to write “here’s the short version” as I often do, but because in reality, that’s all I ever do, I’m going to write a long sentence about not doing my typical throat-clearing and accomplish the same purpose. Man, that’s lawyerly. Anywho . . . Plaintiff contends that the Vermont School Board Association (VSBA) is a public entity subject to the Public Records Act. He filed an action for declaratory judgment. The trial court granted summary judgment in favor of the VSBA, reasoning that the VSBA is not a public agency. Plaintiff appeals. The interesting thing here is that the VSBA is mentioned in a bunch of statutes and there certainly seem to be some good arguments in favor of it being a public agency despite its origin and “voluntary” membership nature. SCOV ultimately reasons: “In the absence of a showing that the VSBA is the means through which the state or its subdivisions performs a fundamentally governmental function,” the VSBA is not a public agency and affirms the trial court. McVeigh v. Vermont School Board Association2021 VT 86.


Second is an important criminal procedure case. If one wishes to raise a diminished capacity defense in a criminal case by expert testimony, then one must give the prosecution notice. However, if one seeks testimony like “She was three sheets to the wind” from a lay witness, that notice is not required. Here, defendant was convicted after a bench trial of unlawful trespass and resisting arrest. The judge refused to consider diminished capacity because the defense hadn’t given the prosecution notice. “Hold up,” says defense counsel, “I only need to do that for expert testimony; not to have a cop say, ‘Yeah, she was drunk’!” SCOV agrees and concludes the error was not harmless. This one gets the old reverse and remand “for further findings and conclusions based on all the evidence and otherwise in accordance with this opinion.” State v. MacFarland2021 VT 87    

And a much belated Happy Halloween!

When the kids were little, I used to wear a suit when I would take them trick-or-treating and tell people I was a tax lawyer, “Which is the scariest thing I could think of.” Lame, I know. Ask me sometime about my stepson’s strawberry joke. It’s so bad it’s good. He got a lot of candy mileage out of it when he was six.


SCOV cranked out a half dozen opinions on Friday, October 29, 2021.


We’ll start with the easiest one. If you remember the Calabrese looky-loo case from October 1 (summarized in this previous post), you’ll know that the SCOV majority didn’t specifically rule on whether the court’s admission of the defendant’s n-word statements were admissible or not. Here, in an amended opinion the majority clarifies that the trial court didn’t abuse discretion in admitting the evidence. And, I’m too lazy to play “spot the differences” here. State v. Calabrese2021 VT 76A. (If you want to play “spot the differences,” the original is linked here).


Next up is a Miranda case. In a unanimous—I always struggle with whether it’s a unanimous or an unanimous but I think a is correct here—decision on a state-initiated interlocutory appeal, SCOV agrees with the trial court’s suppression decision and in doing so, concludes that if police officers call a defendant outside of a convenience store, do a pat down, hold the defendant’s bag in their unmarked car, and question her there on the scene, that qualifies as a custodial interrogation under Miranda. Trial court suppression decision affirmed. State v. Barry2021 VT 83.


Third in the lineup, we have a strange foray into zoning laws and what I’m going to call “roommate law.” There’s a bunch of stuff going on in this one, but the bottom line is that if a zoning violation—more than four unrelated adults living in one unit in this case—ceases for 60 days or more, the statute of limitations gets a reset. Owner of the rental unit gets stuck with the violation and the college kids it rents to will have to boot one of the roommates from the unit. Starting to sound like reality TV . . . . As if tuition wasn’t expensive enough. In re 15-17 Weston Street NOV2021 VT 85.


Our fourth entry delves into a Halloween-appropriate contractual question. If a party dies during a divorce proceeding (this one was particularly complicated because husband was under guardianship, wife wanted to dismiss the divorce, and when that issue was on appeal, husband died—you can read about that appeal here), does the family division have the power to consider the stipulation for the final order that was drawn up while husband was still alive? Does the stip speak from beyond the grave? “Not in the family division,” says SCOV, but maybe in the civil division. The family division was correct in determining that it didn’t have jurisdiction. Maier v. Maier2021 VT 88.


Fifth on the docket is a case about salacious (or at least potentially salacious) text messages between a DCF supervisor and a woman who later became a DCF employee—with the texts continuing. It gets a little weird. The State gave the supervisor the boot and he appealed to the Board, which concluded that he should get a 15-day suspension instead. The State appeals and supervisor cross appeals. On appeal, SCOV says, more or less, “The Board’s opinion is lengthy but we can’t do anything with it because there aren’t any true factual findings—back to the Board with you!” That’s really it. This one gets remanded for proper factual findings and analysis. In re Ryan2021 VT 82.


Taking up the sixth slot, our final opinion of the week is about post-divorce modification of property settlements. Spoiler alert: it’s a no-go. In the stipulation, neither husband nor members of his immediate family were allowed to buy the place—it was to be sold. The whole thing is rather complicated, but after years went by and husband filed a few motions, the trial court finally relented and issued an order allowing husband to sell the house to his dad. Wife appeals, saying “That was not the deal,” and SCOV agrees. There’s a little procedural ping-pong on whether the trial court’s order were appealable (making wife’s appeal untimely) but that goes nowhere. SCOV reverses the trial court on this one. Horgan v. Horgan2021 VT 84.         


Three cases October 15th.


First is an insurance coverage case. The majority takes the insurance company’s side. Grossly abbreviated facts: plaintiff and vehicle owner are driving to the airport (plaintiff is driving), they stop at a convenience store to get gas and coffee, and as they’re walking back to the car, they both get hit by a pickup truck. Plaintiff made a claim against owner’s underinsured motorist coverage. The trial court granted summary judgment for insurer, reasoning that plaintiff was not “occupying” or “operating” the vehicle under the terms of the policy at the time he was run over. The majority reasons that this is correct because plaintiff was not “in, on, entering or exiting” the vehicle at the time of the wreck.  Chief Justice Reiber concurs with the “operating” part but reasons that in this context “occupying” is ambiguous and should be interpreted in favor of coverage. Justice Robinson joins in the concurrence and dissent. Progressive Northern Insurance Co. v. McGrath2021 VT 79.


Second is a case about boathouses and accessory structures and adding an extra story to such a structure under Greensboro’s zoning. I was chair of a planning commission for about a decade. I’m glad we didn’t have lakes to deal with. (Flood zones and such were delightful but I digress . . .) The case here stems from owners’ attempt to reconstruct their “lakeside structure” and how the environmental division ultimately dealt with the appealed-from-the-development-review-board proposal. In a nutshell, the environmental division reasoned that the structure—under the revised plans submitted to the environmental court—was an accessory structure, not a boathouse, and didn’t substantially increase the nonconformity of the grandfathered nonconforming use. Still with me? Too bad. SCOV reverses on two basic grounds: (1) the thing is a boathouse; and (2) the DRB should have a say on the revised plans. Looking for a more coherent explanation? Click the link, ‘cause you ain’t getting’ it from me. In re Wright2021 VT 80.


Our third entry for October 15 is about a realtor trying to get a commission on a property that it didn’t sell. There’s more to it than that, but the basic idea is that seller hired the Masiello agency in 2013 to sell some land. Over several years and a few different contracts, Masiello did not sell the land. When seller did finally sell the land in 2017 after all possible contracts had expired to some buyers that had looked at it (both with and without Masiello) over the years, Masiello sued buyer and seller for its commission under a cornucopia of theories. “What commission is it entitled to?” you might ask. The trial court had a similar reaction, though the Masiello agency got to make its case for one. On appeal, SCOV says—one of my favorite phrases in certain contexts, “Yeah. No.” Masiello gets no commission because it didn’t sell the property and it didn’t procure a buyer during the “tail” period. And that’s that. Masiello Real Estate, Inc. v. Matteo2021 VT 81.   

And that wraps up 2021. You can keep going by clicking here for October 8 and earlier



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