Welcome to 2022

Happy New Year? 

By Andy Delaney

2022 has brought us four opinions thus far. 

The ultimate question for January 21st's case is whether petitioner has standing to bring his case, but along the way we get into expungement and corrections law. Petitioner is in the custody of the DOC. As an aside, I think that could make a good outlaw country song: Custody o’ the D-O-C.

Petitioner got a few felonies expunged. Worried that the DOC would still use his expunged convictions against him, he tried to get DOC to say it wouldn’t. DOC said, “Yeah, no. We can—and will—keep using those convictions against you.” Petitioner was classified high risk and DOC stuck to its guns. Petitioner appeals to SCOV (this case is somewhat unique because it’s a direct appeal from the DOC).

On appeal, DOC argues that petitioner has no standing because even though it said it could have used the prior convictions at petitioner’s staffing, it didn’t actually use them, so no harm, and no standing. Petitioner claims they totally used them. And there’s the rub. The record isn’t developed enough for SCOV to determine whether DOC improperly used expunged convictions to classify petitioner. So, this one gets sent back to DOC for further factual development. In re Bruyette, 2022 VT 3.

Two opinions Friday, January 14. And one entry order that got snuck in from January 5.

We’ll start with the entry order. This is a hold-without-bail appeal. Defendant—you guessed it—was charged with potential-life-imprisonment offenses and held without bail. On appeal, he argues that the state had no authority to move to hold him without bail without a change in circumstances (he was already being held for failure to make bail), and even if it did, the trial court abused its discretion when it didn’t consider whether to impose bail when it found he met the requirements of the hold-without-bail statute. The first argument goes nowhere, but the second argument gets some traction. Here’s the bottom line: when a statute gives the court discretion—as the “may” in the hold-without-bail statute does—then not exercising that discretion can be an abuse of discretion. SCOV reverses and remands for the court to at least consider whether to impose bail and conditions of release. You know the phrase, “Just because you can doesn’t mean you should”? Well, when it comes to a trial court’s discretion, sometimes the opposite is true. State v. Waterman, 2022 VT 1 (mem.).  

Moving on to the January 14 couplet, we start with an appeal from an environmental court decision dealing with construction of a firearm training facility in Pawlet. Pawlet sued the landowner for zoning violations and he got stung to the tune of $46K and change. On appeal, landowner argues he had a valid permit, some exhibits were improperly admitted at

the merits hearing, and his fines were excessive. On appeal SCOV reasons that even assuming that one of the permits issued later covered the activities, the permit was issued after an unappealed notice of violation for an unpermitted use and so the after-the-fact permit wouldn’t apply. On the exhibits, SCOV reasons even if one of the exhibits was admitted in error, it was harmless. Finally, SCOV notes that the fines were only half the potential fines, so that doesn’t go anywhere. Pawlet v. Banyai, 2022 VT 4.   

Next up we have a legal malpractice case, with an environmental court overtone. In a nutshell, the case stems from plaintiff’s previous lawyers’ defense of an environmental enforcement action relating to dry cleaning chemicals on his land. The trial court granted summary judgment for the defense. On appeal there are two things the plaintiff claims he should not have been sum-jayed on: the former lawyers’ failure to raise: (1) a statute of limitations defense or (2) a proportional liability defense. On both points, SCOV reasons that even if the former lawyers had raised these defenses, they would have failed as a matter of law. No causation, no damages, no reversal. Estate of Daniels v. Goss, 2022 VT 2.

Will I make regular updates this year without skipping three or four months at a time? Stay tuned!