Bi-Weekly Update

Deuces

By Andy Delaney

SCOTUS issued a whopper yesterday and we'll leave it at that. 

SCOV’s offering from yesterday is far more mundane. As we all know, jurisdiction matters. No jurisdiction? No case. Here, defendant was tried and convicted. He sent a pro se motion for a new trial to his mom to file but for whatever reason, there’s no paper or electronic trail to show that. One of his pro se motions that was eventually filed was hand-dated by defendant four days after the trial, but SCOV reasons that there’s also nothing to show that’s even close to accurate. Defendant had lawyers representing him the whole time, though there was quite a bit of turnover. There was a lawyer-filed motion for acquittal or a new trial filed in the proper window. Denied. There was also another pro se motion “for mistrial” filed in the same time period. Then we end up with three notices of appeal. Then a later motion ten months-ish after the trial in December 2019. What can I say? It’s a puzzle. Defendant raises a number of issues on appeal, but because there’s that puzzle I mentioned, SCOV punts, reasons there’s a missing piece—jurisdiction—and affirms the trial court’s denial of defendant’s motion for a new trial on those grounds. How do we get there? Well, SCOV reasons that when the motion for a new trial (we’ll just call it “the one that’s on appeal” or the “December 2019 motion” for now) was denied, the case was on appeal at SCOV. Because the case was on appeal, it can’t also get the same issues litigated in the lower court (collateral issues are an exception). So, in this case, the issues raised in the December motion are the same issues that were already on appeal—meaning, SCOV had jurisdiction and the trial court did not. Defendant does raise an interesting argument—that the no-dual-jurisdiction rule is antiquated and unnecessary due to the 1974 constitutional reorganization of Vermont courts—but it gains no traction. SCOV reasons that the no-dual-jurisdiction rule has good and solid roots and it stands. The opinion concludes with a direct quote from the case defendant argues should no longer be applicable: “[W]hen a proper notice of appeal from a final judgment or order of the lower court is filed the cause is transferred to this Court, and the lower court is divested of jurisdiction as to all matters within the scope of the appeal.” SCOV affirms the trial court’s denial of defendant’s December 2019 motion. State v. Kuhlmann, 2022 VT 28.         

There was also one opinion on June 17. 

Why don’t I do family law? Here’s one of many reasons.

In a nutshell, mom and dad get divorced in 2018, but dad’s living situation changes, visitation isn’t where he’d like it to be, and mom isn’t inclined to agree with dad on the issues. This is a familiar tale. Mom is represented, though, and dad is not. Dad files a lot of motions. Mom files a motion for sanctions for all the motions. The trial court considers those motions (amongst various hearings) and ultimately concludes that there’s, among other things, an overall lack of legal and factual merit to dad’s many filings. This frustrates the trial court. It probably doesn’t help dad that he refers to the trial court as the “dishonorable court,” and takes digs at the judge, the judge’s family, and the judge’s workload. So the trial court says, and I’m paraphrasing here, “Look, dude. No more filing motions unless you get permission from the court or they’re signed by a licensed attorney. I can’t take this anymore.” There’s a bit more to it than that—including attempts to appeal other orders, missing filing fees, procedural defects, and other fun stuff. Dad appeals the sanctions order (again, among other things).

On appeal, SCOV reasons that the sanctions order (requiring pre-filing permission or attorney-signed motions) is the only thing properly on appeal and concludes that the trial court was justified in imposing sanctions but that the sanction went too far in requiring pre-filing permission or an attorney signature on every pleading because a procedure for seeking permission was not specified. SCOV starts out by noting: “Father’s three-page brief does not cite to any legal authority other than the U.S. Constitution, and his arguments are difficult to discern.” That’s a polite way of saying, “We’re stumped.” But SCOV does—after noting that its review of sanctions is for abuse of discretion—conclude that the trial court’s order needs clarification on the proper procedure for permission. SCOV also reasons that the trial court must consider the merits of father’s motions to the extent legitimate issues are raised. SCOV affirms but also sends it back for the trial court to “tailor the sanctions order to outline the appropriate procedure and standard for father’s future filings with the court.” Fox v. Fox, 2022 VT 27.