Bi-Weekly Update January 28, 2023

That's one explanation

One opinion Friday.

When I saw the caption, I thought someone had sued the televangelist Jim Baker, but it turns out “Jim Baker” is a pretty common name (who knew?) and the Jim Baker here was the Interim Commissioner of the Vermont Department of Corrections when this week’s case was filed.

So, with that out of the way, we can get to the case. This is a prisoners’ rights case filed by Mr. Myers based on his contention that excluding him from the earned-time program for a disqualifying offense violates the ex-post-facto clause of the U.S. Constitution. The trial court found that this was not the case and Mr. Myers appeals. SCOV frames it thusly: “The central question in this appeal is whether the effective date of the earned-time program or the enactment date of the statute mandating its creation controls for the purposes of an ex-post-facto analysis.” What’s that really mean? Timing matters. If the earned-time program date is the effective date, then there’s no issue with ex-post-facto application because there’s no right to participate in the program as of the date of petitioner’s offense. On the other hand, if the earlier, date-of-the-enabling-statute analysis controls, then there is a problem because petitioner—at the date of his offense—had a  . . . how can I put this . . . kinda-maybe-sorta-but-not-exactly vested right to participate. SCOV concludes that the former date applies and therefore the trial court got it right. No ex-post-facto violations to see here, folks. Myers v. Baker, 2023 VT 7.          

Three opinions last week.

First, we have an arbitration appeal. Employer expressed concern about grievant’s billing practices. In a meeting with employer and his union rep, grievant brought a couple unredacted bills generated by other employees with client information on them and said, more or less, “Look, I’m not the only one doing it like this.” Employer didn’t discipline grievant for billing but did formally reprimand him for the unredacted bills as a breach of confidentiality. Grievant brought it to arbitration and the arbitrator concluded that the offense wasn’t enough to warrant the formal reprimand and ordered that the reprimand be removed from grievant’s file. Employer filed suit to modify or vacate the arbitrator’s ruling, arguing in part that the ruling showed a manifest disregard for the law. The trial court disagreed, reasoning that in order to succeed, employer would need to show that under similar circumstances, an arbitrator must always find just cause, not just that an arbitrator could find just cause. Employer appeals.

On appeal, the majority reasons that the trial court got it right. Review of arbitration awards is very limited and—even if SCOV were to adopt employer’s “manifest disregard” standard—there was no manifest disregard of the law here. The arbitrator’s conclusion that grievant made an error in judgment and that he shouldn’t have been given a formal reprimand—but instead given a lower level sanction like informal counseling—is, in the majority’s view, consistent with HIPAA’s sanction mandate (as cited by employer). Specifically, the majority reasons that the arbitrator’s interpretation wasn’t in manifest disregard of the law. Justice Eaton dissents, saying, “The majority’s decision essentially transforms our limited review of arbitration decisions into no review.” In Justice Eaton’s view, the majority’s reasoning is wrong because HIPAA mandates sanctions for breach of confidentiality and neither employer’s policies nor the collective bargaining agreement provide for informal counseling. Justice Eaton would reverse the trial court and direct that the arbitrator’s decision be vacated. Howard Center v. AFSCME Local 1674, 2023 VT 6.       

Next up is a Vermont Constitution case. Have you ever wondered about Chapter II, § 42 of the Vermont Constitution? Me neither. But just in case you had, this is the citizenship-as-prerequisite-to-voting requirement in the Vermont Constitution. This case arises from Montpelier’s 2018 charter change allowing noncitizens to vote in local elections. Plaintiffs argue that this is unacceptable. While SCOV concludes that plaintiffs have standing to bring the case (because some are citizens of Montpelier and the charter change dilutes the voter pool), it also concludes that the Chapter II, § 42 doesn’t apply to local, municipal elections. So, Montpelier’s policy stands. This is a relatively lengthy opinion weighing in at just under 30 pages. If you like history, read this one because, as SCOV notes, “Section 42 is as old as Vermont.” Ferry v. City of Montpelier, 2023 VT 4.

Finally, we have a case dealing with what “ingress and egress” mean in the context of a deeded right-of-way. Plaintiffs sued to stop installation of underground lines across plaintiff’s property for a cell tower on defendant neighbor’s property (leased to AT&T) pursuant to a deeded right of way. Defendants counterclaimed. The trial court granted summary judgment to defendants, reasoning that defendants’ deeded “ingress and egress” necessarily included the ability to install underground utility lines. “Hold up,” says SCOV. “Ingress and egress” mean “in and out,” not “bury whatever you want.” Obviously, I’m paraphrasing and mushing parties together here. You get what you pay for. SCOV reverses and sends this one back to the trial court to deal with—among other things—whether defendants’ easement-by-necessity argument flies. Gladchun v. Eramo, 2023 VT 5.