Biweekly (this time anyway) Update: March 17, 2023

Three St. Patty’s Day opinions. 

First, we have a school-choice issue. Three sets of parents sued a bunch of governmental entities because their kids didn’t get school choice by virtue of where they reside. They raised “a facial constitutional challenge to Vermont statutes that allow school districts to choose whether to maintain a public school, permit children to attend an out-of-district public school or an independent school at the state’s expense, or some combination of both.” Parents claim that the statutes violate the Education Clause and Common Benefits Clause of the Vermont Constitution. School choice can be tricky in Vermont.  

An aside: I grew up in Tunbridge in part, which had school choice for high school. I was homeschooled, and tried to argue to the Town of Royalton that had I gone to school, I could have gone to South Royalton High School and the Town should therefore offer me the yearly full-ride scholarship deal to Vermont Law School the Town had with the school since nobody else from my year had claimed it. It went nowhere but the Town did write me a very nice letter explaining that I was an idiot.    

Back to the case. After several of the defendants moved to dismiss, the civil division concluded that the parents had not presented an adequate facial challenge to the law. Parents appeal. SCOV reasons that, among other things, the parents’ individual claims of unequal opportunity for their own children are not sufficient to raise a facial challenge to the statutory scheme. But SCOV leaves the possibility of a future challenge open. “Our conclusion in this case does not end the evolution of the debate over how the state should educate Vermont children.” Vitale v. Bellows Falls Union High School, 2023 VT 15.

Our second case is a partition action. If you’ve ever had a migraine, then you know what partition is like. Plaintiffs and defendant co-owned a property with two buildings. Plaintiffs wanted to subdivide. Defendant did not. It’s off to court we go. In this case, the court followed the statutory procedure and appointed commissioners to do the formal divvying up. The commissioners ended up giving defendant the first right of assignment to buy out the plaintiffs instead of physically splitting the property. This was, in part, because the proposed subdivision could result in zoning violations. Plaintiffs take issue with that reasoning (among other things). SCOV does not find any reason, however, to disturb the commissioners’ rulings. Wells v. Spera, 2023 VT 18.

Third this week is a child-in-need-of-supervision or CHINS case. Briefly, there were some disturbing allegations that mother’s boyfriend molested C.C., who was in kindergarten at the time. Mother dismissed the allegations initially and claimed that C.C. was lying. Ultimately, the trial court found that C.C. was in need of supervision and that C.C. should be placed with father due to mother’s apparent refusal to protect C.C. Mother appeals, arguing that any hearsay statements (there’s a rule about this we needn’t get too involved with here) made by C.C. should have been excluded for the family division’s consideration. On appeal, SCOV reasons that even if you remove the complained-of statements, there was still ample evidence to support the family division’s findings. In re C.C., 2023 VT 16.  

Two opinions issued on the 10th.

The first is a housing discrimination case. Plaintiff brought suit against UVM and its housing management company because, in a nutshell, she felt that she was discriminated against by virtue of having a kid. It seems—on its face—like a legit complaint. But the case turns on how you classify the kid. If the declination to rent was “because you’ve got a kid,” then that’s problematic for the defense because, well, there are laws against that. But here, the school and its agency claimed the declination was because the apartments are student housing and plaintiff intended to live with a “nonstudent.” The trial court granted summary judgment for the defense based on the latter frame and plaintiff appeals. SCOV holds that the declination to rent was not based on familial status but on nonstudent status and affirms. Spinette v. University of Vermont, 2023 VT 12.

Our second case is a declination to certify character and fitness for an applicant that embezzled over a half million from clients while practicing in California in the ’90s (for no particular reason but “entitlement” and “narcissism”), eventually went to prison, but practiced with his suspended license first. He also failed to disclose some of this stuff on his Vermont bar application. The character and fitness committee found all this problematic. Applicant appeals, and SCOV affirms. While there was some rehabilitation shown, it wasn’t quite enough for the committee or for SCOV and the failure to disclose is always a big no-no. Applicant makes a run at collateral estoppel based on a transfer-of-UBE-score hearing, but SCOV concludes that character and fitness was not at issue in that hearing. Thus, collateral estoppel doesn’t fit. (And as an aside, in my opinion, clever (or not-so-clever), lawyerly arguments are best reserved for anything but character and fitness and disciplinary proceedings.) In re Taub, 2023 VT 13.