June and Half of July

What a week, huh? Check on your neighbors. 

Somehow, SCOV issued an opinion this past Friday. There were two opinions and a published entry order on July 7th. We’ll start with those.

First up is a weird procedural scenario. A gentleman goes to trial, is found guilty, and then the court dismisses the case for speedy-trial violations. Huh? The state appeals and SCOV reverses, reasoning that although COVID-related delays are attributable to the state “we will accord those delays very little weight in this case.” SCOV reasons that the bulk of the delays were for “normal” or “neutral” reasons. SCOV also reasons that defendant’s assertion of his speedy-trial right wasn’t aggressive enough. Finally, SCOV also reasons that defendant never established actual prejudice in this case. Ultimately, while SCOV finds the 45.5-month delay significant, it also concludes that the factors do not weigh in defendant’s favor and reverses and remands. State v. Labrecque, 2023 VT 36.

Next up, we have an evidentiary case about foundation for admission of a blood test in a civil-suspension proceeding. You might think that this would go the state’s way as so many of these things do. You’d be wrong. Here, because the only thing is a throwaway line in a form affidavit, SCOV concludes that there was insufficient evidence to establish that the blood sample was taken in accordance with DPS rules. No adequate foundation, no admission of the blood test results, and defendant wins—reversed and remanded for entry of judgment in favor of defendant. State v. White, 2023 VT 38.

Our third case—the entry order—for last week is simple enough. Disbarred in New Hampshire? Also disbarred here. No details other than that. In re Wellman-Ally, 2023 VT 41 (mem.)

This week’s opinion is primarily about what constitutes eluding in the context of DUI on an electric scooter. Defendant was convicted of felony DUI4 and eluding a police officer based on an incident where a police officer saw defendant on a sidewalk with an electric scooter and approached defendant. Defendant appeared to be impaired. When the officer turned around, defendant took off on his scooter. Police officer later tracked down defendant. Bottom line is that officer saying “hang tight” on the sidewalk (and defendant scooting away—pun totally intended) doesn’t meet the elements of the eluding statute. SCOV reasons that “because defendant did not fail to bring his vehicle to a stop when signaled to do so by an enforcement officer, the State cannot prove defendant violated the statute.” There are some evidentiary and voir dire arguments covered in this case as well, but none of them get defendant any relief. Oddly enough, there’s no discussion of whether an electric scooter is even a motor vehicle. I feel like this case could make a great sitcom episode. State v. Colehamer, 2023 VT 39.

On to the wrap-up for June. There were two opinions on Friday, June 30th, and—do not ask me how because I swear they weren’t there last time I checked—two opinions on the 16th of June.

We’ll start with the older opinions.

First we have a juvenile case. This is a CHINS-B or lack of proper parental care case. Based on one incident of physical punishment (dragging the kid by the arms), the trial court concluded that the child was without proper parental care. SCOV reverses, noting that the trial court’s finding “stretches the CHINS-B definition too far.” It’s possible something else might hold up in this scenario, but not CHINS-B. Could I say more? Yes. Will I say more? Nope. Here’s the link. In re J.N., 2023 VT 34.

Next up, we have a real dog fight. Husband and wife—well, ex- husband and wife—got divorced and the family division awarded the family dog, Zola, to wife. Husband appeals, arguing that he got cut off at the hearing and the trial court’s analysis about Zola was faulty. The majority affirms, reasoning that there were no errors. Justice Cohen and Waples dissent, reasoning that the trial court exceeded the scope of its authority in considering best-interests factors. The dissent would reverse and remand for findings consistent with the permissible dog-division factors. I do note that the majority says the dissent “strays” and I’m not sure if that’s an intended pun or not. I know I’d have a hard time not sneaking puns in on this one. Probably a good thing I’m not a SCOV law clerk. LaRivere v. Shea, 2023 VT 33.

Moving onto the past week, we begin with a worker’s comp opinion that asks the question whether a statute shifts the burden for covering lost wages from a prior to current employer is constitutional. The answer? It is, at least according to SCOV. Not a whole lot to see here, folks. Mahmutovic v. Washington County Mental Health Services, Inc., 2023 VT 37.

Our final opinion for June is a 38-page romp through solar contracts and land purchases that my gnat-like attention span can’t handle. Here’s the upshot: some of Mr. Beldock’s claims—and a defendant’s counterclaim—shouldn’t have been dismissed on summary judgment because questions of material fact exist. Same on an unjust enrichment claim. Is that a thorough and complete analysis of the issues in this case? Not even close. But you gets what you get. Beldock v. VWSD, LLC, 2023 VT 35.

Our June 9 opinion is straightforward. The bottom line is that if the legislature wants to get rid of the statute of limitations (SOL) for a civil claim—as it did with child-sex abuse claims—then it can do so. Defendants have no vested right in a SOL defense. Plaintiff filed a suit after the legislature removed the SOL, as alluded to above, for child sex abuse. Under previous iterations of the SOL, the case would have been time-barred because the events alleged happened in 1983 and retroactivity previously ended at 1984. Defendants moved to dismiss, arguing that the retroactivity violates due process under the Vermont Constitution. The trial court denied the motion and defendant filed an interlocutory appeal. On appeal, SCOV cites to a handful of cases from the 1800s—the ones that had the reporter’s name in the cite—and distinguishes a case from Utah that came to a different conclusion. Ultimately, SCOV reasons that the legislature gonna legislate and that SCOV ain’t gonna interfere with this one because civil “defendants have no vested property interest in the expired limitations period.” A.B. v. S.U., 2023 VT 32.

June 2 was another one-opinion week. This time, we’re dealing with employment law and discrimination and retaliation. Plaintiff filed suit against their former employer, the University of Vermont Medical Center. Plaintiff worked in the histology laboratory and was a senior histotechnologist (the link is in case you’re like me and don’t know what that means without a quick search). Anywho . . . plaintiff had some medical issues during their seventeen or so years working at UVM and received some leave and accommodations for those medical disabilities. Eventually, in 2017, plaintiff ended up with a new supervisor from the ranks and there was some new tension in that relationship from the change in the dynamic. Plaintiff also had some issues with a senior coworker. There were performance issues and emails and such about those. Plaintiff reasoned that the discipline and their lower review ratings were for their disability and their race. Shortly—a few months—after raising these concerns, plaintiff was terminated. The trial court found that plaintiff had failed to make out a prima facie case for disability discrimination but that the timing of the firing—shortly after plaintiff complained of racial discrimination—established a prima facie case for retaliation. But the trial court also concluded that employer had given legitimate nondiscriminatory reasons for termination and plaintiff had failed to show that those reasons were false. Accordingly, the trial court granted summary judgment to defendant. Plaintiff appeals.

On appeal, SCOV reasons that the trial court got it right. While plaintiff was able to meet the relatively light burden of showing facts that permit an inference of retaliation, employer was able to give legitimate nondiscriminatory reasons for termination. At that point the burden shifted to plaintiff to prove that employer was lying about those reasons, and well, plaintiff wasn’t able to do that. As always, there’s a lot more to it than that, but I’m tired and sick of writing so “you get what you get and you don’t get upset.” The trial court gets affirmed. Hammond v. Univ. of Vt. Med. Ctr., 2023 VT 31.