Yesterday, someone asked an innocent enough question: "Does anyone update this blog anymore?" and I was reminded of the meme featured to the left of this post (or maybe the top of it if you're on a phone, I don't know).
I have excuses. Generally, I would have at least attempted to post these short summaries monthly, but life was busy and then I caught a mysterious virus at the beginning of November. That microscopic organism managed to keep me out of the office and in bed for the majority of two months. Last week was my first full-time week back in the office since the beginning of November.
"But, Delaney," you might say, "Why didn't you post anything in September or October?" And I might tell you to mind your own business.
November-December 2023
We'll start with the November-December-laid-up-in-bed collection. SCOV, luckily for my purposes, did not issue too many opinions during my mystery illness and convalescence. But there were enough opinions issued during November and December that I’m going to be even more brief than usual. Briefer than usual? Less words. I will be using less words.
On November 9, 2023, a lone opinion on the nuances of sentence reconsideration. Here, Mr. Rodriguez was given a sentence much closer to what the state asked for than what he asked for. The trial court, importantly, considered some uncharged prior incidents of violence that the complaining witness testified about, finding that those incidents had occurred by a preponderance of the evidence. On appeal, Mr. Rodriguez argues that the court shouldn’t have considered the uncharged incidents, should have considered his COVID-era incarceration conditions, and should have placed more weight on mitigating factors. The standard of review for sentence reconsideration—or denial thereof—is abuse of discretion. Any guesses as to what SCOV does? This one gets affirmed. State v. Rodriguez, 2023 VT 59.
On December 1, SCOV issued three criminal-law opinions. SCOV first explains that if a jury finds that you severely beat up your neighbor who was attempting to record a fight between you and your pregnant ex-girlfriend and “disappear” the cell phone the neighbor was using to record, your convictions for aggravated assault, attempted domestic assault, assault and robbery, and obstruction of justice are probably going to stand. And to warrant a “voluntary intoxication” instruction, you need a little more than the ex-girlfriend saying you were “pretty drunk,” especially if you’re on camera (another camera, not the neighbor’s) looking in control of yourself. State v. Taylor, 2023 VT 60.
Next, SCOV explains that when a defendant stipulates that the evidence of guilt is great, and the presumption that the defendant be held without bail applies, the trial court has a whole lot of discretion in deciding whether to allow bail. Here, the trial court didn’t allow defendant to be released on bail and a three-justice panel finds no abuse of discretion. State v. Blaisdell, 2023 VT 62 (mem.)
Rounding out December 1 with another hold-without-bail decision, SCOV explains that even if the trial court references ol’ Rule 60(b), but gives a full review of bail anyway, then the trial court doesn’t abuse discretion under the bail statutes. Not a lot more to it than that, but you can always click the link if you’re curious. State v. Brown, 2023 VT 61 (mem.)
On December 8, we have a case dealing with Rule 75 (review of governmental action) and a school district asking the civil division to stop the Human Rights Commission from investigating a complaint made by a student’s mother. The civil division found that the school district had failed to state a claim and dismissed the complaint. The school district appeals and SCOV affirms, mostly on—you guessed it—discretionary grounds. Not the same type of discretion as in bail appeals but close enough in the sense that it resolves the case. Maple Run Unified School Dist. v. Vt. Human Rights Comm’n, 2023 VT 63.
On December 15, we get what I’m dubbing the “pay-your-share-of-the-private-road decision.” In a nutshell, plaintiffs own “five of seven lots served by Purple Mountain Road,” and filed a declaratory judgment asking the court to declare that the owners be required to pay for the portion of the road that services the lots based on distance from the public road. I have no idea—and I’m way too lazy to figure out—what that would look like in this situation. Both sides moved for summary judgment and the trial court sided with the defendants, reasoning that maintenance costs should be shared equally among lots. Plaintiffs appeal, arguing that the trial court should have gone with the prorated-by-distance-from-the-public-road scheme proposed by them and that the trial court failed to consider important material facts. The majority affirms, reasoning that the trial court’s all-parties-have-full-access-to-the-entire-road-and-y’all-pay-the-same-per-lot analysis was supported by the record and the law. Justice Cohen dissents because while he agrees on the governing law, he believes there’s a genuine dispute of material fact as to what benefit each party gets from the road. Justice Cohen would reverse and remand for further proceedings. He acknowledges that everything might land in the same place, but opines that it’s premature to do so on this record. Rawley v. Heymann, 2023 VT 64.
On December 21, SCOV issued an opinion that—and fair warning, I’m being flippant here—a juvie jail is pretty much a group home. There’s a lot more nuance to it (isn’t there always?), but that framing amuses me. The Newbury Developmental Review Board denied a zoning permit for a proposed juvenile-detention facility with an exemption from conditional-use review under this statute as a “residential care home or group home” because it found that the proposed facility was more akin to a detention facility and would place the community at risk. That, my friends, is a way-too-long sentence. DCF and the landowner appealed to the Environmental Division and the Environmental Division reasoned that the proposal did fall within the exemption. So, a community group and the town appeal. On appeal, the majority runs through the definition of “group home” and disability (a required element) under the statute, concluding that the landowner is entitled to the permit and the Environmental Division got it right on summary judgment. Justice Carroll dissents, reasoning that these are not matters to determine on summary judgment and that the record needs further development. In re Vermont Permanency Initiative, Inc., 2023 VT 65.
September-October 2023
On Friday, October 27, SCOV issued one case. It also snuck in an entry order on Monday, October 23. We’ll go sorta chronologically and start with the E-to-the-O. That’s so bad. I’m going to leave it.
The entry order deals with whether a non-attorney guardian can act on behalf of a ward as a pro se litigant. SCOV analyzes the issue and concludes that a non-attorney guardian can’t do such a thing, but doesn’t end it there. SCOV gives the guardian 60 days to hire an attorney “or else” (the appeal will get dismissed). Estate of Snelgrove v. Leblanc, 2023 VT 58 (mem.)
The case for October 27 is an appeal from the Public Utilities Commission’s (PUC) denial of Allco Renewable Energy Limited’s run at a certificate of public good (CPG). Something about the acronyms in these cases makes me think that they’d read well over a Dr. Dre beat. But I—as I so often do—digress. Allco is on its third trip to the SCOV. Since 2015, Allco has been trying to get a CPG. At one point it had one, but that got reversed on the idea that the town not opposing the CPG is not equivalent to the project complying with the town plan. This particular go-‘round is based on the PUC’s most-recent denial-on-remand of a CPG. Allco argues that the PUC had to issue a proposed decision before denying the CPG. SCOV reasons that the circumstances requiring that approach—a majority of the commissioners not having participated in the decision or having read the record—doesn’t apply here. Allco also makes arguments about procedural defects (that the PUC went outside the record for evidence without notifying the parties, gave post-hoc reasons for denying the CPG without an additional hearing, and so on), improper findings and weighing the evidence, and even throws a constitutional argument in for good measure—that the PUC’s application of the applicable statutes was unconstitutionally vague and standardless, thus violating petitioner’s due process and equal protection rights. None of these arguments gain any traction with SCOV, however, and SCOV affirms. In re Apple Hill Solar LLC, 2023 VT 57 (Apple Hill III).
Two opinions issued on Friday, October 13th.
The first opinion deals with an appeal from a relief-from-abuse order. Defendant was served with paperwork the day before the hearing. He showed up to court and the judge asked him if he needed a lawyer. Defendant said he’d tried to get hold of one, wasn’t successful, and was okay with proceeding because he had “enough to prove” he wasn’t stalking the plaintiff. Oh man, I’ve heard this song before—many times. Long story short, defendant managed to get a RFA order issued against him. He hires a lawyer and appeals, arguing due process violations and other things, none of which get him very far at all. SCOV affirms without plaintiff even participating in the appeal. Poss v. Alarie, 2023 VT 55.
Next up is an appeal from summary judgment for a defendant in a slip-on-a-dangerous-sidewalk case. The only issue on appeal, however, is whether plaintiff is entitled to pierce the corporate veil of the adjacent landowner to get at the sole owner’s personal assets. Here, SCOV holds that there must be some evidence of disregard for the corporate form—gross intermingling, fraud, etc.—before the piercing starts. In this case, SCOV reasons that plaintiff didn’t come forward with any evidence of such shenanigans and so that’s it. This one also gets affirmed. Doherty v. Town of Woodstock, 2023 VT 56.
Nothing for September 15th or the 22nd, but one opinion September 29th.
This is a CHINS case with a rare reversal. I say “rare” because often SCOV will uphold the trial court’s CHINS (child in need of supervision) findings.
Not this time.
There were reports of domestic violence at mom and dad’s household and that the kids were all exposed to it. Mom had two kids from a prior marriage and two kids with her current husband. DCF got involved and the kids were taken into temporary custody. At the merits hearing, the trial judge reasoned that the court’s job was to determine whether the allegations were true and whether there was any reason under the statute that the kids shouldn’t return home.
And here’s where SCOV says the case went off the rails.
See, the standard the trial judge applied to the merits was the standard for a temporary care finding, not merits. At merits, “the court was required to determine whether the children were without proper parental care necessary for their well-being at the time the petition was filed.” SCOV reasons that this alone might be grounds for reversal, but that it doesn’t need to go there because the trial court’s merits finding wasn’t supported by the evidence. SCOV points out that “the court did not find that [dad] was violent or threatening toward any of the children or that he directly placed any child in danger.” And that there “was also no evidence that the children lacked basic necessities, medical care, or education, or that conditions in the home were unsanitary or unsafe for the children.” Because the merits finding was based primarily on the general—and nonspecific—finding that domestic violence in the home is harmful to children (something that SCOV acknowledges may very well be true), without any expert testimony or basis for the court to take judicial notice as to these kids, SCOV reverses.
SCOV also takes up a collateral issue of disclosure of certain unredacted DCF records to dad and his attorney. In a nutshell, the trial court ordered the records turned over to dad without making a required need-to-know finding. SCOV also reverses that order and orders the records be returned. In re A.O., 2023 VT 54.
No cases issued September 1st, but four cases issued on Friday, September 8.
Family law goes first. Husband and wife owned a marina on the Connecticut River. They split up and the court put a value on the property and said one could buy the other out by notification and payment of $25K up front with the rest to follow. Wife got first option. None of wife’s deadlines were met, due at least in part to motions and appeals. But husband did send a notice and check within his timeframes (and followed up after SCOV finished the first round). Wife eventually tried to exercise her option (after husband had already presumably exercised his). When the trial court eventually found that wife had waived her option and husband had exercised his, wife appealed. On appeal, SCOV reasons that automatic stays aside, nothing extends the deadlines in an underlying order. SCOV affirms the trial court’s decision. Thurber v. Thurber, 2023 VT 53.
Next up we have a probation violation and revocation appeal nearly 20 years after the fact. Defendant was convicted of second-degree murder in 1987 and sentenced to 17-to-life. In 1999, defendant was released on probation and racked up violations over the next few years. In 2004, the trial court found that defendant had committed three violations of probation, revoked probation, and imposed the original life sentence. In 2018, defendant filed a PCR, got some traction, and got permission to appeal the 2004 violations and revocation. On appeal, SCOV affirms the violation findings but remands on the revocation. The takeaway here is that relying on prior criminal history in deciding to revoke probation can constitute plain error. A revocation must focus on the relationship between the original conviction and the intervening behavior. Here, the trial court went back further and speculated that defendant could have been charged with first-degree murder. The court also opined that defendant’s history was troubling. SCOV finds plain error, noting that the court went back to when defendant was 11 years old and talked about defendant’s “life pattern” in imposing the life sentence. SCOV sends the case back to the trial court for a new probation-revocation hearing. State v. Wheelock, 2023 VT 52.
Third in this week’s lineup is a case about defamation and Vermont’s anti-SLAPP (SLAPP=Strategic Lawsuits Against Public Participation) statute. Plaintiff sued VT Digger for articles it wrote about his disputes with the speaker of the Vermont House. VT Digger filed a motion to dismiss. The judge told plaintiff to make a more-specific statement of his claims. Plaintiff filed something but it wasn’t that much more specific. VT Digger then filed a special motion to strike under the anti-SLAPP statute. In a nutshell, when a plaintiff sues over alleged damages due to a defendant’s exercise of free speech in a public forum—like a news article—the defendant can file a special motion that requires the plaintiff to show that there wasn’t any legitimate purpose to the defendant’s exercise of free speech and plaintiff suffered actual injury. If the defense wins that motion, it gets costs and attorney’s fees. Here, the trial court found that plaintiff hadn’t alleged any false statements defendant made about plaintiff, and thus that plaintiff had failed to state a claim. The trial court dismissed the case and denied the anti-SLAPP motion as moot. Plaintiff appeals and VT Digger cross appeals. SCOV affirms the dismissal but remands on the denial of the anti-SLAPP motion. Plaintiff valiantly but unsuccessfully argues that the article were hate-motivated acts based on plaintiff’s mental disabilities. SCOV doesn’t go for it. This case reminds me of this song. Wolfe v. VT Digger, 2023 VT 50.
The last case for September 8, 2023, is a termination of parental rights case, with a complicated procedural history. I’m not going to recount it other than to say that—according to the trial court’s findings—mom has some issues with mental health and substance abuse and dad floats in and out of the kids’ lives. Mom also has four other kids in addition to the two here, none of which are in her custody. Over the course of proceedings, the trial court found a newborn and older child in need of supervision and transferred the kids to DCF custody. Eventually, the court terminated both parents’ residual parental rights based primarily—though far from exclusively—on the court’s view that parents would not be able to resume care for the children within a reasonable time. Parents filed a post-judgment 60(b)(6) motion based on ineffective assistance of counsel. The trial court denied the motion, reasoning that even assuming that parents have a constitutional right to effective assistance of counsel in CHINS cases and that right was violated (a finding the court did not make), it would not change the case’s outcome. Parents appeal. The opinion is somewhat lengthy, but ultimately, SCOV reasons that the trial court’s approach was largely correct and under the circumstances, parents’ rights were properly terminated. In re K.G., 2023 VT 51.
The Last Half of August or Thereabouts
Three cases issued the week of August 18, 2023 (no opinions issued the week of August 25).
First up, we have a partition action over 100-acre parcel. Briefly, defendant's family co-owned the parcel for a long time and defendant improved the property with acquiescence and no contribution from plaintiff.
Plaintiff obtained a half interest in the land in the 1970s for $5,000. When plaintiff filed for partition, the parties waived commissioners (if you're familiar with partition, the statutory process is a bit complicated and can involve the appointment of three neutral commissioners to divvy up the property), and had a bench trial. Plaintiff proposed a division that would give him roughly two-thirds of the property and defendant the rest and most of the buildings. The way I read it, plaintiff suggested the court give him the outer circle and defendant the inner circle. The court reasoned that the plaintiff's proposal didn't make sense and further reasoned that with offsets and such, defendant should keep the property and buy out plaintiff to the tune of just south of $64K. Both parties appealed and SCOV kicked it back because the trial court had ordered a buyout but hadn't made the necessary determination that the "property could not be divided without great inconvenience to the parties."
Without much more in the way of hearings or evidence, the trial court issued largely the same order (but with the required finding). Plaintiff appeals again, arguing the trial court messed up when it-he says-put the burden on the parties to suggest possible splits; determined splitting the property up would be greatly inconvenient for defendant but didn't make a determination as to plaintiff; and that the latter finding wasn't supported by the evidence.
These arguments don't make it past the abuse-of-discretion threshold. SCOV reasons that trial courts may decline to order partition-in-kind (dividing the property itself) if it will cause "great inconvenience"—a term not defined in the statute—to one of the parties. In other words, the court doesn't need to find great inconvenience for every party involved. SCOV also does not find the burden-on-the-parties argument persuasive because the parties waived commissioners and needed to support their positions with evidence. Lastly, SCOV reasons that the trial court's decision was, in fact, supported by the evidence. Bruner v. Gee, 2023 VT 49.
Next is a somewhat-complicated legal-malpractice action that boils down to a failure-to-attempt-to-settle claim and a Consumer Protection Act (CPA) claim. The case is premised on this underlying case, involving an ultimately successful bid to terminate long-term leases for breach of a maintenance provision in the lease. There's an LLC owner and a now-defunct homeowner's association involved. I won't go too far into detail on this one other than to say that the trial court found for defendant on all counts on summary judgment for lack of proximate cause—the trial court concluded that plaintiffs could not show that the case would more-likely-than-not have settled on appropriate terms and thus could never bring it to the finish line.Finally, defendant appeals trial convictions for "aggravated sexual assault of a victim under the age of thirteen, and . . . lewd and lascivious conduct with a child." To quote SCOV, "This case has a long and complex history."
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