Three lengthy decisions this week, not one unanimous.
First, we deal with what constitutes "protected activity" under Vermont's State Employee Whistleblower Act. In a nutshell, plaintiff was fired from his position as superintendent of Southern State Correctional Facility (SSCF) for misconduct after he reported a situation where the State would miss significant savings if it didn't act timely on some facilities contracting work. Eventually, with plaintiff's participation and going over some heads, the project went through and the State got the savings. Plaintiff also advocated for more mental health professionals for the facility. In a 3-1 decision, with one justice not participating in the decision, the majority agrees with the Department of Corrections that plaintiff did not engage in "protected activity" under the statute and reverses a jury verdict in plaintiff's favor. The majority reaches this conclusion by distinguishing between reporting potential waste as opposed to actual waste. In order to qualify for protection, the majority reasons, a whistleblower has to report actual as opposed to potential waste. It focuses on the verb tense in the statute, which is in the past tense. On the mental-health-counseling front, the majority reasons (as DOC argues) that a disagreement about how to solve a known problem isn't whistleblower-protected activity.
In a lengthy dissent, Justice Cohen argues that the majority is wrong about the mental-health-staffing complaints. The dissent takes issue with the whole if-it's-known-it-can't-be-protected concept because that's simply not how the world works. The dissent doesn't really get into the waste-reporting issue but notes that the general verdict was supported and should be affirmed regardless of where one lands on that point. Potanas v. Department of Corrections, 2024 VT 31.
Next, we have disagreement over what a "consumer" is under Vermont's Consumer Protection Act. In a somewhat unique procedural posture, the Second Circuit certified the following question to SCOV: "Does a business that purchases goods intending first to lease those goods to end users and then to resell them at the termination of the lease term qualify as a ‘consumer’ under the VCPA?" This question is kicking around partly due to the Vermont Legislature's addition of businesses to the definition of "consumer" in the Vermont Consumer Protection Act, so long as the goods are bought "not for resale in the ordinary course of the person's trade or business." In a 3-2 decision, the majority concludes that a business that first leases out intending to eventually sell trucks is not a consumer and therefore the VCPA does not apply.
Briefly, plaintiff is a leasing company that bought a whole bunch of trucks from the defendant manufacturer. Plaintiff, in turn, leased the trucks to various other persons and entities, intending to sell the trucks at the end of the leases. The manufacturer told plaintiff its emission-control systems were awesome. Contrary to manufacturer's representations, the emission-control systems were not. In fact, they were garbage. Plaintiff sued manufacturer in federal court. Long story short, the Second Circuit ultimately threw the is-this-a-consumer? problem to SCOV to figure out.
The majority reasons that the selling-at-the-end-of-the-lease thing excludes plaintiff from the definition of consumer under the Act. Because of this, the majority concludes that plaintiff is not entitled to protection under the Act and answers the certified question in the negative.
Chief Justice Reiber, joined by Justice Waples, dissents. The dissent points out that "lease" is not the same as "resale" and that the majority's conclusion is not in the spirit of the VCPA. "Because plaintiff’s primary purpose for the purchase was to lease the trucks, and the eventual resale was merely incidental to this goal, plaintiff qualifies as a consumer with respect to these purchases. In concluding otherwise, the majority conflates the meaning of lease and resale in a manner contrary to the VCPA's text and its remedial purpose." The dissent reasons that the only purpose of the exclusion is to exclude transactions when the primary purpose is to purchase goods for resale. The majority looks way into the future to jam a square peg into a round hole (my paraphrasing). Because plaintiff is a "consumer" under the plain and ordinary meaning of the statutory language, the dissent would answer the certified question with a "yes." RSD Leasing Inc. v. Navistar International Corporation, 2024 VT 33.
Finally, we turn to criminal law. The so-called "year-and-a-day" rule is a common-law rule that says if one is to be charged with murder, the act alleged to be the cause of death must have occurred within a year and a day of the victim's death. Here, defendant shook his five-week-old daughter in 2001 causing severe neurological injuries. He pleaded no contest to an aggravated domestic assault charge and served 10 out of 15 years of his sentence. His "plea agreement provided that the 'State will not bring any further charges that are on file at this time.'" In 2016, defendant's daughter died, ostensibly from the injuries from the shaking. In 2022, the state charged defendant with second-degree murder.
Defendant moved to dismiss for lack of a prima facie case. He also argued that the prosecution was barred by double jeopardy, the year-and-a-day rule, and his plea agreement. The trial court deferred ruling on the prima-facie-case argument, concluded that neither double jeopardy nor the plea agreement barred the prosecution, but concluded that the year-and-a-day rule did and dismissed the case.
The State appeals. It argues that the year-and-a-day rule is old and dumb.
First, the State argues that the Legislature abrogated the year-and-a-day rule when it enacted the murder statute with no limitations period. The majority explores this issue and concludes that the Legislature did no such thing. The dissent, by implication, agrees.
Second, the State argues that even if the Legislature didn't abrogate the year-and-a-day-rule, SCOV should. The majority first reasons that it can do so and then reasons that it should do so. Briefly, medicine has advanced, we don't do capital punishment in Vermont, and the presumption is arbitrary. Accordingly, SCOV abrogates the year-and-a-day rule. The dissent expressly agrees.
Third, the State argues that abrogation should be retroactive and apply to the defendant's prosecution in this case. The majority agrees. And this is where the majority and dissent part ways. The majority reasons that the ex-post-facto bar does not apply to this factual scenario and concludes that retroactive application of the rules does not result in a situation where previously non-criminal activity is now criminalized.
Turning to the remaining issues, the majority chooses not to take up the prima-face-case issue, leaving it for the trial court on remand. The majority also concludes that neither double jeopardy nor defendant's plea agreement bar the prosecution. There's a pretty good discussion on double jeopardy and what does and doesn't constitute prosecution for the same (or subsumed within the other) offense. On the plea agreement piece, the majority points out that the plain language of the plea agreement ("on file at this time") doesn't bar a subsequent prosecution for murder after the victim dies. Accordingly, the majority kicks it back to the trial court for further proceedings.
The dissent, penned by Justice Eaton with Justice Cohen joining—as alluded to above—takes issue only with the retroactive application of the abrogation to this case. The dissent reasons, "The only fair, just, and appropriate resolution in this case is to abrogate the year-and-a-day rule purely prospectively without applying the change in the law to this defendant." The dissent notes that both Vermont and other jurisdictions apply changes prospectively only under appropriate circumstances. The dissent also notes that prospective application is not in conflict with federal precedent either. State v. Roberts, 2024 VT 32.
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