August 2, 2024 (With a July 23 EO): Five on Friday

This has to be one of my favorite
I-am-not-impressed photos ever

By Andy Delaney

This week, SCOV cranked out five opinions and posted an entry order from a week and a half ago. As far as published opinions go, this week might be the busiest of the year thus far. It could be that the summer clerks are finishing up the summer's work, which is mildly depressing because I feel like summer started yesterday. But, as so often happens, I digress . . . . 

We'll kick things off with the entry order. This is an appeal of a hold-without-bail order. Defendant is charged with four felonies and eight misdemeanors. One of the felonies—sexual assault, no consent—carries a potential life sentence. All the charges stem from situations involving defendant's wife and their son. Allegedly, defendant left a note in his wife's gas-tank door threatening to kill her and the kids after a relief-from-abuse order issued. Defendant didn't challenge that the evidence of guilt was great. And despite defendant's lack of a criminal record, the trial court found that defendant had not overcome the presumption that he should be held without bail. On appeal, SCOV finds no abuse of discretion. This one gets affirmed. State v. O'Grady, 2024 VT 44 (mem.)

On to yesterday's opinions. The first-of-five selection is an appeal from judgment as a matter of law on causation. Plaintiff was running on the left side of an unmarked fifteen-foot-wide dirt road. Defendant driver—driving in the same direction but on the right side of the road with a truck and trailer—overtook plaintiff. "As the truck passed plaintiff, driver looked in his side review mirror and claims he saw plaintiff move back to his right, towards the road’s center, and get struck by the trailer." Plaintiff didn't remember anything from the impact. At trial, plaintiff presented expert testimony from a forensic engineer about the driving, the width of the vehicle and trailer, how the trailer hit plaintiff, and potential negligence, but the expert wasn't able to point to where plaintiff would have been in the road when he was passed. At the close of plaintiff's case, the trial court granted judgment as a matter of law. On appeal, SCOV affirms, concluding that under the facts of this case, expert testimony specific to causation was necessary and was not provided. Driscoll v. Wright Cut & Clean, LLC, 2024 VT 49. 

Next up, we have a constitutional challenge to the child-protection registry and the administrative-review process. While this is an important opinion and I encourage you to read it in its entirety, I'm going to skip the facts and get straight to the point. SCOV concludes that the administrative-review process—which plaintiff-appellants tried to bypass by filing a complaint in the civil division that was dismissed—is constitutionally sufficient. Because one of the parties' substantiation was reversed (during that administrative-appeal process), SCOV dismisses that part of the appeal as moot. The other party is, SCOV opines, free to go through the full process and challenge his substantiation that way. SCOV affirms the trial court's dismissal of the complaint. Lowell v. Department for Children and Families, 2024 VT 46.

The third decision this week is a an appeal from a professional responsibility board one-year-suspension-and-one-year-probation sanction for several violations of the rules, mostly dealing with trust accounting, but also delving into other areas. I've said this many times: professional responsibility is a different animal. In some situations, admitting fault can hurt your case. However, in most professional-responsibility cases, admitting fault is the best thing for your case. Now, I don't ever suggest that anyone admit fault if there is none, but in the professional-responsibility setting, clever or technical arguments will kill you. I won't delve into the facts or the violations here. You can read the opinion yourself. But I will say that on appeal, respondent argues that his rights to due process were violated and some of the hearing panel's findings were not supported by the record. SCOV disagrees and is not impressed. The majority doubles the suspension: "Given the number and type of violations, respondent's lack of cooperation and remorse, and the harm caused by respondent's action." Ouch. But wait, there's a dissent? Yes, and it doesn't get better for respondent. Justice Carroll reasons disbarment is more appropriate than a doubled suspension. Sometimes the most effective appeal, like a cross-examination, is the one that isn't made. In re Watts, 2024 VT 48. 

Our fourth case this week deals with ripeness. In the legal world, this doesn't mean that a fruit or vegetable is ready to eat or that something smells bad, rather it deals with whether a court can review a case. A case isn't ripe unless there's an actual controversy. This particular case deals with a now-twice-dismissed declaratory-judgment action filed by plaintiff landowners against the town to determine who has the authority to maintain and repair legal trails on the plaintiffs' land. In a nutshell, the town had been saying it had a right to maintain and repair the legal trails on plaintiffs' property though it hasn't yet taken concrete action to do so. Though the trial court twice dismissed the claim as unripe, SCOV reverses the dismissal, reasoning that the town's asserted right to maintain the legal trails on plaintiffs' property is "a sufficiently concrete threat of physical invasion and interference with plaintiffs' asserted right to control who enters or alters their property." And so, SCOV sends it back to the trial court for further proceedings. Justice Waples, in a very short concurrence, notes that this case is right about the outer limit of what constitutes ripeness. I really want to make some jokes about gym shoes now. Echeverria v. Town of Tunbridge, 2024 VT 47. 

Fifth and finally is a case about the seizure and civil forfeiture of a dog. Many of us just love dogs, as Mick Thomas illustrates (NSFW). Chad, a Siberian Husky, was left by defendant in his car on hot days on three occasions that resulted in police involvement. Chad's owner was charged with animal cruelty and, as a condition of release, Chad was surrendered to the police department. The state proceeded with civil forfeiture, and the trial court found—by clear and convincing evidence—that the state established that defendant engaged in animal cruelty, and ordered that Chad be civilly forfeited. Defendant appeals. He argues that (1) Chad was not seized pursuant to any of the statutory definitions of seizure but by a criminal condition of release and therefore the court lacks subject-matter jurisdiction; (2) the state failed to prove animal cruelty by clear and convincing evidence; and (3) that the trial court allowing an officer to give an opinion of the internal temperature of defendant's car was in error. SCOV does not address the first argument on the merits, concluding that it was waived because it wasn't raised below. SCOV reasons that the evidence presented below met the clear-and-convincing standard and rejects defendant's assertion that the state was required to show a continuing deprivation of food and water. Finally, SCOV reasons that even if it assumes that the officer's temperature estimate was error, there was plenty of other evidence—including a specific temperature reading on a day other than the day the officer estimated—that would support the trial court's findings. Any error, if error at all, was therefore harmless. State v. Washburn, 2024 VT 45.