Well, I take last week off, thinking SCOV won't issue anything on the 30th: it's a holiday weekend.
So, yeah. Guess, I'd better not start any psychic hotlines.
Five opinions this immediate past week and two the week before that, which means seven super-short summaries. You could call this the "Delaney-running-with-scissors" version of legal analysis. It is a dangerous art form. Don't rely on these summaries in any legal memoranda. If I need to explain why, as they say in the south, "Bless your heart."
First, we have a case dealing with whether smoking weed off-duty for medical reasons is misconduct for a bus driver so as to disqualify him for employment benefits. And as much fun as this opinion might sound like it's going to be, you can put the Cool Ranch Doritos and peach-pineapple salsa away because we don't even get into the merits. This one turns on procedure and SCOV opines: "A motion for declaratory judgment cannot be used as a substitute for a timely appeal." Wrong path to SCOV here so we don't get to the merits. Skoric v. Dept. of Labor, 2024 VT 55.
Second, we have a criminal case. In a nutshell, defendant was convicted of sexual assault, no consent. There's a DNA-transfer issue and an issue involving the investigating officer's firing unrelated to this case. Both issues are evidentiary and because they weren't preserved below, we're in plain-error territory. Want to guess what happens? That's right, this one gets affirmed. (An aside: you can sign up for VTAJ's evidence series here). State v. Labrecque, 2024 VT 54.
Our third case is a construction case. Essentially, plaintiff wanted to challenge the awarding of a contract to another bidder when plaintiff thought the other bidder didn't meet the criteria. Now, normally I'd go into more detail but the basics are this: plaintiff sued but did not get a preliminary injunction and when the construction was almost finished, the trial court reasoned that the case was moot. SCOV more or less does the same. American Environmental Inc. v. Burlington School Dist., 2024 VT 59.
Fourth, we take a little side trip to cannabis-regulation land. Applicant went for social-equity status when he applied for a cultivation license. Social-equity status applies for folks who were incarcerated for cannabis-related offenses or who are members of populations historically adversely affected by cannabis possession (or something like that; this isn't verbatim). Anywho, applicant's first try was a day in jail in Nevada for conspiracy to violate the controlled substances act. The Cannabis Control Board said, "Nah. That's not really incarceration." Undeterred, applicant said, and I am as usual paraphrasing, "Well, I'm from Humboldt County and have had a lot of adverse cannabis-regulation experiences." Again, the board didn't bite. SCOV affirms without a lot of fanfare. Pomerantz v. Cannabis Control Board, 2024 VT 57.
Fifth, we have a pretty long opinion about some challenges to the Public Utility Commission's imposition of an injunction and fines on a certificate-of-public-good applicant for starting tree-clearing and such while its application was pending. Long story short (I crack myself up), SCOV concludes both that the PUC has jurisdiction and that it was good in imposing the injunction and fines. There's more to it than that, naturally, but we've still got two more opinions to get through. In re Allco Renewable Energy Ltd., 2024 VT 58.
I'm going to sum up the sixth opinion in one sentence: cutting trees can and sometimes will remove land from the current-use program. Fulton v. Dept. of Forests, Parks, and Recreation, 2024 VT 56.
Our seventh and final case for the last two weeks gives us an order of operations in DUI processing. This is how it goes. An officer must give the results of the first evidentiary test before requiring a DUI suspect to make a decision whether to elect a second test. Here, the officer did the opposite order—asking the you-want-a-second-test? question before giving the results of the first. The trial court didn't see it as a big deal and denied defendant's motion to dismiss. So defendant took an interlocutory appeal. Well, SCOV concludes that the statute requires that a defendant get the results before making a second-test-or-not decision. This one gets reversed and defendant gets the civil in her favor and the evidentiary breath test gets suppressed. State v. Ettore, 2024 VT 52.
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