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| Aesop I Ain't |
I can't remember if I already used a title like this, but I probably did and probably already led with some quip about fables being a little bit of artistic license. It feels familiar. I may look it up after writing these up. Maybe I'll even edit it out and change the title. We'll see.
Or maybe I won't.
If Aesop were writing the summary of the moral of our first case, it might go something like, "That not raised is waived." Petitioner pled guilty to a habitual-offender charge in 2018. The wrinkle here is that one of the felonies supporting that charge that petitioner pled to in 2009 had a defective plea colloquy. So the trial court looked back, gave petitioner summary judgment, vacated the habitual-offender sentence and kicked it back for resentencing.
The prosecution doesn't like that so it appeals.
SCOV agrees with the State's argument, which is, in a nutshell, when petitioner pled guilty to the habitual-offender charge, he waived his ability to challenge his predicate convictions. Though there's some arguable ambiguity on this, SCOV concludes that the 2018 plea negates the collateral challenge to the underlying 2009 conviction. This one goes back to the trial court to assess petitioner's as-yet-unaddressed-PCR claims. In re Velde, 2024 VT 80.
Next fable a la Delaney. "Breaching fiduciary duty turns off the compensation tap." There's a lot going on here. Suffice to say that one out of three brothers was making financial moves (some involving his own businesses) with a jointly owned business that the other two brothers didn't like and then there were a gajillion lawsuits about it. Ultimately, the trial court ruled that the two could buy out the one, and the one was entitled to the buyout plus some loans made to the business as well as compensation he didn't pull over a certain time period. Is there more to it? Of course. But you get what you get. And you, my friend, are in long-story-short land.
Everybody appeals.
On appeal, SCOV reasons that brother one's breach of his fiduciary duties means that he's not entitled to unpaid compensation. SCOV affirms the trial court for the most part, only reversing on that entitlement-to-payments-after-breaching-your-fiduciary-duties point. Hirchak v. Hirchak, 2024 VT 81.
Time for a detour from my fable framing. When I was a kid, I had a book called How to Eat Like a Child. It was a great book. If my memory serves, the book suggested that the longest word in the English language was antidisestablishmentarianism. Until today, I never had even a questionably legitimate occasion to use that word, but it's almost what's going on with our next case. If you don't know, "antidisestablishmentarianism" is the position that the state church (i.e., the Church of England) should not be "disestablished" or separated from the government. In my mind, as a child, I had the idea that the word meant the sentiment of being opposed to the tearing down of a church. That definition would work here. The Catholic Church is deconsecrating a cathedral in Burlington and in connection with that (including the possibility of selling it), the charitable trust that owns the property applied for a permit. Neighbors were opposed to the tearing down of the church (or maybe it's more accurate to say the potential sale, but that doesn't fit as nicely with my detour here) and opposed the permit, but didn't get anywhere with it.
The summary of the moral of this fable here is not that Delaney makes up half-correct definitions for really long words (though that could work). Turning back to today's theme, we'll go with, "Wait until the time is right." Let me explain. Neighbors argued that certain religious exemptions should not apply because the church was intending to sell the property and that they should also get discovery on what the future buyer wanted to do with the property. The trial court disagreed. SCOV affirms. I'm not going to get too deep into the analysis. The gist is that the religious exemption applies until it doesn't and that neighbors don't get discovery on what a future buyer might do, well, in the future. When the time comes, they might bring an appropriate challenge. And that's that. In re Cathedral of the Immaculate Parish Charitable Trust, 2024 VT 77.
Next up we could have a lot of fun with clever quips about dogs. We'll go with "'Spot' zoning isn't permitted." See what I did there?
"Spot zoning" refers to the practice of applying zoning laws in a way that will allow the same use in some properties in a zone and prohibit it in a specific other property in a zone. It's not allowed—or if we really want to keep the dad jokes going—it's not permitted.
It all starts with a zoning violation. For years, applicant has operated a dog rescue out of her home. In September 2022, she was served with a violation notice for operating the rescue without a permit. So, she applied for an "after-the-fact" permit to continue operating her dog-rescue as a home business. The town zoning bylaws arguably allow kennels-as-home-businesses in residential zoning districts. Ultimately (we're skipping the path here, though there are a couple wrinkles), the environmental division denied the permit reasoning that applicant's operation included outdoor use and could not be a home business. The environmental division rejected applicant's "kennel" argument due to the "outdoor" use involved.
SCOV reverses on appeal. Simply put, SCOV reasons that the kennel provisions in the bylaw contemplate some outdoor use and that some outdoor use does not negate one's ability to run a home business. Having determined that applicant might be able to get a kennel-as-home-business permit, SCOV reverses and remands for further proceedings. In re Pederzani, 2024 VT 82.
Finally, we have a bar-admissions matter. I'm not sure how to put the moral of this story. Maybe we'll go with an alliterative: "Too many tries tends toward transfer trouble"? Applicant had some trouble passing the bar. Vermont is a Uniform Bar Exam or UBE jurisdiction. I so want to start talking about having to walk uphill both ways to constitutional law as a 1L and how in my day, we had state-specific exams, but I digress.
What this means is that you can transfer a passing score taken in another UBE state under most circumstances. But there are restrictions. One of those restrictions is that the passing score must "achieved within no more than 4 sittings for the UBE." One can get a waiver (under a different rule) for good cause if one needs to take the UBE in Vermont more than four times to get a passing score. Each attempt counts, no matter where taken. In applicant's case, she got a passing score in a Maine administration on try number six. Try number five was in Vermont on one of those waivers referred to above. She attempted to transfer her passing Maine score to Vermont, suggesting that the Board of Bar Examiners waive the four-attempt limitation. The Board declined to do so, reasoning that the transfer rule does not allow for waiver of the four-attempt limitation.
Applicant appeals. She makes a fair argument that SCOV can and should waive the limitation, even if the Board didn't have the authority to do so. However, the majority leads with the death knell of "We find these arguments unpersuasive." The majority agrees with the Board's reasoning and concludes that the plain language of the transfer rule doesn't allow for waiver and thus no waiver will be given. The majority reasons that there's a rational basis for the rule and thus it stands.
Specially assigned retired Justice Johnson dissents. the dissent "would hold that [the rule] which is standing in the way of [applicant]’s admission, is waivable for good cause shown and remand for the Board to consider whether she has demonstrated the requisite measure of professional competence—notwithstanding that she achieved the required . . . UBE score on her sixth, rather than her fourth, attempt." The dissent points to specifics of applicant's journey that warrant deviation from strict application of the rule when the purpose is to ensure competency to practice law. The bar exam in its various iterations, the dissent argues, is not indicative of competence to practice law (one SCOTUS Chief Justice in fact failed the NY bar seven times). The dissent would remand and allow the Board to consider waiver in this case. In re Granger, 2024 VT 79.
On a personal note, I think the bar exam is a flawed tool. On the one hand, we need a way to ensure that new attorneys possess a threshold level of competence and the bar exam is what we use for that purpose. On the other hand, the bar exam tests little more than rote memorization and a smattering of legal analysis. At least that's what it did when I took it. If an attorney were to practice law like one takes the bar exam—shooting from the hip, working exclusively from memory, sometimes guessing at the answer without necessary research—that attorney (and the attorney's clients) would be in trouble. Do I have an elegant solution? I do not. But I do think that it's a system that, applied the wrong way, lends itself to pedantry and inefficiency. Maybe this NextGen bar exam will do a better job. I hope so.
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