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| This week's opinions could not be more divergent. |
There were 2 opinions this week, and more different from one another they could not be. Imagine being a SCOV justice. One minute you’re deciding what violence actually is, and the next minute you’re considering administrative procedure in the context of cannabis. What a time to be alive.
Let’s start with State v. Cody Shores, 2025 VT 62. This is a bail appeal. Generally, the vast presumption in criminal cases is for the imposition of bail. That’s because bail is meant to make sure people show up for court. It’s not to punish people. It’s not to make Reddit commenters happy. It’s to make sure people show up. But, there are times when there isn’t a presumption in favor of bail, and that generally has to do with felonies where there is an element of violence. (There’s another category of hold without bail, but it’s not relevant here so we’ll skip that for now.)
So, Mr. Shores was charged with Lewd and Lascivious Conduct with a Child. The State sought to have him held without bail, but the court declined citing the Vermont Constitution, and indicating this is not a violent offense within the relevant constitutional provision. Spoiler alert, SCOV decided to overrule some precedent and make L&L with a Child a violent offense for bail purposes.
The opinion itself is a really nice analysis of the Vermont Constitution and also the interplay between the constitution and statutes. Long story short, SCOV notes that the legislature tried to make L&L with a Child violent for bail purposes by amending the statute and saying, “for bail purposes, this is violent.” But the legislature can’t just do that if it doesn’t jive with the constitution. The problem here is that the constitution doesn’t define violence, so we have to look to SCOV to know what “violence” means, constitutionally-speaking.
SCOV considers the fact that there’s an oppressive power imbalance between kids and adults who perpetrate upon them. The whole point of the L&L with Child statute is meant to prevent sexual exploitation of kids. And while the statute itself doesn’t necessarily say “violence,” that’s really what this is. So, for bail hearing purposes, SCOV says it’s within the Vermont Constitution to hold people accused of L&L with Child without bail.
Next up we have In re Holland Cannabis, 2025 VT 61, which is also a very nice opinion in terms of a thorough explanation of administrative procedures and due process for licensing hearings.
Here’s what happened. A cannabis manufacturer called Holland Cannabis sought and was granted a license by the Cannabis Control Board. A condition of having a cannabis license is that a licensee has to follow the rules, and among other things, needs to comply with inspections. I could swap out “cannabis” for almost any other licensed endeavor and the framework is pretty similar. The whole point of licensing is to ensure public safety and that the licensee is doing what they need to do to follow various rules and regulations. And before anyone screams, “but we have too many regulations!” the answer is maybe that’s true but also regulations are often in place for our protection. You’ll see why in a moment.
In 2023 there were complaints about Holland Cannabis. As it turns out, their product contained a banned fungicide, which made it unsafe for human consumption. Do we want producers of our food and other products to use harmful chemicals that might hurt us? No. How do we deal with that? Regulations.
Holland was served with several violations relative to the banned fungicide. They had the right to a hearing. Ultimately, these violations were resolved with a corrective action plan, among other things. And this makes sense – if a producer is producing but messes up, it makes sense to give them the opportunity to make changes and keep their business going with those changes in place.
But in 2024 there were samples taken of Holland products and the fungicide was still detectable after testing. A retailer also submitted some Holland products for testing and the fungicide was detectable. This suggested that not only did they not take corrective actions, but they kept using the banned fungicide.
A violation was served and the board held a hearing. The board suspended Holland’s license. Holland appealed to an appellate officer, who affirmed the board below. Holland appealed to SCOV, who affirmed the decision below. In short, SCOV must uphold the board’s finding absence a showing of substantial rights prejudiced by the finding. SCOV found that procedure was properly followed. The board held a hearing and interpreted the relevant statute. The board’s concern was for public safety. Although Holland argued no one was injured by the fungicide, the broader concern was that there was a threat to public safety by the continued presence of the banned product. SCOV gives deference to a board’s decision where the board is the subject-matter expert.
There were a few other points of error raised by Holland. They wanted the board chair recused from the case because of some public statements the chair is said to have made, thus making the chair not impartial. But SCOV finds there was no evidentiary hearing in the matter. There was also an evidentiary issue, but SCOV finds it was not properly preserved. (Pro tip: object til they tell you to shut up. Then object again. Preserve that record!) Last, there was a separation of powers argument, but SCOV says this was inadequately briefed, so this wasn’t considered.
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