There were three published decisions this week—one entry order and two regular opinions. I'm covering the entry order and the zoning opinion. Kruska will be covering the criminal opinion.
We'll start with the entry order. This is the latest chapter in a case that began with prosecutor, now respondent, showing up to a crime scene allegedly under the influence of alcohol. This led to disciplinary counsel opening an investigation. Early on, after disciplinary counsel requested medical records and respondent refused to provide them, disciplinary counsel moved to suspend respondent's law license and SCOV granted that motion. We covered that here (with a lot of commentary from yours truly).
When respondent cooperated with disciplinary counsel, she got her license reinstated for a time.
But respondent has now pled no contest to DUI. Disciplinary counsel moved to suspend her law license for conviction of a serious crime. A little background is in order. SCOV has exclusive, original jurisdiction over attorney discipline and licensing. The Supreme Court's Rules and the Rules of Professional Responsibility provide an arguably loose definition of what constitutes a "serious" crime. Boiling it down to principles applicable here, if a crime "reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer," then it can be classified as serious. This is a necessary qualification because, for example, if you live in Barre and didn't take a bath yesterday, you may have committed a crime but it's not the sort of thing that reflects poorly on your fitness to practice law, just your hygiene. Yes, that joke is a long stretch. Not sorry. It's kinda what we do here.
Moving along, the SCOV majority explains that the circumstances surrounding the conviction matter. A DUI, on its own, is not automatically a "serious" crime for purposes of attorney discipline and interim license suspension. But in this case, the majority reasons, the circumstances support a "serious" classification. The majority first notes that respondent "pled nolo contendere, over the State's objection, to DUI. She did not admit her guilt." While not specifically cited in the reasoning for classification, it's reasonable to infer that the no-contest plea played some role.
Here, the majority reasons that the DUI is directly linked to other misconduct. First, respondent committed her crime while performing her duties as State's Attorney. And prosecutors necessarily must be held to a higher standard. The majority also agrees with disciplinary counsel that, in an attempt to avoid being charged with a crime, respondent committed additional professional misconduct by attempting to avoid getting charged and then asserting she wouldn't do a scheduled training because she no longer felt "safe" around the officers. Accordingly, the majority orders respondent's license suspended immediately for conviction of a serious crime.
Justice Nolan takes a different view. The dissent argues that a first‑offense misdemeanor DUI, with no dishonesty, no violence, no interference‑with‑justice element, and no recidivism, does not qualify as a "serious crime" justifying an emergency, pre‑hearing suspension. In the dissent's view, the majority cobbles together "seriousness" from role‑based outrage and contested "crime‑adjacent" statements during the arrest and follow‑up emails. In the dissent's view, this stuff belongs in a merits hearing, not in a preliminary suspension proceeding, especially since we're a good two years into this saga now.
Would the outcome have been different if respondent pled guilty and conceded more? I suspect so but I'm no expert. We'll see what happens next. In re Vekos, 2026 VT 11 (mem.)
Our next case is far less controversial.
Burlington tightened the screws on short‑term rentals in 2022 with two moves: (1) a zoning tweak that defined "short‑term rentals" (STRs) but exempted them from needing zoning permits, and (2) a housing‑code tweak that sharply limited how, where, and how many STRs could legally operate, effectively squeezing out most non‑owner‑occupied Airbnbs. Seventeen owners with twenty‑two such units—who had been running them as non‑owner‑occupied STRs—claimed those uses were preexisting, lawful, and therefore protected "nonconforming" uses that should be allowed to continue despite the new regime. They first tried the civil division and were told "wrong court, go to environmental," then filed essentially the same declaratory‑judgment complaint in the Environmental Division, seeking a blanket ruling that all their properties were grandfathered and safe from enforcement.
The Environmental Division granted the City's motion to dismiss and tossed the case for lack of subject‑matter jurisdiction. In so doing, the Environmental Division flagged a few ripeness and procedure problems. First, the Environmental Division reasoned the STR rules the owners really care about live in the housing code, not the zoning bylaw, so they may be outside the Environmental Division's jurisdiction. Next, the Environmental Division reasoned that even if jurisdiction existed, declaratory judgment is the wrong tool because deciding whether each of the twenty‑two properties is a lawful, preexisting nonconforming use would require heavy, property‑specific fact‑finding (and declaratory actions don't play that). Finally, in any event, the owners jumped the gun. Because they hadn't gone to the zoning administrator or followed the statutory appeal path, and because the City hadn't actually brought an enforcement action, any supposed harm was purely hypothetical.
And that brings us to SCOV.
In an opinion that could be titled "Come Back When Something Happens," SCOV explains that a declaratory judgment is not a 22‑unit fact‑finding vehicle. SCOV also reiterates that nobody has pulled the enforcement trigger yet. And finally—like the Environmental Division suggested—the property owners should take this up with the zoning administrator or wait for a notice of violation like everyone else. SCOV explains that the property owners can't get an advisory opinion about hypothetical fines that may or may not ever materialize.
Thus, SCOV affirms the dismissal of plaintiffs' complaint. 32 Intervale, LLC v. Burlington, 2026 VT 9.
Comments
Post a Comment