Our first opinion, issued May 1st, deals with the right to counsel in a DUI arrest. Mr. Eaton crashed his car, got arrested for DUI, and was taken to the station. The officer read him the implied-consent rights, including the limited right to consult with an attorney under this statute. Mr. Eaton talks to on‑call counsel. Counsel asks the officer whether Mr. Eaton has prior DUIs. The officer incorrectly says yes. In reality, Mr. Eaton's prior DUI charge resolved as negligent operation. On that bad info, counsel advises Mr. Eaton to take the evidentiary test. Eaton, who had planned to refuse, follows counsel’s advice and blows drunk-and-a-half (I'm being unfair—it's one-and-a-half times the legal limit of .08, which does not necessarily translate to "drunk" but as you can see, that parenthetical isn't nearly as funny).
Mr. Eaton moves to suppress the breath test, arguing that he was denied a meaningful consultation with counsel, that his consent was coerced, and that he didn’t knowingly agree to test because everyone was operating under the wrong assumption that refusal would be criminal. The trial court, relying on this case, denied suppression. Yada, yada, yada . . . conditional guilty plea and here we are.
The SCOV majority affirms. The majority reasons that the statutory right to a consult guarantees a reasonable opportunity for a private consultation with counsel within the 30‑minute window, not accurate advice or correct criminal‑history information from police to the attorney. "Meaningful" in this context is about privacy and lack of police interference, not the content or quality of the consultation. SCOV declines to overrule prior cases, noting legislative acquiescence and emphasizing stare decisis in statutory interpretation (stare decisis is Latin for "to stand by things decided"; or, in plain English, "precedent"; or in even plainer English, "we did it like this last time and we're doing it again").
On voluntariness, the majority reiterates that the State need not prove voluntariness in every case. Only a particularized coercion claim triggers that burden. Mr. Eaton’s argument—that bad info relayed to counsel equals coercion—doesn't cut it. There's no evidence of threats, force, or deliberate misrepresentation and no authority that a negligent misstatement of prior record to counsel is coercion of the defendant. The SCOV majority also notes that consent doctrine focuses on voluntariness, not a "knowing and intelligent" waiver of the right to refuse. The breath test comes in. The conviction stands.
Justice Cohen dissents. He would hold that when an officer voluntarily provides criminal‑history information to inform the consultation, the officer must get it right. In his view, bad information from the State's agent undermines the "meaningful" consultation that the statute is supposed to protect, especially in light of ongoing emphasis on informed decision‑making. He would overrule this case and suppress the test. State v. Eaton, 2026 VT 14
On May 8, we go from criminal into what I will brand "extreme civil."
Otter Creek Solar wanted to ask Public Utility Commission (PUC) Commissioners written questions about whether they personally read the record in its CPG case. The PUC said no and denied the interrogatories, explaining that it had complied with this statute, that a final order can differ from a proposal for decision so long as parties get a chance to brief and argue, that there was no reason to think the Commissioners hadn't read the record, and that parties don’t get discovery of quasi‑judicial decisionmakers.
Otter Creek then went to the civil division under a rule of civil procedure that allows appeal from agency decisions (V.R.C.P. 74) and this administrative procedure statute, arguing that the statute gives the civil division jurisdiction to review any "discovery order" issued by an agency, including orders denying discovery. The civil division disagreed and dismissed for lack of subject-matter jurisdiction, reasoning that the statute fits into Vermont's Administrative Procedures Act as a way for "aggrieved" persons to challenge subpoenas and discovery orders that compel them to do something, not to appeal agency denials of discovery requests. The civil division also noted that PUC orders go to the Supreme Court under this statute, and that the Legislature probably did not intend "horizontal appeals" from the PUC to the superior courts.
SCOV affirms. It goes one section back (§ 809b to § 809a), reasoning that this provides necessary context. The "setup statute" lets agencies compel nonparties to testify or produce documents. The statute cited by Otter Creek, in turn, lets "aggrieved" persons (parties and nonparties) go to the "civ div" (I'm going to start using that all the time now and you should too; you're welcome) and challenge a subpoena or a discovery order that compels action. In that context, "discovery order" means an order compelling discovery; it doesn't cover an order denying a party's attempt to compel discovery from others. The PUC's order here did not compel anything, so the "remedy statute" doesn't apply and the civ div had no jurisdiction.
SCOV adds that, by-the-by, the interrogatories were out of bounds. Otter Creek was effectively trying to probe the Commissioners' deliberations—who read what, when—which runs squarely into judicial deliberative privilege and basic separation‑of‑powers concerns. Quasi‑judicial officials, like judges, are not subject to discovery about their mental processes or their internal decisionmaking. The "remedy statute" doesn’t change that, and Commissioners are not "parties" in any event.
And that takes care of that. No right to "discovery" here and the civ div gets affirmed. Otter Creek Solar LLC v. Vermont Public Utility Commission, 2026 VT 15.
On May 15, we get into voting rights, and specifically, what a "statewide" election is (and isn't).
Two Burlington voters challenged the City's charter amendment that lets certain noncitizens vote in Burlington school board and school budget elections, arguing that these votes are really "statewide" elections and thus must comply with the Vermont Constitution's statewide voter‑eligibility rule (Chapter II, § 42). The trial court granted the City's motion to dismiss, reasoning that school board elections are distinctly local in nature and that plaintiffs' "extra-municipal impacts" arguments don't carry the day.
A SCOV majority affirms dismissal of the complaint, holding plaintiffs have not shown that Burlington's school elections are "statewide" elections.
The Burlington charter provision allows "legal resident" noncitizens who live in Burlington and take the voter's oath to vote in local City and Burlington School District elections, but not in state or federal elections. Plaintiffs sought declaratory and injunctive relief, limited to school board and school budget votes, on the theory that because Burlington's budget is funded through the statewide Education Fund and can affect the statewide tax rate, these are really statewide "matters that concern the State of Vermont" under the Vermont Constitution.
On appeal, the majority takes a 2023 local-elections-under-the-Vermont-Constitution (Ferry) case a step further. As you know from our previous one-paragraph summary, the case stands for the general idea that the statewide-vote clause does not apply to local elections. But our previous iteration did not explicitly draw the line between local and statewide issues. Here, the majority draws it: an election is local if it concerns a question the Legislature has actually and lawfully delegated to local government; it is statewide if the question has not been delegated or cannot lawfully be delegated. So, "Touching any matter that concerns the State of Vermont" is read as "matters concerning state government as opposed to local government," not "anything and everything with extra‑municipal effects."
Applying that framework, the majority notes that Vermont's education statutes give local districts and their voters authority over their own school programs, boards, and budgets—including the Burlington School District's annual education budget. The State is responsible for ensuring equal educational opportunity statewide while still allowing delegation of day‑to‑day and budget decisions to local districts. The current statewide funding scheme (Education Fund, statewide tax rates) is the State's choice about how to respond to local votes; it doesn't convert local votes into statewide elections, though, and plaintiffs didn't plead or preserve any claim that this delegation is unconstitutional under non‑delegation principles. Because the complaint attacks only the effects of school votes and not the lawfulness of the delegation itself, it does not state a claim that these school elections are statewide elections. So, the majority holds that the Burlington noncitizen‑voting provision survives as applied to school board and budget elections.
Judge Zonay, specially assigned, concurs in part and dissents in part. He agrees that electing school commissioners is a local election, but would treat votes ratifying the district's education budget as statewide elections subject to those citizenship requirements. In Judge Zonay's view, the constitutional text —votes "touching any matter that concerns the State of Vermont"—and the historical evolution from locally funded schools to the more-recent State‑funded system means that school‑budget votes now directly implicate statewide finances and governance. He criticizes the majority's new delegation‑based test and would reverse the dismissal as to the budget votes. Morin v. City of Burlington, 2026 VT 17.
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