May Mixer!

It is May!

Spring has sprung!  Birds are building nests!  Squirrels are scampering on the wires!  And Lawyers are once more heading to Montpelier to partake in that annual rite of the season:

The Young Lawyer's Division Montpelier May Mixer

Here are the details to get yourself there for a swell round of socializing, consumption, and chaste companionship:

Wednesday, May 15, 2013

4:30p.m. until the Roof is on Fire (approximately 6:30 p.m.)

Capitol Plaza in Montpelier

Ethan Allen Room

(the best furnished room in the Plaza)

Hors d’oeuvres & Cash Bar

Questions?  Concerns?  Anticipatory Feedback?

Contact this man:

Austin Gray, President,  Young Lawyers Division

austin.gray@williamslawvt.com

A Modifiable Feast

By Nicole Killoran

OCS/Pappas v. O’Brien, 2013 VT 11.

Nothing explodes into a festering cauldron of prolonged litigation quite like a jurisdictional battle over children.  Unless, that is, the battle is over unpaid child support.  Today’s case is a tangled web anchored in two enforcement actions, three states, and some four or five independent questions of law.  Hold on, folks—this interstate highway is unpaved.

Math Magic

By Daniel Richardson

State v. Carpenter, 2013 VT 28

This is a sentencing case, which the majority disposes of in ten paragraphs.  Put on your hardhats and let’s get to work.

Defendant was charged with three felonies (assault and two violations-of-abuse-prevention-orders) and six misdemeanors (resisting arrest, unlawful mischief, etc.).  He agreed to a plea bargain where he would plead guilty to one felony and five misdemeanors.  In return, the State would be able to ask for enhanced sentencing under the Habitual Offender Act.  Both parties agreed to let the court determine the sentence. 

The Habitual Offender Act states that after three felony convictions, the courts can raise the sentence imposed for any future felonies anywhere from a few years above the statutory allowance to life.  In this case, the maximum sentence for the felony was three years and the maximum for the five various misdemeanors were two years, one year, one year, six months, and six months.

Derivative Explorations

By Daniel Richardson

LaMothe v. LeBlanc, 2013 VT 21

As complicated as family law can get, the core principles are pretty straight forward.  When it comes to the husband and wife, the courts are trying to be fair.  When it comes to the children, the question always goes to their best interest.

Do the right thing and take care of the kids.  Sounds simple, right? 

If you learn nothing else from reading this blog, know this: the simple is rarely easy, and cases by their specific, complex nature almost never lend themselves to straightforward applications.

Why then do we have these core principles?  Why tease us with simplicity when the whole endeavor is going to spiral into a maze of arguments and brambles?

We can see from the cases that there are really two schools of thought as to how such principles and central purposes inform a case and function within the context of the dispute. 

Law Schooled

By Merrill Bent

Hanson-Metayer v. Hanson-Metayer, 2013 Vt. 29 

Let’s talk about learning by doing. 

As with any profession, many of us who choose the legal path come, at some point, to seriously second-guess the wisdom of that decision.  For some, the existential crisis occurs in the throes of a difficult exam period.  While for others it might not happen until they lose their first case. 

—Note, the first rule of being a lawyer is:  Do not cry in court; neither the client nor the judge will appreciate your sensitivity.   

Who knows, your first crisis might even occur when you observe an unjust result from bad law or unfortunate facts. 

Then, of course, there is the first time you see your final loan calculation. 

April Departures

As has become a tradition at our blog, let us take a moment to congratulate and honor the most recent member of the SCOV to announce his retirement.

Justice Brian Burgess has announced his retirement effective August 1, 2013.  Justice Burgess was appointed in 2005 by Governor Jim Douglas and prior to that he had a long and distinguished career on the trial bench.

Justice Burgess has brought a sharp wit and sense to the SCOV, and his opinions as well as dissents are characterized by clear writing, solid logic, and the lived-in knowledge of statutory law that only comes from years of working it out in the trial courts.  Whether you agree or disagree with Justice Burgess, you can count on the fact that his position will be well-reasoned and articulate.

On a more personal level, Justice Burgess has represented the bench and our state in the best tradition of Vermonters.  He has for many, especially young attorneys, been approachable, open, and generous with his time and advice.

What more could anyone ask from a justice?

We wish Justice Burgess well in his retirement and thank him for his years of service.

---And we ask him to just remember if he gets bored to consider a regular column at the SCOV Law Blog.

We'd be happy to publish it!

You’ve Been Warned

By David Rangaviz

State v. Brooks, 2013 VT 27

With the tragic events in Boston, the eyes of the country have turned toward Miranda.

Miranda, as I summarized in a previous post, requires police to read a series of rights (“you have the right to remain silent, you have the right to an attorney … etc.”) to a suspect in custody, and then obtain a knowing and voluntary waiver of those rights, before any interrogation can proceed.  Of course, police can still question a suspect without providing the warning, but any incriminating statements made during that interrogation will later be inadmissible in court.  To obtain a useable confession, Miranda warnings must be given and the rights described therein, waived.

The surviving suspect in the Boston Marathon bombing was not initially read this warning.  It has led to a significant amount of press coverage of something called the “public safety exception,” under which police can engage in a limited unwarned interrogation when confronted with an imminent threat to public safety and still have the resulting statements be admitted.  (More detail on the origin and doctrine underlying the public safety exception can be found here and here.)

Independent Elections

By Andrew Delaney

Trudell v. State, 2013 VT 18

The lesson of today’s case is that the Vermont legislature, like Lucy with the proverbial football, can change the rules of an election and pull the “football” at the last minute—or as in this case a year before. 

The moral of today’s case is that while you may have a federal argument to prevent Lucy from pulling the football, don’t forget to bring the Vermont constitutional argument too.  And if you do, then argue it—really argue it.  Like this guy argues. 

Otherwise, it is AAUGH and a flop on your back.

In other words, if Lucy can’t move the football under the Vermont Constitution, then you really need to tell the SCOV why.  Or you may end up, in addition to the flop, on the receiving end of a double bench-slap from the SCOV.     

[S]low Rider

By Andrew Delaney

Fagnant v. Foss, 2013 VT 16

This case is about a slow bump-and-grind . . . and some serious whiplash injuries . . .

—With automobiles, that is . . . in a low-impact, rear-end collision.

In more-legal terms, this case is about how foreseeability relates to proximate cause when duty and breach have been established. 

The short answer is that it generally doesn’t. 

The Thing I Cannot Get

By Daniel Richardson

State v. Casey, 2013 VT 22

No frills, philosophical introductions, or lengthy explanations for today’s case.  It is a piece of shopcraft, the law’s version of boilermaking.  So in that spirit let’s get to the heart of things and see how it is done.

Defendant and his girlfriend were charged with multiple counts of aggravated sexual assault.  The opinion never details the facts from which these charges stem, but there are enough details and references to glean that these were horrible acts and likely involved the girlfriend’s daughter.  The trial court, quoted in paragraph 5 goes the Lovecraft route and repeats the word “shocking” to summarize the cumulative horror of the evidence in the case.