It is that time of year again when all good attorneys head north to big city to enjoy a weekend of network, shopping, and CLEs.
That's right it's time for the annual Young Lawyer's Mid-Winter Thaw in Montreal. But listen up, there a few things to know about this year's festival in La métropole:
1. The thaw is a week early this year. It is January 10th and 11th instead of MLK weekend. So turn back your clocks, and get your reservations in now (before the reservation window closes and the early bird specials fly south)!
2. The YLD board has gone out of its way to put together a killer programs of CLEs, including the ever popular real estate seminar from First American Title. (I know, we lawyers are a dangerous breed).
3. The brunch speaker is Cardy Raper, lady scientist, biologist extraordinaire, and raconteur par excellence. She is the reason for the title above and has promised to bring the down and dirty on how the fungi get it on. (Funk music to be provided.)
4. The Thaw remains the best place for Vermont lawyers both young and old to meet, mix, and mingle. More than any other VBA event this is the networking opportunity of the year. But it only works if YOU attend!
5. $129 rooms per night!! Ten years ago, rooms for the thaw were $145. The YLD has not only kept the price down, they have actually negotiated a lower rate. That means it is actually cheaper now to go to the Thaw than it was ten years ago. That simply does not happen. And yet . . . your wallet tells the tale.
6. The Thaw is at the Sheraton smack dab in the middle of Montreal and a block away from St. Catherine's Street. The world does not get much better or easier than this.
So what are you waiting for? Sign up here and now for the best way to start 2014.
Monday, December 16, 2013
Sunday, December 15, 2013
By Sara Puls
In re Ferrera & Fenn Gravel Pit, 2013 VT 97
Life on the quaint streets of Middlebury can apparently be unforgiving—that is, when you want to open a new gravel pit.
This case all started when applicants submitted a proposal to construct a sixteen-acre gravel pit on their 71.5 acre property, adjacent to Route 116 in the Town of Middlebury. Close to the proposed pit lie residential communities, as well as several other existing “gravel-extracting” sites. Applicants’ property lies within both the Medium Density Residential (MDR) (where gravel extraction is not allowed) and the Forest Conservation District (where gravel extraction is permitted as a conditional use).
While applicants’ proposed pit lies entirely within the Forest District, the access road from Route 116 crosses the MDR zone. As a “mixed-zoning” district, the Design Review Board (DRB) consequently subjected the proposal to conditional-use review under a provision of the Town’s zoning regulations.
In October of 2008, the DRB conducted a site visit and later held public hearings for ten days in August of 2010. The following month, the DRB issued a written decision, concluding that the proposed project failed to comply with eight provisions of the Town’s zoning regulations. The DRB cited adverse effect on the character of the neighborhood, the noise-performance standard, and concerns of the cumulative impact of an additional pit in the area. Thus, the DRB opinion concluded the new pit would “disrupt the balanced diversity of uses currently in place and will disturb the essential character of the existing neighborhoods.” With that, the application was denied.
Saturday, December 14, 2013
State v. Sullivan, 2013 VT 71
On a cold January night, a police officer was driving down the road when he passed a car stuck in a snowbank, partially off the road. A short distance later, he saw a solitary woman walking down the road. The officer stopped and offered the woman a ride. She accepted and explained that the car was hers and that she had become frustrated and pulled off the road after a fight with her boyfriend.
After dropping the woman off, the officer called in to report the car off the road and his delivery of the woman to her home. Another on-duty police officer then arrived at the car and went through the glove box to confirm that the car belonged to the woman. The officer who gave the ride also went back to “the scene” and informed officer #2 where he had dropped the driver.
Let’s stop a moment and take note of what officer #2 knew and could reasonably suspect at this point. A woman had driven a car into a snowbank in the winter and gone home. There is no indication that there was damage to either the car or property. The SCOV notes that part of the car was on the travelled portion of the highway. If this constituted a safety hazard, it would seem the officer could have it towed.
The important thing is that at this point, there was no evidence of criminal activity. Moreover, it is arguable, under Vermont caselaw, to say that there was no “articulable, reasonable suspicion” that a crime had occurred. Therefore, applying the SCOV’s precedent, the officer had no basis for the subsequent detention of Ms. Sullivan. As Vermont law notes, “An investigatory detention must be supported by reasonable suspicion of criminal activity.”
Friday, December 13, 2013
Windham County Sheriff’s Dept. v. Dept. of Labor, 2013 VT 88
Roll up your sleeves, folks. Today’s case is a technical morass of terminology and Department of Labor-speak. It gets going quick.
Let’s start with the logistics. Plaintiff Employer is a “reimbursable employer,” which means that instead of paying an unemployment tax, it pays into the unemployment trust fund for payments that are chargeable to it. Generally, this means payments to former employees receiving unemployment benefits from the fund will be reimbursed by the responsible employer.
In this case, employee was fired for “theft of department equipment.” (We speculate that involved more than taking home some paperclips and pens, though the SCOV doesn’t specify.) After he was fired, employee applied for unemployment benefits. The Department of Labor (DOL) found that employee had been terminated for gross misconduct and disqualified him for benefits until he earned an additional six times his weekly benefit amount. The DOL noted, however, that the Employer would still have to pay any chargeable benefits.
State v. Tuma, 2013 VT 70
Don’t call it a rollback, but today’s case marks the first time in a long string of probable cause cases where the SCOV has been skeptical and dismissive of a police officer’s basis for an initial stop to support the suppression of the events that followed.
Cynics take note.
The facts are simple. Police Officer stopped Defendant because the passenger’s side of Defendant’s front license plate was two inches lower than the driver’s side. From this stop, the Officer noticed that Defendant was a bit hoary-eyed and ran him through the usual roadside coordination Olympics. Defendant took bronze for effort, and things ended where they mostly do with an arrest and charge of DUI.
At trial, Defendant sought to suppress all evidence of the stop because the Officer lacked probable cause. The State opposed.
Wednesday, December 4, 2013
By Sara Puls
State v. Green Mountain Future, 2013 VT 87
It’s like the old song says:
Put 'em together and who do you vote for?
. . .
Magic words often have a specific, and sometimes unintended, effect. They are often nonsensical phrases, used in fantasy fiction, requested by parents in response to ill-mannered children, and certain comic book heroes use magic words to activate their super powers. Here, “vote for,” “elect,” “support,” “cast your ballot for,” “Bob for Congress,” “vote against,” “defeat,” “reject,” or any variations thereof, were traditionally the eight “magic words” set forth by the United States Supreme Court to open the gateway to the magical world of Express Advocacy-land (which the SCOTUS locates somewhere between Tomorrow-land and the Enchanted Forest).
Here in Vermont’s mystical land of politics, today’s case is an appeal of a summary judgment decision of the trial court, which found that, even without saying the magic words, Appellant opened the door to Political Action Committee-land, and thus, violated a number of provisions of the Vermont campaign finance laws during the 2010 election.
In the 2010 general election, then-Lieutenant Governor, Republican Brian Dubie was running for Governor against the Democrat Peter Shumlin. An “issue advocacy organization” (almost entirely funded by the Democratic Governors Association) registered with the IRS pursuant to 26 U.S.C. § 527 with a stated purpose, “to communicate with the citizens of Vermont about economic, environmental, and other issues of importance without expressly advocating the election or defeat of any candidate.”
In September and October of 2010, this organization ran television ads staring, non-other than, Dubie as the champion of the ever-so-popular Vermont Yankee Nuclear Power Station. In an attempt to skirt PAC status and Vermont campaign laws, the ads did not mention the upcoming election for Governor, nor Dubie’s candidacy, and it did not urge voters to vote for a particular candidate. Rather, they just portrayed Dubie as a simple, VT Yankee-loving guy, who merely hates Vermont and wants everyone to burn in a fiery nuclear disaster. You know, we report, you decide stuff.
Tuesday, December 3, 2013
State v. Waters, 2013 VT 109
Today’s lesson in semantics comes to us via a conviction for violation of a relief-from-abuse (RFA) order.
Complainant and defendant lived together for several years and had a kid together. At some point, there was trouble in paradise, and complainant got a RFA order against defendant. The final order, as modified at the time of defendant’s charge, prohibited defendant from “abusing, threatening, stalking, or harassing complainant” and also prohibited contact with complainant except by telephone. The order also allowed for phone contact with the parties’ kid on Friday evenings and in-person contact at a visitation center.
Complainant reported to the police that she felt “harassed, bullied, and made to feel guilty” by the volume of communication from defendant. He’d apparently texted her nearly forty times and called her over thirty times during a one-month period.
So the State charged defendant with violating the harassment portion of the order, which due to this being his second violation of a RFA order, was a big, fat felony.
Knutsen v. Dion, 2013 VT 106
Today’s Ask the SCOV™ letter is inspired by a home-purchase transaction.
Apprehensive Association writes:
If we provide a form for our members’ use, can we be held liable for consumer fraud when our members modify and use that form in a transaction?
(At least in this case.)
In reality, though, it’s hard to know what to make of this case. Essentially, it’s a consumer-fraud case against a non-party (to the underlying transaction), who provided a form to its membership that was eventually turned into the parties’ purchase-and-sale agreement.
Monday, December 2, 2013
State v. Scott, 2013 VT 103
This case arises from a car accident. On his way to work, defendant—with several coworkers in his truck and at some speed above the posted limit—passed a coworker’s vehicle and collided with a third car. The driver of that car died from injuries; defendant broke his leg. Defendant was charged with grossly negligent operation of a motor vehicle, death resulting.
A deputy sheriff—certified as an accident reconstructionist by some fancy police organization—investigated the accident and did some on-site testing, which included drag-sled (a weighted sled used to measure drag on surfaces) testing and a bunch of math stuff. He concluded defendant was driving at 61 miles per hour, and so testified at trial.
Of course, defendant tried to keep that testimony out, filing a pretrial motion to exclude under Vermont’s “what-is-an-expert-exactly . . .” rule—Vermont Rule of Evidence 702. The trial court denied defendant’s motion. And so at trial, the coworkers in defendant’s truck testified and defendant had his own expert testify that the state’s expert was full of pre-processed sandwich meat. The jury acquitted defendant of grossly negligent operation, but convicted defendant of negligent operation.
Straw v. Visiting Nurse and Hospice of VT/NH, 2013 VT 102
Plaintiff worked for the Visiting Nurse Association and Hospice of Vermont and New Hampshire (VNA) as a licensed Advanced Registered Nurse Practitioner for a number of years. After an incident in which a patient’s family member made a complaint, plaintiff was fired. Do not pass “Go.” Do not collect $200.
There was an employee handbook that had some discipline guidelines. For those not familiar with Vermont employment law in general, here’s the 20-second, grossly oversimplified summary: employment is, by default, “at-will”—this means that unless the parties enter an employment contract, an employee can leave at any time for any reason, and an employer can give an employee the boot at any time for any reason (other than an illegal one). If, however, there’s an employee handbook with policies, those policies can give rise to an implied employment contract. In other words, the employer doesn’t get to say “here’s what we’re gonna do,” but then say “um, we changed our mind—see ya.”
The basic result of this law is that employers constantly generate employment material with the big bold words “This is not a Contract.” Much like Magritte’s “This is not a pipe,” such language can be a treacherous conceit.