Monday, April 21, 2014

Passive Action

Wesolow v. Town of Lowell, 2014 VT 3.

By Nicole Killoran

Today’s case offers a small lesson in what happens when citizens’ concerns get ignored at Town Meeting.

For those of you unfamiliar with this tradition, at least once a year in March the governing bodies of all 251 Vermont towns hold a town meeting. The body (usually the town selectboard) holding sway generally employs parliamentary rules such as Robert’s Rules to conduct town business. This involves, among other things, articles, motions, seconds, and votes on all manner of issues, from town business to extra-town business town citizens want to discuss.

Give it a Go

In re. S.C., 2014 VT 7.

By Nicole Killoran

Attorneys have a reputation for being creative boundary-pushers who will stop at almost nothing to serve their clients. This is at least in part because attorneys are both trained and ethically obligated to make the best argument to advance a client’s interests, even if the chance of success is microscopic.

But sometimes even vague legislative drafting, obsolete statutes, and obscure rules and reasoning hidden in unquestioned 19th-century case-law—all fodder for making the best losing argument—can’t change a client’s impossible set of facts. At that point, hired attorneys have the option of asking to withdraw from representation rather than fighting a losing battle.

Sunday, April 20, 2014

Need 4 Speed: Fast Enough?

State v. Reynolds, 2014 VT 16

By Jeffrey M. Messina

Speedy-trial rights are oft asserted, but rarely do they win the case for a defendant. Imagine a drag-racing movie where the mechanics just work on the cars until nearly the end of the movie. You’d probably want your money back, right?

Defendant was charged with a single count of sexual assault in early March, 2010. Trial was first scheduled for January 2011 but was continued to March 2011. Although the hearing began as scheduled, after two days, the court declared a mistrial due to significant problems with the sign language interpretation process. Oh yeah, two of the state's witnesses—including the complainant—were deaf and required the assistance of American Sign Language (ASL) interpreters.

Invalid Prosecution?

State v. Cuomo, 2013 VT 101

By Andrew Delaney

Prosecutors have a lot of power. Defense attorneys do their level best to reduce that power. It’s kind of like Star Wars with statutes and legal arguments instead of stormtroopers and lightsabers. Or not.

Defendant claimed the Orleans County State’s Attorney was invalidly appointed. The trial court concluded that the appointment was valid and that even if wasn’t, the Orleans State’s Attorney had authority to prosecute under the de-facto-officer doctrine. The SCOV agrees that the de-facto-officer doctrine covers it and affirms. 

Friday, April 18, 2014

Is that Bruce Springsteen Song Enough?

Paige v. Condos, 2013 VT 105

By Andrew Delaney

Though there’s still some debate in certain circles, it’s generally accepted that Barack Obama was born in Hawaii—or as Springsteen put it Born in the U.S.A. President Obama’s mother was a U.S. citizen and his father was Kenyan. Nobody really disputes that. I even checked Wikipedia to be sure. The consensus is that if you’re born in the United States, you are a U.S. citizen.

But this case is about whether President Obama qualifies as a natural-born citizen. I guess we’ll never find out because the SCOV just dismisses the case as moot.

Sunday, April 13, 2014

There has to be a reason for everything . . .

State v. Button, 2013 VT 92

By Andrew Delaney

If you aren’t doing anything wrong, then the police can’t stop your vehicle just for kicks. This is pretty basic, but nonetheless I’m sure the criminal-defense bar will breathe a collective sigh of relief after reading this opinion.

Personal story time: One night, not too long ago, I was driving on a dirt road on my way home from dropping off a friend. A car came up fast behind me and proceeded to tailgate. I signaled and pulled over to the side of the road. Then I saw the blue lights.

The nice officer informed me that I was “driving too slow.” He then asked me to produce my license, registration, and proof of insurance, which I did. All were in order. When he returned to my vehicle, he asked me if I had had anything to drink. I said no. He said he could smell it and told me that my eyes were “telling [him] a different story.” I laughed. I was then ordered out of my vehicle. At this point, I started grumbling about “reasonable suspicion of wrongdoing” and so on.

No Second Chance

LaPointe Architect v. Point Five Development, LLC, 2013 VT 115

By Andrew Delaney

This decision is cold comfort indeed for the defendant: yes, the trial court got it wrong when it explicitly declined to consider potential defenses in the context of vacating a default judgment—but no matter because defendant didn’t make a compelling showing that it had a meritorious defense. And so the cookie crumbles.

The case arises from a contractual dispute. Plaintiff architect and defendant developer entered into a contract to build a Walgreens. Architect sent an invoice, which developer responded to over a month later with a vague letter accusing architect of breaching the contract and screwing up the design. So architect filed a mechanic’s lien in the land records. Developer got a bond to remove the lien, but didn’t send a copy to architect. Architect filed a suit to perfect the lien and for damages.

Prepare for the worst . . .

In re Chaves Act 250 Permit, 2014 VT 5

By Andrew Delaney

Nobody really wants a sand and gravel pit right across the road it seems. And if it’s been there a long time, people want to get rid of it when they have the chance. That’s this case in a nutshell.

Applicants’ sand and gravel pit site has been used for at least fifty years for sand and gravel extraction—though it’s not clear exactly to what degree. Neighbors own a country inn across the road. Applicants bought the property in ’97 and went to work taking out sand and gravel. They didn’t get any permits. At some point, the local environmental commission found that the applicants’ activities were a substantial change from preexisting use and a permit was required. Applicants appealed that decision to the environmental division.

Saturday, April 12, 2014

2012: A Parole Violation Odyssey

Rodriguez v. Pallito, 2014 VT 18

By Elizabeth Kruska

Teacher: Bueller? Bueller? Bueller?
Simone: Um, he's sick. My best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious.
Teacher: Thank you, Simone.
Simone: No problem whatsoever.

Hearsay is an out of court statement used to prove the truth of the matter asserted in the statement. This example is something like eight layers of hearsay, and never stops being funny. If Simone had to prove in court that Ferris Bueller actually passed out at 31 Flavors last night, a judge would've required that she produce the girl who saw Ferris pass out to testify about what she saw. But this was just a teacher taking attendance, not a trial where Ferris’s liberty was at stake. Actually, since Ferris Bueller was taking the day off, it was pretty much exactly opposite of that.

Monday, April 7, 2014

Fresh Meat, Old Meat

Greetings, SCOV Law Reader(s),

As you have probably noticed, over the past few months, the SCOV Law blog has been a little slow in posting new summaries.  While we have started to post new 2014 decisions, we have fallen behind our stated goal in providing timely summaries to current SCOV cases.  For that, we apologize.

As with all great experiments, we at SCOV Law have been victims of our own success and the grueling pace that continuing this success entails.  

For the past three and a half years, we have relied on a murder's row of talented and volunteer contributors who have constantly out shown themselves in producing summary after summary  of entertaining, educational, and thoughtful prose.  It is not easy to dissect complicated legal theory and fact patterns, leaven it with jokes, and maintain crisp writing week after week.  We are lucky to have such great contributors even for short periods of time.  To each of them, past and present, we are grateful for all the work they have given. 

To ensure that the SCOV Law blog continues this tradition of excellence, we are making a few changes. 

For the past three and a half years, Dan Richardson has provided the primary editing, posting, and obscure reference duties in addition to his contributor role.  Dan, for a number of reasons (family, Bar Association obligations, jai alai, and muppet fan-fiction), can no longer perform these editing duties and is stepping down from this role.  

In his place, long standing SCOV Law contributor, Andrew Delaney will be taking over the editorial and posting functions.  (Richardson will be retaining all obscure references as they belong to the primum mobile to which few have access).  Andrew, while married, does not have many interests, hobbies, or friends, which makes him perfect for the role of editor. 

We will also be introducing new contributors over the next few weeks.  

All of this means that there are more reasons than ever to keep us in your RSS feed and to check for regular updates.  We expect to be posting more and more over the next few months.  So keep us in mind when you are thinking about Vermont legal issues.  You know we'd do the same for you.  

As always, thank you for reading, and please continue to patronize our blog and smoked meat shop in Derby!  

---The Staff of SCOV Law