Tuesday, October 21, 2014

What We Talk About When We Talk About Due Process

Hogaboom v. Jenkins, 2014 VT 11

By Andrew Higley

In the most recent installment of delinquent-tax-sale gone wrong, SCOV makes sure to put the “due” in “due process.” The question in this case is the classic procedural conundrum of how much process is due. The Court’s answer: quite a bit. SCOV held that when a notice of tax sale is sent with return-receipt requested, and is returned to sender unclaimed, due process requires a little extra push in order to be sufficient. Also, that process is due before the tax sale itself, and not anytime before the ultimate transfer of title. Result for the unfortunate buyers in this case: instead of getting a bargain-basement deal, plaintiffs bought themselves a lawsuit.

Deprivation by the State of a person’s life, liberty, or property requires due process, which even property owners who don’t pay taxes are entitled to. The reason? Evade the taxman long enough, and a town can sell your property through an auction to satisfy any delinquencies, a.k.a. "tax sale." In a case of great significance to these sales, SCOV set out to answer, how much process is the defendant due? And, when is it due? 

Sunday, October 19, 2014

In Burlington, Vermont, Single-Family Dwelling Lot Subdivides You

Regan v. Pomerleau, 2014 VT 99

By Christopher A. Davis

Landowner wishes to add apartment to single-family home in Burlington, as well as subdivide the property into two lots. Predictably, lots of folks get upset about it, cases proceed to both Chittenden Civil Division and the Environmental Division, courts say, “You’re good, go for it,” everyone is still upset, appeals follow to the SCOV, SCOV says “Nah, you’re still good, go for it.” The end.

But let’s dig deeper for purposes of this qualifying as a helpful summary. Overlake Park Development Corporation creates the lot at issue in 1955. In 1961, the lot is sold to DeForest Reality with a covenant restricting use to “one dwelling for a single family dwelling unit.” By its terms, covenant expires in 1995. In 1965, DeForest sells lot in question to the predecessor-in-interest of landowner (let’s call landowner “applicant” from now on). In 1987 applicant purchases home and lot.

Friday, October 17, 2014


State v. Felix, 2014 VT 68

By Elizabeth Kruska

If cleanliness is next to godliness, then truthfulness must be right up there, too. When witnesses go to court to testify they raise their right hands and swear to tell the truth, so help them God.

All we have when witnesses swear to say what’s true is their oath that what they’re saying is true. But sometimes witnesses don’t exactly have truth-telling as a high priority. (Ha! Puns! See below.) You see, people will sometimes choose to say something other than what’s true if it means serving his or her own ends. How many kids have told their parents they’re going to the library when they’re really off to do something infinitely more fun? (Answer: all of them)

Sometimes the truth is far more serious though, like in a felony trial when the only people who know what happened are the defendant and a witness. That’s what happened in this case.


CitiFinancial, Inc. v. Balch, 2013 VT 86

By Elizabeth Kruska

As mundane as a mortgage feels, it’s a big responsibility. It’s the securing of debt to land. Land is expensive because it’s finite. In the wise words of Tony Soprano, “God ain’t makin’ any more of it.” Not everybody can pay the full amount of the purchase price in cash, so they’ve got to borrow money from a bank. If they can’t repay the money, the bank can come in and foreclose on the land.

Sometimes people who have land or who want land also have guardians to help with their affairs. SCOV takes a pretty clear stand in saying that the Vermont guardianship statutes are a bit of a mess. They use the word “hodgepodge.” That can’t be good. We had some statutes, and they got revised, but that might have made things more confusing. There’s also a rogue outlier guardianship statute about mortgages that’s not even in the same chapter.

The long and short of it, though, is that a guardian is charged with the duty to act in the ward’s best interest (I know it’s called a “person in need of guardianship” now, but that’s too long to type and “PING” seems confusing when “ward” is the word we all already know). The guardian’s powers are set forth by the probate court. They can be limited to certain powers or they can include a whole range of powers. The point is that the powers are specified by the court and tell the guardian what he or she is allowed to do. Or not do.

Saturday, October 4, 2014

You Can Keep Your Genes On...

State v. Medina, 2014 VT 69

By Hannah Smith

In a landmark decision, the SCOV has deemed a section of Vermont’s DNA collection statute to be an unconstitutional invasion of personal privacy under the Vermont Constitution. The section of the statute at issue amends 20 V.S.A. § 1933(a)(2), and mandates DNA collection and analysis from anyone arraigned for a felony. In several recent trial-court cases, criminal defendants challenged the constitutionality of the amendment. The trial courts hearing those cases found, across the board, the language at issue to be unconstitutional. In this consolidated appeal, the SCOV affirmed the rulings of those trial courts, finding the recent amendment to be in violation of the Vermont Constitution. Take that privacy-rights infringers!

As a point of (significant) interest, the U.S. Supreme Court was faced with a similar case last year, and found warrantless, suspicionless DNA collection from individuals arrested for violent crimes or burglary to be perfectly legal under the Fourth Amendment of the U.S. Constitution. From the outset, the SCOV makes very clear that its ruling only pertains to the statute’s constitutionality under Article 11 of the Vermont Constitution, which has been found to provide greater protection than its federal counterpart. In addition to the heightened protection provided by the Vermont Constitution, the SCOV also found the statute in this case differed substantially from the Maryland DNA-collection statute on which the SCOTUS ruled. 

A Question of Character

In re Katherine Pope, 2014 VT 94

By Timothy Fair

How important is the character of the individual representing your legal interests?

When most people think about the arduous journey of becoming an attorney, the first hurdle that leaps to mind is the dreaded bar exam. Lesser known to the general public are the understated, but arguably more important, requirements of character and fitness. While each state has its own ideas as to what constitutes “good character,” honesty, integrity, and candor to the tribunal are pretty much universally accepted as essential personality traits for any would-be barrister. In this case, we have a unique opportunity to see precisely why this is. As an added bonus, we also get the chance to see firsthand that what constitutes really bad decisions for an attorney in New York also constitutes really bad decisions for the same attorney in Vermont.

At issue is whether the Vermont Supreme Court should impose the identical two-year suspension from the practice of law that was levied against the respondent by the State of New York. Before we can address this question, however, a little background is necessary.

Saturday, September 27, 2014

Domicile Detention Denied

State v. Pelletier, 2014 VT 110 (mem.)

By Andrew Delaney

Mr. Pelletier just wants to go home. Unfortunately for Mr. Pelletier, he stands charged with first-degree murder.

As you may recall from another recent case involving the pretrial home detention statute, home confinement is allowed when a defendant is held in a “lack of bail” situation for more than seven days. There are three areas for a trial court to consider in determining whether to grant such a motion: (1) the offense’s nature; (2) prior convictions, history of violence, medical and mental health needs, supervision history, and risk of flight; and (3) risks or undue burdens associated with the placement.

Mr. Pelletier filed a motion for home confinement, proposing that he live at home and work on his 140-acre family farm. The trial court wasn’t sure that was such a hot idea because the GPS-monitoring system might not work with that large of an area.

Friday, September 26, 2014

Water, Water Everywhere

City of Newport v. Village of Derby Center, 2014 VT 108

By Elizabeth Kruska

Remember that opinion from a few months ago about the wastewater issue in the Village of Derby Center? Well, this seems to be its late-to-the party cousin, and might explain a little more about the water woes going on in the Northeast Kingdom. It’s a water-in, water-out problem.

In 1997, the Village of Derby Center (hereinafter: Village, because, why not) made a contract with the City of Newport (hereinafter: City, because, same reason) stating that Village would provide City with 10,000 gallons of water per day. All was super and swell until 2006, when Village adopted a new rate schedule pursuant to an ordinance that allowed Village to charge for not only water used, but also a “ready to serve” fee. Let’s not confuse that with the Little Caesar’s Pizza “hot and ready” cheap pizza deal, because water and pizza are two very different things.

Anyway, the point is that City, after nearly 20 years of paying for just water used, was not amused at Village’s 30% rate hike. City paid the increased fees under protest. There were some other issues that arose, like an inaccurate meter, and City hooked up some water users without notifying the Village. 

Partition Problem

Currie v. Jané, 2014 VT 106

By Elizabeth Kruska

Janet Currie and Paul Jané met in 2002, fell in love, and decided to buy a house. Janet rented an apartment in a house in Orwell. She arranged with the property owners to buy their house. Paul’s mom gave him $200,000, which he used to put toward the purchase of the house, and he also paid some closing costs. Janet arranged with the homeowners that they would do a private mortgage for $45,000, and that Janet would pay them back. Janet and Paul bought the house as joint tenants with right of survivorship.

They also agreed, in writing, that Paul paid the $200,000 and closing costs and that Janet was solely responsible for the $45,000 mortgage debt. Later on, they took out a home equity loan, which they used to pay off some cars and other expenses. Paul paid that back. Paul also did some pretty significant work on the house and land.

You probably see where this is going.

Not Cruel, Not Unusual

In Re Stevens, 2014 VT 6

By Merrill Bent

Today’s petitioner is not so good at murder. Unfortunately for him, his status as an unsuccessful killer does not really bring him any perks, except maybe "three hots and a cot" and an hour in the yard.

Petitioner was convicted of attempted first-degree murder, two counts of aggravated assault, kidnapping, burglary, and violating an abuse-prevention order after he broke into his ex-girlfriend’s hotel room and attacked her and her boyfriend with a hammer before attempting to drag the ex to a van with the intent to restrain her inside and set the van aflame. Fortunately, some neighbors intervened, and were able to subdue and restrain the guy before he could execute his plan.

The trial court sentenced petitioner to life in prison without the possibility of parole. At the sentencing hearing, the court took into consideration petitioner’s mental health and childhood trauma on the one hand, but on the other, that he had previously shot at his ex-wife and children when he learned that she wished to end the marriage. The trial court also pointed to the brutality with which petitioner planned to kill his ex girlfriend and concluded that petitioner should be deprived of the chance to hurt anyone else. The sentence was upheld upon petitioner’s direct appeal.