Sunday, February 7, 2016

Post-Probate Pickle

In re Estate of Holbrook, 2016 VT 13

By Andrew Delaney

One of my favorite Bill Burr lines is, “Daddy hides money in the wall because he doesn’t trust banks.” It’s a bit about what his hypothetical kids might say in school in response to a math problem. If you’re not easily offended, feel free to email me and I’ll send you a link to the entire bit. (You know it’s bad when we don’t link it directly here—you’ve been warned.)

Turns out here that Grandma Holbrook didn’t trust the banks very much either. But perhaps we’re getting ahead of ourselves.

Grandma Holbrook died in 2013. She was survived by six kids and seven grandkids.

In 2003, right before a surgery, she wrote a three-page letter titled “My Last Will & Testament” addressed “To all my children.” There’s a soap-opera joke just waiting to be made there, but we’ll skip it for brevity’s sake. The letter essentially said that if Grandma Holbrook didn’t make it through the surgery scheduled for the next day, she wanted things divided equally amongst the kids and grandkids. Grandma Holbrook did in fact survive her surgery and lived another ten years.

Saturday, February 6, 2016

Bail Revisited . . . Again

State v. Blow, 2015 VT 143 (mem.)

By Amy Davis

Here we are in the depths of bail troubles again. We’ve probably had more segments on bail than there are Harry Potter movies. We’ll call this one: Bail Problems & The Order of the SCOV. In this case, trial court denies bail to defendant in December 2014, and then denies home detention in October 2015.

Back in July 2014, the State charged defendant with second-degree murder. Defendant was arraigned and held without bail. The medical examiner opined that, while in defendant’s care, alleged victim A.H. died as a result of blunt impact injury to his head. Defendant admitted injuries, but gave some inconsistent statements on their cause—none of the stories explaining these types of injuries.

Another autopsy showed that A.H. got the injuries “days to weeks” prior to his death. However, the medical examiner could not determine if the injuries happened in one or multiple events, so the State filed a motion to review bail and probable cause. The trial court held that probable cause still existed even though it was “literally paper thin” and found that the State probably wouldn’t survive a motion to dismiss under 12(d). Based on the weak case, the court set bail at $25,000 and imposed conditions of release.

Monday, February 1, 2016

Connecting The Dots

In re JC, 2016 VT 9

By Elizabeth Kruska

SCOV ventures back into the wilds of juvie-land with this opinion. Here are the important people: Mom, Dad, KP, JC, and TF. JC is Mom’s child. TF is the child of Mom and Dad. KP is Dad’s child. All three kids, at the time of this case, were under the age of seven. They all live together in what is described as sort of a chaotic household. That’s probably for lots of reasons, but I’m guessing having 60% of a household in first grade or less is a contributing factor.

DCF filed a CHINS petition on JC and TF. There was a separate CHINS case with respect to KP, but that’s not the focus of this particular opinion. DCF got a report from a Head Start provider who came to do a home visit. The report said that Mom was stressed and agitated during some visits, and was cruel to KP. She said she wanted to paddle KP until she bled. She talked about not giving KP something to drink for days because KP was “stealing food from the refrigerator.” In short, things were not good with Mom and KP.

So, based on these observations, there was a CHINS petition filed with respect to the other kids in the home. There was a trial with testimony, and at the end the judge found that JC and TF were in need of care and supervision. The trial judge based its findings in part on Mom’s treatment of KP, and concluded that her treatment of KP led to a risk of harm to the other two children. There was also other evidence of Mom’s overall state of being stressed out and overwhelmed with the kids. There was also evidence that Dad had some substance abuse struggles; it doesn’t appear, though, that Dad was a big factor in the findings in this case. There was testimony about Mom putting JC on the couch, and doing it too forcefully.

Saturday, January 23, 2016

Part and Parcel

Rasmussen v. Fairhaven, 2016 VT 1

By Andrew Delaney

How many parts make a whole? 

Mr. Rasmussen owns three separately deeded but connected lots in Fairhaven. The opinion uses the word “contiguous,” likely because that’s what the applicable statute uses, but that word’s too fancy for my blood—and it means the same thing as connected. One lot has a main house and the other two lots each have a rental house.

In 2014, the town listers assessed Mr. Rasmussen’s property at $585,000. He appealed to the Board of Civil Authority (BCA). He wouldn’t let the BCA members inspect the main house, so the BCA considered the appeal withdrawn because the applicable statute says if a taxpayer refuses inspection, then the appeal is considered withdrawn.

Wednesday, January 20, 2016

My Statutory Prerogative

Demarest v. Underhill, 2016 VT 10

By Amy E. Davis

This case focuses on who gets the responsibility of maintaining an old, rough road in Underhill, Vermont: the Town that has historically maintained it, or the road’s neighbors. This road, known as Town Highway 26 (TH 26) has been around for about 150 years. It is a single lane about 1.5 miles long that leads to a beaver pond. The road intersects with both Irish Settlement Road and Pleasant Valley Road. In 2001, the Town of Underhill tried to reclassify a segment of TH 26 between Irish Settlement Road and Pleasant Valley road as a legal trail. There was some litigation involved, but the changes became effective in June 2010, and TH 26 became part of the Town’s six miles of Class 4 highways.

Before this reclassification took place, the Town would do some maintenance and repair work to the roadway and the twenty-two culverts under the road. Since the reclassification, the Town has done some work to the road, mostly by adding base material to the roadway. In spring 2013, the Town made some repairs to four culverts following severe storms and increased runoff.

Appellees Demarest, Moulton, and Fuller all own property on TH 26 in Underhill. In early 2012, they filed a notice of insufficiency asking for maintenance of TH 26. The Town denied the notice, asserting that it was maintaining TH 26 to the “extent required by the necessity of the Town, the public good, and the convenience of the inhabitants of the Town.” Appellees brought an action for repairs and maintenance to drainage, culverts, and road surfaces.

Help! I Could Be Injured and May Not Be Able To Stand Up!

Baird v. Burlington, 2016 VT 6

By Thomas M. Kester

Trespass is one of those ancient, dusty, “from the days-of-old-when-the-knights-were-bold” laws at common law, that allowed recovery from anyone causing unlawful injury to a person, property, or rights involving violence (for the more inquisitive legal or historical minds, read up on “trespass on the case” or “case” to see some good-old-fashioned tort law at work).

Nowadays, “trespass” has been hacked down to encompass issues that involve interference with one's possession of property. Fast forward hundreds of years to 2015 and we find the City of Burlington adopting the “Church Street Marketplace District trespass authority” that prohibits certain activities in the Church Street Marketplace District (“Marketplace District”). But the real meat of this story is about another equally antique, but still relevant, legal concept: standing.

Let’s start with the facts. Marketplace District is a quasi-public entity that has business-owner members and promotes the Marketplace District (you know—that area around Church Street in Burlington). The SCOV describes this place as a “hot spot for social gatherings, street performers, protests, speeches, and marches, many of which are impromptu in nature” or pre-planned from The Burlington Police Department (“BPD”) patrol the area and all state criminal statutes and city ordinances apply as well.

Wednesday, January 13, 2016


State v. Alcide, 2016 VT 4

By Elizabeth Kruska

When the Supreme Court of the United States (SCOTUS) says, “Yeah, we remember that the Fourth Amendment is a thing” (and this does not happen very often), everybody sits up and takes notice. That’s what happened here. Ivan Alcide was charged with a drug offense in 2012 based on an investigation that grew out of a traffic stop. Motions were filed and litigated and appealed. While the case wound its way through the court system, SCOTUS issued an opinion in Rodriguez v. United States that cast this whole case in a different light.

So, let’s back up just a little bit to the state of the union on dog-sniff-related search and seizure before Rodriguez. Previously, under federal law, if a vehicle was stopped for a traffic offense and further investigation into other crimes was warranted, police could engage further. They could call for a drug dog to come sniff a vehicle as long as it didn’t unreasonably extend the interaction. Of course, there’s no hard and fast guideline about how long “reasonable” is, so courts would have to interpret this on a case by case basis. SCOTUS also had said that the sniff itself wasn’t a search. The question with sniffs is whether the time it would take to extend the interaction so that a sniff could be performed unlawfully extended the seizure.

Then Rodriguez came out. The clouds parted. Rays of light streamed down. Angels sang in chorus.


State v. Goewey, 2015 VT 142

By Elizabeth Kruska

Turns out, if you don’t know a number, you can’t figure out a percentage of that number. That’s a fairly important thing SCOV points out with this case. Other things also happened in this case, but this is one that I want to start with because it answers a question I’ve had since the legislature made the so-called 70% rule.

In Vermont, criminal defendants, if sentenced to a period of incarceration, are required by law to receive a sentence with a minimum and a maximum. You’ll never see a Vermont sentence of just, say, six months in jail. If that’s the goal, the sentence has to be something like 179-180 days in jail. Some other jurisdictions can make six-month sentences like that; Vermont just isn’t one of them.

A few years ago, the legislature overhauled lots of statutes involving sexual offenses. One such statute that was amended involved the release of high-risk sex offenders. It says, in summary, that a sex offender who is designated as high-risk, can’t be released until he or she has served at least 70% of the maximum sentence. For the sake of easy numbers, let’s say a defendant has a sentence on a sex crime of 10-20 years to serve. If, after being assessed by the Department of Corrections, the person is determined to be “high risk” that person can’t be released until he or she has served 70% of 20 years. Under other circumstances, that person might be able to get out at 10 years, but instead must serve at least 14. The balance of the sentence is served on some sort of community supervision.

Saturday, January 9, 2016

No Disagreement Here

In re Bruyette, 2016 VT 3

By Andrew Delaney

If this decision were a tweet on Twitter, it’d be: “SCOV adopts the ‘prison-mailbox rule’ 'cause nobody disagrees. #unanimity.” And you’d still have 66 characters for extra hashtags (or as I knew ‘em growing up, the number/pound symbol).

Mr. Bruyette’s appeal was dismissed because he didn’t get his notice of appeal filed in time and he filed a motion to reconsider. He asks the SCOV to adopt the so-called “prison mailbox rule,” which more or less says that a notice of appeal is filed when an unrepresented inmate hands it to prison authorities for filing with the clerk. The SCOV obliges.

During the events leading to this appeal, Mr. Bruyette was serving a long sentence in Kentucky based on 1989 convictions. He filed a couple motions: (1) a motion to vacate or correct his sentence in the Rutland Criminal Division on the basis that Rutland lacked jurisdiction to sentence him because his trial was in Windham County; and (2) an identical motion in the Windham Criminal Division to vacate or correct an illegal sentence. Windham kicked it over to Rutland.

Sunday, December 20, 2015

Opioid-Addicted at Birth

In re M.M. and C.M., 2015 VT 122

By Donald M. Kreis

Cases generally reach and are decided by appellate courts at roughly the speed of molasses, so it is rare that a decision of the Supreme Court of Vermont speaks directly to the headlines of the day. But that’s exactly the case here, with respect to the epidemic of opioid and opiate abuse in Vermont and its effect on the most vulnerable among us—our children.

A boy, identified here only as C.M., was born on June 25, 2014, already dependent on opioids as the result of his mother’s prenatal abuse of Suboxone. In these times especially, it is only common sense that the state should take custody by adjudging the infant to be, in the parlance of Vermont law, CHINS—a child in need of supervision. Right?

At issue in the case are actually two children, C.M. and his older sister, M.M. Writing for a 4-1 majority, Justice Eaton affirms the trial court’s determination that both M.M. and C.M. were CHINS in light of undisputed evidence that mother had been in and out of drug treatment for nine years, had been kicked out of such a program at the time she became pregnant with the younger child, was purchasing Suboxone off the street, and had been convicted of driving while intoxicated in connection with one of two incidents in which police found mother driving M.M. around without required child-safety restraints.