|Because these summaries “leaf”
a lot out
Here we go with another haphazard review of two months’ worth of SCOV opinions.
Two decisions the last week of October—an entry order on Monday October 24 and an opinion Friday October 28.
We’ll start with the entry order. It’s simple. Respondent—the subject of the October 13 entry order discussed below dubbing the PRB’s findings and conclusions good to go—is also suspended from his term as a probate judge without pay. In re Cobb, 2022 VT 55 (mem.)
The opinion is lengthier, but not a whole lot going on. Defendant—a former high school principal who filmed teenagers in his home bathroom and pleaded guilty to charges stemming from the same—challenges denial of his sentence reconsideration but gets nowhere with it. The COVID-19 arguments are interesting but ultimately futile. SCOV rejects defendant’s challenges to the trial court’s denial of his motion. State v. Stearns, 2022 VT 54.
One decision October 21. It’s a juvenile case. This one is about whether a trial court can extend a conditional custody order (CCO) past its expiration date without finding a change in circumstances to justify the same. Dad contends that’s not Kosher and—spoiler alert—SCOV agrees. The short version (as if I’d ever provide anything else) is that while dad was in jail on domestic assault charges, mom was doing drugs and kiddos were missing a lot of school. DCF took temporary custody. Dad got out, did what he needed to do, and got a CCO of the kiddos to him. Mom and dad reunited at some point. Ultimately, the trial court concluded that dad (and mom) were doing a good job addressing the concerns that led to DCF involvement in the first place but that an extension of the CCO (after expiration) made sense to keep everything on track in the best interests of the children. SCOV explains that a trial court is authorized to extend a CCO “on the grounds that a change in circumstances requires such action to serve the best interests of the child.” Here, SCOV reasons, the trial court skipped the change-in-circumstances finding and just went ahead and extended the CCO on the basis that it served the best interests of the child. The finding of a change in circumstances is a prerequisite though (when it’s a nonparent, there is a potential to extend the CCO without a change-in-circumstances finding). And so, SCOV sends this one back to the trial court to vacate the CCO and give custody to dad. In re B.E., 2022 VT 52.
A somewhat busy week at ye olde SCOV the week of Friday, October 14 in comparison to the last few: one published entry order Thursday the 13th, and two opinions Friday.
The entry order is very, very short—one paragraph. SCOV adopts the findings of fact, conclusions, and order of suspension (year and a half) for a Professional Responsibility Board case where respondent was found by the PRB to have committed five violations of the Rules of Professional Conduct. The underlying decision is lengthy and covers a range of problematic conduct that gives rise to the found violations. In re Cobb, 2022 VT 51 (mem.).
Our first opinion for the week concludes that the Vermont Journalism Trust lacks standing to challenge the sealing of criminal records in connection with dismissed charges. As always, there’s a bit more to it than that—including a pending public records request in the midst of the sealing process—but that’s the bottom line. In re Z.P., 2022 VT 49.
Finally, we have a statutory-assignment question in connection with child support. Mom wanted the court to make a retroactive child support award and assign her the arrearage, but the trial court found that the Office of Child Support had been assigned any arrearages and that it waived them. The key point here is that when one receives public assistance, one makes a statutory assignment of child support and that puts control of the funds in the hands of the State. SCOV affirms the trial court. Dione v. Anthony, 2022 VT 50.
A very short opinion on Wednesday, October 5. And when I say “very short,” I mean three paragraphs front to back.
Mr. Tobin is self-represented and has been held without bail since January. He appealed the hold-without-bail order in mid-September and got a hearing a couple weeks later at the Vermont Supreme Court. However, Mr. Tobin had also filed a bail-review motion in March that still hasn’t gotten a hearing in the trial court. The gist of Wednesday’s published entry order is that the trial court had better get it together and hold a hearing on that bail-review motion that’s been pending for more than half a year. The three-justice panel even breaks out that old crowd favorite “forthwith” for temporal effect. State v. Tobin, 2022 VT 48 (mem.)
Below, I will make another lame, SCOV-and-Meghan Trainor joke. Lucky you! On September 30th, SCOV says “No” to the State using a criminal statute (allowing the State to appeal from an order granting a motion to suppress in felony prosecutions) to appeal a motion to suppress in juvie court. Here, juvenile was charged with lewd and lascivious conduct as a delinquent act in the family division. Based on a custodial interrogation without Miranda warnings, the trial court granted a motion to suppress juvenile’s statements to the police. The State, with its knickers in a proverbial twist, went running to SCOV asking for a reversal. But SCOV says, “Nah to the ah to the, no, no, no.” SCOV reasons that a delinquent act is not a felony, and thus, the State can’t be “runnin’ game” like that. The trial court gets affirmed. SCOV does drop a footnote that leaves open the possibility an interlocutory appeal or petition for extraordinary relief might be successful in the juvenile-delinquency context. In re E.S., 2022 VT 47.
Two opinions on Friday, September 23.
We’ll start with the 45-pager, which I will grossly, grossly oversimplify. The listing of parties, attorneys, and amicus curiae is reminiscent of an asbestos complaint, so I’m not going to parse that out. Insured (which also includes insurer because we’re dealing with reinsurance and captive insurance and other fun stuff) filed a complaint seeking a declaration of coverage for certain business losses associated with COVID-19. Reinsurers moved for judgment on the pleadings, arguing that COVID-19 does not—and cannot—cause “direct physical loss or damage to property,” despite insured’s allegations that it did (by lingering on surfaces and in the air). Insured also moved for partial judgment on the pleadings. The trial court granted reinsurer’s motion, reasoning that insurer had not alleged direct physical loss and found insurer’s motions moot. The majority reverses and holds that under Vermont’s “extremely liberal” pleading standards, there are sufficient allegations to allege “direct physical loss or damage to property.” The majority also concludes that the trial court screwed up in denying the motion for partial summary judgment as moot because the trial court shouldn’t have granted reinsurers’ motion. Back to the trial court it goes. Justice Carroll, joined by specially assigned Judge Bent, dissents. The dissent reasons that there’s no coverage under the policy despites insured’s allegations and the trial court got it right. Read this one if you’re dealing with insurance coverage issues. Huntington Ingalls Ind., Inc. v. Ace American Insur. Co., 2022 VT 45.
Continuing with the COVID-19 theme, next up we have an appeal from the Employment Security Board (ESB). An ALJ found claimant ineligible for unemployment and liable for an overpayment. The ALJ reasoned that claimant was already planning to leave his job for other opportunities when the pandemic hit and that his moving to Massachusetts to care for his mother coupled with his working for a few days in April 2020 negated his I-stopped-working-because-of-the-pandemic-and-to-care-for-my-family-member argument. Because the ALJ found he voluntarily left his employment—without good cause—he was ineligible for unemployment and liable for repayment of the benefits he received for roughly five months (May to October 2020). The ESB affirmed. On appeal, SCOV also affirms. SCOV reasons that the interim April work means that claimant rejected an offer of work and therefore voluntarily quit making him ineligible for unemployment benefits. SCOV also agrees with the ALJ’s rejection of the taking-care-of-mom-as-good-cause argument. This one has some credibility stuff going on with claimant asserting he never returned to work and all concerned finding that not credible. SCOV doesn’t take up claimant’s the-repayment-amount-is-too-high argument, concluding it’s inadequately briefed. Worrall v. Dept. of Labor, 2022 VT 46.
As foreshadowed above . . . What do SCOV and Meghan Trainor have in common? They both like to say “No!” In the first case issued on Friday, September 9, 2022, SCOV says “No” to the state, concluding the state doesn’t have statutory authority to appeal dismissals of juvenile-delinquency cases, even if the charged act could be a felony charged in big-kid court. SCOV explicitly overrules a 1991 case to the extent it allows such shenanigans. It’s a broad decision and comes down in favor of juvenile offenses being scrubbed from one’s record. We’ll see what the legislature does with that. In re S.D., 2022 VT 44.
Our second decision for the week is about an Act 250 permit, and I gotta tell you, I can’t muster up enough interest to read this one in any detail. Applicants appeal on their sand and gravel extraction permit. SCOV affirms on Criterion 8 but finds one thing needs to be fixed under Criterion 5, and strikes it. Does it sound like I didn’t really read the opinion? That’s because I didn’t. In re Katzenbach, 2022 VT 42.
Two opinions Friday, September 2, both dealing with what we can loosely call “restraining” orders.
First up is a relief-from-abuse order issued to mother—a Massachusetts resident—against father—a Vermont resident. Father argues that the more-specific venue provisions in the statutory scheme apply and therefore, there’s no jurisdiction for the trial court to issue the orders. SCOV agrees generally with the first part but disagrees on the proposed result. SCOV reasons that mother is a household member and if the county where the action is brought is the county fled, then that county has jurisdiction. And venue. Or something like that. Bottom line is that the lower court is affirmed. Bacigalupo v. Bacigalupo, 2022 VT 43.
Second, we have an anti-stalking order, which was issued to employee against the boss’s wife. The anti-stalking statute allows an order to issue when a “course of conduct”—defined as two or more stalker-y acts “over a period of time, however short”—is established. In this case, there was what sounds like one continuing/escalating incident where the defendant allegedly wrote “abuser” on some paper and put it in plaintiff’s face and then spit at plaintiff in the parking lot. The trial court reasoned that these two acts—shoving the paper in plaintiff’s face and spitting—were enough to meet the definition of “course of conduct” in the statute. “Not so fast,” says SCOV. SCOV reasons that the acts were not separated by time nor distance, and ultimately concludes “as a matter of law, that the evidence shows only a single continuing incident.” This one gets reversed. Beatty v. Keough, 2022 VT 41.