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Wrapping up 2022 – LexBlog


Would you expect anything 
other than a visual dad joke? 

Two opinions issued on Friday, December 30. 

The first deals with qualified immunity regarding municipal officials for discretionary acts. In general, in the municipal-immunity arena, discretionary acts are entitled to qualified immunity; ministerial acts, however, are not. Here’s the short version for this case: the decision to widen a road (or not) is a discretionary act and the road commissioner (and the Town) are entitled to qualified immunity. This is this case’s second trip to SCOV (see March and April 2020 update, specifically April 4, 2020). In the first round, SCOV concluded that the road commissioner was potentially subject to liability based on ministerial acts related to road widening. After further factual development, the Town and road commissioner moved for summary judgment and the trial court found that the decision not to widen Main Street in Isle La Motte—which plaintiff alleged was the cause of his injuries—was a discretionary act because there was no mandate that would have made such widening ministerial. On appeal, SCOV agrees, and affirms, summing it up like this: “The discretionary-function exception serves to ensure that public figures like the road commissioner do not suffer legal ramifications for making the types of difficult decisions that policymakers are often required to make. Determining whether to use the Town’s limited resources to alter its roadways goes to the heart of this doctrine.” Civetti v. Turner2022 VT 64.

The second is a professional responsibility decision dealing with Rule 4.2. This is the rule dealing with communicating with those represented by counsel in a matter. In this case, the facts are a little squirrelly because the person represented filed a pro se notice of appearance after respondent was first notified that person was represented by a lawyer. Respondent reached out to person by phone directly to set up a settlement conference and during that conversation, person said he wanted to get hold of his lawyer. Respondent—and this is where the trouble really starts—said, essentially, “Nah, there’s no need for that,” and continued to try to get things set up. Person told his lawyer about the conversation. A little angry back and forth between lawyers, some strongly worded emails, and a complaint to the Professional Responsibility Board and respondent ends up with a  violation and 30-day suspension. I want to highlight something here because I think it’s important. All of us make mistakes. Every last one of us. It’s part of the human condition. But it’s how we deal with those mistakes that really matters. I’ve been saying for years that the best way through a screwup is a three step formula: (1) admit the wrong; (2) take full responsibility; and (3) demonstrate that you’ve learned the lesson and explain why it won’t happen again. Respondent didn’t do that here. Instead, he tried to make excuses and minimize the error. I believe if he’d followed the formula, I wouldn’t be writing this summary—this would be an unpublished private admonition. In discussing mitigating and aggravating factors, SCOV sets aside respondent’s past misconduct for the most part and says: “More significant is respondent’s refusal to acknowledge the wrongful nature of his conduct.” In my mind, that’s the key. Respondent is suspended for 30 days. In re Fink2022 VT 63.

On Thursday, December 22, 2022, SCOV issued a published entry order.

Defendant appeals a hold-without-bail order. He’s accused of impregnating his 12-year-old stepdaughter and there’s a DNA test that would seem to strongly indicate that he’s the culprit. The trial court held him without bail. On appeal, he argues that the trial court abused its discretion in giving weight to the DNA test and that some factors in the hold-without-bail statute favor his release on conditions. SCOV is not having it. SCOV concludes that there was no abuse of discretion and that defendant should stay locked up pending trial. State v. Welch, 2022 VT 65 (mem.)

On Friday, December 23, SCOV takes a trip into the private-healthcare-in-prisons realm. The Human Rights Commission—on behalf of and with Ms. Congress, a former inmate—brought claims against Centurion, the private contractor providing healthcare in the prison based on Centurion’s muddling about with Ms. Congress’s hearing aids. Before Centurion moved for summary judgment on the Commission’s Vermont Public Accommodations Act (VPAA) claim, Ms. Congress settled or dismissed all her claims. She’s not part of this appeal. The gist of the VPAA claim is that Centurion discriminated against Ms. Congress by not providing proper medical care that would allow her access to programming in prison. The problem with this claim is the interplay between Centurion and the DOC. The way the trial court took it was that Centurion’s actions or lack thereof didn’t discriminatorily deny Ms. Congress access to DOC programming because Centurion’s purview is medical and it doesn’t control what DOC does or doesn’t do. SCOV agrees. This one gets affirmed. Congress v. State, 2022 VT 62.

On Friday, December 16, SCOV issued a lone opinion. It’s a third-party legal malpractice claim where the former lawyer being sued says, “It’s your other lawyers’ fault.” Plaintiffs’ former lawyer wrote a letter but didn’t file suit to kick plaintiffs’ neighbors off their land before the statute of limitations on recovery of lands expired. That allowed the neighbors to bring an action for adverse possession of the disputed land. After that case settled, plaintiffs sued former lawyer. So, former lawyer filed a third party action against the replacement attorneys—the attorneys who represented plaintiffs in the adverse-possession suit—saying more or less that the adverse-possession suit was meritless hokum and they ought not have settled it. Because they settled the meritless case when they should’ve beaten it, former lawyer argued, he’d be entitled to indemnity and contribution. It’s a . . . novel claim. The trial court found that former attorney hadn’t established any relationship between himself and replacement attorneys that would give rise to implied indemnity and Vermont law doesn’t allow for contribution among tortfeasors, and so, the trial court granted replacement attorneys’ motion to dismiss. On appeal, former attorney argues that SCOV should change the no-contribution rule in Vermont. That goes over like an airship composed of an element in the periodic table referred to as “Pb.” On the indemnity front, SCOV reasons—like the trial court—that there was no relationship alleged that would give rise to implied indemnity. This one gets affirmed. Haupt v. Triggs, 2022 VT 61.            

One opinion Friday December 2, 2022. It involves the Public Utility Commission or PUC for short. It’s probably a good thing I don’t practice in this area because I would abuse that acronym mercilessly and likely get in trouble for it.

This case is, at one level, about when administrative guidance becomes a rule. But more to the point, it’s about the procedure for challenging it. Plaintiff—a solar-generation-developer outfit—filed a declaratory judgment action, seeking to invalidate two guidance documents and a plant-classification system issued by the Agency of Natural Resources. Plaintiff argued that the PUC treated the guidance as de facto rules; that these de facto rules were not properly implemented and violate the Vermont Administrative Procedure Act’s (VAPA) rulemaking requirements; and that, therefore, the trial court should do away with them. The trial court reasoned that the challenged provisions were not rules and did not have the effect of law and dismissed. On appeal, SCOV affirms on different grounds, essentially saying, “Even assuming you’re challenging ‘rules,’ you’re late to the party.” Did I mention there’s a one-year statute for challenging rules under VAPA? So that’s that. SCOV does note that it’s not deciding the merits here and that plaintiff is not without recourse. Plaintiff can challenge the rules during the certificate-of-public-good process before the PUC and if the PUC PUCs it up (sorry, can’t help myself), then plaintiff can make a return trip to 111 State Street. Otter Creek Solar, LLC v. Vermont Agency of Natural Resources, 2022 VT 60.


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