Marilyn S. Skoglund

The case involved a long-standing dispute between John Rhodes and the Town of Georgia over the existence, maintenance, and use of two ancient town roads bordering his property, which began with his 1995 petition to the selectboard for access and improvements and escalated into claims of discriminatory denial of road access to benefit his neighbors. The trial court found that the selectboard's repeated and malicious actions violated Chapter I, Article 7 of the Vermont Constitution, the Common Benefits Clause, by arbitrarily frustrating Rhodes's property rights. The Supreme Court of Vermont affirmed the judgment of liability, concluding that Article 7 is self-executing and supports a damages remedy for such constitutional violations, but reversed the specific damage award and remanded for further proceedings to determine appropriate relief.

civil rightspropertyprocedure

The case involves the Vermont Swim Association (VSA) appealing a trial court's award of over $166,000 in attorney's fees to the City of Rutland. The fees stemmed from the City's defense in a negligence lawsuit by the Southwicks after a child was injured at a park during VSA's swim meet, as well as the City's third-party actions against VSA and insurers under their facility-use agreement. The Vermont Supreme Court reversed the fee award and remanded, holding that the plain language of the agreement's indemnity clause requires VSA to cover only the City's defense costs in the underlying tort suit, not fees from indemnity or third-party claims. The core reasoning applies the American Rule that each party bears its own attorney's fees absent a clear contractual exception, finding the clause unambiguous and limited to direct defense expenses rather than litigation over enforcement of the indemnity itself.

proceduretorts & liability

The case involved defendant Myers, who after heavy drinking drove his truck onto a complaining witness's property, rammed the mobile home where the witness's child slept, drove toward the witness, fled, and later struggled with and kicked arresting officers. He was convicted by a jury on seven charges including aggravated assault and related offenses. On appeal Myers raised multiple claims of trial error, including denial of a motion to exclude prejudicial evidence of prior racial statements, refusal to instruct on lesser-included offenses or defenses such as diminished capacity and necessity, a flawed intent instruction, a defective charging document, and denial of acquittal on one assault count for lack of proven injury. The Vermont Supreme Court affirmed, holding that the trial court committed no reversible error in its evidentiary or instructional rulings and that the evidence was sufficient to support the convictions.

criminal lawprocedure

Homeowners filed a declaratory judgment action against their title insurance company to compel defense and indemnification after learning their septic system encroached on neighboring museum property. The trial court held that the policy did not require coverage, and the Vermont Supreme Court affirmed. The court reasoned that the forced-removal provision was inapplicable because the museum never demanded removal or filed suit, and the marketability provision did not apply because no challenge to title occurred. The court further concluded that the homeowners had not preserved an alternative encumbrance argument for appeal.

property

The case involved a home improvement contractor charged with home improvement fraud under Vermont law after entering a contract to renovate a second home but failing to complete the work to the homeowners' satisfaction despite receiving multiple payments. The defendant appealed his jury conviction, arguing insufficient evidence of intent to defraud, an improper permissive inference jury instruction under 13 V.S.A. § 2029, and the statute's unconstitutionality. The Vermont Supreme Court vacated the conviction and remanded for a new trial, holding that the State failed to establish the predicate facts needed to support the permissive inference instruction and that the instruction as given did not align with the statute's requirements or evidence rules. The court reasoned that the instruction improperly allowed the jury to infer guilt without the necessary factual basis from the evidence presented at trial.

criminal lawprocedure

In State v. Memoli, the defendant was convicted by a jury of aggravated sexual assault based on an incident following a New Year's Eve party in which the complainant alleged she was forced to engage in sexual acts after being given drugs at the defendant's home, while the defense claimed the encounter was consensual and involved voluntary drug use by all parties. The Vermont Supreme Court reversed the conviction and remanded for a new trial. The court held that the trial judge's pretrial order excluding all evidence of the complainant's cocaine use before and after the alleged assault was erroneous because it prevented the defendant from presenting his theory that the complainant voluntarily exchanged sex for drugs. The majority reasoned that this evidence was central to the consent defense and its exclusion was not harmless beyond a reasonable doubt, though it rejected the claim regarding a lesser-included offense instruction.

criminal lawprocedure

In State v. Quist, the defendant was convicted of twelve charges of failing to pay taxes or file returns and was ordered by the trial court to pay $15,234.36 in restitution to the Vermont Department of Taxes for back taxes from 2005-2006. Quist appealed, contending that the Department was not a "victim" entitled to restitution under 13 V.S.A. § 7043 and related victims' rights provisions. The Vermont Supreme Court affirmed the restitution order, reasoning that 1 V.S.A. § 128 defines "person" to include any state department or agency, that the restitution statutes explicitly contemplate payments to government entities, and that legislative intent from the 2005 amendments confirms businesses and government entities may receive restitution as collected from offenders. The court distinguished advance payments from the crime victims' fund, which are limited to natural persons, from general restitution obligations.

criminal lawtaxes

In State v. Neisner, the defendant was convicted by a jury of grossly negligent operation of a motor vehicle, leaving the scene of an accident, giving false information to a law enforcement authority, and impeding a public officer after a hit-and-run collision involving motorcycles. The Vermont Supreme Court vacated the conviction and sentence for giving false information, holding that it violated double jeopardy because that charge and the impeding-an-officer charge required proof of the same elements. The court affirmed the remaining convictions, rejecting claims of insufficient evidence for gross negligence and impeding an officer, improper sentencing related to the right to remain silent, and defects in the charging information.

criminal lawprocedure

This case involved the Vermont Department for Children and Families (DCF) substantiating parents for inclusion on the child protection registry after determining they placed their young daughters at risk of sexual abuse by allowing unsupervised contact with an adult male who had multiple prior convictions for sex offenses against children. Following an administrative review that upheld the substantiation, the parents appealed to the Human Services Board, where a hearing officer ordered DCF to submit an offer of proof before completing the fair hearing; DCF objected but agreed to comply, yet the Board later reversed the substantiation based on DCF's handling of the order. DCF appealed to the Vermont Supreme Court, which held that the hearing officer had authority to issue the procedural directive but that the Board erred by reversing the registry decision without allowing full proceedings to conclude. The court reversed the Board's ruling and remanded for additional proceedings consistent with the fair-hearing process and applicable statutes defining risk of harm.

family lawprocedure

In State v. Gokey, the defendant was convicted by a jury of lewd or lascivious conduct with a child and sentenced as a habitual offender after prior felony convictions. On appeal, he challenged the trial court's handling of his competency to stand trial, citing concerns over his medical condition including seizures and medication effects during proceedings. The Vermont Supreme Court reversed the conviction and remanded for a new trial, holding that the trial judge improperly assumed an investigative role by eliciting testimony from officers, expressing personal doubts about the defendant's symptoms, and making findings based on her observations rather than remaining an impartial arbiter. This conduct violated rules against a judge testifying as a witness and undermined the fairness of the competency determination. A dissent argued that any errors were harmless because credible evidence supported the competency finding and no prejudice was shown.

criminal lawprocedure

This case involved a plaintiff's public records request to the City of Burlington for documents related to his pending traffic ticket for speeding, including materials on speed devices, the officer's records, and speed limit studies. The City withheld certain items under the litigation exception of Vermont's Public Records Act, which exempts records relevant to ongoing litigation until they are ruled discoverable or the case ends. The trial court granted summary judgment to the City, finding the request fell within the exception. On appeal, the Vermont Supreme Court affirmed the ruling that the City responded timely and that the exception applied to relevant documents not ordered discoverable in the traffic proceeding, but remanded for further findings on whether some withheld documents were actually relevant to the litigation.

procedure

The case involved plaintiffs who owned property accessed by Plouffe Lane, a right-of-way owned by the Town of Charlotte, and who sought declaratory and injunctive relief claiming the Town had duties under 1965 deed covenants to construct, maintain, close, and lock gates at the lane's ends and to erect and maintain fences along it. The superior court granted summary judgment to the Town on these claims, ruling that it had no such obligations. The Vermont Supreme Court affirmed, holding that the 1996 series of deeds—transferring the lane from the Town to a prior owner and then an enlarged version back to the Town, while conveying related parcels to plaintiffs—extinguished any prior covenants through merger of title and explicit language that the land passed free from encumbrances, with no reservation of the old obligations. The court reasoned that the unambiguous deed language controlled without need for extrinsic evidence of intent, and that the structure of the transactions clarified access easements while eliminating earlier burdens.

propertyprocedure

The case involved attorney Jasdeep Pannu, who represented a defendant charged with aggravated sexual assault against a minor. The trial court found Pannu in criminal contempt for willfully violating its orders by attempting to introduce evidence of the victim's prior sexual history that was excluded under the rape-shield law. Pannu appealed, arguing that he did not violate a clear order and that his conduct was not willfully disobedient. The Vermont Supreme Court affirmed the contempt finding, reasoning that the court's orders were clear and that Pannu's question about the victim's past sexual contacts was calculated to prejudice the jury and defied those orders.

criminal lawprocedure

This case concerns a dispute between neighboring property owners in which the Shahis sought injunctive relief under Vermont's hate-motivated crime statute (13 V.S.A. §§ 1455-1461) after a jury awarded them over $1.8 million in tort damages against Madden for vandalism, threats, and related conduct. The trial court ultimately issued an injunction prohibiting Madden from committing crimes against the Shahis, contacting them, or coming within a half-mile of their home, relying in part on the prior trial record and a contractor's deposition testimony about threats. On appeal, the Vermont Supreme Court reversed and remanded, holding that the trial court lacked a sufficient evidentiary foundation because the 2006 trial evidence was stale, not directly tied to the specific bias findings required for the injunction, and no adequate current hearing had established the necessary facts by a preponderance of the evidence. The court also rejected constitutional challenges to the statute's burden of proof and lack of jury trial, noting that the relief is civil and equitable rather than criminal. The opinion clarifies that any injunction must rest on proper, timely findings rather than solely on the earlier jury verdict.

criminal lawcivil rightsproceduretorts & liability

This case involved defendant Michael Brillon, who was charged with second-degree aggravated domestic assault (elevated to felony status due to an alleged violation of a condition-of-release order protecting his ex-girlfriend), contempt of court, and habitual offender sentencing after a 2001 incident. Following a nearly three-year pretrial delay and a jury trial resulting in conviction and a 12-to-20-year sentence, Brillon appealed on multiple grounds, including speedy trial violations under the U.S. Constitution (previously addressed by the U.S. Supreme Court) and errors in the trial court's handling of the charges. On remand, the Vermont Supreme Court declined to address the speedy trial claim under the Vermont Constitution, finding it inadequately raised earlier, and rejected other claims such as those involving stipulations, perjury questioning, and jury waiver. The court reversed the conviction and remanded for a new trial, holding that the trial court erred by denying bifurcation of the aggravating element (violation of the protective order) from the underlying domestic assault, as evidence of the order could improperly suggest a predisposition to abuse and cause unfair prejudice akin to prior bad acts. The core reasoning focused on the need to separate such elements to ensure a fair trial when they are not factually intertwined with the core offense.

criminal lawprocedure

In this case, petitioner Vito Russo, serving a 12-15 year sentence for aggravated assault after an altercation involving a rifle during a car chase, sought post-conviction relief claiming ineffective assistance of his trial counsel. The PCR court granted relief, finding that counsel's failure to consult a firearms expert or test-fire the rifle constituted deficient performance that prejudiced the defense by undermining challenges to the State's evidence of shots fired. The Vermont Supreme Court affirmed, holding that these omissions fell below reasonable professional standards under Strickland v. Washington and created a reasonable probability of a different trial outcome given the weaknesses in the State's circumstantial evidence. The decision focused on the specific tactical choices in a mixed denial and diminished capacity strategy without pursuing formal mental health defenses.

criminal lawprocedure

This case involved a contract dispute between developer Ferrisburgh Realty Investors (FRI) and landowner Robert Schumacher over a supplemental agreement in which Schumacher promised not to oppose certain land uses, including a planned residential development (PRD), in exchange for property purchased from the Pierces. FRI, after receiving an assignment of the Pierces' rights, sued Schumacher for breach of contract and related claims after he opposed the PRD at local planning meetings and through appeals. A jury found in favor of FRI on the breach claim and awarded damages, including punitive damages; the trial court reduced some damages and denied injunctive relief. On appeal, the Vermont Supreme Court affirmed the finding of an enforceable contract and most rulings but revised the jury's breach-of-contract damages award downward. The court reasoned that FRI had an adequate remedy at law through the assigned contract rights and that its own claimed lost profits were too speculative to support additional recovery.

propertyprocedurebusiness & regulatory

This case involved a custody dispute between unmarried parents over their child, born in 2005, after the mother moved with the child to New Hampshire following the end of their relationship. The family court awarded primary parental rights and responsibilities to the mother until March 2010, when the child was to start kindergarten, at which point rights would automatically transfer to the father for the remainder of the child's minority, based on the father's stronger ability to foster contact and meet developmental needs. On appeal, the Vermont Supreme Court held that the automatic future shift provision was unlawful because it was unsupported by findings regarding the child's best interests at the time of the change, relied on speculation about future circumstances, and improperly circumvented the statutory requirements for custody modification under 15 V.S.A. § 668. The court rejected the mother's argument that res judicata required awarding her permanent custody but reversed and remanded for a new custody determination.

family law

The case involved an employee who worked for the Burlington Electric Department for 26 years and was diagnosed with asbestos-related conditions in 2004; he filed a workers' compensation claim in 2005 under the Occupational Disease Act, which the Commissioner dismissed based on the five-year statute of repose. The Commissioner certified questions including one on jurisdiction to the Chittenden Superior Court, which dismissed the appeal for lack of jurisdiction because the issues were pure questions of law. The Vermont Supreme Court affirmed, holding that under 21 V.S.A. § 671, the superior court's review is limited to questions of fact or mixed questions of fact and law certified by the Commissioner, while pure questions of law must be appealed directly to the Supreme Court under § 672. The court also denied the employee's motions for leave to file an untimely direct appeal and to consolidate appeals.

labor & employmentprocedure

The case involved the Vermont State Employees' Association filing an unfair-labor-practice charge against the Department of Corrections for issuing a disciplinary guidance memorandum to bargaining-unit employees and placing signed copies in their personnel files without prior union involvement. The Vermont Labor Relations Board determined that the Department had violated its duty to bargain in good faith under state law, and the Supreme Court of Vermont affirmed that ruling. The court reasoned that the memorandum prospectively changed disciplinary standards and procedures, which were mandatory subjects of bargaining under the collective-bargaining agreement's provisions on discipline and work rules as well as the statutory obligation to negotiate over terms and conditions of employment. The Department had bypassed required notice and negotiation processes outlined in the agreement before implementing the new guidance.

labor & employment