Applicant Derby GLC Solar, LLC appealed a Public Utility Commission (PUC) decision denying its application for a certificate of public good (CPG) for a netmetered solar electric-generation facility. The PUC determined that applicant’s proposed project failed to satisfy 30 V.S.A. 248(b)(7) or (10). Applicant contended the PUC erred by not weighing the alleged economic benefits of the project against its adverse impacts, improperly considered evidence that should not have been admitted, misinterpreted the language of section 248, and treated applicant’s project differently than similarly situated projects. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Application of Derby GLC Solar, LLC" on Justia Law

Petitioner Christopher Sullivan appeals a trial court order granting summary judgment to the Vermont Department of Corrections (DOC) on his Vermont Rule of Civil Procedure 75 petition challenging the DOC’s decision to deny him reintegration furlough. Petitioner was convicted of one count of driving under the influence of intoxicating liquor with death resulting, and one count of leaving the scene of a fatal accident. While serving a resulting incarcerative sentence, he sought Civil Rule 75 review of the DOC’s decision to deny him reintegration furlough and earned time toward such furlough, arguing that this denial was predicated on unlawful consideration of his convictions as indicative of a history of violent behavior The Vermont Supreme Court found the DOC could authorize reintegration furlough or an award of earned time toward reintegration furlough only where these decisions were made in accordance with rules promulgated by the DOC pursuant to the grant of authority at 28 V.S.A. 808c(c). During the pendency of this appeal, the DOC moved to dismiss the case as moot, contending that, because petitioner reached his minimum sentence on August 5, 2019, and was paroled on August 14, 2019, the requested relief could no longer be granted. Petitioner responded that the DOC failed to prove that this situation will not reoccur, observing that he could be reincarcerated and subsequently denied furlough on the basis of the same two convictions, which would remain on his record. In the alternative, he urged the Supreme Court to adopt a public-interest exception to the mootness doctrine. The Supreme Court concluded the case was moot, declined to adopt such an exception, and dismissed. View "Sullivan v. Menard" on Justia Law

Defendant Paul Alzaga appealed his conviction for DUI refusal. On appeal, defendant argued: (1) the trial court erred in admitting testimony indicating that defendant had refused to take a preliminary breath test (PBT) and regarding the Horizontal Gaze Nystagmus (HGN) test; (2) the court committed plain error in instructing the jury and designing the jury verdict form; and (3) the conviction was invalid because the jury did not enter a verdict. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Alzaga" on Justia Law

This case arose from a series of plans overseen by defendants to develop several real estate projects in the Northeast Kingdom of Vermont. Work on these projects spanned eight years, including fundraising and planning stages, and involved several limited partnerships and other corporate entities (the Jay Peak Projects). The Jay Peak Projects, at the direction of defendants Ariel Quiros and William Stenger, raised investment funds largely through a federal program known as the EB-5 Immigrant Investor Program (EB-5 Program). In April 2016, the U.S. Securities and Exchange Commission filed a lawsuit alleging securities fraud, wire fraud, and mail fraud against the Jay Peak Projects developers, Ariel Quiros and William Stenger. The Vermont Department of Financial Regulation also filed suit against Quiros and Stenger, alleging similar claims. On the basis of these and other allegations, plaintiffs, all foreign nationals who invested in the Jay Peak Projects, filed a multi-count claim against ACCD and several individual defendants. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appealed an order denying their motion to intervene in the State’s enforcement action brought against defendants. The Vermont Supreme Court affirmed because the motion to intervene was untimely. View "Vermont, et al. v. Quiros, et al." on Justia Law

The issue presented for the Vermont Supreme Court's review in this matter centered on a timber trespass action brought by plaintiffs against a neighboring landowner and the logger who cut plaintiffs' trees. Plaintiffs appealed the jury verdict in their favor, arguing that the damage award was inadequate. Plaintiffs also claimed the jury should have found the neighbor liable for unlawful mischief and that the trial court erred in denying their claims for treble damages, additional costs, and prejudgment interest. Finding no abuse of the trial court's discretion, the Supreme Court affirmed. View "Epsom v. Crandall" on Justia Law

Petitioner, Miles Otis Dow, Jr., filed a motion for post-conviction relief (PCR) with the Windham Civil Division. He was convicted of aggravated assault stemming from events that occurred in March 2014. In March 2017, petitioner filed his initial PCR petition, alleging violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. He asked that the PCR court vacate and set aside the trial court judgment against him or, in the alternative, grant a new trial or correct the sentence. Upon receiving the initial PCR petition, assigned counsel reviewed it and declined assignment of the case pursuant to 12 V.S.A. 5233(a)(3), indicating that “further representation of [petitioner] would require an attorney to advance frivolous claims.” Petitioner filed an amended PCR petition in January 2018, which was the petition at issue now before the Vermont Supreme Court. The amended petition sought relief based on several grounds. Most notably, petitioner added new claims of ineffective assistance of counsel because petitioner’s attorney allegedly: (1) failed to object to the trial court’s grant of the State’s motion for a mistrial, thereby failing to preserve the issue for appeal to this Court; and (2) failed to reasonably and effectively prepare for sentencing by failing to investigate petitioner’s background and mitigating evidence regarding petitioner’s mental health or his education, employment, family, financial, and health records. In January 2018, the PCR court issued an entry order acknowledging the amended petition, which “provide[d] additional elaboration” for the claims in the initial petition, and stated that petitioner would be treated as pro se unless he hired counsel because the Defender General’s Office had already found the claims raised in the initial petition to be meritless. In February 2018, petitioner filed a motion for reassignment of counsel. His request for counsel was denied by order in March 2018 “for the same reasons as stated” in the January entry order. Thereafter, petitioner proceeded pro se. The State filed a motion for summary judgment, which the PCR court granted. Petitioner appealed the PCR court’s dismissal to the Supreme Court, arguing that the PCR court erred in granting the State’s motion for summary judgment because it failed to properly address the claims petitioner raised in his amended petition. The Supreme Court concurred, reversed and remanded for the PCR court to conduct further proceedings. View "In re Miles Otis Dow, Jr." on Justia Law

Plaintiff-investors appealed the dismissal of their claims against the Vermont Agency of Commerce and Community Development (ACCD) and current and former state employees arising from the operation of a federally licensed regional center in the United States Customs and Immigration Services (USCIS) EB-5 program. USCIS designated ACCD as a regional center in 1997, and ACCD began operating the Vermont Regional Center (VRC). In 2006, the VRC partnered with a series of projects led by Ariel Quiros and William Stenger (referred to as the “Jay Peak Projects”). ACCD entered into a memorandum of understanding (MOU) with the Jay Peak Projects for each project. Employees of ACCD, including James Candido and Brent Raymond, both former executive directors of the VRC, and John Kessler, general counsel for ACCD, traveled with Jay Peak representatives to EB-5 tradeshows, at which they would share a table and jointly solicit investors and promote the Projects. ACCD employees represented to prospective investors, including plaintiffs, that the added protections of state approval and oversight made the Jay Peak Projects a particularly sound investment. However, unbeknownst to the investors, but known to VRC officials, no such state oversight by the VRC existed. In 2014, about twenty investors, including plaintiff Antony Sutton, sent complaints to Brent Raymond alleging that the Jay Peak Projects was misappropriating investor funds. In April 2016, the U.S. Securities and Exchange Commission filed a lawsuit alleging securities fraud, wire fraud, and mail fraud against the Jay Peak Projects developers, Ariel Quiros and William Stenger. The Vermont Department of Financial Regulation also filed suit against Quiros and Stenger, alleging similar claims. On the basis of these and other allegations, plaintiffs, all foreign nationals who invested in the Jay Peak Projects, filed a multi-count claim against ACCD and several individual defendants. The trial court granted plaintiffs’ motion to amend their complaint for a third time to a Fourth Amended Complaint, and then dismissed all thirteen counts on various grounds. Plaintiffs appealed. The Vermont Supreme Court reversed dismissal of plaintiffs’ claims of negligence and negligent misrepresentation against ACCD, gross negligence against defendants Brent Raymond and James Candido, and breach of contract and the implied covenant of good faith and fair dealing against ACCD. The Court affirmed dismissal of plaintiffs’ remaining claims. View "Sutton, et al. v. Vermont Regional Center, et al." on Justia Law

Defendant Stephanie Berard appealed a trial court’s denial of her motion for judgment of acquittal following her conviction for impeding or hindering a police officer. Trooper Wayne Godfrey of the Vermont State Police directed defendant to pull over her car after he observed her committing traffic violations. Defendant asked him to call another officer because she recognized him as someone she had interacted with on a previous occasion, when he “maced” her. The officer instructed defendant to provide him with her driver’s license, registration, and proof of insurance. Defendant replied that she had the requested documents in her car, but she would not provide them to him and asked him to call another officer. Trooper Godfrey continued to instruct defendant to provide the documents, and defendant refused to provide them to him. During their exchange, Trooper Godfrey called for another officer. The exchange proceeded for around six minutes, until the second officer arrived. Trooper Godfrey estimated at trial that he asked for defendant’s information around twenty-two times within those six minutes and said her delay in producing the documents was unreasonable. As Trooper Godfrey testified and the video shows, defendant was “[c]ombative” and “uncooperative” and her voice was “escalated and raised.” When the second officer arrived, defendant retrieved the documents and extended them out of the car. At that point, Trooper Godfrey grabbed defendant’s arm, physically pulled her out of the car, and arrested defendant for impeding a law enforcement officer. A jury found defendant guilty. In denying her motion for judgment of acquittal, the trial court reasoned defendant had no legal right to refuse to provide the documents, and it had no grounds to disturb the jury's conclusion that defendant's refusal hindered the officer. On appeal, defendant argued: (1) the State did not prove that defendant’s refusal to provide the documents was itself a criminal act; (2) defendant did not hinder the officer in investigating the alleged traffic infractions; and (3) extending criminal liability to failure to provide a driver’s license, registration, and proof of insurance would render the impeding-officer statute unconstitutionally vague. The Vermont Supreme Court concluded there was no question defendant's refusal was unlawful. However, when read broadly, the impeding-officer statute appeared to criminalize any unlawful action, no matter how slight or brief, that for any moment delays or interferes with the lawful execution of an officer’s duties. "Such a broad sweep is inconsistent with the text of [13 V.S.A. section] 3001 as a whole." The Court analyzed lesser penalties given for related conduct and could not conclude the Legislature intended section 3001 to include a civil violation of the motor vehicle code as a hindering action. Accordingly, the Court interpreted section 3001 narrowly and held that a civil violation of the motor vehicle code, on its own, could not provide the basis for an impeding-officer offense, even when that violation was intentional. View "Vermont v. Berard" on Justia Law

Defendant Jeffrey Gay, II appealed orders orders denying his motion for summary judgment and granting summary judgment in favor of the State on his petition for post-conviction relief (PCR). In 2014, defendant pled no contest to obstruction of justice. As part of his plea colloquy with the sentencing court, defendant acknowledged that by changing his plea from not guilty to no contest, he was giving up his right to appeal, which he would have had if he had maintained his not-guilty plea, gone to trial, and been convicted. The court imposed a sentence that was enhanced under Vermont’s habitual-offender statute, 13 V.S.A. 11. Between 2001 and 2006, defendant was convicted of four felonies that enhanced the sentence on the obstruction-of-justice conviction. He pled guilty to two of those convictions, false pretenses and grand larceny, at one proceeding in 2004. In 2018, defendant filed his PCR petition, seeking to vacate the sentence imposed on the 2014 obstruction-of-justice conviction. He argued that he was entitled to a resentencing because his pleas to the charges of false pretenses and grand larceny in 2004 were not made knowingly and voluntarily. Specifically, he alleged that the pleas were deficient because the court failed to elicit from him an admission to the factual basis supporting each of the charges. Defendant argued that without these two prior convictions, his sentence on the obstruction-of-justice conviction should not have been enhanced. In affirming the trial court, the Vermont Supreme Court concurred defendant waived his right to challenge the legality of his underlying convictions and the imposition of an enhanced sentence when he entered a knowing and voluntary plea to obstruction of justice. View "In re Jeffrey R. Gay II" on Justia Law

When M.P. was born, mother was married to husband. At the time of M.P.’s birth, the family lived in Alabama. In the spring of 2016, the family moved to Vermont. Mother was subsequently arrested on an Alabama warrant and extradited to Alabama. M.P. and her brothers remained in Vermont in husband’s care. In August 2016, husband requested assistance in caring for the children, and M.P. and her brothers were placed in DCF custody. The State filed a petition alleging M.P. and her brothers were CHINS. Mother and father appealed the eventual termination of their parental rights to M.P. On appeal, father argued: (1) Vermont lacked subject matter jurisdiction to adjudicate M.P. as a child in need of care or supervision (CHINS) and to terminate his parental rights under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); (2) the family court erred in finding that his progress had stagnated and that termination was in M.P.’s best interests; and (3) the evidence did not support the court’s finding that the Department for Children and Families (DCF) made reasonable efforts to finalize the permanency plan. Mother joins father’s arguments and argues that the CHINS order is invalid because mother did not join the stipulation on which the order was based. The Vermont Supreme Court rejected the parents’ jurisdictional challenges to the CHINS merits order and reversed termination of father’s parental rights. The Court concluded husband had authority as the children’s custodian and presumed legal parent to enter the stipulation upon which the CHINS decision was based. Further, the family court had temporary emergency jurisdiction over the CHINS petition under the UCCJEA and that jurisdiction became permanent when no case concerning M.P. was filed or commenced in another state. The Court affirmed termination of mother’s parental rights, but that the family court erred in finding that father’s progress had stagnated. Nonetheless, the Supreme Court held there was a change of circumstances warranting modification of the case plan in this case given the identification of father, who had previously been involved as M.P.’s caretaker, as M.P.’s legal parent. View "In re M.P." on Justia Law