K.A., a twelve-year-old, middle-school boy, committed "inappropriate acts" outside his school, for which he was adjudged delinquent under a Vermont statute prohibiting lewd acts relating to prostitution. The charges stemmed from a school-yard game of four-square: "S.K." and K.A. were friends. K.A. approached, said his hands were cold, and asked to put his hands in her jacket pockets. S.K. said no, but K.A. reached his hands into her pockets anyway. Then K.A. began walking backward towards a snowbank a few feet away, pulling S.K. with him by her pockets. As he pulled her, K.A. pressed against S.K. and told her to kiss him or he would throw her in the snowbank. S.K. again said no and tried to remove his hands from her pockets. Then, the trial court found, K.A. tried to get his hands under the waistband of the girl’s jeans while his hands were still in her outside coat pockets. S.K.’s belt prevented K.A.’s hands from going down the front of her pants. Ultimately, K.A. did not kiss S.K. or throw her into the snowbank; instead, he pulled her back towards the school, again using his hands in her pockets as leverage. As the two neared the building, a teacher saw them and yelled at K.A. to take his hands out of S.K.’s pockets. The State filed a delinquency petition alleging that K.A committed simple assault and engaged in a prohibited act, lewdness. The trial court granted the judgment of acquittal with regard to simple assault, but not with regard to engaging in lewdness. K.A. argued on appeal to the Supreme Court: (1) the evidence presented at trial was insufficient to support the trial court’s conclusion that, beyond a reasonable doubt, K.A. attempted to commit a prohibited lewd act; and (2) the trial court improperly amended the charge from committing a lewd act to attempting to commit a lewd act. The Supreme Court concluded that the charge against K.A. failed for insufficient evidence that his actions were an attempt to engage in a lewd act of prostitution. “Discretion to prosecute persons who have committed crimes is one thing; prosecutorial discretion to decide whether conduct is criminal in the first instance is another. The latter invites arbitrary enforcement and contravenes the separation of powers inherent in our constitutional government.” View "In re K.A." on Justia Law

The Town of Rutland and five adjoining landowners (“neighbors”) appealed the Vermont Public Service Board’s grant of a certificate of public good (“CPG”) to Rutland Renewable Energy, LLC (“RRE”) for construction of the Cold River Solar Project (“Project”), a 2.3 megawatt (Mw) solar photovoltaic electric generation facility. The Town and neighbors argued that the Board incorrectly held that the project will not unduly interfere with the orderly development of the region, would not have an undue adverse effect on aesthetics, and would not have an undue adverse impact on historic sites. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Petition of Rutland Renewable Energy, LLC" on Justia Law

The State appealed the dismissal of three counts of sexual exploitation of a minor, filed against defendant Julianne Graham, a high school employee, based on her having engaged in sexual acts with a student over the summer break between defendant’s school contracts. The issue was whether the circumstances of this case supported the charges. The Supreme Court concluded that they did not, and affirmed the dismissal. View "Vermont v. Graham" on Justia Law

Police arrested defendant Stephen Howard for driving under the influence (DUI). The State appealed the granting of defendant’s motion to exclude evidence collected from a traffic violation stop of his car. The trial court granted the motion and dismissed the case because it concluded that the trooper who conducted the stop did not have a reasonable and articulable suspicion that defendant committed a traffic violation. After review of the trial court record, the Supreme Court reversed: once "defendant crossed the center line, the trooper had a reasonable suspicion that defendant committed a traffic violation as soon as this crossing occurred." View "Vermont v. Howard" on Justia Law

Defendant James Anderson appealed a trial court’s decision finding he violated two conditions of probation for his failure to complete sex offender programming to the satisfaction of his probation officer during the unsuspended portion of his sentence. Defendant was convicted in 2003 and sentenced nineteen to twenty years, all suspended except eleven years. The sentencing court indicated that the split sentence was intended to deliver a “severe sanction” while giving defendant an option to make good on what he claimed was remorse and what he claimed to admit doing. For this reason, the trial court explained at sentencing that the split sentence was contingent on defendant completing sex offender treatment programming during the to-serve portion of his sentence. In 2014, while serving the unsuspended portion of his sentence, defendant entered the Vermont Treatment Program for Sexual Abusers, a six-month sex offender treatment program. On June 10, 2014, defendant was suspended from the treatment program for ninety days for his failure to admit responsibility for the sexual assault underlying his conviction. At that time, defendant was advised that readmission to the treatment program required that he answer and submit to his caseworker five standard questions no later than one week prior to the end of the ninety-day suspension period. In July, defendant’s probation officer filed a complaint, alleging that defendant had violated the terms of his probation for failing to participate fully in and complete the Vermont Treatment Program for Sexual Offenders. The trial court dismissed the complaint, finding no probable cause for a violation of probation because the affidavit in support of the complaint did not include an allegation that defendant had received written notice of the conditions of his release. Consistent with V.R.Cr.P. 36, the trial court subsequently directed its clerk to prepare a probation warrant placing defendant on probation with the standard conditions, specifically including special conditions "K" and "31." Two months later, defendant's probation officer again filed a complaint that he violated the special conditions of his probation. At a merits hearing, the trial court found defendant violated the special conditions. After review of defendant's arguments on appeal of the trial court's findings, the Supreme Court concluded that defendant failed to meet his burden of persuasion that he did not violate his probation. Accordingly, the Court affirmed the trial court's judgment. View "Vermont v. Anderson" on Justia Law

Defendant Dylan Stinson appealed a judgment finding him liable to plaintiffs Kevin and Linda Flanagan for damage to their vacation home from a fire started in an outdoor fireplace on their deck by a group of teenagers who were there without their permission. Stinson contended that: (1) there was insufficient evidence to find him liable for the damage under a concerted-action theory; (2) it was improper for the trial court to admit and rely on evidence of the actual cash value of the lost personal property; and (3) the pre and postjudgment interest rate awarded by the trial court was unconstitutional under the U.S. and Vermont Constitutions. Finding no reversible error, the Supreme Court affirmed. View "Concord General Mutual Insurance Company v. Gritman" on Justia Law

Husband Bryan Zink appealed a trial court order denying his request to modify his spousal maintenance obligation and granting wife’s motion to enforce. He argued that the court erred in finding an absence of changed circumstances, and in finding that wife did not agree to accept reduced payments in satisfaction of past spousal maintenance obligations. After review, the Supreme Court reversed and remanded. To the extent that the trial court found that husband had failed to prove that wife had agreed to a permanent prospective modification of his spousal maintenance obligation, that finding was supported by the record. The Court did not read the trial court’s decision as addressing the question of whether, when, and to what extent, wife may have forfeited her ability to collect retroactive support payments that would have been due under the divorce order as a result of agreement, waiver, or equitable estoppel. On remand, in connection with wife’s claim for spousal maintenance arrearages, the trial court was mandated to address these questions. View "Zink v. Zink" on Justia Law

Convicted sex offender, defendant Owen Cornell, appealed the imposition of six probation conditions ordered by the sentencing court. He argued four of the conditions, that he reside or work where his probation officer approves, attend counseling programs ordered by his probation officer, refrain from violent and threatening behavior, and avoid areas where children congregate, had already been deemed unlawful by the Vermont Supreme Court and should have been struck down. He further argued that the remaining two conditions, giving his probation officer warrantless search and seizure privileges and banning home computer and internet usage, imposed unduly restrictive and invasive terms that infringe upon defendant’s liberty, privacy, and autonomy rights. After review, the Supreme Court agreed with defendant as to the residence and employment, counseling, search and seizure, and home computer and internet use conditions, and remanded to the sentencing court for further justification, amendment, or elimination. The Court affirmed the imposition of the conditions prohibiting violent or threatening behavior and restricting access to areas where children congregate. View "Vermont v. Cornell" on Justia Law

Plaintiffs, the parents of a newborn baby, alleged that on June 12, 2012, their son died as a result of the medical malpractice of the Hospital defendants and the Baker defendants (Richard Baker, M.D. and Mary Beerworth, M.D.). It was undisputed that this filing was within the period established by the applicable statute of limitations. The issue this case presented for the Supreme Court's review centered on the denial of motions to dismiss filed by the Hospital defendants and the Baker defendants. Both sets’ motions were predicated on plaintiffs’ failure to timely serve process. On appeal, the Baker defendants argued that the trial court’s grant of an enlargement of time to serve process expired prior to plaintiffs’ serving of the summons and complaint, while the Hospital defendants contended that although they signed a waiver of service, plaintiffs failed to file that waiver with the court before the expiration of the service period. Both sets of defendants also appealed the trial court’s conclusion that even if plaintiffs’ service was found to be untimely, it retained the authority to retroactively grant a motion for enlargement of time and extend the period for service after the running of the statute of limitations on the basis of excusable neglect. Finding no reversible error, the Supreme Court affirmed. View "Clark v. Baker" on Justia Law

In 1990, the City of Burlington obtained a land-use permit for the Waterfront Park (the Park). The City hosted a number of events at the Park in the summer of 1993 and may have hosted others prior to that time. In December 1993, the City applied for an amendment to its permit to allow for hosting of festivals and public events at the Park. During the amendment process, the City argued against any express permit condition regarding the timing, duration, and frequency of events and sound levels, taking the position that the City Parks and Recreation Commission should regulate these matters. In February 1994, after considering the impact on neighboring residents caused by noise and traffic from events, the district commission granted the amendment and imposed twenty-six conditions, some of which related to the maximum sound levels associated with events at the Park, when and where to measure those sound levels, and the timing and number of events that could be held at the Park. In August 2008, Allison Lockwood purchased her property located at 200 Lake Street, adjacent to the Park. Prior to purchasing the property, she researched and read the 1994 Permit, and specifically relied on the permit conditions governing the timing and frequency of events at the Park and the maximum allowed sound levels. At the time of her purchase, the neighbor was aware that festivals and events would take place at the Park, but she understood these events would be limited by the conditions in the permit. Neighbor was nevertheless significantly impacted by the events and festivals, experiencing loud noise for extended periods of time, significant vehicular and pedestrian traffic congestion, and limits on her ability to sleep, spend time outdoors, open her windows, and enjoy her property. This case began in November of 2012 when the City filed an application with the district environmental commission to amend a number of conditions in the 1994 permit. Lockwood appealed the amended land-use permit to the Environmental Division, then appealed when the Environmental Division awarded summary judgment to the City of Burlington. The Environmental Division ruled that the City is entitled to seek an amendment to its Act 250 permit covering the Waterfront Park located on the shores of Lake Champlain. Finding no reversible error, the Supreme Court affirmed. View "In re Waterfront Park Act 250 Amendment (Alison Lockwood, Appellant)" on Justia Law