It’s been quiet the past few weeks. This Friday, however, SCOV issued two opinions.

The first case is about square pegs, round holes, nepotism, and collective bargaining agreements—not necessarily in that order. The state-employees’ collective bargaining agreement requires, among other things, that a competitive position be posted for 10 days and gives priority placement to employees who are subject to reduction-in-force or “RIF” layoffs. On February 7, 2020, a correctional facility (employer) posted a job that several employees applied for or intended to apply for. This is our round hole. One of the applicants was Ms. Moly. But here’s the thing about Ms. Moly: she worked for a different correctional facility and her partner also worked at the different correctional facility. He was very recently promoted, which meant he was in a supervisory position over her, which violated the anti-nepotism agreement both Ms. Moly and her partner had signed. So someone got a bright idea (I mean this with all the sarcasm you’re hearing in your head right now). They decided to “RIF” Ms. Moly into the vacant position. There are a few problems with this approach, not the least of which is that Ms. Moly is not actually subject to a RIF layoff. This made Ms. Moly a “square peg” for purposes of our story. On Valentine’s Day 2020—I note the date for its delicious irony—Ms. Moly was hired for the posted position and employer “disappeared” the posting. No competitive interviews were held. The other employees who’d applied (or planned to apply before the February 23 deadline) were understandably upset. The Union filed a grievance on behalf of the applicants and applicants-to-be. The Labor Relations Board found that employer had violated the CBA and ordered the State to repost the job for ten days.

The State appeals. SCOV doesn’t spend a whole lot of time on the State’s arguments. SCOV concludes the Board’s findings and conclusions of law were reasonable and even goes so far as to dress “evidence” in quotes and cite to the definition of “Facts” in Black’s Law Dictionary in its rejection of one of the State’s arguments. Ouch. In re Abbey, 2023 VT 9.

Our other case for the week is an appeal from a second-degree murder conviction. Witnesses placed defendant at the scene with a gun, though nobody specifically saw defendant shoot victim. Police pinged defendant’s phone and he was eventually arrested in Massachusetts (I’m skipping a lot here). Defendant argues that the evidence was too thin and that the trial court committed plain error when it didn’t include a limiting instruction on flight. The sufficiency-of-the-evidence argument gets no traction and that’s no surprise—it rarely does. SCOV does not find plain error in an also-unsurprising analysis. Defendant’s other arguments about whether his motions to suppress should have been granted do not establish grounds for relief in defendant’s case. But—notably—SCOV does hold that under Article 11 of the Vermont Constitution, police must obtain a warrant to access cell site location information (CSLI) absent an exception to the warrant requirement. Now, in the case at bar—a phrase only a lawyer could love—SCOV concludes that exigent circumstances justified “pinging” the defendant’s phone to figure out where he was. It was murder. Defendant was reasonably believed to be armed. He’d vacated his last-known residence and was driving a rental car. There was a reasonable likelihood of danger to police and the community at large. Given the totality of the circumstances, SCOV concludes the police were justified in “pinging” defendant’s location. Lastly, SCOV rejects defendant’s argument that he should have gotten a new trial. After trial and conviction, defendant brought in two witnesses that were allegedly at the scene and identified someone else as the shooter. The trial court found, however, that neither witness was particularly credible and that neither actually witnessed the murder. So, SCOV concludes that the trial court was justified in denying the motion for a new trial. State v. Murphy, 2023 VT 8.