It’s an old meme but it checks out

Since April 22, things have been relatively quiet.  

One opinion Friday, May 26. The short version is the controversy is moot
and that’s the end of the story. The in-between is interesting though. Once
upon a time (August 2020), the Vermont Journalism Trust (VJT) sought—via a
public records request—emails from the former secretary of the Agency of
Commerce & Community Development relating to the Jay Peak EB-5 scandal. The
State denied the request, citing the Public Records Act’s litigation exception.
Litigation eventually ensued. Some records got turned over because they—in the interim—became
no longer subject to the litigation exception having been produced in another
case. Other records continued to be withheld. VJT moved to compel and require
the State to produce a Vaughn index. A Vaughn index is more or
less a privilege log. The parties tussled about that. The trial court denied
the motion to compel and VJT appealed. Eventually, due to ancillary circumstances—the
withheld documents being turned over in the other case mentioned above, specifically—the
State turned everything over to VJT while this appeal was pending. The State
then moved to dismiss the appeal as moot. SCOV agrees that the appeal is moot
and that no exceptions to mootness apply. There’s some discussion about the
potential for future shenanigans (“future shenanigans” is a well-known
exception to the mootness doctrine also known as the
capable-of-repetition-yet-evading-review exception), but SCOV concludes that’s
not the case here. Nothing affirmed, nothing reversed—appeal dismissed. Vermont
Journalism Trust v. State
2023 VT 30.

Two published entry orders and two
opinions over the previous week. We’ll start with the May 15 entry

Mr. Muxlow would like to be on home detention. The home detention statute requires a
review if DOC files a report that says home detention is appropriate. Here, DOC
did not file such a report (it did not recommend home detention) and the trial
court did not hold a review hearing. Mr. Muxlow appeals, arguing that the court
can’t delegate to DOC and that the court has to hold a hearing. Au contraire,
says SCOV. “No such report,” no need for the trial court to review. State v.
2023 VT 27 (mem.)

On May 17, 2023, SCOV issued a somewhat-cryptic entry order
suspending (by stipulation) an attorney’s Vermont license. Reading between the
lines, it appears that there are concurrent disciplinary proceedings in NH,
which may result in disbarment. If so, disciplinary counsel is supposed to file
a copy of such an order. In re Wellman-Ally,
2023 VT 28 (mem.)

On Friday May 19, SCOV issued an opinion that includes the quotes—and I
swear I am not making this up—“when he cheats on me and I don’t pull up to the
bitch$ house and dr@g her by the sc@lp cuz ik where she rests her head every
night” and “If you send nudes to a man with a girlfriend, expect that shit to
get leaked. Expect that shit to get leaked. No shame on my end for leaking your
shit.” This is a TikTok stalking case and it makes me feel old. The short
version is that two teenage former best friends appear to be fighting over a
boy (not to be too flip, but given his alleged behavior, including cheating
five times on the poster-of-TikToks, why is an appropriate question here
but I digress . . . .) and one of the girls is posting allegedly threatening
things on the social-media platform TikTok. I am doing everything I can here
not to write this entire summary in internet slang . . . FRT. At any rate, one
of the girls’ moms filed an anti-stalking case against the offending poster.
The trial court found that the conduct did not rise to the level of staking and
dismissed the complaint. Plaintiff appeals. SCOV concludes that the trial court
was correct that defendant’s actions, though disturbing and inappropriate, did
not rise to the level of a “course of conduct” necessary to establish stalking
under the statute and prior precedent. SCOV affirms. Morton v. Young,
2023 VT 29.

Our other May 19 opinion is also a stalking case. This one takes place in
the physical world and involves an adult shooting off a gun on his vacant lot
as well as playing a game call of a rabbit in distress. Once again, I swear I
am not making this up. In this case, three of the neighbors (plaintiffs) got
temporary orders against stalking directed at defendant. They all stipulated to
one-year-no-findings orders. And then plaintiffs wanted to renew and modify, so
there was a hearing. This opinion also has some very colorful quotes. You can
read them yourself at the link. In the end, the trial court modified and
extended the anti-stalking orders, including prohibitions on defendant singing
and using a megaphone and shooting off guns on his vacant lot. Look, I realize
this may all sound a bit bizarre but it will make sense if you read the
opinion. Defendant appeals, raising arguments stemming from the first two
amendments to the constitution. (An aside: constitutional arguments always make
me think of
this video). SCOV is not
swayed. SCOV rejects defendants arguments and affirms the trial court. Swett
v. Gates
2023 VT 26.

One opinion May 5, 2023. We’ll call it a “typical”
environmental-division-enforcement action for context. Once upon a time in
2004, an LLP (Sisters and Brothers Investment Group, or SBIG) bought a gas
station—a nonconforming grandfathered use—with a number of parking spots. The
parking spots were s’posed to be used in connection with the gas station. At
some point SBIG started renting out a small number of parking spots privately
(this was a no-no). In 2017, the gas station closed and SBIG started using it
exclusively as a private parking lot (this is an unpermitted nonconforming
use). Well, the neighbors and the City of Burlington didn’t like any of this
stuff and the city sent SBIG a notice of violation. One wrinkle here is that
the day before the sale to SBIG back in ‘04, the prior owner of the property
had entered an agreement with the city to cure a bunch of zoning violations.
So, city sends SBIG a notice of violation, SBIG appeals to the DRB, and the DRB
finds a violation with the change in use. The DRB specifically “did not
address” the 2004 agreement. SBIG does not appeal.  

Flash forward and the city files an enforcement action against
SBIG. After a one-day trial, the environmental division found that SBIG was in
violation had not made any attempts to cure the violations. The environmental
division also found SBIG in violation of the 2004 agreement and handed down a
hefty fine of just south of $67K. SBIG appeals.

On appeal, SCOV is unsympathetic to SBIG in most regards. SBIG
didn’t bother with fixing the violations—it didn’t appeal them either—and on
appeal, SCOV is not about to undo the unappealed violations or the trial
court’s findings that SBIG was in violation for over two years. Where SCOV does
have some sympathy  for SBIG is with the findings of violations of the
2004 agreement. The agreement was with the prior owner and there was no
evidence introduced that SBIG “knew or should have known” about it.
Accordingly, SCOV reverses and remands for a recalculation of fines without
considering violations of the 2004 agreement. Burlington v. Sisters and
Brothers Investment Group
2023 VT 24

That’s it. See you next month. Maybe.