Note: This post was originally published through SCOV Law.
Town of Milton Board of Health v. Brisson, 2016 VT 56
Whenever I see a case involving a Board of Health, my mind jumps straight to those homes in Hoarders that get condemned. Have you ever watched that show? There is nothing like curling up on a Friday night with a bottle of wine and watching Hoarders. Seriously, you will feel so much better for not washing your dishes or vacuuming. Alas, this case is not so much about keeping 60 cats in your bedroom as it is about attorney’s fees.
The (lengthy) facts of this case are straightforward and really not in dispute. And since the legal analysis in this case is pretty short, the facts are really the only interesting part of this case. Defendant owned a two-story brick structure. The bottom floor housed a small bar and restaurant, the defendant lived on the second floor, and the attic was used for storage. In May 2012, the police department notified the health officer that some bricks were falling off the building and onto the sidewalk. The health officer looked at the building, said, “Yep, those bricks are falling on the sidewalk,” and issued an emergency health order condemning the building and declaring it unfit for use or occupancy. The defendant needed to hire a structural engineer to figure out what was going on, and complete all repairs within seven days.
Meanwhile, some more town and state officials came to look at the building. They installed some “Jersey barriers” to create a buffer zone, and determined that the bar/restaurant on the first floor was no longer in operation. The defendant would not allow the officials to inspect his living quarters or the attic. The state fire marshal issued a report saying the building could not be used for occupancy or public use due to the structural problems, heavy rotting in the roof, and moisture damage. The town board held its required hearing on the emergency order where the defendant acknowledged he did not do anything in response to the health officer’s order. The town board issued an order stating the brick wall collapsing endangers the passing motorists and pedestrians, which was an “immediate and substantial public health hazard.” The town board ordered the building remain uninhabited until repairs were made, that the defendant start those repairs within 24 hours, and, if he didn’t make those repairs, the building was to be demolished.
Defendant appealed to the state board of health, and, after a contested hearing, the state board affirmed the town’s order. While that appeal was pending, the town sought a preliminary injunction in the superior court to enforce the town’s order. The superior court issued such an order with multiple conditions to secure and repair the building. Two months went by, and the defendant did nothing, so the town filed for contempt. Defendant did not attend the hearing, and the superior court found him in civil contempt. Defendant had filled in new brick on one side, but had not complied with the rest of the order. The court allowed the town representative to enter and inspect the building, and awarded the town attorney’s fees, not to exceed $600 for the contempt motion.
Defendant asked for reconsideration of the court’s underlying order and the new contempt order. The court held a hearing with the defendant’s contractor testifying to the work that had been completed and what work was still left. The court indicated it might lift the attorney’s fee sanction if a visit from the town health officer went well and there was a solid plan to fix the remaining issues. It continued the contempt hearing until mid-January. In February 2013, the court denied defendant’s motion to reconsider the contempt order on the basis that the masonry repairs ordered back in June had still not been completed. It deferred any final ruling on the attorney’s fees, saying that if defendant finished the repairs in a professional manner, it is “likely” he would not have to pay those fees. But, if the work was not performed, or performed poorly, he would have to pony up the dough.
In August 2013, the court ordered that defendant needed to complete additional repairs before October 2013. When the October 2013 status conference came around, a new judge had been assigned. That judge noted several repairs had been done, but more were needed, and the specific tasks in the August 2013 order were not substantially completed. In the spring of 2014, the superior court allowed the town to conduct a more invasive structural assessment of the building. The assessment took place in June, and a detailed report filed three weeks later. The report indicated that while the brick work had been repaired, the load-bearing capacity of the second floor was below code requirements, and there was roof damage. The report concluded the building was still not fit for public use or occupancy.
In July 2014, the court held a final hearing on the town’s motion for sanctions and penalties. In December, the court issued a decision prohibiting the defendant from any and all public use of the building. It also assessed against defendant $22,256, including a civil penalty of $1,788 ($2 per day for being in violation of the health order from July 2012), $7,886 for the Town’s engineering fees, and $12,582 in attorney’s fees. The court also acknowledged that defendant had complied with specific requirements from the October 2013 order, but stated that “those items alone had never been the sole concern of the Town or the State with regard to over-all safety and risk of public injury because of the deteriorated condition of the Defendant’s building.”
So with all of that hoopla, one would thing that there is a whole bunch of stuff up for appeal, right? Nope. The only thing defendant contends is that this statute does not authorize attorney’s fees. There is an “American Rule” to attorney’s fees that means everybody bears the cost of their own litigation. But, the above-mentioned statute allows the government to get reimbursed for expenditures for the “investigation and mitigation” of a public health risk. The town contends that attorney’s fees are a governmental expenditure and included in the statute. The SCOV says, “Nope.”
When the courts look at a statute, it tries its best to go with the Legislature’s intent. If there is doubt as to the intent, the court looks to the “whole and every part of the statute, the subject matter, the effects and consequences, and the reason and spirit of the law.” So if the Legislature isn’t clear, it’s really anybody’s guess. The SCOV concedes at the outset that a broad interpretation of the statute could include attorney’s fees in with “expenditures.” But, it could be interpreted narrowly to include only those involved in the investigation, mitigation, abatement, or removal of public health risks, like engineers and debris-removal folks. Because attorney’s fees are unique, the SCOV concludes that the Legislature probably did not intend to include those in the statute.
Usually, when the Legislature authorizes the award of attorney’s fees (beyond what common law permits), it explicitly does so. For instance, a tenant can recover attorney’s fees when landlords fail to fix habitability issues. Attorney’s fees are also common in worker’s compensation cases when a claimant wins in the superior or Supreme Court. Then there is some case law that says, more or less, that the Legislature knows how to say if it means attorney’s fees, so the court is reluctant to imply it. The Legislature is a big kid, it knows what it’s doing. But, it’s even more important in cases where it would establish a statutory meaning that is far apart from a common law rule – in this case, the American Rule.
The town argues that alternatively, even if the statute did not authorize an award of attorney’s fees, it was within the superior court’s discretion to award the fees based on and equitable exception to the American Rule. The SCOV again says no. There is a flexible exception to the American Rule, such as where one party acted in bad faith and this caused another to incur litigation expenses in an unnecessary judicial proceeding. The standard of review for an award of attorney’s fees is abuse of discretion. However, departure from the American Rule must only be used in exceptional cases, where justice demands an award of attorney’s fees, which is not present in this case. The superior court made no finding of bad faith, vexation or wanton conduct of defendant’s part. The record shows that defendant was a man of limited means, but nevertheless attempted to comply with the town’s health order.
Even though the SCOV gives great deference to the superior court’s discretion with respect to attorney’s fees, the record does not support a finding of bad faith warranting an award of attorney’s fees. Thus, the SCOV reverses the award of attorney’s fees, and affirms the rest of the judgment.
In his dissent, Justice Dooley with Justice Eaton joining, finds that the statutory language is actually a clear directive to authorize collection of attorney’s fees. The dissent also criticizes the SCOV for relying on a Pennsylvania opinion, despite many Vermont opinions to the contrary. The dissent’s reading of the statute is that the Legislature allowed the recovery of attorney’s fees as a “governmental expenditure.” The dissent also sees no difference between an expenditure for an engineer and an expenditure of an attorney. Each is involved in the investigation, mitigation, and abatement of the hazard, with the attorney determining what must be done legally to eliminate the hazard and require the owner to make repairs. It criticizes the majority for requiring the use of the exact language “attorney’s fees” in the statute in order for the plaintiff to recover attorney’s fees. As a practical matter, the Legislature probably decided not to itemize every time of expense, and decided to lump it together under a general term of “governmental expenditures.”
In any event, add this to list of statutes the Legislature can clarify for us in the future.
Note: Attorney Davis original wrote this post in her capacities as a contributor to SCOV Law.
In this case, Defendant Albert Bingham appeals from the trial court’s declaratory judgment. Before the SCOV even rules on it, Bingham files a motion to recuse the entire SCOV because his appeal had been pending for so long. That doesn’t work, and barely makes a footnote in the decision.
Anywho, plaintiff TLOC Senior Living operates a senior living community in Middlebury, Vermont. Plaintiff did business under the name “The Lodge at Otter Creek.” Plaintiff lapsed in its re-registration of the name, and in July 2013, Bingham registered the name under his own name with the Vermont Secretary of State’s Office. Plaintiff sued alleging slander of title, trade infringement, unfair competition, and tortious interference with contract. Bingham argued (through many counterclaims) that by registering the name “The Lodge at Otter Creek” as his business name, he foreclosed any right plaintiff had to the name.
Bingham filed a motion to dismiss, a motion for summary judgment, and a motion for default judgment in his favor. Plaintiff moved for summary judgment in its favor. The court denied both motions for summary judgment, as well as Bingham’s motion for default judgment.
On the merits, the trial court recounted the following. Plaintiff alleged that it had continuously used the business name “The Lodge at Otter Creek” since 2005. In addition to itself, TLOC Real Estate had also used the name. Because these corporate entities were using “The Lodge at Otter Creek” as an alternative business name, the name had to be registered with the Secretary of State. Plaintiff’s parent company, Middlebury Heights Holding Company, LLC (MHHC), first registered the name in 2005, but failed to re-register in the name in 2011. Thus, when Bingham registered “The Lodge at Otter Creek” under his own name, it was not registered with any other entity.
The court relied on the Restatement (Third) of Unfair Competition (2015) to determine the nature of the trade name. The court found that plaintiff was the first to appropriate the designation of “The Lodge at Otter Creek,” and had been doing business under that name for more than five years. The trial court also concluded that plaintiff had established rights to the name under common law, but could not declare that plaintiff was entitled to the actual use of the name. But, the court also said that the conclusion did not provide Bingham with any rights to actually use “The Lodge at Otter Creek” as his own name. Registering the name with the Secretary of State was not enough, by itself, to support Bingham’s counterclaim of unfair competition.
The trial court concluded that although Bingham had been able to register the name, plaintiff’s failure to re-register did not allow Bingham to use “The Lodge at Otter Creek.” Citing the Restatement (First) of Torts in regards to a trade name and market reputation, the court concluded that plaintiff’s common law rights to the name had not dissipated enough to allow Bingham to use it. Even if plaintiff stopped using the name, it would take considerable time before another person or entity could acquire rights to its actual use.
The court denied summary judgment, then gave the parties thirty days to show why their respective claims should not be dismissed in their entirety. Plaintiff asked for a declaratory judgment that it had retained the right under common law principles to use “The Lodge at Otter Creek” as its trade name. Bingham asked for a declaratory judgment requiring the plaintiff to cease all use of the name, and requested that one of plaintiff’s corporate executives be fined and imprisoned.
Plaintiff won its declaratory judgment, concluding that even though Bingham registered the name, he was not entitled to use the trade name without violating plaintiff’s common law rights to the trade name. The court dismissed all remaining claims and counterclaims. Bingham appealed, claiming that because he registered the name with the Secretary of State, his rights were better than the plaintiff’s rights.
Because the trial court granted the relief based on plaintiff’s summary judgment motion, the SCOV reviews using the same standard as the trial court—it will uphold the judgment if the moving party has demonstrated there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.
Reiterating the trial court’s decision, the SCOV notes that common law rights to trade names are created and preserved by use, and not simply registration. Registering a name does not overcome existing common law rights to said name. The law does not support Bingham’s position that he got rights to the name by registering it with the secretary of state.
The SCOV also notes that Bingham raised an argument regarding trademarks in his brief. Even if this case involved a trademark instead of a trade name, plaintiff would still win because the trademark statutes state that “nothing herein shall adversely affect the rights or the enforcement of rights in marks acquire in good faith at any time at common law.” So, Bingham loses for the same reason. The rest of Bingham’s arguments hold no water, and are quickly dismissed.
The SCOV, finding no genuine issue of material fact, and no error below, affirms.
Justice Dooley dissents, with Justice Eaton joining, refusing to accept the trial court’s decision that it had no power to invalidate Bingham’s registration. The dissent goes a bit further, stating that it cannot figure out why the court did not grant declaratory relief to the plaintiff to the effect that it is unlawful for Bingham to use the trade name. The dissent agrees that use trumps registration, then states that Bingham could not lawfully use the trade name on the date he acquired it.
The effect from the trial court is that Bingham cannot use the name “The Lodge at Otter Creek” because of plaintiff’s common law rights, and plaintiff cannot use the name without violating this statute. The result is that Bingham can continue to hold the name hostage. The dissent would adopt a broader reading of the statute to allow the remedy of cancellation of the registration by the court.
In this case, taxpayer owns three units in a condo community that lies in both Sudbury and Hubbardton. Taxpayer objects to Sudbury’s tax assessment and argues that the trial court erred in upholding the state law through which Sudbury did the tax assessment, the valuation of the portion within its boundaries, and Sudbury’s method of apportioning the tax burden among the condo owners.
The condo community—known as Wanee Villas and Resorts—consists of twenty-one individually owned units covering 26.9 acres. Two documents in the Sudbury land records (a 1978 covenant and a 1993 amendment) assign a percentage of ownership interest in the common land to each unit; state that each unit has a an easement to access the common land; and create a common-interest community and a condominium. Most of this land (including all of the privately owned units) lies in Hubbardton. Only 1.29 acres of common land lies in Sudbury. Three-hundred-eighty-five feet of that land is on Lake Hortina, which is more appealing to individually owned units. Taxpayer owns three units and a stake in Wanee Enterprises, which owns eleven units.
Back in the day (1996 to be exact), taxpayer appealed Sudbury’s tax assessment of the Sudbury portion of Wanee. Taxpayer and Sudbury stipulated to a value of $89,460 for the Sudbury portion. Taxpayer again appealed in 2007, arguing before the town’s Board of Civil Authority and the trial court that Sudbury could not tax the land because the individually owned units were all within Hubbardton. Taxpayer voluntarily dismissed the case with an agreement with Sudbury that it would not tax the units owned by taxpayer, Wanee Enterprises, or taxpayer’s mom from 2007-2009. Sudbury honored this agreement for the three years and then continued to not tax beyond those years until the Legislature could clarify how to tax common lands belonging to a condominium community whose units lie entirely in another town.
Then, in 2012, the Legislature amended 27A V.S.A. § 1-105. Normally I would paraphrase the statute, but it’s a big piece of this case, so I’m willing to use the space to quote the relevant part:
(a) In a condominium or planned community: …
(2) if there is any unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights; provided, however, that if a portion of the common elements is located in a town other than the town in which the unit is located, the town in which the common elements are located may designate that portion of the common elements within its boundaries as a parcel for property tax assessment purposes and may tax each unit owner at an appraisal value pursuant to 32 V.S.A. § 3481.
Sudbury reappraised the Sudbury portion through a “systematic, multiple-factor formula derived from land tables, schedules, and adjustments,” and valued the Sudbury portion at $177,445. In following the §1-105 amendment, Sudbury taxed the land against individual unit owners by apportioning the tax burden among the unit owners in accordance with their percentage ownership.
Taxpayer appealed to the Sudbury appraisers, then to the Sudbury Board of Civil Authority, and then to the trial court. At the trial court, he argued that §1-105violated the U.S. and Vermont Constitutions; that the Sudbury valuation of the land is not supported by evidence and does not represent the land’s fair market value; and Sudbury must apportion the tax burden equally to each unit. The trial court, after a bench trial, ruled against taxpayer on everything except a remand to apportion the tax burden in accordance with the 1993 amendments to Wanee’s covenants. Taxpayer appeals using the same three arguments as below.
On the first argument—the constitutionality of the statute—the SCOV finds that the statute does not violate either the U.S. Constitution or the Vermont Constitution. Taxpayer asserts that the law creates a situation where common land in more than one town can be taxed at a higher total rate than those with common land in just one town. In his situation he pays twice as much. His situation violates the idea that any difference in tax burden between similarly situated citizens must have a reasonable and rational basis.
A tax is constitutional if it is established for a reasonable purposes, bears a reasonable relation to that purpose, and is fairly applied so that all within a given tax classification are treated alike. These requirements are met in §1-105 because it creates a system that is reasonable and results in fair and uniform tax treatment if implemented properly. This sounds a bit like a Bernie Sanders stump speech. In any event, §1-105 creates two different classifications: common elements entirely in one town, and common elements located in two towns. Towns cannot tax land outside their boundaries, but can tax the amount and value of the land inside their town. Assuming everyone is treated uniformly, everyone pays like taxes, regardless of whether their lands lie in one or two towns.
Furthermore, the property tax system must be based on fair market value to make sure that the tax burden is shared proportionately. The SCOV holds that §1-105satisfies this. The idea behind this is that each town can value the portion within its boundaries so long as the combined valuation does not exceed actual fair market value of the entire piece of land. The Proportional Contribution Clause of the Vermont Constitution, and the Equal Protection Clause of the Vermont Constitution require that §1-105 be applied in a way that does not tax based on a total valuation in excess of fair market value. Section 1-105 allows towns to consider the land inside their boundaries and the fair market value of the entire piece of land. Therefore, §1-105 is constitutional. Additionally, the taxpayer offered no evidence to show that his property was value or taxed at a higher rate than if it were located entirely within one town.
Moving along, the SCOV addresses the next argument that the fair market value of the Sudbury portion was not supported by evidence. This is the usual part where I claim that “math are hard” and skim over it, but my critics at VTDigger dislike that and assume I can’t do math, so I’ll explain it. Sudbury uses a method of “land tables, schedules, and adjustments that take into account multiple factors affecting the value of the land.” Taxpayer objects to the part of the formula that uses an adjustment for easements reflecting that the land is a small portion of a larger parcel. Taxpayer argues that the adjustment is insufficient, but does not propose an alternative method.
The SCOV reiterates the long-established rule that Vermont towns have discretion to use different appraisal methods to value property in accordance with fair market value. This can be met by taking into consideration all elements that give value to property. In this case, the State of Vermont provides a general land schedule based on actual sales in the town over the past three years. Then, Sudbury adjusts for certain factors like terrain, accessibility, septic systems, etc. Sudbury’s method is remarkably accurate with its assessed values “very comparable” to actual sales.
Sudbury started with a schedule based on the average fair market value for a lot on Lake Hortonia of $1,000 per linear foot of lake frontage (385 feet), for a base value of $385,000 (that’s $1,000 x 385 = 385,000), and then took into account certain factors. Here’s where the math kicks in: ($385,000 x .80 (overgrown beach) x 1.02 (deeper-than-normal parcel) x. .70 (lake frontage) x .80 (easement for community owners)) + $1500 (dilapidated structures) = $177,429.60. Final assessed value being $177,445 (with no indication as to where the extra $15 came from).
The trial court found the system was accurate because the schedule was based on actual sales data, and the adjustment factors reflected elements the SCOV has previously recognized as giving property a market value. The SCOV also finds that the town uses proper bases for determining the degree of adjustment for each factor, including the use of numerical charts. Finally, the overall land value close matches historical sale prices. Therefore, the appraisal method is not unreasonable or too simplistic like other methods the SCOV has struck down. It other words, the method has to be just complicated enough for it to be upheld. If it were simple, then anyone could do it, and that’s not right.
Taxpayer also argues that Sudbury’s formula should not be used at all because the land was developed to value stand-alone parcels and not portions of land belonging to one larger parcel. Taxpayer claims that the Sudbury portion is almost worthless because it cannot be sold on its own. This ignores the SCOV’s long-standing holding that “contiguous lands should be treated as one under appropriate circumstances.” Factors to consider in determining whether a property should be assessed as a single parcel include such questions as: is it conveyed in one deed? What’s the character of land and purpose for which it is used? Does it function as one tract for the owner? Here, the Sudbury and Hubbardton portions function as one tract, and the Sudbury portion enhances the whole by providing the units with lakefront access.
Taxpayer’s third and final argument is that the tax burden should not be apportioned among the unit owner in relation to their percentage interest in Wanee. He claims it is unreasonable, unconstitutional, and violates the principal that property tax appraisal value should be proportionate to fair market value. Taxpayer believes the tax burden should fall equally on each unit. The SCOV says no, just no. Sudbury’s method of apportioning the burden according to ownership interest is reasonable because it takes into account “the benefits and burdens of condominium ownership.” It’s constitutional because it reflects the actual value that the common property adds to each unit. The SCOV notes that “tax is a common expense, so it is reasonable for Sudbury to allocate this burden across the different units according to percentage of ownership interest.” Historically, Vermont relies on the principal that common areas of condo communities are not taxed as if completely independent of units that own easements to it. Instead, it is allocated to the individually-owned units that make up the condo, and then those units are taxes. Here, none of the units lie in Sudbury, so Sudbury can tax the portion of the common area that is within its boundaries.
Thus, the SCOV affirms the trial court and the tax bill.
Note: Attorney Davis originally wrote this post as a contributor for SCOV Law.
Here we are in the depths of bail troubles again. We’ve probably had more segments on bail than there are Harry Potter movies. We’ll call this one: Bail Problems & The Order of the SCOV. In this case, trial court denies bail to defendant in December 2014, and then denies home detention in October 2015.
Back in July 2014, the State charged defendant with second-degree murder. Defendant was arraigned and held without bail. The medical examiner opined that, while in defendant’s care, alleged victim A.H. died as a result of blunt impact injury to his head. Defendant admitted injuries, but gave some inconsistent statements on their cause—none of the stories explaining these types of injuries.
Another autopsy showed that A.H. got the injuries “days to weeks” prior to his death. However, the medical examiner could not determine if the injuries happened in one or multiple events, so the State filed a motion to review bail and probable cause. The trial court held that probable cause still existed even though it was “literally paper thin” and found that the State probably wouldn’t survive a motion to dismiss under 12(d). Based on the weak case, the court set bail at $25,000 and imposed conditions of release.
Defendant then filed a motion to dismiss, but the State had dug up new evidence and filed a motion to hold without bail. At an evidentiary hearing on both motions (along with some other motions), the State presented testimony that A.H. received the fatal injury the morning of his death. The trial court denied defendant’s motion to dismiss, and—after a continuance on the State’s motion—denied bail on the record. The court found that the evidence of guilt was great, and pointed out the seriousness of the offense and risk of flight.
Defendant asked for home detention about nine months later, which the court denied. For home detention, the defendant must overcome a presumption for incarceration. In weighing the three factors under the home-detention statute, the trial court noted the following not in his favor: second-degree murder is serious; there was evidence of prior abuse of A.H.; defendant had non-violent convictions; defendant had a poor disciplinary history while incarcerated; defendant also had some failures to appear, and some flight risks. Defendant had some good points too, including no other serious felony convictions and a prior satisfactory residence with his cousin. But this was not enough to outweigh the factors weighing against home detention.
Defendant appeals both the bail denial and the home-detention denial. On the bail argument, defendant argues that the trial court did not have the jurisdiction to revoke the original bail order of $25,000 and conditions. Defendant argues that once bail was granted, the State could only use one of two procedures: revocation of bail or appeal of the bail. For home detention, defendant asserts abuse of discretion.
The SCOV notes that under the bail-in-potential-life-imprisonment-cases statute, a trial court has “great discretion” to grant or deny bail as long as defendant has an opportunity to be heard. The SCOV finds that defendant had amble opportunity to be heard on both motions. Furthermore, the trial court “engaged in the exact examination of evidence” that the statute requires.
In regards to home detention, the trial court’s discretion is more limited, and considering whether home detention is appropriate, the court must weigh certain factors. The presumption for incarceration applies, and defendant has the burden to show home detention would be appropriate.
The SCOV concludes there was no abuse of discretion, noting that the trial court found factors that weighed in favor of and against home detention before finding that home detention could not adequately protect the public.
The SCOV goes one step further, and notes defendant’s argument that the court erred under State v. Whiteway. The SCOV promptly dismisses this argument, reasoning that the same concerns in Whiteway are not present in this case. Thus, defendant stays incarcerated.
Note: this blog was originally written and posted for SCOV Law.
Demarest v. Underhill, 2016 VT 10
This case focuses on who gets the responsibility of maintaining an old, rough road in Underhill, Vermont: the Town that has historically maintained it, or the road’s neighbors. This road, known as Town Highway 26 (TH 26) has been around for about 150 years. It is a single lane about 1.5 miles long that leads to a beaver pond. The road intersects with both Irish Settlement Road and Pleasant Valley Road. In 2001, the Town of Underhill tried to reclassify a segment of TH 26 between Irish Settlement Road and Pleasant Valley road as a legal trail. There was some litigation involved, but the changes became effective in June 2010, and TH 26 became part of the Town’s six miles of Class 4 highways.
Before this reclassification took place, the Town would do some maintenance and repair work to the roadway and the twenty-two culverts under the road. Since the reclassification, the Town has done some work to the road, mostly by adding base material to the roadway. In spring 2013, the Town made some repairs to four culverts following severe storms and increased runoff.
Appellees Demarest, Moulton, and Fuller all own property on TH 26 in Underhill. In early 2012, they filed a notice of insufficiency asking for maintenance of TH 26. The Town denied the notice, asserting that it was maintaining TH 26 to the “extent required by the necessity of the Town, the public good, and the convenience of the inhabitants of the Town.” Appellees brought an action for repairs and maintenance to drainage, culverts, and road surfaces.
The trial court appointed three Commissioners who found that TH 26 had a variety of problems making it unsafe for travel. The Commissioners also acknowledged that the town is not required to regularly maintain a Class 4 highway, but also added that because the Town had made improvements in the past, the abutting property owns have a justifiable expectation that maintenance and repair will continue. The Commissioners then ordered the town to make various repairs and improvements costing about $68,000.
The Town appealed the report, and the trial court entered judgment against the town, adopting the Commissioners’ report in part, and modifying it in part. The trial court required the Town to undertake some recommendations, which “will ensure basic safety and reliability.” The Town moved for reconsideration, which the trial court unsurprisingly denied.
The Town appeals to SCOV, claiming that the trial court erred in requiring maintenance of TH 26 because the decision whether or not to make repairs of a Class 4 highway is in the Town’s discretion.
The SCOV notes that under 19 V.S.A. §310(b), towns have discretion in determining whether to maintain and repair Class 4 highways. There are factors to be considered when deciding to repair, such as the necessity of the town, and the convenience of the inhabitants. A citizen can get around this discretion by showing the town has acted arbitrarily and discriminatorily.
In a similar case regarding the Town of Calais, the SCOV affirmed the town’s decision to not repair a Class 4 highway, finding that it was pursuant to a general town policy that maintenance was the adjacent landowner’s problem, except for some minimal summer maintenance. Underhill’s road policy has similar language to this previous case. The trial court added requirements into the standard, considering whether the Town had some obligation to perform minimal road maintenance to ensure basic safety and reliability.
The SCOV agrees with the trial court in that the Town’s road policy does not have much substance. While the Town’s road policy adds little to the applicable statutory language, it emphasizes the discretionary nature of its decision-making.
The trial court noted that it is within the Town’s “statutory prerogative” to spend less on maintenance of Class 4 roads than the appellees might prefer, but the prerogative must be “within reason and based on non-arbitrary factors.” Then the trial court dived into the Town’s decision-making process and the court’s own analysis of the need for repairs and maintenance. The trial court found the Town’s decision arbitrary—not from the Town’s implementation of its own policy, but from a “proper engineering perspective.”
The Town says that TH 26 is being maintained to the extent required by the necessity of the Town, the public good and the convenience of the inhabitants of the Town. The court requires that the Town’s decision be in line with its road policy, if consistent with the statute, and the decision be not arbitrary or discriminatory in implementation of the Town’s policy. The SCOV agrees with the Town and reverses, concluding that there was no basis to find the decision was arbitrary or outside the scope of the Town’s broad discretion.
The SCOV also notes that broad discretion under the statute binds the Commissioners and the trial court, leaving them powerless in reaching a different conclusion. There’s a good chance that Class 4 roads would never be repaired under such discretion, but that’s because of the legislature’s statute, not the court’s policy. So, take your concerns to Montpelier. Or, elect new town officials who will fix your roads, I guess.
Imagine living in a Vermont where you, without any notice, are put on a secret government blacklist so that you are prohibited for life from earning a livelihood in hundreds of occupations. Imagine the only way to be removed from the blacklist is, after seven years, to request the same government bureaucracy which accused you in the first place to expunge your record. Does this sound implausible in enlightened, liberal Vermont which boasts a constitution providing some of the strongest protections for its people of any state constitution in the country? Not only is it possible, but it is a reality in Vermont.—and similar laws have been enacted in almost every other state. Over 20,000 Vermonters, indubitably mostly poor, single parents, are on this blacklist. It is called the Child Protection Registry (different from the sex offender registry not considered here), and a person listed on the Registry has been “substantiated” for abuse of children or vulnerable adults. The names on the list are accessible to any employer who seeks to hire workers or seek volunteers to work with children or vulnerable adults.
Being placed on the registry by the Department of Children and Families (“DCF”) is easy, and the accused does not even have to be actually notified. If the accused is a minor and in the custody of DCF then DCF need only notify the child’s DCF caseworker, and the child’s “attorney of record”. In reality, the child is often never notified. In a case several years ago, the Vermont Supreme Court acknowledged that a child who was substantiated by DCF never received notice until years later when she tried to obtain work at a day care center. The Court did not find that fact troubling and upheld the decision not to expunge her record. For adults, DCF need only mail the notice by first class mail to the accused’s last known address—a procedure that certainly does not guarantee actual notice. The Vermont Supreme Court has held that the Human Services Board—the Board which hears substantiation appeals– has no jurisdiction if the party did not appeal in time, even if the accused did not actually receive timely notice.
The standard of proof DCF must meet to place a person on the registry is risibly low. It is below the standard of proof even for a case in civil court. DCF caseworkers often do not evaluate the credibility of the reporter of alleged abuse nor do they perform any independent investigation to determine the accuracy of the report. Moeover, what DCF sometimes determines is “abuse” would puzzle most people. A few years ago, DCF substantiated abuse against a mother of a teenager who had been discharged from the hospital for a drug overdose, simply because the mother did not have her teen see a second counselor until several weeks after his first counselor did not work out. The length of time it took the mother to find an appropriate counselor for her son was considered substantiated abuse.
If an accused actually receives timely notice, then he or she can request a review from a “independent” reviewer who looks at all the information, mostly hearsay, and determines if the report should be substantiated. The statute provides for the accused to provide evidence on her behalf, but does not protect the accused if she decides to remain silent.
The “independent” reviewers provided for by statute are paid by DCF.
They agree with the initial substantiation 83% of the time. If the reviewer agrees with the DCF determination, then the accused is put on the Registry. The now registered “abuser” has a right to appeal to the Human Services Board, a Board which is part of the Agency of Human Services, not part of an independent judiciary. While the Board, to its credit, has attempted to mitigate the harshness of the Registry statute, the Vermont Supreme Court has rebuked the Board for its efforts. The Vermont Supreme Court has held that the Board can only decide if DCF met its burden that abuse occurred, and cannot make any determination either whether there is a further risk of harm, or whether placement on the Registry makes sense.
At the Board level, DCF can present hearsay evidence—not allowed in civil or criminal court. Even though their liberty interests are at risk, accused persons have no right to a free attorney as they do in criminal or juvenile court. Finally, the substantiation proceedings are secret.
These proceedings would have appalled our forbearers. The right to pursue employment has been held by the Vermont Supreme Court to be a liberty interest which requires due process protections. Vermont’s constitution explicitly provides that Vermonters have a right to liberty which cannot be taken away without “due process of law”. Our constitution also states that the courts shall be open “for trial of all causes… and justice shall be therein impartially administered, without corruption or unnecessary delay.” Finally, our constitution provides that the right to civil jury trial is “sacred”. These rights enshrined in our constitution were a reaction to the abuses of the English King and parliament, in particular, the formation of the King’s “prerogative” courts, including the Star Chamber, which hauled citizens in front of the King’s inquisitors, pressured them into confessions, and imposed sanctions, all under the veil of secrecy. This procedure where the Executive—the King– was prosecutor, judge and jury was considered by our founders to be a denial of due process prohibited by our constitution.
Of particular note is the provision that the right to civil jury trial is “sacred”—the only sacred right in Vermont’s constitution. While such a right may seem a quaint anomaly today, it was considered one of the most important rights a citizen enjoyed, as a safeguard against government overreach and the influence of special interests in both the legislature and the executive branch. The concerns of our founders were well placed. We now have a secret procedure run by the executive branch which blacklists Vermonters, mostly the poor, blocking them from a pursuing a myriad of livelihoods. The procedure is, at its outset, an inquisitorial model which relies solely on the competence and good will of government bureaucrats—a reliance on which our forbearers were wisely skeptical. The Vermont Supreme Court has held that the state’s burden of proof at the Human Services Board level cures the due process frailties of this procedure. It does not. The secrecy of the proceedings protects only the government and the lack of a right to a jury trial is fertile ground for government overreach. If the public was aware of the flimsy nature and the evidentiary frailties of the accusations in substantiation proceedings, it would also be appalled.
Our constitution requires that all Vermont’s citizens should be afforded the full panoply of due process rights before they are deprived of their liberty interest in earning a livelihood. These rights are just as important today as they were when they were enshrined in our Vermont constitution.
What you should know about employment discrimination
Employers and employees are usually aware that discrimination in the work place is illegal. The definition of illegal discrimination, however, can be difficult to understand. As I have shared with clients in the past, it is not illegal for a boss to be a lout. But when does questionable behavior cross the legal line? Knowing the answer can protect both the employer and the employee.
Generally speaking, discrimination happens when an employee (or potential employee) is treated differently than other employees. There are a variety of legal reasons for an employer to “discriminate” between employees- skill levels, experience, length of time on the job, etc. Discrimination becomes illegal when the employee is treated differently because they belong to a particular category of people. Our legal system recognizes that throughout our nation’s history certain segments of society have been treated differently in the work place for reasons that have nothing to do with job performance. Anti-discrimination laws establish “protected classes” as a means of leveling the employment playing field. Thus, “discrimination” becomes “illegal discrimination” when an employee is treated differently than others solely because the employee is a member of a protected class.
Federal anti-discrimination employment laws
There are a number of federal laws that define “protected class.” The Civil Rights Act of 1964 prohibits employment discrimination based on the employee’s race, color, religion, sex or national origin. The Age Discrimination Act of 1967 protects employees over the age of 40. The Americans with Disabilities Act of 1990 prohibits employment discrimination against qualified individuals with disabilities in the private sector and within state and local governments. (A 1973 law prohibits disability discrimination by federal government employers.) These are just a few of the federal laws that govern employment relationships.
Unlawful discrimination is defined by federal laws in a variety of ways. “Unlawful discrimination” can include harassment based on the basis of membership in a protected class. It includes retaliation against an individual for filing a charge of discrimination, participating in an investigation or opposing the employers discriminatory conduct. Employer decisions based on stereotypes or assumptions about members of a protected class constitutes illegal discrimination, as does denying employment opportunities to someone because that person is married to a member of a protected class.
Unlawful discrimination also includes employment practices which, while not necessarily targeting a specific individual, have an adverse impact on employees simply because of their membership in a protected class. For example, a school systems policy of only hiring new teachers with less than 5 years experience has been found to be age discrimination. Even though the policy did not specifically prohibit hiring anyone over a particular age, the impact of the policy disproportionately disadvantaged older teachers. The school system could offer no legitimate business interest for its hiring policy and as such was in violation of federal law.
An employer can be held responsible for discrimination in the workplace even when the discrimination is not a result of the employer’s own conduct. An employer can be liable for unlawful discrimination when the employer knowingly allows the existence of a “hostile work environment.” Such an environment exists when employees are subjected to harassment (ridicule, intimidation or insults) by other employees because of their membership in a protected class. If the employer becomes aware of the situation and fails to take corrective measures the employer may be subjected to a claim of unlawful discrimination. While a court may ultimately find that employee behavior was merely offensive and did not rise to the pervasiveness necessary to establish unlawful discrimination, the employer runs a serious risk in not taking complaints about employee conduct seriously.
Federal anti-discrimination laws make it illegal to discriminate in the hiring and firing of employees based on their membership in a federally-defined protected class. But they also apply to a wide range of other employment related activities: compensation, assignment and classification of employees; transfers, promotions, layoffs and recalls; job advertisements, recruitments and testing; use of company facilities; access to training programs; and pay, retirement plans, disability leave and fringe benefits.
Whether federal anti-discrimination law will apply to a particular private employer typically depends upon the number of employees. One notable exception is the Equal Pay Act of 1963 which prohibits sex-based wage discrimination (paying one gender less for doing substantially the same work as their opposite gender colleagues.) This law applies to all employers who are covered by the Federal Wage and Hour Law, which is virtually all employers.
Vermont and New Hampshire anti-discrimination employment laws
Both Vermont and New Hampshire have their own anti-discrimination laws in addition to the federal laws. In both states the laws are known as the “Fair Employment Practices Act.” In Vermont the laws apply to every employer; in New Hampshire they apply to employers with six or more employees. New Hampshire also excludes from the definition of employer (for purposes of fair employment practices) certain social clubs, fraternal organizations and religious associations.
The federal and state laws are similar in many respects. One noteworthy difference, however, is the definition of “protected class.” New Hampshire defines “protected class” to include marital status and sexual orientation (prohibiting discrimination against people who are- or who are perceived to be gay, lesbian, or bisexual.) While gender identity is not specifically recognized as a protected class, New Hampshire has recognized the right of transgendered people to pursue anti-discrimination claims under the state’s disability discrimination category.
Vermont includes sexual orientation in its definition of protected class, but also specifically includes gender identity and “ancestry.” Vermont also prohibits employment practices which discriminate against someone solely on the basis of having had a positive HIV-related blood test. (It is illegal in Vermont to make the taking of an HIV-related blood a condition of employment.)
In Vermont drug addiction and alcoholism are considered physical or mental impairments protected by its anti-discrimination law. (No protection is afforded if current drug or alcohol use prevents the employee from performing their job duties or if their employment would threaten the safety or property of others.) Federal law protects people who suffer from alcoholism but not people who use illegal drugs. New Hampshire’s law mirrors the federal policy.
In both states the laws encompass the federal law protections by reference, but also provide for independent legal claims. An employee can file suit under both state and federal law, lose the federal law case but still prevail on claims based on the state law. (The general rule is that federal law provides a minimum basis of Constitutional protections; states are free to provide protection above and beyond the federal law.)
What can employers do?
It would be impossible for an employer to completely eliminate the potential for claims of discrimination. And not every complaint of discrimination made by an employee rises to the level of unlawful discrimination. But litigating such claims comes with the risk inherent in asking a judge or jury to decide, as well as the cost in money, time and resources. Taking steps to minimize the potential for employment discrimination makes financial sense.
- Work with a legal or human resource professional to develop a discrimination policies and procedures manual for all employees. Keep the manual up to date;
- Review the manual with management staff and have them sign off on having taking training and understanding their responsibilities. Hold management accountable for what goes between employees on in the work place;
- Require employees to review the manual, and consider requiring periodic training on discrimination issues;
- Provide employees a method for bringing complaints forward and encourage them to bring complaints forward sooner rather than later;
- Hire a human resources professional who is trained in, experienced with and sensitive t o discrimination issues;
- Act quickly but thoughtfully when discrimination complaints are brought forward. Involve the employee, the employees manager and the human resources professional. Take disciplinary action that is appropriate to the situation and document the steps taken. Doing nothing in the hope that “things will blow over” is usually the worst thing an employer can do in response to complaints of discrimination.
What can employees do?
Employees who believe they have been the victim of discrimination, harassment or retaliation in employment have several options:
- Bring your concerns to your manager or department head. Follow your company’s internal complaint process. If this fails to resolve the matter in a satisfactory way, consider seeking assistance from an attorney;
- Private sector employment discrimination complaints are handled by the Civil Rights Unit of each State’s attorney general office. State employee discrimination complaints are handled by the state’s Human Right’s Commission;
- Discrimination complaints brought under federal law can be filed with the U.S. Equal Employment Opportunity Commission.
Return to Annual Homestead Declarations
Vermont funds its educational system through a property tax system. The “education tax” is imposed on all homestead and nonresidential property, but at differing rates. The basis for classifying a particular property a homestead (and thus being taxed at a lower rate) is dependent upon the owner filing a “homestead declaration” with the Vermont Department of Taxes.
Effective January 1, 2013, property owners in Vermont will again have to file an annual homestead declaration in order to have their property classified as a homestead for purposes of the statewide education tax. This is actually a return to the system that existed up until 2010, when the Department of Taxes stopped requiring an annual declaration. A homestead declaration filed in 2010 remained valid until the property was sold, the property was no longer the owner’s primary residence or the owner was no longer domiciled in Vermont. When this happened the property owner was expected to file a homestead declaration withdrawal with the Department of Taxes.
The goal was to relieve property owners from having to remember to file the declaration each year. As it turns out, however, property owners are regularly forgetting to file the withdrawal which has apparently caused all kinds of record keeping problems for the Department of Taxes. In response, the Department has decided that a return to an annual filing requirement is in order.
A “homestead” property is statutorily defined as the principal dwelling and parcel of land surrounding the dwelling, owned and occupied by a resident individual as the individual’s domicile. An individual can only have one “homestead”; second homes and camps are generally not considered homesteads. (Camps can qualify only if it is the owner’s principal residence.) Although Vermont law does not require a particular number of days that an individual must occupy the dwelling to qualify as homestead, mere ownership and spending a lot of time at the property is not enough to qualify for homestead status. The individual must be domiciled in Vermont and the house must be occupied as the individual’s principal dwelling. Spouses and civil union partners who own and occupy a residence together need to file only one homestead declaration.
The necessary form, and more information about homestead declarations, can be found at: www.state.vt.us/tax
In the past few weeks merchants have been receiving a “Notice of Class Action Settlement” related to a lawsuit against Visa, MasterCard and numerous banks. The purpose of the Notice is to provide information about the law suit and the proposed settlement to members of the “class.” The Notice encompasses 27 pages and can be overwhelming to the non-lawyer reader. Because it outlines a) how members of the class may be entitled to cash payments from Visa and MasterCard and b) certain rule changes concerning surcharges for accepting these cards, the Notice should not be simply tossed in the trash.
The case, titled In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation has on going in the U.S. District Court, Eastern District of New York, for the past seven years. Plaintiffs brought the case on behalf of merchants who accept Visa and MasterCard and include Payless Shoes, Parkway Corp. and Leon’s Transmission Service, Inc. They claimed that MasterCard, Visa and approximately 40 member banks violated federal antitrust laws by conspiring together set interchange fees (fees typically paid by merchants for accepting Visa and MasterCards) and imposed and enforced rules that limited merchants’ ability to steer customers into other payment methods. It is the Plaintiffs’ argument that such conduct forced merchants to pay excessive fees for accepting MasterCard and Visa cards.
Class action lawsuits are used when a large number of plaintiffs have claims or when claims are being made against a large number of defendants. Usually the plaintiffs or defendants are located in multiple states. The plaintiffs bring suit on behalf of a proposed class of plaintiffs. For the case to move forward as a class action the court must agree that the members of the proposed class have suffered a common injury or injuries, typically resulting from an action on the part of a business or a particular product defect or policy that applied to all proposed class members in a typical manner. The court must also be convinced that the initial plaintiffs have t he capacity and resources necessary to represent the class as a whole. If the court agrees, the class is certified and the initial plaintiffs are authorized by the court to act on behalf of all members of the class.
The initial plaintiffs are required, however, to provide all prospective members of the class notice of their individual rights throughout the case. One particularly important right afforded prospective class members is the right to “opt out” of the class action and bring their own lawsuits against the same defendants. Typically, if a prospective class member does not affirmatively opt out of the class they will be bound by the results of the class action lawsuit. If someone does opt out, however, they will be bound by the results of their independent lawsuit. You cannot opt out of a class action and then opt back in if your individual case is not successful.
You received the Notice because…?
The parties have, after seven years of extensive litigation (more than 50 million pages of documents were reviewed and over 400 witnesses were deposed) decided that a settlement is in the best interests of both the class and the defendants. A settlement does not mean that Visa and MasterCard admit any wrong doing. Settling the case means the defendants avoid the risk of a judgment that they must pay more than the settled amount; plaintiffs avoid the risk of a judgment for less money. The settlement has not yet been approved by the court. Before that court will decide whether to accept the settlement the members of the class must be notified of their rights under the proposed settlement and given the option to opt out.
The records of Visa, Mastercard and the bank defendants show that you are probably a person, business or other entity that accepted Visa-Branded cards and/or MasterCard branded cards in the United States anytime from January 1, 2004 through November 28, 2012. This makes you a member of the class, if you decide not to opt out.
What are the benefits to the class from the settlement?
The settlement provides two categories of benefits to class members: 1) a cash settlement and 2) changes in the rules and practices Visa and MasterCard can impose and enforce on class members who continue to accept Visa and/or MasterCard.
The cash benefit portion of the proposed settlement requires Visa, MasterCard and defendant banks to establish two funds from which class members may be paid. Combined, the two funds total just over seven billion dollars. These funds will be used to pay money awards directly to class members, pay for the cost of administering the settlement (if approved by the court) and to cover attorney’s fees and expenses. A portion of the funds (approximately $1.5 billion dollars) will be held back to cover claims of merchants who chose to opt out of the settlement and proceed in court with individual claims.
The expectation is that merchants will receive an amount equal to actual or estimated interchange fees paid on Visa and MasterCard transactions for the period of January 1, 2004 through November 28, 2012. The interchange fund provides payment (equal to 1/10 of 1% of credit card transaction volume) to merchants who accept Visa and MasterCard during an eight month period starting June 29, 2013.
The actual amount received, however, will be affected by the total value of all valid claims filed, costs of administration and attorney’s fees and expenses approved by the court. Details of how claims will be calculated are expected to be available as of April 11, 2013.
The rule changes, if approved by the Court, will become effective no later than January 27, 2013. Under the new rules, merchants will be able to charge an extra fee to customers who use Visa or MasterCard branded credit cards, may offer discounts at the point of sale to customers who do not pay with MasterCard or Visa. Merchants who operate under different trade names at more than one location will no longer be required to accept MasterCard and Visa at all of those locations. (If operating under one trade name the rule will still be that Visa and MasterCard must be accepted at all locations or none.) Merchants will still be allowed to set a $10 minimum purchase for Visa and MasterCard.
How Do you make a claim?
The Court first has to approve the proposed settlement. If approved, you will eventually have to file a valid claim in order to get payment from the settlement. If you have not opted out of the settlement the claim form will be mailed to you. It will also be available at www.PaymentCardSettlment.com. Class members with more than one location or franchise may fill out (but are not required to) a pre-registration form which is available at the website.
A “Fairness Hearing” at which the Court will hear arguments as to why the proposed settlement is or is not fair is scheduled for September 12, 2013. How long it will take the Court to decide whether or not to accept the proposed settlement is unknown. The result is that it will be several months before a claim form will be available. In the meantime it is advisable for merchants to pull together information that supports the amount of their claim.
What if I don’t like the proposed settlement?
You have two options: 1) you can object to the settlement and 2) you can opt out.
To object to the settlement you must file a Statement of Objections with the U.S. District Court for the Eastern District of New York. A copy of your statement must also be sent to counsel for both the plaintiffs and the defendants. Your statement must ne postmarked no later than May 28, 2013. Refer to pages 12 and 13 of the Notice for additional information.
How do you opt out?
You can only opt out of the cash settlement class. The proposed rule changes, if accepted by the court, cannot be opted out of and will apply to all merchants accepting MasterCard and Visa branded cards.
To opt out you must send a letter to the address specified in the Notice. First class mail is acceptable; you cannot opt out by phone, fax, email or online. You should keep a copy of your letter for your records. The letter must provide identifying information about the merchant (including the merchant’s taxpayer i.d. number), specifically state that you wish to opt out of the “cash settlement class in the case called In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation.” Refer to the Notice (pages 11 and 12 for the information that must be included in your opt out letter.)
Your letter must be postmarked no later than May 28, 2013. If your letter is postmarked after that date it will be considered invalid. You will be bound by the terms of the settlement but you will also remain a member of the Cash Settlement Class entitled to payment. If you file your opt out letter on time you will not be eligible for payment under the terms of the class. You then have the right to bring claims against the Defendants on an individual basis.
What if you do nothing?
If you don’t file a claim form, object to the settlement or opt out you will not receive payment. You will be bound, however, by the terms of the cash settlement. All merchants, whether they file a claim, object or opt out will be bound by the proposed rule changes, assuming the court approves the settlement.
Where can I get more information?
Contact information, copies of the proposed settlement and a list of important dates can be found at www.PaymentCardSettlement.com
Author’s Note: Our firm represents both plaintiffs and defendants in New Hampshire and Vermont in relief from abuse complaints (as they are called in Vermont) and domestic violence petitions (as they are called in New Hampshire). This article deals with defense of such cases, in part because there are many sources of information for plaintiffs in both New Hampshire and Vermont. See, for example, the Vermont Judiciary website, http://www.vermontjudiciary.org/GTC/Family/abuse.aspx or the New Hampshire judiciary website http://www.courts.state.nh.us/fdpp/dv_petitions.htm .
There has been an upswing in relief from abuse (RFA) or domestic violence (DV) cases. It is understandable for a variety of reasons, some of which have little to do with abuse:
- There is no filing fee or service fee for serving the defendant.
- The petition or complaint will usually be reviewed on the same day it is filed, even if the court is not in session. This is in contrast to other temporary relief sought in family court, which can take weeks, and even months, to be heard or decided by a judge.
- If the complaint or petition is denied, under both Vermont and New Hampshire statutes, although each has a slightly different protocol, the defendant will not know that the plaintiff filed the request. Therefore, as a practical matter, there is no downside to filing requests for relief.
- If the petition or complaint is denied, and the plaintiff appeals, a hearing will be set within ten days. Again, the time frame is much shorter than other family court matters.
- If a temporary order is issued, the defendant is served immediately, and all the relief that was ordered (for example, temporary possession of the home, custody of the children), goes into effect immediately.
- Once an order is issued, a hearing must be set within ten days in Vermont, or 30 days in New Hampshire, per statutory requirement.
- In New Hampshire, the rules of evidence, including the rule prohibiting hearsay, do not apply, thus making it easier for unrepresented parties to present evidence.
- “Abuse” has a broad meaning, and does not need to include actual physical harm, but can include threats of harm, or stalking, in New Hampshire, “harassment.” It also includes any kind of restraint, such as blocking a person from leaving his or her home.
Defending against relief from abuse complaints or domestic violence petitions is important, for if a final order is issued, there are certain consequences that can be dire:
- A defendant who is under a relief from abuse or domestic violence order cannot possess firearms.
- If there is a violation of the order (this is also true of a temporary order), the defendant is subject to criminal penalties.
- Persons who have final orders on their record can lose their jobs and can be prevented from obtaining certain jobs. Many employers, including employers in the military and law enforcement, can and do use final RFA or DV orders as sufficient reason to discipline or terminate an employee.
- An RFA or DV order can limit your access to your children, your assets, and your legal and financial documents.
- An RFA or DV order can prevent the defendant from attending public events, or even traveling certain roads, if the plaintiff is in attendance or in proximity
Here are some do’s and don’ts in defending against a relief from abuse complaint or a domestic violence petition.
Don’t violate the temporary order. In a Vermont case a number of years ago where a temporary relief from abuse order was issued, the defendant sent the plaintiff a short love note. The temporary order was dismissed, after a hearing, for lack of evidence, but the defendant was charged and convicted of a violation of the temporary restraining order. If the order provides for no contact, that is exactly what it means. The plaintiff can try to contact you, either directly or indirectly, but you must never respond. If you violate the temporary order, you not only will be charged with a crime, but, in my experience, you will have a harder time convincing the court that no abuse occurred
Don’t give the court the impression you think the plaintiff is crazy or just spiteful, or the court system is biased against you. Family Court judges are conscientious, are dealing with limited facts, and are trying to protect potential victims. In my experience, Family Court judges try hard to be unbiased, and for the most part, they succeed. However, if you are disrespectful to the court or dismissive of the petition or complaint, it will be much harder for the court to rule in your favor.
Don’t just deny the claims; if the only evidence the court hears is the plaintiff’s claims and your denials, the court will likely grant the petition or complaint, because the court will lean on the side of protection.
Do ask for a continuance if you need more time to obtain an attorney and get the facts together. The Vermont statute allows you a continuance if you were unable to obtain an attorney in time for the hearing, and the court will likely allow you a continuance if you can convince the court that you have witnesses that were not available for the hearing, or need more time to prepare In New Hampshire, a continuance will be granted “for good cause shown”, but since New Hampshire provides for more time between the temporary order and the final hearing, a continuance in New Hampshire may not be needed. A continuance means the temporary order remains in place for a longer period of time, but it is worth it. A temporary order, if it does not become a final order, is confidential, and the records will be eventually destroyed by the court.
Do keep any texts, emails or other communications from the plaintiff. The Relief from Abuse or Domestic violence statutes require the court to find not only that abuse occurred but that “there is danger of further abuse.” (Vermont’s statute) or the conduct constitutes a “credible present threat to the petitioner’s safety” (New Hampshire statute). If the plaintiff tries to contact you after obtaining an RFA or DV order, those attempted contacts may be used to persuade the court that the plaintiff does not believe that there is danger of further abuse or a present threat to his or her safety. Remember, however, you can never respond to any communications from the plaintiff after you have been served with a temporary order.
Do obtain discovery, and even take a deposition. VRFP Rule 9 (Abuse Prevention) provides that the court can order depositions to be taken for good cause shown. In New Hampshire, it also appears that depositions may be taken under the general rule in New Hampshire’s Family Division. Depositions are highly unusual in these cases, but they can be invaluable, and are worth seeking, because RFA or DV hearings are the nearest thing to a 19th century trial, before discovery rules were in place, where no one knew ahead of time what evidence was going to be presented. Many judges will not limit the evidence to what the plaintiff stated in the affidavit, and you can be blindsided by evidence with no means to defend against the evidence, if you have not obtained discovery ahead of time.
Do obtain an attorney, if possible, and as soon as possible. These cases can have lasting effects on your life, your job, and your relationship with your children. It is important to obtain legal counsel. An attorney can contact the plaintiff in preparation for the hearing (but not to send messages from you) . An attorney can determine whether the court has jurisdiction, or can assess whether there are other legal issues that need to be addressed. An attorney can subpoena witnesses and records and prepare admissible evidence to help defend you. Perhaps most importantly, an attorney with experience in Relief from Abuse or Domestic Violence cases can work with the plaintiffs or their attorneys to fashion an agreement that does not result in a final order and at the same time protects the plaintiff.