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VT Supreme Court to hear cases at Vermont Law School

FOR IMMEDIATE RELEASE — March 25, 2013

CONTACT:
Peter Glenshaw, Director of Communications, Vermont Law School
Office: 802-831-1318, cell: 603-738-8487, home: 603-795-4764, pglenshaw@vermontlaw.edu
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SOUTH ROYALTON, Vt.—Continuing an annual tradition, the Vermont Supreme Court will hear oral arguments in six cases on the campus of Vermont Law School on Wednesday, March 27, 2013 from 9am until approximately 3pm. The hearings will take place in Oakes Hall and are open to members of the public and media. Attendees will be subject to security checks and room restrictions. The Vermont Supreme Court also requests that proper etiquette be followed, which includes turning off any cellphone or smart phone and not bringing backpacks into the courtroom.

Among the six cases is an appeal to reverse a conviction for criminal trespass involving the Kingdom Community Wind Project. Details on this case and the other five cases are below. In summary, some of the following questions will attempt to be addressed in these cases:

Murphy v. Sentry Insurance, 2012-335 & 2012-384 (9:00 a.m.)
Did the trial court properly grant defendant-appellee’s motion for judgment as a matter of law, vacating plaintiff-appellant’s $1.94 million jury verdict? Did the court correctly award costs to defendant-appellee?

State v. Gillard et al., 12-433 (9:30 a.m.)
Does the State have to prove ownership of a piece of property in a prosecution for criminal trespass under 13 V.S.A. § 7305(a)?

Knutsen v. Dion, 2012-294 (10:30 a.m.)
Is authorship and circulation of a form Purchase and Sales Agreement by the Vermont Association of Realtors for the use of its members an unlawful, unfair, and deceptive practice in violation of the Vermont Consumer Fraud Act?

State v. Medina, 2012-087 (11:00 a.m.)
Whether 20 V.S.A. § 1933(a)(2), which requires that a defendant charged with a felony offense provide a DNA sample after a court’s probable-cause determination, violates defendants’ rights under the Fourth Amendment to the United States Constitution and Ch. 1, Art. 11 of the Vermont Constitution.

State v. Hoch, 12-330 (1:30 p.m.)
Does Vermont’s 2004 aggravated stalking statute require a victim to feel fear simultaneously with the illegal conduct?

Straw v. Visiting Nurse Assocation of VT/NH, 12-149
Who decides what constitutes “just cause” for terminating employment? Can an employer do so by setting out its policies and regulations, or is “just cause” a standard that applies to all employers and should be evaluated by the factfinder?

Anderson, Eastwood, Albert & Killoran v. State of Vermont, 2012-272 (2:30 p.m.)
Is the certification requirement for an independent candidate’s statement of nomination—that each candidate obtain 1000 signatures, produce the original signatures, and have them certified by the town clerk as registered voters—a violation of the First and Fourteenth Amendments to the United States Constitution?

Details about each of the cases to be heard at Vermont Law School appear below.

Murphy v. Sentry Insurance, 2012-335 & 2012-384 (9:00 a.m.)
This case was brought by the survivors of Christopher Murphy, a forty-seven-year-old employee of Pete’s RV in Williston, Vermont. Decedent was killed in June 2004 while operating one of several forklifts at Pete’s RV that used an after-market tow plate attachment in violation of Vermont’s occupational health and safety regulations. Defendant-appellee Sentry Insurance provided safety consulting services to decedent’s employer in its capacity as commercial liability carrier and workers compensation carrier. Sentry inspected and generated reports for Pete’s RV twice prior to the accident involving decedent. The issue of the attachment was not raised in the inspections or the reports. Defendant-appellee maintains the specific forklift, tow attachment, and accident location at issue in this case did not exist at the time of Sentry’s inspections.

Following a trial, the jury returned a verdict finding Sentry was not grossly negligent, as required to hold a worker’s compensation carrier liable under Vermont law, 21 V.S.A. § 624(h). However, the jury found Sentry liable for performing a negligent inspection in April 2002 in its capacity as commercial general liability carrier. The jury awarded plaintiff-appellant $1.94 million plus medical costs. Post verdict, Sentry moved for judgment as a matter of law, which the court granted. The court found that the jury acted unreasonably in finding that the evidence at trial established an increase in risk, assumption of duty, or finding of reliance, one of which would be necessary under the Restatement (Second) of Torts § 324A to sustain third party recovery for a negligent voluntary undertaking. The court also awarded defendant-appellee costs in the amount of $17,490.74. On appeal, plaintiff-appellant contends granting the motion for judgment as a matter of law was inappropriate because all three sections of the Restatement were established at trial, and that the trial court erred in awarding costs to defendant-appellee under 32 V.S.A. § 1471 and V.R.C.P 68.

State v. Gillard et al., 12-433 (9:30 a.m.)
Defendants were convicted of criminal trespass for protesting the Kingdom Community Wind Project from a piece of ridgeline property whose ownership remains disputed in a pending civil action. The protesters contend that the property where they were located belonged to the project’s neighbors, who they maintain had permitted public access. The State responds that the project’s developers were in lawful possession of the land and that the protesters were therefore unlawfully trespassing when they refused police requests to leave. On appeal, the protesters seek reversal of their convictions, arguing that the neighbors, as the actual owners, had a superior right to the land and that the court therefore failed to adequately instruct the jury on the relevance of that alleged ownership. They further argue that the State should have, but did not, present any evidence relating to the actual ownership of the land. The State maintains that the outcome of the civil case is irrelevant because at the time of the alleged trespass the developers had lawful possession as required by the criminal-trespass statute. The State argues that jury instructions were correct and that it presented all the evidence necessary to prove the developers had lawful possession.

Knutsen v. Dion, 2012-294 (10:30 a.m.)
After purchasing a house under a form Purchase and Sales Agreement promulgated by the Vermont Association of Relators (VAR), plaintiff learned of water problems, which she alleges were concealed by seller’s broker. Plaintiff claims that the VAR engaged in an unfair and deceptive practice by publicizing this form Purchase and Sales Agreement for use by its realtors because (1) it limits realtors’ liability for misrepresentations in a transaction; (2) it imposes a pre-suit mediation requirement; and (3) the liability limitation advantages realtors bargaining. These, plaintiff asserts, are violations of the Vermont Consumer Fraud Act, the Rules of the Vermont Real Estate Commission, and the Realtors’ Code of Ethics.

State v. Medina, 2012-087 (11:00 a.m.)
This is a consolidated appeal in which defendants challenge the constitutionality of 20 V.S.A. § 1933(a)(2). Defendants were arraigned on felony charges in Vermont Superior Court, Addison and Rutland Criminal Divisions. Pursuant to 20 V.S.A. § 1933(a)(2), each defendant was required, as a condition of release, to provide a DNA sample for inclusion in the state DNA database. All defendants moved to vacate the order requiring a DNA sample. Both the Addison and Rutland Criminal Divisions found that the statute violated defendants’ rights under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont Constitution. On appeal, the State argues that the taking of DNA samples from arraigned felons and the profiling of those samples is justified as a special need beyond the normal needs of law enforcement.

State v. Hoch, 12-330 (1:30 p.m.)
An off-duty police sergeant was at his home using his hot tub, located on the rear porch, when he saw defendant approach his thirteen-year-old daughter’s bedroom window. Defendant pressed his face close to the pane of the window, then left. The sergeant left the hot tub, and moments later saw defendant approach the corner of the house for a few seconds, and again leave. As the sergeant dressed in his own bedroom, he observed defendant again approaching his daughter’s bedroom window. The sergeant apprehended defendant after a struggle ensued. Other police arrived and detained defendant, and later recovered a camera with photos of the sergeant’s daughter. Defendant was charged with one count of aggravated stalking and five counts of possession of child pornography. Defendant pled guilty to one count of aggravated stalking and two counts of possession of child pornography. Later, defendant was charged with a violation of his terms of probation and his probation was revoked. Defendant filed a petition for post-conviction relief. The State filed a motion for summary judgment in the case. The trial court, sua sponte, entered summary judgment in favor of defendant on the basis that there was no factual basis for aggravated stalking plea. The State appeals that ruling. The issue on appeal is whether Vermont’s pre-2005 amended aggravated stalking statute requires a victim to feel fear simultaneously with the illegal conduct.

Straw v. Visiting Nurse Assocation of VT/NH, 12-149 (2:00pm)
Appellant, an employee, was dismissed from her job because of “unprofessional conduct.” The jury found that appellee, her employer, had, through its policies and procedures, modified her employment so it was no longer “at will.” Consequently, she could not be terminated without “just cause.” However, the judge did not instruct the jury on “just cause,” and the jury found that the termination was proper because the employee had violated a rule in the employer handbook and because the employer had complied with its handbook procedures in effecting the termination. On appeal, the employee argues that just cause is a legal standard that applies to all employers and should have been evaluated by the jury. Appellee argues that cause for termination can be defined by an employer by setting out its policies and regulations.

Anderson, Eastwood, Albert & Killoran v. State of Vermont, 2012-272 (2:30 p.m.)
To appear on the presidential ballot in Vermont, an independent candidate must submit to the Secretary of State a statement of nomination that contains the signatures of 1000 qualified voters, together with certifications by town clerks that each signer is a registered voter in the town listed on the statement. The candidates must submit original signatures, not copies, to the town and state election officials for certification, and, once certified, to the Secretary. This appeal concerns the requirement that candidates submit original signatures, which the trial court determined violated the First and Fourteenth Amendments to the United States Constitution as serving no legitimate state interest. The State argues on appeal that the requirement imposes a minimal burden, and thus, the State must demonstrate only an important, rather than a compelling interest to support the constitutionality of the requirement. The State contends that they have demonstrated such an interest.

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Vermont Law School, a private, independent institution, has the top-ranked environmental law program according to U.S.News & World Report. VLS offers a Juris Doctor curriculum that emphasizes public service; two Master’s Degrees (Master of Environmental Law and Policy, and Master of Energy Regulation and Law), and three post-JD degrees—LLM in American Legal Studies (for foreign-trained lawyers), LLM in Energy Law, and LLM in Environmental Law. The school features innovative experiential programs and is home to the Environmental Law Center, the South Royalton Legal Clinic, and the Environmental and Natural Resources Law Clinic. For more information, visit www.vermontlaw.edu.