Kimberly B. Cheney's: Developments in Vermont Law
Found bi-weekly in The World
Is a Worker Exploited if She Quits Because the Boss Demands She Go to Training Without Pay?
08/24/2010
Janet Demar worked at a day care center for
$12.75 an hour for 40 hours. The recession resulted in fewer kids at the
center, so the employer reduced Janet's pay to $10.50 for 30 hours and
cut her vacation days from 5 to 2. ...
Can a Sentencing Judge Deny the Possibility of Rehabilitation and Early Release to a Prisoner?
08/12/2010
Can You Take Your Employer's Business for Yourself Without Having to Pay Back What You Earned?
07/27/2010
J.A. Morrissey Inc. (JAM,) a construction firm, hired Peter Smejkal
(Peter) as an estimator. Peter eventually became a vice president and a
director of JAM. While working for JAM, Peter formed his own
construction company, Merkur, and a company to own land, IS Enterprises,
LLC. ...
Does the Age of Footprints in the Snow Justify a Search of a House?
06/14/2010
Early one March morning, the
911 operator got a call from a person saying he was Stephen Ford; he’d had a
car accident in Quechee, and was trapped inside. A police visit to the scene
and found no wrecked car and no Stephen Ford. State Police protocol requires a
visit to a missing person’s last known residence, which was in Williamstown,
approximately 40 miles away. ...
If You Intentionally Kill My Pet Dog, Do You Have to Pay More than if You Smash Up My Bike?
06/01/2010
Sarah and Denis Scheele drove
to
When the Jury In a Rape Case Hears the Defendant Molests Children, Is It a Fair Trial?
05/17/2010
Justin Smith was convicted by a jury of sexual assault by
forced oral sex, and rape of B.H. He was sentenced to 10 years to life in
prison. At trial, B.H. testified that she went to Smith’s place to buy
marijuana, and shared a couple of hits with Smith, who then forced her to a
bedroom and raped her. ...
Can Immigration Authorities Take Away a Farmer’s Life’s Work?
05/10/2010, by guest
columnist, Heather Jarvis
RT* came to the
Can the Police Arrest You for Violating a Law Even the Supreme Court Says is Nonsensical?
04/20/2010
Bridgett was driving alone in Middlebury. Behind her was a
state police car with a drug sniffing dog. (We don’t know if she saw the car.
You judge from the stated facts.) The
officer saw her make a left-hand turn onto
Can a Wife Use a Power of Attorney to Trump Her Husband’s Will?
04/03/2010
Louis Kurrelmeyer Sr. died in
2001. He was survived by his second wife, Martina, and three children,
including a son, Louis Jr. Martina and Louis Jr. both claimed they were
entitled to the house worth about $500,000. Louis Jr. based his claim on Louis Sr’s
1980 will which left the house to Martina for her life and then to the
children. ...
Does a Felon Go Free if His Lawyers Don’t Hire a Firearms Expert?
03/21/2010
Vito Russo was convicted of aggravated assault and sentenced to 12-15 years in prison.
Victim testified that Russo pointed a rifle at him, so he
jumped in his truck and drove away. Russo followed, driving a stick shift car
and fired several shots at victim. No bullet holes were found in victim’s truck
and he was not injured. ...
03/09/2010
William Hinchliffe’s 1990
divorce was calm. He regularly contacted his ex-wife (Jane Doe) regarding their
two 13-year-old children without incident. But in 2005, William, out of jail on
bail following domestic abuse of his then girlfriend, came to Jane’s house and
screamed and yelled at her. ...
Does a Parent’s Good Reputation Trump Compelling Medical Evidence of Child Abuse?
02/22/2010
Three-month-old Z.L., weighing
20 pounds, suffered an acute skull facture that went ear to ear over the crown
of his head. Hospital treatment revealed an acute subdural hematoma on the left
side, and chronic subdural hematoma on the right that was two to four weeks
old. ...
Are Three Doctors’ Opinions that Firefighting Can Cause Cancer “Junk Science”?
02/09/2010
Albert George worked for the
Burlington Fire Department for 36 years. He died of non-Hodgkin’s lymphoma
(NHL). His estate brought a worker’s compensation claim, insisting that the NHL
was caused by being exposed to carcinogens while fighting fires. ...
01/26/2010
Kenneth Bailey pled guilty to domestic assault and sexual
assault. While in prison he filed for Post Conviction Relief (PCR) a proceeding
similar to habeas corpus, (The Great Writ) in which a prisoner claims he is
illegally imprisoned. Bailey, representing himself, lost in the Superior Court.
He appealed to the Supreme Court and asked for a lawyer. ...
If You Quit Your Job Because the Boss Called You a Liar, Can You Get Unemployment Benefits?
12/29/2009
Monica Quick worked at a
convenience store. One night she told her supervisor she had injured her back.
She was allowed to go the hospital where she was treated and released back to
work. When she got a hospital bill she asked the store owner to pay it. ...
Can a Lawyer Lie to a Witness to Get Evidence to Help a Client?
12/15/2009
A lawyer defending a serious
criminal case got a phone call from a person claiming he had information that
would help the defense. The potential witness asked the lawyer if the phone
conversation was being recorded. He was told it was not. ...
If Your Buddy Has Marijuana in His Pocket, Can the Police Search You?
12/01/2009
Two juveniles, C.C. and D.K.,
were passengers in a car which the police stopped for speeding. D.K., who had
an outstanding arrest warrant, tried to flee, but was caught. The officer did a
pat down search of D.K. He felt an object believed to be a gun. ...
If You Don’t Look or Act Drunk, Can You Still be Processed for Driving Under the Influence?
11/17/2009
Epeli Mara’s cracked tail
light led to a stop by a State Trooper. The officer observed no erratic
driving, no speeding and no traffic violations. In stopping Mara, the trooper
had no reason to suspect drunken driving. ...
Sexual Relationship Between Two Priests Complicates Sex Abuse Trial
11/01/2009
James Turner was 16 in 1977
when he was sexually abused by a Catholic priest, Alfred Willis. Willis and
James’ brother, Bernard, also a priest, were friends who had a sexual
relationship. James sued the Church in 2004 asserting it had negligently hired or
supervised Willis. ...
10/06/2009
Kimberly Payne worked for U.S.
Airways. In 1999 she suffered a work-related back injury. Her Supervisor failed
to investigate the claim for Worker’s Compensation benefits (WCB), forced her
to use sick leave, interfered with her medical treatment by telling her
therapist to release her for long hours, and when we she applied for WCB, told
her she couldn’t get retroactive benefits. ...
Can a Seller Exempt Itself from Liability for Harm by Deception?
09/22/2009
A jewelry dealer and a coin
dealer, Puro and Yoken, (the dealers) rented booths in the Antiques Mall in
Quechee Gorge (The Mall). Sometime in the night, a thief broke in and stole
$25,239 worth of goods from Puro, and $31,698 from Yoken. ...
Is it a Crime to Interrupt an Official’s Speech by Yelling “You Have Blood on Your Hands!”?
08/25/2009
When John Negroponte, the U.S.
Director of National Security, began his commencement address at St. Johnsbury
Academy, Michael Colby stood up and shouted at him. Boots Wardinski also stood
up and shouted “You have blood on your hands.” Security staff, anticipating
disruption, escorted Michael and Boots from the hall without further
disruption. ...
Divorce: 50/50 After Fifty, After 13 Years?
08/07/2009
Richard (48) divorced Suzanne
(49), after 13 years of marriage. They had no children together, but Richard
supported Suzanne’s children for a time. ...
Can a “Catch 22” Keep a Person in Jail Forever?
07/28/2009
Roy Girouard was convicted of
first degree murder in 1975 and was sentenced to life in prison with the
possibility of parole. ...
Drug Searches: Yosef and Sequoia Illegally Convicted? (Part II)
07/14/2009
The Supreme Court, in a 3-2 decision, determined that
Yosef’s sister, Sequoia, voluntarily allowed the police to search their
apartment. Since he lived there and there were drugs, he could be convicted of
unlawful possession. ...
Drug Searches: Win One, Lose One (Part I)
06/30/2009
Can A Developer Acquire a Vested Right to Regulations in Effect
06/16/2009, by guest
columnist, Zachary Griefen
Sisters and Brothers Investment Group, LLP (“SBI”) wanted to
build a convenience store with gasoline pumps in the Town of
Can an Elected Assistant Judge be Disciplined by the Supreme Court?
06/02/2009
William Boardman was first elected an Assistant Judge of
If the Vet Kills Your Cat, Can You Sue for Emotional Loss?
05/19/2009
The Goodbys took their two
cats to veterinarian Yankauskas (the Vet) to be treated for high blood
pressure. Medicine was prescribed by Vet. A refill prescription manufactured by
Vetpharm Inc. killed the cats. ...
Is a Youth Camp Corporation Insured if It’s Sole Employee Sexually Abuses Clients?
05/05/2009
Peter Drutchal ran “Adventure Quest Inc.,” a summer camp for
youth. He sexually abused some of his clients. Drutchal purchased insurance for
Adventure from Virginia Surety Co. Inc. The policy excluded coverage if the sued
individual had personally engaged in sexual abuse. ...
Can You Plead Guilty to Something You Didn’t Do?
04/21/2009
Jason Miller was arrested for
his sixth DWI offense, driving with suspended license for the second time, and
giving false information to the police. He was on probation for committing
welfare fraud. He pled not guilty and was released pre-trial on condition,
among others, that he report daily to the police. He failed to report on 13
occasions, and was charged with 13 additional crimes of “failure to appear.” To
resolve these charges, he admitted he violated his probation, plead guilty to
DWI-6, and guilty to 4 “failure to appear” charges. ...
Is Serving Prisoners Disgusting Food Punishment?
04/06/2009
Prisoners who throw food or
bodily waste can be put on a “Nutraloaf” diet for 7 days – an unappetizing
baked, compressed amalgam of vegetables. It can be eaten without utensils which
can be weapons, and inmates are less likely to throw bodily waste if they have
to use their bare hands. ...
If You Consent to a Search of Your Car When You’re in Custody After a Traffic Stop, Is It Valid?
03/10/2009
Mr. Sole was going 95 MPH on
the interstate. A state trooper stopped him and smelled marijuana when Sole
rolled down his window. The trooper directed him to sit in the cruiser. Once
there, Sole was told trooper would give him “a break” and cite him to court
instead of arresting him. ...
Did the Corrections Department Unfairly Make Harsh Rules Permitting It to Fire Employees?
02/24/2009
The State Department of Corrections
issued new work rules, telling the Governor doing so was necessary to put the
department in a stronger position to hold employees accountable for misconduct. ...
If Your Lawyer Steals Your Money, Can You Get Punitive Damages?
02/10/2009
Attorney John Ruggerio
practiced real estate law. He also operated a separate real estate business.
Theresa DeYoung’s husband committed suicide leaving her with four
children. Soon thereafter, husband’s mother left a substantial
inheritance for the children. Theresa was estranged from husband’s family, so
she hired Ruggerio to see to it that the children received their inheritance.
Ruggerio advised Theresa to invest the money his real estate business once it
was received. ...
Can a Severely Retarded Person be Constitutionally Convicted of Lascivious Conduct?
01/27/2009
Thirty seven-year-old Ronald
Beaudoin touched the vulva of an eight-year-old child - once under her clothes
and a second time outside her clothes. He was mentally retarded with an IQ of
66 (first percentile of population) and suffered from developmental disabilities. ...
If You Hire Your Own Judge, Are You Stuck With the Result?
01/12/2009
Steve and Lisa (Owners) hired
Vermont Built Inc. (Contractor) to construct a house for them. The construction
contract provided (1) that if either party breached, any dispute would be
resolved by arbitration though the American Arbitration Association (AAA) and
(2) that if owners failed to pay, the contract could be terminated and they
would have to pay amounts due, costs, and attorney’s fees. ...
If You Plea Bargain for a Murder Sentence, Can You Get Out of it?
12/16/2008
In June of 2003, Henry Buston
was enraged that his best friend was having sex with his former girlfriend. So
he went to his truck, took out a shotgun and pistol and shot them both to
death. He was charged with aggravated murder. The punishment is imprisonment
for life without possibility of parole. ...
Is a Toilet Seat on a Flag Pole a Spite Fence?
12/02/2008
Alberino and Balch were not
good neighbors. They feuded over a decade about Alberino’s barking dog,
harassing incidents, cutting trees and defamation. Alberino put a red plastic
snow fence mostly on the boundary but in part on Balch’s land and in part stapled
to Balch’s trees. ...
"The Most Tragic Thing in the World is a Man of Genius Who is Not Also a Man of Honor"*
11/18/2008
Fifty-year-old Richard Bitter
wanted to be a Vermont Lawyer. He applied in 2005. The Supreme Court will only
admit applicants to the Bar if they are of “good moral character.” Truthfulness
is one of the most important character traits necessary to be a lawyer. ...
If You Go “Rogue” in Your Job, Can You Save it by Claiming You’re a Whistleblower?
11/03/2008
Dawn Griffis, a nurse
practitioner, was hired by Cedar Hill Health Care (Cedar) as director of
nursing at two of its facilities, a 39-bed nursing facility, and a residential
care facility. Griffis’ job was to provide nursing “overview” at both
facilities, but she had no authority to hire or supervise staff. ...
If You Cheat on Your Spouse and Pass on a Sexual Disease, Can You Be Sued?
10/22/2008
Joan and John were married in
1972. Until 1999, her regular pap smears showed no presence of Human
Papillomavirus (HPV), a sexually transmitted disease (STD). ...
Do Supreme Court Justices Pay Attention to Public Opinion About Sex Crimes?
10/06/2008
Trial lawyers will tell you “I
don’t know the truth, I don’t know all the facts, but I do know all the
evidence.” ...
09/23/2008
Is What the Victim Tells the Cop Always Hearsay?
09/09/2008
In a criminal case, the
accused has a constitutional right “to be confronted with witnesses against
him.” ...
Should a Kid Who Shoots a Drunk Having Sex With His Mentally Ill Mother be Tried in Juvenile Court?
08/26/2008
Jonas Dixon, a desperate
fifteen year old, shot and killed a drunken man who had come to the house to
have sex with his mentally ill mother. ...
When is a Public Record Public?
08/12/2008
How open is Vermont Government? The Public Records Act (PRA) provides that
all records maintained by the State are public, unless there is a specific
exemption. There are now over 100 exemptions. (When I wrote the law in 1973
there were 18) ...
Education Department Rebuked for Denying Due Process of Law
07/29/2008
In April of 2005, JH, a high
school principal, learned that an 8th grade student had received death threats
from another student. She suspected MT, a 7th grader, of being the culprit. JH
interrogated MT, including a two hour interview with police present. ...
Is a Sale of Development Rights Binding?
07/16/2008
Costa’s decided to sell their
farm. They hired a realtor who arranged a purchase contract with Fields, from
Drug War Defeated by Vermont Constitution Once Again
07/02/2008
On a fine April day, Eric Neil
was walking down a street near the courthouse during business hours. He was
unaware that an arrest warrant for him had been issued by the Court for the
crime of failing to pay a $21 fine. The Police, however, knew Eric, and knew
about the crime. ...
What Accommodation Must a College Give to a Liar?
06/17/2008
Rajan Bhatt was a fourth-year
student at the
Are the Courts the Least Dangerous Branch of Government?
04/01/2008
Three Vermont Supreme Court
Justices, Dooley, Johnson and Skoglund, over the dissent of Chief Justice
Reiber and Justice Burgess, vacated the prison sentence of 12 to 20 years of
Michael Brillon and set him free. ...
Is Revealing Physical Evidence a Confession?
05/13/2007
Confessions have long been a serious problem for the law.
Unless the guilty statement was free of torture, force, or coercion (like being
in police custody isolated from friends and family), the truthfulness of the
confession is questionable. Further, the Constitution prohibits self
incrimination, so how can a confession be valid without a lawyer's advice? ...