State v. Robitaille, 2011 VT 135

Arrested? —Just shut up.

Seriously.

Any criminal-defense attorney will tell you—the police are not in the business of helping defendants. Do not talk to them. They are not your friends, and they are not there to help you. They are there to investigate a case, arrest you, and obtain a confession or evidence of guilt if possible. So if you are in custody, bite your tongue and wait for your attorney.

Unfortunately for him, this is not what Defendant in the present case did. Defendant was arrested following an assault and robbery at a pharmacy. A deputy sheriff met defendant at the police station and read Defendant his Miranda rights. Defendant said, more or less, “I’m not talkin’ and I want a lawyer.” The deputy ended the “conversation,” but he didn’t contact a public defender right away. On the other hand, Defendant didn’t name an attorney that he wanted to talk to.

The deputy arranged transportation for Defendant to another facility. He then conversed with another police officer within earshot of Defendant. The conversation had nothing to do with Defendant. Defendant then asked if his girlfriend had been arrested. The deputy responded that she had been released, and resumed his conversation with the other officer. Defendant asked some more questions; the deputy gave him some answers.

Eventually, Defendant asked the deputy what kind of deal he could get. The deputy gave Defendant the standard line that goes, more or less—“Well, I can’t make a deal, but I am a very close personal friend with the State’s Attorney, and as long as you admit that that you did everything I’m investigating you for, well, he’ll prob’ly just give you a few traffic tickets.” (Please note this is not what the deputy actually said; this is my cynical-defense-attorney take on the standard exchange, but I do not think I am that far off.) Defendant waited another minute and agreed to talk. The deputy reiterated Defendant’s Miranda rights and asked Defendant if he wanted a lawyer present. Defendant said he did not; he signed a waiver form and provided a statement to police. All told, this occurred over the span of fifteen minutes.

Defendant filed, and the trial court denied, a motion to suppress. The court found that defendant voluntarily, knowingly, and intelligently waived his Miranda rights before making any statements to police. The trial court also found that Defendant’s invocation of his right to counsel and subsequent waiver did not require suppression under the Public Defender Act (also known as the “other” PDA).

The PDA requires police to contact an attorney at “the commencement of detention” if the accused doesn’t have an attorney and doesn’t effectively waive his right to one. The court found that Defendant was detained for purposes of the Act.

So, under the PDA, the deputy had a duty to contact the appropriate public defender. The issue was whether he had to do so within the fifteen-minute timeframe in which Defendant invoked and waived his right to counsel.

In ruling on Defendant’s motion to dismiss, the trial court looked to the purpose of Miranda—specifically its focus on preventing bad-faith interrogation techniques. The court found that there was no bad faith here, partly because the delay could be explained by arranging transportation for Defendant. And so, Defendant entered a conditional guilty plea and appealed.

The SCOV begins with Defendant’s right-to-counsel argument under the PDA and Chapter I, Article 10 of the Vermont Constitution. The PDA provides, inter alia (that’s fancy-lawyer talk for “among other things”), for counsel in a situation such as the Defendant found himself in “upon commencement of detention.”

Defendant argued plain language—the deputy was obligated to contact a public defender for him either at the moment that he was detained or at the moment that he invoked his right to counsel. Because this didn’t happen, his statements should have been suppressed.

The SCOV ain’t buyin’ what Defendant’s sellin’. Citing legislative intent, the SCOV reasons that “upon commencement of detention” does not impose an obligation on law-enforcement officers to contact a public defender at the exact moment a defendant is arrested or detained, or at the very instant that the right to counsel is invoked. Without specifically determining exactly when counsel must be contacted, the SCOV holds that failing to contact a public defender within fifteen minutes doesn’t warrant suppression. The SCOV notes, as the trial court did below, that the underlying purpose of Miranda is to prevent bad-faith custodial interrogation of criminal defendants and that such bad faith is not apparent here. The SCOV also notes that the Defendant here reinitiated the conversation, which is constitutionally permissible.

The SCOV also rejects Defendant’s arguments that the trial court impermissibly required him to prove that the deputy delayed contacting an attorney in bad faith and that the court committed clear error in finding that the delay was caused by arranging transportation for defendant. Because the SCOV sees no violation, it notes that the arguments are extraneous. The SCOV also notes, however, that bad faith, or its absence, was a relevant consideration in this context.

Defendant next argued that the State failed to prove he knowingly, voluntarily, and intelligently waived his right to counsel. The State introduced only his signed written waiver in support of its position. Defendant also argued that the trial court wrongly shifted the burden of proof to him, and that it failed to consider the factors necessary to find a knowing and intelligent waiver.

The SCOV notes that defendant was twice informed of his Miranda rights. He signed the written waiver form, “a portion of which was read out loud to him.” He also repeated on an audio recording that he had been advised of his rights. He agreed, on tape, to speak to the deputy without a lawyer present. The SCOV reasons that there’s “ample evidence” to support the trial court’s waiver-was-valid decision.

The SCOV discusses other aspects of Defendant’s confession, including his assertion that he was on drugs (Oxycontin) at the time, and the trial court’s failure to make specific findings regarding his age and experience. It is to no avail, however, as the SCOV ultimately affirms the trial court’s finding that defendant voluntarily, knowingly, and intelligently waived his rights.

So, the bottom line is that when you get arrested, you have to keep your mouth shut for more than fifteen minutes before you start talking again. We’re not sure how much longer, but at least one other case cited by the SCOV suggests three-and-a-half hours will do it.

Puppolo v. Donovan & O’Connor, LLC, 2011 VT 119 (mem.).

Attorneys: be careful when you turn down a case.

Dear Aunt Eva died from heart failure. She was eighty-three years old and a patient in a nursing home. Eva’s niece arrived minutes after Eva died. The niece saw Fentanyl patches on Aunt Eva and concluded that Aunt Eva died due to a Fentanyl overdose. Eva’s doctor claimed that the Fentanyl was for severe-pressure-ulcer pain, but Eva’s niece knew better.

Eva’s niece suspected that Aunt Eva died due to a Fentanyl overdose. So she reported her aunt’s death to the police and requested an autopsy. The autopsy concluded Eva had died of natural causes. After completing its investigation, the police department closed the case.

Eva’s niece also filed a complaint with the Department of Aging and Disabilities, which gives us a the-greatest-ever acronym to work with—DAD. DAD conducted a surprise investigation of the nursing home but found no regulatory violations. DAD also found that due to Eva’s overall medical condition, there was no way to prevent pressure ulcers. DAD even went so far as to threaten to, “Turn this car around, right now, and go straight home.” Okay, I made that last part up. DAD essentially found no wrongdoing.

The niece was not so easily convinced. So she talked to an attorney, the defendant here, about bringing wrongful death and survivorship claims against the nursing home and the attending physicians. So, there’s the autopsy report, the results of the police and DAD investigations, and, you know, basically, no case.

So the attorney declined to take the case. But that’s not the mistake.

The Plaintiff in this case is Eva’s estate, or more accurately perhaps, the executor of the estate, Eva’s niece. When the defendant turned the case down, he told the niece that the limitations period for the survival action began to accrue when she was appointed executor of the estate.

Wrong. The limitations period had actually begun to accrue two months earlier when the original executor was appointed. He also failed to mention the specific two-year limitations period for the wrongful-death action.

Oops. The niece found another attorney willing to file a complaint just shy of three years from her Aunt’s death. But the claims were dismissed as time-barred.

Two years later, almost to the day, the niece sued the attorney who declined the case initially, claiming that her reliance on his legal advice deprived her of the opportunity to pursue wrongful death and survivorship claims for her aunt’s death.

The case proceeded through discovery toward trial. Shortly before jury draw, though, the niece contacted her current attorney by e-mail. She requested that he withdraw his appearance. So he did. He filed a motion to withdraw one day before the jury draw. The trial court reviewed the motion the day after the jury draw and set it for hearing on the first day of trial. The trial court sent an entry order on this directly to the niece and indicated that it was unlikely to allow plaintiff’s attorney to scamper off this close to trial.

Two days before the hearing and trial, the niece filed a pro se motion to recuse the trial judge. Her attorney, apparently, had refused to do this, which was part of the reason the niece wanted him to quit. The following day, the chief administrative judge issued an order to replace the trial judge—not because there was a conflict, but to ensure that this motion would not prevent the trial going forward.

The replacement judge took up the motion to withdraw on the first morning of trial. Plaintiff appeared and told the court why she needed to rid herself of her attorney. In brief, the reasons she gave were: 1) ‘major tactical disagreements’ in an attempted mediation; 2) her preferred expert was way more badass than the one her attorney eventually retained; 3) her attorney refused to argue that certain of her aunt’s medical records had been falsified; and 4) the refusal to seek disqualification of the trial judge. There was also an issue with the attorney having forgotten a ‘very important detail’ regarding Aunt Eva’s coronary disease—this made the niece question her attorney’s competence.

The trial court denied the motion to withdraw, explaining that good cause must be shown under the Rules as the case had been set for trial. The trial court found that the niece’s reasons did not amount to good cause. The court noted that the judge the niece sought to recuse had in fact been recused. Accordingly, the issue was moot. The court also noted that the issues between the niece and her attorney were mostly strategic disagreements, and noted that trial strategy is traditionally the attorney’s department.

The incompetence argument didn’t get far. The court noted that the attorney “demonstrated a grasp of the facts and an impressive ability to recall dates and details of the case.”

Furthermore giving the niece time to find new counsel on the eve of trial would create an undue burden on the court, the defendant, and the jurors. So justice rolls on and niece and her attorney have to endure the legal equivalent of a Neil Simon play.

Trial commenced, and not too surprisingly, jury found for defendant. Niece appealed.

On appeal, the niece first contends that the trial court erred in denying the motion to withdraw counsel because she did not have appropriate notice of the first-day-of-trial hearing. The SCOV notes that the niece had adequate notice and does not give much credence to niece’s “but-the-entry-order-was-all-like-confusing-and-stuff” argument.
Niece also claims that the hearing on the motion to withdraw failed to meet implied promptness requirements. The argument is interesting, even if a bit stretched—essentially, it’s a constitutional-right-to-counsel-requires-promptness-even-when-the-rule-doesn’t-mention-a-timeframe argument. “Not raised below, not preserved for appeal” says the SCOV and moves on.

Niece argues that she didn’t get a chance to say enough bad stuff about her attorney—specifically that the court erred when it did not allow her to elaborate on events that took place during the mediation. The SCOV notes that the trial court addressed each of niece’s stated grounds and concerns below in concluding that the trial court’s ruling was harmless and does not provide grounds for reversal.

Finally, niece contends that the court erred in failing to find good cause for the motion to withdraw. She cites “her concerns about her attorney’s choice of expert witness, his refusal to pursue a falsified records claim, his competency, and his refusal to move to recuse the original trial judge.” The SCOV reviews the trial court’s ruling on a motion to withdraw for abuse of discretion.

In so reviewing, the SCOV once again notes that the trial court addressed each of the niece’s stated grounds and concerns below. Trial strategy decisions are the attorney’s to make.

Regarding competency, the trial court made specific findings that the attorney had impressive recall. At the hearing, the niece even “conceded that her attorney ‘knew the law backwards and forwards’ and was a ‘wonderful attorney’ who would be an ‘asset’ to her case.” The SCOV concludes that the trial court did not abuse its discretion and that denial was proper.

Niece also contends that it was plain error for the trial court to allow the defendant attorney to testify to his opinion of the merits of the underlying medical malpractice case and to discuss the autopsy and DAD reports.

The SCOV, however, does not review for plain error because niece does not suggest that this final oversight deprived her of a fundamental right or that one was even involved.

Niece’s appeal also takes issue with the trial court. In her final argument, she alleges that the trial court botched it when it allowed a defense expert witness to testify as to the use of Fentanyl in pressure ulcer pain management and the likelihood that Fentanyl caused Aunt Eva’s death because this testimony exceeded Defendant’s expert disclosure statement. Defendant’s disclosure essentially said that the expert would testify as to whether the treatment of the ulcer met the applicable standard of care. He was not deposed.

The expert testified that Aunt Eva’s treatment met the standard of care, that pain management was part of the treatment for a pressure ulcer, and that the idea that Aunt Eva was poisoned be Fentanyl was ridiculous. Plaintiff’s counsel objected vehemently arguing that it was outside the scope of disclosure. He even filed a post judgment motion for new trial claiming Plaintiff was subjected to “trial by ambush.”

The trial court denied the objections and the motion, explaining that the use of Fentanyl fit within the scope of the expert disclosure—it was related to the care and treatment of the pressure ulcer. The trial court also noted that Plaintiff chose not to avail herself of discovery procedures—like a deposition—and so could not claim unfair surprise. The SCOV reviews this decision on expert testimony for abuse of discretion.

The SCOV finds none. It agrees with the trial court that the use of Fentanyl was well within the scope of disclosure. The cause-of-death testimony is a little murkier, but the SCOV leaves it to the discretion of the trial court.

Regarding niece’s claim of unfair surprise in her post-trial motions, and the trial court’s disallowance of those claims, the SCOV notes that when a party does not move for a continuance immediately following claimed unfair surprise, such claims are considered waived. Trial court did not abuse discretion. Case closed.

Despite niece’s contentions, the SCOV appears to conclude that her disagreements with her attorney were either off base or of the no harm, no foul variety. Ironically, given that this was a legal malpractice case, it may become the basis for a second malpractice case. Since the basis of each malpractice case is essentially a re-trial of the underlying claim that the lawyer allegedly messed up, the next action could essentially be a re-trial of this case, which was in and of itself a re-trial of the medical malpractice case that never occurred. In others words, niece could find herself trapped in her own version of Marat/Sade or this.

State v. Kenvin, 2011 VT 123

Restitution orders have to be based on somewhat reasoned application of the applicable statutes.  Otherwise, the SCOV gets annoyed.

Based on a 2008 accident, Defendant was charged with grossly negligent operation, death resulting.  A jury convicted of lesser-included negligent operation.  The court sentenced Defendant to eleven to twelve months, and ordered Defendant to pay restitution to the victims’ compensation program and the decedent’s family.

Defendant appealed the restitution orders on grounds that the State failed to establish the amount of loss or to show that the loss was a direct result of the crime committed or that the decedent’s family members were direct victims.  Defendant also argued that the court failed to make findings regarding his ability to pay.  Lastly, Defendant argued that his eleven-to-twelve month sentence violated Vermont’s indeterminate sentencing structure.  The SCOV agrees with Defendant’s restitution arguments and reverses and remands the restitution awards.

This case stems from a September 2008 accident at an intersection.  Defendant was traveling north when he made a left-hand turn.  A motorcyclist was traveling south and could not avoid Defendant’s truck.  The motorcyclist collided with Defendant’s truck, flew from his motorcycle, and later died from the resulting injuries.

Defendant was charged with grossly negligent operation, death resulting, but the jury convicted of lesser-included negligent operation.

The State requested restitution for the victim’s family’s travel costs, a radiology bill not covered by insurance, and storage costs for the decedent’s motorcycle.

Defendant objected.  He argued that the jury had acquitted him on the grossly negligent operation charge and, therefore, found him not legally responsible for the victim’s death.  The trial court rejected this argument.  Defendant also argued that the victim’s family’s travel expenses were not a direct result of negligent operation.  Defendant objected when the State offered the restitution order, but he was cut off before defense counsel had a chance to elaborate.  The trial court proclaimed that the travel expenses of the decedent’s wife, children, grandchildren, and mother were “directly connected” to his death.  The trial court, without making any findings regarding Defendant’s ability to pay, made two restitution orders.  Defendant appealed.

The SCOV first discusses the restitution orders’ substance.  Noting that there was no clear record of what was included, that there were no findings made by the trial court, and that according to the State’s representation below, the costs included the victim’s family’s travel costs, a radiology bill not covered by insurance, and storage costs for the decedent’s motorcycle, the SCOV concludes that the only cost properly included in a restitution order in this case would be the uncovered medical bill.

The SCOV explains that the restitution statute does not apply to the victim’s family’s costs in this case.  The SCOV notes that there must be a direct causal link between the costs and the crime.  Although there is language in the statute that refers to the family of a “homicide victim,” the SCOV notes that the Defendant here was convicted of negligent operation and thus, Defendant cannot be held responsible for conduct not covered by his conviction.  Because there is no element of harm or injury required for a negligent operation conviction, there is no causal link that can be used to order restitution to the victim’s family.  Naturally, if convicted of the original charge, one can reasonably infer that a conviction for grossly negligent operation, death resulting, would support restitution to the victim’s family.

Accordingly, the SCOV concludes that while the decedent’s family has suffered greatly, the decedent was the only “victim” for purposes of the restitution statute.  The SCOV also notes that the trial court’s lack of findings when it ordered compensation to the victims’ compensation program was in error.  Finally, the SCOV notes that the restitution statutes specifically require the trial court to determine a defendant’s ability to pay a restitution order, and that the trial court failed to do so.  The SCOV points out the Defendant had filed a public defender application and that the trial court placed Defendant on a twenty-four hour curfew.  On remand, the trial court must make findings regarding Defendant’s ability to pay.

The bottom line here seems to be that trial courts need to take their time, develop a complete record, and apply the statutes carefully when ordering restitution.  Otherwise, the SCOV may hand down a paddling.

Defendant’s remaining argument was that the trial court violated Vermont’s indeterminate sentence structure when it gave him an eleven-to-twelve month sentence.  I could spend a long time explaining the SCOV’s analysis here, but I’ll make it easy for you.  The legislature changed the statute after Delaoz (decision number one, here).  They did so to clarify that the SCOV got it wrong.  The new statute says it doesn’t violate the indeterminate sentence structure as long as the minimum and the maximum are different numbers.  The statute, as a clarifier, applies to Defendant’s claim.  The end.

Hmm.  I suppose that’s a rather flip and cursory explanation of the SCOV’s reasoning regarding the indeterminate sentencing argument.  Good thing I’m not ordering restitution, huh?

After all, we belong to a profession with its own special, dedicated category of humor.

So what are your favorite lawyer jokes?  Feel free to post them below.  I’ll start . . .

Q: What’s black and tan and looks good on a lawyer?

A: A Rottweiler

Pease v. Windsor Dev. & Rev. Bd., 2011 VT 103 (mem.)

The reason they teach so much procedure in law school is so that when you get out, you at least have a shot at understanding a case like this.  In this case, the SCOV says, more or less, “Look—you got what you asked for.  So what’s the problem?”

Plaintiff’s land abuts a proposed subdivision.  The Windsor Development Review Board (DRB) approved the developer’s subdivision application in 2009, and Plaintiff, through counsel, appealed that decision to the Environmental Division.  In connection with that appeal, Plaintiff made various written Public Records Act (PRA) pro se requests to the Town’s Zoning Administrator and the seven individual DRB members.

One of the DRB members responded with the records sought, but noted that she regularly deleted emails (which may have been pertinent to the requests).  The Zoning Administrator sent a letter to Plaintiff stating that some of the records sought were exempt under the PRA, but that the non-exempt records would be provided on a certain date.  Plaintiff did not show up at the Town Offices to retrieve the records.  The next day, the Town filed for a protective order.

The Town essentially sought to enjoin further pro se records requests.  The Environmental Division granted the protective order in part, but noted that so far as the requests were public records requests within the purview of the PRA, those requests must be addressed in Superior Court.  The Town then filed a motion to remand the DRB’s decision back to the DRB, which the Environmental Division granted.

In the meantime, Plaintiff showed up to a Town selectboard meeting.  When he articulated his position that the engineering firm tasked with evaluating the proposed subdivision had a conflict of interest, he was shushed, and told to take it up with the Town’s attorney.  The board chair also opined that such comments were inappropriate for a public meeting in light of the pending litigation.

So Plaintiff filed complaints against the Town and the DRB.  From the Town, he sought (1) the same records originally requested under the PRA; (2) to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances (arguing that the Town was retaliating against him by seeking a protective order); and (3) an injunction along the same lines as number 2

The DRB complaint sought an order to compel production, and argued that the Zoning Administrator’s participation in deliberations waived a public records exception and violated the Municipal Administrative Procedures Act’s prohibition on ex parte communication when the DRB allowed the Zoning Administrator to participate in the DRB’s deliberative sessions as its clerk.  You can’t make this stuff up.

During discovery, Plaintiff issued discovery requests to both the Town and the DRB that contained requests to admit.  Defendants didn’t respond to the requests in time, so Plaintiff filed a motion for summary judgment, arguing that defendants had admitted the facts as alleged in the requests to admit, and that he was therefore entitled to summary judgment.

“Whoa, whoa, whoa!” said the Town and the DRB, “We didn’t see those requests to admit because Plaintiff hid them in a document we didn’t read carefully.” (paraphrasing slightly).  The Town and DRB requested an extension of time to respond to the discovery requests and file their own motions for summary judgment.

At a status conference, the parties discussed the issues.  The defendants also gave Plaintiff a copy of all remaining public records and represented to the court that Plaintiff’s request had been responded to in full.  The court explained that Plaintiff was entitled to that representation in writing, and the defendants sent two letters to Plaintiff stating the same.  The court later granted the defendants’ motions to enlarge time.

Defendants subsequently responded to the discovery requests and filed cross-motions for summary judgment.  Plaintiff objected to the cross-motions, asserting that the grant of the motion to enlarge time didn’t include permission to file cross-motions.  Defendants, rather than having a good chuckle over that, responded by filing additional motions to enlarge time, specifically requesting leave to file cross-motions for summary judgment.  The trial court noted that such motions were unnecessary, but granted them regardless.

The trial court denied Plaintiff’s motion for summary judgment and granted the defendants’.  In so doing, the court concluded that defendants had complied fully with Plaintiff’s PRA requests, and that litigation immunity applied with respect to the protective order.  The court found that the board chair had violated Plaintiff’s rights to free speech at the meeting when Plaintiff was shushed, but that the violation was cured with future open meetings and the opportunity to appeal to the Environmental Division.  Plaintiff appealed.

A trial court’s grant of summary judgment is reviewed de novo, which is Latin for “in excruciating detail.”

Plaintiff first argued that the trial court erred in granting summary judgment because the DRB failed to comply with the PRA in two ways: (1) by responding to his requests through the clerk, rather than through individual members; and (2) because the Town Zoning Administrator does not qualify as the clerk.  Plaintiff had already conceded below that the DRB and Town had provided all documents he requested.

Accordingly, the SCOV classified Plaintiff’s argument as one of form over substance.  The SCOV notes that the statute refers to the “custodian” of a public record—a word the statute does not define.  The trial court used Black’s Law Dictionary to define custodian and concluded that the Zoning Administrator fit the definition.  Plaintiff took issue with this approach, arguing that the PRA must be liberally construed to afford disclosure.

“Sure,” says the SCOV, “You’re right.  But you didn’t explain how this hindered or injured you.”  Because the statute offered no guidance as to how to define “custodian,” and because the trial court’s approach was reasonable, the SCOV finds no error on this front.  So far as the argument that the individual members of the DRB were required to respond and that it was inappropriate to channel responses through the Zoning Administrator, the SCOV simply notes that the argument has no basis in law.

Plaintiff’s next argument was that the trial court improperly shifted the burden of proof to the Plaintiff when it noted that Plaintiff had failed to allege that individual DRB members were withholding documents.  The SCOV simply notes that there was no improper burden shifting—that Plaintiff’s failure to make basic averments was a foundational issue.  Plaintiff never made a claim that defendants were withholding documents, so defendants had no burden to rebut a never-made claim.

On the time-to-enlarge and summary-judgment-cross-motion issues, the SCOV engages in a quite lovely discussion of civil procedure as applied in this case.  Because the rulings below were within the court’s discretion, and because the cross-motions were (at least partly) filed within the applicable timeframe, the SCOV concludes that the trial court did not err in granting the defendants’ cross-motions.

Plaintiff also argued that the trial court erred when it dismissed his second motion to compel as moot.  Because Plaintiff had already got the records he requested, the SCOV finds no error there either.

Plaintiff contended that the Town violated his free-speech rights and his right to petition for grievances when it filed the motion for a protective order.  The trial court found that litigation immunity (which is the common law doctrine that protects parties, witnesses, lawyers, and judges as participants in the judicial process from liability for acts and conduct in a proceeding) applied, and that Plaintiff’s claim therefore had no merit.  The SCOV more or less agrees.  It notes that the protective order only restricted Plaintiff to the proper scope of discovery (just like any other litigant) and that there was no restriction on protected speech.  Accordingly, the SCOV concludes that this contention is without merit.

Moving on, Plaintiff argued that when he was shushed during an open meeting, the town manager violated his free-speech rights.  Because any violation was cured by subsequent open meetings and because Plaintiff did not seek any monetary damages, the SCOV again finds no error.

Plaintiff’s last hurrah is an argument that he did not get a fair hearing before the DRB on the subdivision application and this violated his due process rights.  The claim was based on MAPA and the Vermont Constitution, and Plaintiff’s perception that the Zoning Administrator’s participation in the deliberative process, acting in his capacity as DRB clerk, constituted a conflict of interest.  The sole remedy here was appeal to the Environmental Division.  Because this was done, and the Environmental Division remanded, any violation was cured.

If you can read through this opinion and “get it” you should have no problem making it through your first-year civ-pro class, and you’ll have a good start on admin law as well.

I have been writing for two other blogs: SCOV Law and the National Sports & Entertainment Law Society.

I intend to write on items of general interest for the Martin & Associates site more regularly from now on.

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