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Vermont Supreme Court
Vermont Supreme Court says state can be sued over trooper's actions

A Vermont Supreme Court decision released Friday will allow a black man who argued that a 2014 traffic stop in Wallingford violated his civil rights to sue the state.

Gregory Zullo, 25, who was living in Rutland at the time, was stopped by Trooper Lewis Hatch in Wallingford. Hatch, who was dismissed from the Vermont State Police in 2016, said he stopped Zullo because his registration sticker was partially obscured by snow.

Hatch ordered Zullo to step out of the car. Zullo agreed and allowed Hatch to search his person, according to the Vermont Supreme Court decision. Zullo declined to allow Hatch to search his car.

Hatch seized the car so it could be searched. While Hatch would not drive Zullo back to Rutland, he offered to take him to a service station or call someone to give Zullo a ride, but Zullo declined and walked back to Rutland.

Hatch testified he had seized the car based on a faint smell of marijuana but a search of the car found nothing criminal.

Zullo filed a lawsuit in Rutland civil court against the state in September 2014, arguing that his rights had been violated because of the stop, the order to leave the car, the seizure of the car and the search of the car.

The civil court, however, ruled in favor of the state, finding that Hatch’s actions had not violated Article 11 of the Vermont Constitution, which protects Vermonters from unreasonable search and seizure.

The Vermont Supreme Court decision, written by Justice Harold Eaton Jr., concludes that the state can be held responsible and sued for damages based on the actions of a state employee.

“The common-law doctrine of sovereign immunity does not preclude such an action, even though the (Vermont Tort Claims Act) is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of (Zullo’s) car constituted violations of Article 11,” Eaton wrote.

The case was returned to the civil court through the 50-page decision.

In a press release from the American Civil Liberties Union of Vermont, staff attorney Lia Ernst, who argued the case in May, called the decision a “major victory for all Vermonters, but especially for Vermonters of color like … Zullo.”

“Police have had enormous discretion to stop and search motorists, including for erroneous or pretextual reasons and on the basis of implicit or explicit bias. In ruling that police can be liable for such acts, this decision sends a clear message — no one is above the law, and if police make bad stops, they can and will be held accountable,” Ernst said.

Charity Clark, chief of staff at the Vermont attorney general’s office, said Friday afternoon that based on the length of the decision, her office was “reviewing it to decide how to best proceed from here.”

While the decision found Zullo could seek damages from the state, Zullo will not be able to directly allege racial discrimination according to a footnote.

“The state notes in its brief that (Zullo) did not make an equal protection claim or allege racial discrimination in its complaint. Although (Zullo) has consistently suggested throughout these proceedings that Trooper Hatch’s stated reasons for his actions were driven by implicit discriminatory bias, he has made no equal protection claim under the Common Benefits Clause and cannot do so on remand. He may, however, in the context of his Article 11 claim, seek to demonstrate that he can produce evidence in which a factfinder could find malice in the form of discriminatory bias, which is one of the elements established in this opinion for such a claim,” Eaton wrote.

There were no dissenting opinions to the decision.

Restoring the civil suit, the high court rejected a suggestion from the Vermont attorney general’s office that administrative action against a police officer could be a remedy for someone whose rights were violated.

“If that were the case, no damages claim would ever lie against a public official. Even if a confidential internal affairs investigation resulted in some disciplinary action against a law enforcement officer … it would offer no remedy to individuals deprived of their constitutional rights, other than the knowledge that the offending officer may or may not have been disciplined, which may or may not result in others being spared a similar deprivation of their rights,” Eaton wrote.

The decision upholds qualified immunity for police officers in many cases even though the court found the circumstances in the Zullo case to be an illegal stop.

“On a daily basis, law enforcement officers must make numerous decisions on how to handle interactions with citizens, particularly motorists. Even with liability falling on the State rather than the individual officer, a rule that exposes the state to a potential civil damages suit following every roadside stop, or whenever a motion to suppress is granted, could inhibit law-enforcement officers from taking some effective and constitutionally permissible actions in pursuit of public safety. This would not be an appropriate result,” Eaton wrote.

patrick.mcardle

@rutlandherald.com


rlayman / Robert Layman / Staff Photo  

Out on the Trail

Mark Gibeault, of Clarendon, takes his fat bike out for a ride at Pine Hill Park in Rutland on a sunny Friday afternoon.


Local
rutland county
Rutland County delegation prepares for 2019 session

One of the first orders of business when the Rutland County delegation arrives at the new legislative session next week will be committee assignments.

“Some years are quicker than others,” said Republican Brian Collamore, who is now the senior senator for Rutland County. “The committee on committees tries to be as equitable as they can. With only six Republicans (in the Senate) this year, their challenge is more than if there were 10 of us.”

Collamore said the Senate leadership is trying to put at least one Republican on each of the 11 Senate committees. Collamore and the other incumbents reached Friday said they hope to maintain their current committee assignments. One of the delegation’s freshman, Rep. William Notte, R-Rutland City, said he hopes to get a seat on the House Judiciary Committee.

“After spending the last several years attending the RutStat meeting at the Rutland Police Department and chairing the Public Safety committee, I felt like this was in my wheelhouse for hitting the ground running,” the former city alderman said.

Notte said that experience has given him a “ground-level” perspective and that he believes some well-intentioned criminal justice policies are having adverse effects.

“Things have loosened up on juvenile cases to where there’s no real way to scare someone straight,” he said. “The local police department sees the same kids night after night, and the kids know there’s really nothing the police can do.”

Notte said bail reform efforts haven’t helped law enforcement, either.

“They arrest someone, they know he’s got court dates ahead of him and 12 hours later he’s back on the streets,” Notte said.

However, Notte said he needs to spend more time getting acquainted with how the Legislature works before he starts introducing bills. In the meantime, he said, he plans to be a “conduit of knowledge” between the Legislature and his former colleagues on the Board of Aldermen.

“We haven’t had an alderman go up to Montpelier since David Allaire made the trip,” he said. “I think having Rutland City government more in the loop will help on a myriad of issues the city needs to work on.”

Rep. Butch Shaw, R-Pittsford, said he expects the beginning of the session to be dominated by the minimum wage, paid family leave and “fully legalized and regulated marijuana,” which Shaw refers to as “seed to sale.”

Shaw said while he will wait to see specific legislation before making any decisions, he hopes to the minimum wage hikes put off until 2026 and for paid family leave to function like a payroll tax paid into by the entire workforce. He said he wasn’t sure what to look for regarding marijuana, but the state will need to set up a regulatory structure that he expects will eat up all the revenue that might come from taxing marijuana sales.

“I’m looking forward, as the session goes on, to talking about education funding,” he said. “I’m hoping to take the pressure off the property tax and maybe put it on the general fund.”

Shaw said he was also concerned about how the state was going to fund waterway cleanups.

“I think there’s going to be a long discussion about that,” he said. “The governor has said he’ll have a plan in his budget and I’m anxious to hear what his plan is.”

Shaw also said he hopes to hold to see that budget held to a 2-percent increase.

“I don’t have a big agenda,” said Rep. Robert Helm, R-Castleton, the senior member of the Rutland County House delegation. “I’ve got a few bills in that have to do with landlords. I have a thing I’m working on for school reimbursement issues — stuff like that. I’m not one of those guys who puts in the big bills. ... I get so intensely involved in the budget process in the Appropriations Committee that I don’t sit around thinking up new ideas.”

Helm said one of his bills would allow landlords who win judgments against tenants recover those judgments by garnishing tax refunds.

“I got another landlord bill in there that has to do with a human rights issue,” he said. “It has to do with a tenant being able to keep a — I’m not sure of the right term.”

Helm said the bill regarded pets people use to bolster their “self-esteem or mental well being,” which he believed were distinct from service animals.

“I’ve entered it for a placeholder, but I don’t know exactly what I intend to do with it yet,” he said.

Helm’s school reimbursement issue arose from infrastructure improvements Fair Haven Union High School quickly installed after an alleged school shooting plot early last year. He said had the school waited a few months, it could have applied for grant money and he hopes to find a way to apply the grants there retroactively.

Over in the Senate, Collamore said he is worried by reports that the Act 250 commission will recommend changes in Vermont’s environmental law that will make the permitting process harder for businesses rather than easier, such as a requirement that new developments address climate change and a lower ceiling for ridgeline development.

“Based on the fact that I’m in a superminority at the moment ... we’ll be in a position only to try to change some of what we consider bad policy decisions and try to make them better,” Collamore said.

Despite that, Collamore said the Rutland County Delegation will work together across party lines, as it has in previous terms.

“It’s not like Washington,” he said. “We get along very well and we are able to work together on a lot of issues.”

Collamore said the delegation meets weekly and frequently speaks with representatives of different parts of the community. Notte said he was already impressed by the level of communication and bipartisanship in the delegation.

“I think that’s exactly what Rutland County voters want,” he said. “It doesn’t matter whether its Democrat or Republican, we get together and kick around ideas.”

gordon.dritschilo

@rutlandherald.com


News
Record number of deer harvested during muzzleloader season

The numbers aren’t all in yet, but so far it looks as if Vermont deer hunters had a successful season.

Deer Project Manager Nick Fortin said Thursday that hunters shot 18,845 deer across the state’s various hunting seasons, the most taken since 2000.

In Vermont there’s an archery season, a youth season, rifle season and muzzleloader season. Archers this year shot 3,980 deer, young hunters took 1,341 during the two-day youth season, rifle users shot 7,458, while those using a muzzleloader got 6,066 deer, according to figures released by the Vermont Fish & Wildlife Department.

A hunter who has shot a deer has to report it at one of the state’s many check stations. Most of these are businesses such as sporting goods stores or shops. Fortin said it can take a while before all of these places send their data to the department, meaning the final count won’t be final until later in February.

Fortin said anecdotally he’s heard that the deer harvested tended to be older and larger than in years past. Most hunters only record a deer’s weight and the number of points on its antlers if it has any. They’re also asked to mail to the department deer teeth to help determine age.

For several years, a score or so of the state’s designated check stations have been staffed by biologists who record more data than usual, giving the state a picture of the health of the deer herd as well as its size. Fortin said the data from these stations hasn’t been analysed yet, but will be in time for the final harvest report available in February.

According to the department, 900 deer were examined by biologists during the youth and rifle seasons.

“The legal buck harvest of 9,993 was 8 percent more than the previous three-year average of 9,267 and the second highest buck harvest since 2002,” said Fortin in a statement released by the department. He said, “Harvest numbers increased during the archery, rifle and muzzleloader seasons. The muzzleloader harvest of 6,066 is an all-time record.”

He said there’s a few reasons why the harvest this year was larger than past seasons.

“First, recent mild winters have allowed the deer population to grow throughout Vermont. Additionally, lack of fall foods caused deer to be more concentrated and snow helped hunters find them, resulting in increased success,” Fortin said. “The department also issued more muzzleloader antlerless deer permits this year to provide more harvest opportunity and to limit population growth or reduce deer numbers in some parts of the state.”

keith.whitcomb

@rutlandherald.com


Photo by Jon Olender  

Otter Valley’s Livia Bernhardt (4, left) scores just before the halftime buzzer as she is defended by Springfield’s Gabriella Wardwell (33, right) during their Friday night matchup at Otter Valley Union High School in Brandon.


rail topper

Hoops battle

Springfield girls basketball tops Otter Valley 62-52.

B1


Steven Pappas / Photo by Dennis Jensen  

An ice fisherman holds up a smelt he took through the ice on Lake Bomoseen.


JLowe / Photo by Miguel Ruiz  

Lankum: Dublin Folk Miscreants caught standing still.