Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

Read More

Blake v. Petrie

Citation: 2020 VT 92

Opinion Date: October 16, 2020

Judge: Eaton

Areas of Law: Civil Procedure, Family Law

Damon Petrie appealed the family division’s denial of his motion to dismiss his ex-wife, Angela Blake’s, attempt to enforce a judgment she obtained in their divorce action. Petrie claimed enforcement of the judgment was barred by the applicable statute of limitations because the judgment was not renewed within the required time. In denying the motion, the family division found Blake had complied with the family division rules for enforcement proceedings and with 12 V.S.A. 506. It then granted Petrie’s motion for interlocutory appeal to the Vermont Supreme Court. The Supreme Court agreed that Petrie’s motion to dismiss should have been granted and therefore reversed and entered judgment in his favor.

Scheffler v. Harrington

Citation: 2020 VT 93

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Civil Procedure, Family Law

Defendant Raymond Harrington appealed the issuance of a relief-from-abuse order requiring him to have no contact with and stay a hundred feet away from plaintiff Melissa Scheffler (his sister), her residence, and their mother’s home. The trial court issued the order because it concluded that defendant stalked plaintiff, within the meaning of 12 V.S.A. 5131, by driving by her home on multiple occasions and honking his horn, which the court found constituted surveillance. On appeal, defendant argued his actions did not amount to surveillance because surveillance requires “an intent to engage in a close watch or observation.” To this, the Supreme Court agreed and reversed, because, based on the trial court’s findings, there was no evidence defendant was closely watching or observing plaintiff.

Vermont v. Caron

Citation: 2020 VT 96

Opinion Date: October 16, 2020

Judge: Eaton

Areas of Law: Constitutional Law, Criminal Law

Defendant Robert Caron, Sr. appealed his conviction by jury of sexual assault–no consent. In June 2018, complainant, then thirty-four years old, reported to the Bennington Police Department that she had been sexually assaulted by defendant when she was a child. Complainant had lived with defendant and his wife - a biological relative of complainant’s - since her birth in November 1983. She had not reported any of the alleged sexual assaults involving the defendant to the police before June 2018. On appeal, defendant argued the statute of limitations governing the sexual-assault charge against him had expired prior to the commencement of the prosecution, and thus the charge should have been dismissed. After review, the Vermont Supreme Court agreed with defendant that his prosecution was barred by the statute of limitations and therefore vacated his conviction and sentence.

Vermont v. Nelson

Citation: 2020 VT 94

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Constitutional Law, Criminal Law

Defendant Morris Nelson appealed his convictions for: (1) repeated aggravated sexual assault as part of a common scheme and plan; (2) sexual assault of a victim under the age of eighteen entrusted to his care by authority of law; and (3) sexual exploitation of a minor. He argued that the second charge was duplicative with both the first and third charges, in violation of the Double Jeopardy Clause; that the State’s evidence on the second charge was insufficient to prove the victim was entrusted to his care by authority of law; and that the jury instruction on the first charge constituted plain error because the court failed to give a unanimity instruction. Regarding defendant’s first argument, the Vermont Supreme Court concluded that only the second and third charges were duplicative. Accordingly, the sexual-exploitation charge was vacated as requested by the State in the event the Court found the second and third charges duplicative. The Court rejected defendant’s other arguments and thus upheld the convictions on the sexual-assault and aggravated-sexual-assault charges. Under the circumstances of this case, the Court determined a remand for resentencing was not warranted.

Vermont v. Williams

Citation: 2020 VT 91

Opinion Date: October 16, 2020

Judge: Eaton

Areas of Law: Constitutional Law, Criminal Law

Defendants Peter Williams and Peter Boissoneault brought a consolidated appeal of the criminal court’s denial of motions to exclude evidence filed in their respective driving under the influence, third offense (DUI-3) prosecutions. They argued the trial court erred in declining to suppress their evidentiary breath test results as gathered pursuant to a warrantless search in violation of Chapter I, Article 11 of the Vermont Constitution. After review, the Vermont Supreme Court concluded the court correctly determined that these tests satisfied the consent exception to Article 11’s warrant requirement, and therefore affirmed.

In re A.M. & G.M.

Citation: 2020 VT 95

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Family Law, Government & Administrative Law

Parents appealed the termination of their rights in A.M. and G.M., ages five and four. Parents struggled with substance abuse and were incarcerated periodically during the underlying proceedings. In January 2018, the Department for Children and Families (DCF) filed a petition alleging the children were in need of care or supervision (CHINS) based on parental neglect, including squalid living conditions, and parental substance-abuse concerns. The children were initially placed with their maternal grandmother pursuant to a conditional custody order (CCO), and then with mother pursuant to a CCO. In April 2018, with parents’ agreement, custody of the children was transferred to DCF. Parents stipulated that the children were CHINS, and following a June 2018 disposition hearing, the parties stipulated to continued DCF custody and to DCF’s disposition case plan, which contemplated reunification by November 2018 or adoption. Parents were required to take various action steps to achieve reunification. The children did not see mother after June 2018 and they stopped seeing father before that time. As of September 2018, the children were placed together in the same foster home. Appealing the ultimate termination of the parental rights to their children, Parents challenged the trial court's treatment of voluntary guardianship petitions filed during the pendency of the juvenile proceedings. Mother also argued the court erred in terminating her rights. Finding no abuse of discretion or other reversible error, the Vermont Supreme Court affirmed termination.

Lanfear v. Ruggerio & Fennimore

Citation: 2020 VT 84

Opinion Date: October 16, 2020

Judge: Carroll

Areas of Law: Family Law

Plaintiff appealed the family division’s decision declining to adjudicate her a de facto parent of J.F. pursuant to 15C V.S.A. 501(b). The family division found that plaintiff had failed to demonstrate by clear and convincing evidence four of the seven factors outlined in section 501 to be recognized as a de facto parent, namely that the person seeking de facto parentage: “undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation”; held out the child as their own; “established a bonded and dependent relationship with the child that is parental in nature;” and that “continuing the relationship between the person and the child is in the best interests of the child.” Plaintiff argued on appeal of the Vermont Supreme Court that she proved the above-mentioned factors by clear and convincing evidence. Finding no abuse of discretion or other reversible error, the Supreme Court affirmed the family division’s decision.