Ruminations
| Publication year | 2017 |
| Pages | 12 |
What is Beyond Cavil
Paul S. Gillies, Esq.
Most of the words used by the Vermont Supreme Court are familiar, but occasionally a strange or curious word or phrase slips into an opinion. "Beyond cavil" is one of those. It's been used seven times since 2006 in the decisions of the Vermont Supreme Court, once by Justice Marilyn Skoglund, and six times by Justice Brian Burgess. The phrase means not worth quibbling over. Bryan Garner, the great lexicographer of the law, merely describes it as a "favorite expression of judges."
Justice Burgess dissented in the 2014 case of In re Williams, disagreeing with the majority on the question of ineffective counsel at a sentencing hearing, believing that there was no failure of professional responsibility here. He wrote, "that defense counsel's performance resulted in no actual prejudice to petitioner is beyond cavil."[1] The petitioner, a man who pled guilty to involuntary manslaughter, had sued his lawyer, and the majority agreed there was a problem. Dissenting, Justice Burgess tried to drive home the point of no prejudice, which the majority had not disputed, in suggesting that the case should be dismissed.
Justice Burgess's next use of cavil was in his dissent in State v. Johnstone (2013), a case where a defendant told his probation officer that the officer "was going to end up in a body bag," which the State treated as a threat and the trial court as a violation of the conditions of probation. The majority found this behavior not to violate the conditions, and reversed, as the order was overly vague. Justice Burgess disagreed, focusing in part on what he regarded as a misreading of a 2011 case, State v. Sanville. "It is beyond cavil," he wrote, "that behavior neither communicating, nor intended to communicate, such a threat is not 'threatening behavior' prohibited by Condition M [in the Sanville order], and given the putative victim's own perception in Sanville that the probationer was only 'mouthing off,' this Court found there was no threat."[2] But Johnstone's words were a threat, in Burgess's view, and the trial court should have been affirmed. The majority was unpersuaded.
Writing the Court's decision in McCormack v. Rutland Hospital, Inc. (2013), Justice Burgess stated, "It is beyond cavil that juror bias deprives parties of a fair trial. Plaintiffs would be entitled to a new trial upon proof of juror partiality."[3] The court decided that a juror who worked on charitable drives for the hospital, who did not disclose this at voir dire, but remained silent, need not have been disqualified for implied bias. "Beyond cavil," in this instance, is treated as stating a general principle of juror bias law. It says, no one would believe otherwise, and it is worthless to try to argue about it.
"It is beyond cavil that the 'rights of qualified voters to cast votes effectively and the rights of individuals to associate for political purposes are of the most fundamental significance under our constitutional structure.'"[4] Justice Skoglund wrote those words in her majority opinion in Trudell v. State (2013), affirming the trial court's rejection of a claim that a legislative change of the scheduling deadline for petitioning for public office discriminated against a late-fling candidate. Skoglund was quoting a brace of federal court decisions. Her use of the phrase is similar to that of Burgess in McCormack, in stating an axiomatic rule, before distinguishing and rejecting the claim of the appellant. It's the tennis ball thrown in the air, just before the serve.
Justice Burgess used the words in 2012 in his dissent in In re Search Warrant. This was an appeal that wrestled with an ex ante condition on a search warrant.[5] The Justice was discussing the Fourth Amendment of the Vermont Constitution, and provisions on unreasonable search and seizure. "It is black-letter law that, under the same Amendment, police are authorized or, to use the majority's term, have a 'right' to search pursuant to a valid warrant. Since our privacy is already compromised by such a warrant, it is equally beyond cavil that in executing the valid search for specified evidence, another object lawfully viewed, the incriminating character of which is immediately apparent, may be seized without any resulting privacy invasion."[6] Burgess's use of "beyond cavil" in this dissent targets the majority's conclusion that the seizure was invalid. The majority did not share his sentiment that the seizure of incriminating evidence found in "lawful plain view" was consistent with established law.[7]
State v. Wyrocki (2012) was an appeal of a conviction for disturbing the peace by telephone. The court reversed the conviction, as the recipient of the call knew it was the defendant who was calling, and the statute relied on for the prosecution required the calls to be anonymous. Justice Burgess wrote, in his majority opinion, "Because the trial court's findings and Ms. Emilo's testimony leave no doubt that she knew defendant was the caller, we hold that defendant's calls were not anonymous within the meaning of § 1027. If the conduct charged against defendant had occurred after enactment of § 1027, but during the twenty years before the dawn of caller ID, it is beyond cavil that it would be no offense under § 1027(a). The invention of caller ID did not turn what was no violation of the statute in 1967 into a crime today."[8]
After long term care Medicaid benefits were cut off, a claimant appealed to the high court for relief. In a per curiam decision, the Supreme Court reversed the Human Services Board for lack of substantive findings. In Justice Burgess's dissent, he faulted the majority for not affirming the decision from below, stressing that the claimant's refusal to answer discovery was inexcusable. "It is beyond cavil that claimant's noncompliance was deliberate and unexcused. To the extent any finding of bad faith is necessary to warrant the Board's less than 'ultimate sanction,' which required only that claimant abide by an unchallenged discovery order before proceeding with his appeal, claimant's bad faith is self-evident from his admitted refusal to follow the order, absent injunction, justification, or even a timely...
To continue reading
Request your trial