Bad drafting of judicial opinion due to oversight? Or does it reflect judicial philosophy?

A recent case before the Vermont Supreme Court asks whether a warrantless search by police of a closed container, “was permissible under Article 11 [of the Vermont Constitution] absent a factual showing of exigent circumstances.” One would think that the first step in the Court’s analysis would be to identify the specific language of Article 11 that the defendant claims the search violated. If not the first step, one would think that at some point in the decision the Court would quote Article 11 and address whether the text of Article 11 prohibited the search at issue in the case. But the Court concludes that the search violated Article 11 without ever telling the reader what Article 11 says.

I’ll save you the trouble of looking it up. Article 11 says “Mary Had a Little Lamb.” See State v. Kirchoff, 156 Vt. 1, 32, 587 A.2d 988, 1006 (Peck, J., dissenting) (quoting State v. Brunelle, 148 Vt. 347, 365, 534 A.2d 198, 210 (1987) (Peck, J., dissenting) (“If . . . constitutions, state and federal, mean whatever the highest courts having jurisdiction say they mean, and that power of interpretation is not exercised with restraint, we may as well adopt ‘Mary had a Little Lamb’ for constitutional purposes.”)).

VSC: Spraying pesticides not shown to be trespass

Larkin, Inc. v. Marceau 2008 VT 61 (Johnson, J.)

Real estate developers, who sued a neighboring landowner for trespass based on the neighbor’s spraying of pesticides in his apple orchard, appeal the superior court’s decision rejecting their trespass theory. Because the developers failed to make a showing sufficient to survive the neighbor’s motion for summary judgment, we affirm the court’s judgment in favor of the neighbor.

Marceau moved for summary judgment, arguing that Larkin was in fact making a nuisance claim but couching the complaint in terms of trespass to circumvent the right-to-farm law. Concluding that Larkin’s suit actually sounded in nuisance rather than trespass, the superior court stated it would not allow Larkin to evade the Legislature’s plain intent to offer heightened protection to agricultural activities with respect to claims of this nature. The parties later stipulated to dismissal of Larkin’s claims to the extent that they sounded in nuisance, and the superior court entered a final judgment against Larkin.

On appeal, Larkin argues that the superior court erred by recharacterizing its trespass action as a nuisance action subject to the right-to-farm law and thus effectively dismissing its trespass claim. Without question, there are situations in which both trespass and nuisance—two distinct actions that are not mutually exclusive—will be cognizable in the same lawsuit. This is not such a case, however. We leave for another day the question of whether the intrusion of airborne particulates may ever be a trespass, and, if so, what impact is required to sustain such an action.

Here, absent a demonstrated physical impact on Larkin’s property resulting from the airborne particulates, the superior court did not err in granting summary judgment to Marceau. When particles enter the ambient environment without any demonstrated impact on the land, we fail to see how a trespass has occurred. Larkin makes only a bald assertion that it has been ousted from its property because of the presumed detectable level of pesticides landing on the property, Larkin neither conducted depositions nor offered any expert testimony. Nor did Larkin proffer evidence indicating the extent of the dispersion of pesticides on its property or any potential safety or health concerns related to the pesticide use. In short, Larkin’s trespass claim relies exclusively on the fact that Marceau wanted a buffer zone to reduce the potential conflict of uses. That fact does not support Larkin’s claim of an ouster or its trespass action.