*1 V сontention neighbors’ to we turn Finally, it when jurisdiction its acted outside Division Environmental rights spring the Smith location of add the “to WCT required any neces together plan, conditions existing the appropriate over the Smith litigation pendency regarding note sary that the Environ agree The parties or easement.” rights spring private determine jurisdiction not have does Division mental ¶79, 17, Nostrand, 2011 VT Nordlund Vаn See property rights. condition, however, aforementioned 340. The rather, merely requires it rights; private property affect does not to the Woodstock existing rights pursuant already map toWCT Zoning Regulations of Woodstock Town regulations. zoning 313(C)(3). Environ jurisdiction entirely within 41. It is Entergy, See permits. conditions on impose mental Division was in easements location of certain 54. The 2009 VT condition, requiring but imposed dispute when does not plan conditions existing be drawn on easements to Furthermore, Envi adjudication. property-rights constitute when litigation the concurrent sensitive to Division was ronmental litigation be condition, pending that the requiring imposed it requirements was based on The condition plan. on the noted court’s ordinance, within the and it was zoning of the Woodstock it. require jurisdiction and discretion Affirmed. VT Shepherd v. Donald
State of Vermont 213] [60 A.3d No. 10-336 Robinson, Dooley, Skoglund, Burgess Reiber, C.J., JJ. Present: Opinion Filed October *2 Wheeler, Diane C. Franklin and Grand Isle State’s Deputy Albans, Attorney, St. for Plaintiff-Appellee. N. Associates, Barre,
Allison Fulcher of Martin & for Defend- ant-Appellant. Prine, Aid,
Barbara Legal Inc., Vermont Burlington, Am- icus Curiae.
¶ Reiber, 1. July C.J. defendant pled guilty charges assault, of aggravated sexual lewd and lascivious cоnduct with a exchange in for dismissal child, of a child exploitation and sexual ten-year-old victim was a charges. His pending other of several to life twenty-five years serving sentence child. Defendant is appeal At in this is the court-ordered issue prison. hold that family. of the victim and his relocation expenses finding that not abuse its discretion the trial did was a direct result defendant’s this case and we affirm. therefore appropriate, acts. Restitution is ¶2. children, victim, Juvenile including Mother four has brother, from fibro- twin Juvenile 2. Mother suffers and his kidney 2 has disorder and spectrum and Juvenile autism myalgia, Mother defendant as pain. him constant hired diseases cause time, care for 2. At the nanny help a live-in Juvenile small, in rural Hero, a town lightly populated in South lived 1 nu- sexually assaulted County. Islе Defendant Grand in 2009. times over a two-month period merous arrest, case media attracted Following attention, and l’s known at his school identity became mother, to his community large. According and in the at ignored by he was other began suffer adverse effects: as the very being at and was anxious about known children school *3 differently. him She claimed the school staff treated She viсtim. ostracized; they that if went family as whole was reported 1 them. play, to a school no one sit near in and his mother concluded therapy, and counselor placed necessary away County. that it would to move from Grand Isle be ¶4. move, require- where to mother had two considering far away their new home to be enough ments: She wanted community be able to start fresh without the Juvenile would victimization, about and she to be close knowing past his wanted in that offered sufficient resources for Juvenile state to two places, 2’s needs. Mother’s decision boiled down both Isle County. were than 2000 miles from Grand Mother which more existing family support decided on Hawaii because there was generous and the offered assistance to children with state move cost ultimately needs as Juvenile 2. The special such $15,887.78. had Compensation Program compen- 5. The Victims’ awarded $3900.68, and 1 in the amount of
sation for on behalf for for counseling, included mental health which $255.68 $1645.00 peti- costs. The program for mileage, $2000 rent/relocation for tioned the court restitution from defendant for the award. The a request State also filed on of Juvenile l’s mother for a behalf $13,887.78 judgment expenses in the amount of for relocation over and above the The court paid by Compensation. Victims’ $2000 initially relocation requests expenses, finding denied both for there was “no ‘direct link’ between crime committed victim’s decision to relocate. was not necessary Relocation result of the crime.” moved for attorney The state’s rеcon- sideration. Aid filed a Legal Vermont also motion reconsidera- Following tion on behalf of the victim. the trial hearing, granting issued an order restitution for the to Hawaii in move $13,887.78. amount of The court found that defendant’s “criminal behavior, town, in a small Vermont directly family’s [led] ostracization, in requisite which resulted the relocation. The causal connection crime and exists.” The court [between loss] also an explained that order of restitution this case would not impermissible constitute an for pain suffering, award because expenses the relocation were “ascertainable and based on the life, disruption family’s some subjective emotional harm.”
¶ 6. appeal, On defendant argues expenses incurred “tangential and his were costs cоnduct, incurred as a result of [defendant’s] but not directly costs caused by his crime.” Defendant also argues that Hawaii is an unreasonable location. new
¶ 7. We
the trial
review
court’s award of
restitution
abuse of
Tetrault,
See discretion.
VT
(mem.)
A.3d 146
(holding that “trial court properly exercised its
determining
discretion in
directly
defendant’s acts
led to . . .
Kenvin,
injury”);
VT
¶ 8. Vermont’s criminal
requires
restitution statute
а judge
to consider
“every
case
victim of a
7043(a)(1).
. . .
crime
has suffered a
loss.” 13
material
V.S.A.
A
loss,
material
loss means
“uninsured
uninsured out-of-
loss,
pocket monetary
lost wages,
uninsured
and uninsured medi
*4
7043(a)(2).
Id.
expenses.”
cal
have held
under
statute
that
there
be a
link
must
“direct
between the loss for which
restitution is ordered and the conduct for which defendant has
LaFlam,
v.
been
convicted.”
2008 VT
184 (mem.).
between intervening that there were Defendant contends loss is unfounded. family general, proximate- move. In caused the to factors which determining whether analysis appropriate cause Here, LaFlam, 2008 VT granted. See should be in a and ostracization small however, injury l’s emotional Juvenile of the sexual probable consequences natural and town were the assaults, Cf. Estate Sumner thereby necessitating relocation. Servs., A.2d Rehab. Dep’t Soc. & (1994) (mem.) efficient, cause is one (noting intervening that As the trial unanticipated). “new and independent” which is found, injury as a result of the Juvenile suffered emotional court in an assaults, injury inability an that manifested itself sexual the where his knew peers live normal life in small Vermont town had and ostracized him as about the sexual assaults he suffered houses, parents to friends’ longer result. 1 was no invited Juvenile him, differently he treated instructed their children to avoid staff, community the the by school and members of ostracized family. opined victim’s that Juvenile could entire The counselor the relocating. Given begin healing process thе without the crime in assessment severity question the counselor, findings moving l’s the trial court’s Hawaii safe, his life in a would “allow restart secure [Juvenile 1] from the that his victimization would be away anxiety environment causal connection requisite discovered” and that the between law. supported crime and loss exists are record family selected Hawaii as II10. Defendant observes opposed particular, intervening to another destination for reasons. family’s This no an argument is of moment. Such conflates family’s relocating relocating reason for reasons that the decision to relocate was a Hawaii. trial found The secondary crime. decision of direct result of defendant’s into necessarily unique to relocate took account the needs where whole, Juvenile l’s is minor. require more care suffers from severe disabilities brother mother, can fibromyalgia, than l’s who suffers from It was chosen because provide by herself. is evident Hawaii help who can care for the has relatives Hawaii addition, provides generous In Hawaii sibling. victim’s disabled circumstances, trial unique disability light benefits. these
499 reasonable, court found the choice of Hawaii to be a determination that is well within its discretion as factfinder.
¶
The
urges
11.
dissent
that
the relocation costs do not
loss,
constitute material
akin
but are more
to “emotional dam
¶
Post,
ages.”
emotional,
20. The fact that
l’s injury
however,
necessarily
does not
lead to the dissent’s conclusion that
the relocation costs are more like
damages
pain
suffering
trauma,
or emotional
are
of
proper subjects
not
restitution
Indeed,
§
under 13 V.S.A. 7043.
our
statute
restitution
defines a
financial,
“victim”
who
as one
has suffered a
or
physical,
emo
5301(4).
§
tional
as a result
injury
crime. 13 V.S.A.
The focus
restitution
awarding
victim is not
the
type
injury
sustained, but rather
link
damages
the
between the
and the crime.
If readily ascertainable costs
associated
emotiоnal injury
directly
arising
from a crime
not within
scope
were
the
restitution, as the
suggests,
dissent
restitution
not
cover
counseling
reasonable
expenses
victims
crime.
believe
unduly
is an
narrow construction of the restitution statute.
¶ 12. It
is
that “[djamages
true
are
readily
ascertainable,
pain
such as
and suffering
emotional
[or]
trauma .
subjects
. . are not proper
Jarvis,
of restitution.”
(1986).
146
1005,
Here, however,
A.2d
relocation expenses
specific
have a
monetary value. As the trial
noted,
court
“the
expenses
are certainly ascertainable
life,
and are
on
disruption
based
of the family’s
not some
subjective emotional harm.”1 In concluding that
relocation ex
penses
bills,
are “not the
equivalent
hospital
employment
lost
income,
and proрerty damage,” post,
the dissent would
unduly
Jarvis,
§
limit
the reach of 7043.
at
See
146 Vt.
A.2d at
(“[0]nly
amounts which
liquidated
easily
are
ascer
tained and measured are recoverable under the legislative scheme.
include,
These
to,
amounts
are not necessarily
but
limited
hospital
bills,
income.”)
value,
lost employment
(emphasis
great
Forant,
places
emphasis
holding
dissent
on
our
222-23,
(1998),
402-03
the restitution statute did not cover the
expenses
changing
phone
domestic-assault victim incurred in
locks and
Post,
emphasis
misplaced.
notes,
number.
correctly
19. The
is
As the dissent
expenses
resulting
Forant
potential
victim’s
indirect
were
costs
from a fear of
Here,
harassment.
the crime in well the crime thеre was a direct between and concluded that As trial relocation. particular loss incurred in this the material determination, defer to its we making discretion in court has and affirm.2 judgment
Affirmed.
¶ Skoglund, J., majority assigning finds dissenting. 14. an family Hawaii is relocating costs of a to to defendant I statute. dissent. use of the restitution appropriate ¶ times sexually numerous 15. Defendant assaulted Juvenile in 2009. The crime аttracted media period over a two-month anxiety being about experienced and Juvenile identified attention His therapy. as the of the sexual abuse. He was afforded victim being family by mother felt that the entire ostracized family away move community. Eventually mother decided to in a County son a fresh start give from Isle to Grand She community that did not know about his victimization. decided to Hawaii mother had there because move because 2, son, a provide Hawaii assistance to her other $15,887.78. ultimately child needs. The move cost special “[rjelocation a trial found that was not Initially, judge A different result of the defendant’s crime.” necessary granted a for restitution responded to motion reconsideration majority adopts court’s ultimate for thе move Hawaii. The that defendant’s criminal behavior a small Vermont conclusion resulted in the family’s perceived town caused ostracism and agree. relocation. I cannot If the embarrassment distress can a result any victim of crime held be direct often visits be act, all can seeking a criminal then crime victims to relocate of given for moving expenses, espеcially look to be reimbursed challenges by various statements made amicus curiae its brief. Defendant statements, upon request to strike we have not relied those Because is denied. reality that entire state of is a small town for Vermont Further, of of identifying major victims crimes. it is purposes catalog difficult for this writer perceived shunning anything subjective other than emotional harm. Undеr the stan- majority, dard adopted will be no limits as to what And, can be considered the direct result a crime. what material loss has this suffered aas direct result of the sexual assault of Juvenile 1? anonymity Is loss of to be considered material loss?
¶ 17. Determining a restitution
is discretionary
award
with the
VanDusen,
240, 245,
1053,
trial court.
166 Vt.
(1997).And,
any
defendant does not contest
of the court’s
fact,
findings
only
need
Court
evаluate whether our
permits
restitution statute
the award in this case.
Restitution
“a
considered when
victim of a
.
crime . . has
suffered material
7043(a)(1).
§
loss.” 13 V.S.A.
A material
loss means “uninsured
loss,
loss,
out-of-pocket monetary
uninsured
uninsured
7043(a)(2).
Id.
wages,
lost
and uninsured
expenses.”
medical
Our
requires
case law
“direct
between the
loss
which
ordered and the
conduct
has
defendant
LaFlam,
State v.
beеn convicted.”
VT
184 Vt.
Tetrault,
(mem.);
see also
“narrowly 222, 399, (1998). drawn.” 168 Vt. 402 Forant, the defendant was convicted of domestic assault of his assault, Following wife. the victim changed her locks and number, telephone even though the not damaged locks were and the defendant did not use the telephone to harass her. We addressed the question of whether the restitution statute covered the victim’s expenses in making changes. those The defendant argued that expenses these were “for the purpose improving of security, her and were to repair damage by not inflicted him.” Id. at 221, 719 at A.2d 402. He reasoned that there was no direct link between his criminal acts and her expenses, and therefore the expenses were not compensable under the restitu- tion statute. Id. agreed, holding the victim’s expenses costs,” were “indirect from fear of resulting her future harassment 223, most Perhaps A.2d at 403. at husband. Id. her by case, we held: present to our relevant to the victim’s fear related if one Even views by her her, made against expenditures crime committed more to security of relate emotional her sense to restore are not recoverable damages Such damages. distress Jarvis, holding [State our prior under (1986)], they because A.2d The fact and ascertainable. not generally are liquidated to an amount damages reduced her [the victim] nоt make does by making specified expenditures certain damages liqui- essentially are emotional distress what § 7043. dated and ascertainable under Id. in this presented case distinguish 19. I cannot situation family’s first reason for the the issue in Forant. The
from — in a a fresh new needed start relocation by not and community where he would feel identified embarrassed — The cost damages. a claim fоr emotional of his victimization l’s loss moving escape perceived to another state bills, hospital employment is not lost privacy equivalent — damages income, property damage types liquidated and 222, 719 402. In statute. Id. at A.2d at compensable under the requested case, Compensation Program reimburse- the Victims’ for mental health program for sums expended ment ($1,645.00). Thе court counseling granted for Juvenile purpose scope That and request. properly award reflects However, request statute. mother’s mov- Vermont’s restitution loss,” reflect “a material 13 V.S.A. expenses does not ing 7043(a)(l)-(2), perpetrated § not linked to the crime directly and is son. against
¶20. Rather,
“pain
akin to
this situation more
trauma,
and
suffering,
earning capacity,
emotional
loss
of resti-
proper subjects
death awards
are
wrongful
[which]
a restitution order
case
tution under
because
for,
as,
no
an award of civil
the same
and is
substitute
is not
Forant,
(quotation
at
¶ 22. The family’s relocating second reason for to be close and in a state offers 2 the services he needs — is is in simply way irrelevant and no linked to defendant’s 5301(4) crime. Though V.S.A. “victim” defines to include minor, nothing members there was presented to the support finding that Juvenile 2’s relocation was against related the crime his brother. Accordingly, there are no legal grounds upon which Juvenile can 2’s needs be into factоred an award of restitution in this case.
¶ 23. Defendant’s crime was horrific and suffered However, injury. direct impetus for the Hawaii result, assault, not the sexual but ensuing publicity and the revelation of identity. Juvenile l’s Our restitution statute is not to provide intended “new starts” to restore comfort for the victims. majority has extended the concept of restitution finding a suspect weak causal that I will be evеr-expanding. I would hold the trial court’s exercise of discretion in awarding restitution cannot be sustained.
¶24. I am authorized to joins state that Justice Burgess dissent. say begin did healing process His counselor he could not without
relocating, reported by majority. court, In her letter to the admitted stand, through testimony “Although on witness she declared: the commu nity, neighbors very supportive, Mends and have I been believe it would be difficult for [Juvenile 1] to ‘move on’ life.”