by Paul S . Gillies , Esq .
RUMINATIONS
What is Beyond Cavil
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-filing 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 objection ; all frosted by his patently unfounded recusal motion .” 9
Because cavil has a musk of something old and wise , it should be no surprise that Justices Burgess and Skoglund were not the first to use the term . Counting the seven just reviewed , there have been twenty-three decisions where the word has appeared in the Vermont canon . Seven of those are found in the decisions of Isaac Redfield , whose twenty-four years on the court spanned from 1836 to 1860 , including twelve as Chief .
The next earliest use of the term was 47 years earlier . In Lomberg v . Renner ( 1959 ), Justice Milford Smith wrote that a “ guest , entering upon the premises of the host , assumes during the period of his visit , the same relationship toward the conditions existing on the premises as would a member of the family . He must accept the conditions ordinarily prevalent in his host ’ s home without cavil or complaint .” 10 Before that , Justice William H . Taylor used it in State v . Jarvis ( 1915 ), clarifying that an ordinance that used “ hackman ” in one place and persons who carry people from place to place for hire in another place , covered the de-
12 THE VERMONT BAR JOURNAL • WINTER 2016-17 www . vtbar . org