Don’t forget there is another open house on the mountain tomorrow! Go back to a few posts to get the details! Hope to see you there!
In the mean time here is what Mike Nelson had to say at Judge Maley’s Confirmation Hearing! Go Mike!
On October 14, 2011 the state’s largest utility, Green Mountain Power appeared before Judge Martin Maley in Superior Court waving a stack of paper and claiming that they would be sorely harmed if the judge did not grant an immediate temporary restraining to prevent landowners adjacent to their wind power construction site in Lowell, Vermont from using their own property during the hours of 9 am to 5 pm Monday through Friday. This order expired on December 2, 2011.
Judge Maley bowed to the pressure of the large corporation and issued the Temporary Restraining Order (TRO) without hearing from the property owner’s Donald and Shirley Nelson. The order effectively removed the land owners from a significant portion of their property – a border area that is 1000 feet wide and nearly 1.5 miles long (7200 ft). The land in question constitutes approximately 160 acres bordering the GMP Project on the northwest side of the Nelson property or, approximately 1/4 of their 600 acre farm. This order prevented the Nelson’s from using the property during this time period. The order violated the Nelson’s right to due process and long established rules were ignored.
Rule 65 of the Vermont Rules of Civil Procedure (the Rule that governs the issuance of Temporary Restraining Orders), states in pertinent part:
“A temporary restraining order may be granted without … notice to the adverse party … only if it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party … can be heard in opposition.”
The Rule goes on to state:
“Every temporary restraining order granted without notice shall … state why the order was granted without notice.”
The petition for the TRO failed to meet the requirement of the Rule for issuance of an ex parte TRO. In this matter, the request for the temporary restraining order was made without notice to the Nelsons. The petition for the issuance of the temporary restraining order did not set forth “specific facts” to show that irreparable injury would result before the adverse party could be heard in opposition. In truth, had GMP notified the Nelsons on the Friday that GMP applied for the TRO, the Nelsons could have appeared before the judge in opposition on that same Friday. The injunctive relief was not requested to begin until the following Monday. This would have given the Nelsons the opportunity to appear would not have affected the timing for the issuance of the order, but would have allowed the Nelsons to state their position in opposition before the order became active.
Perhaps more importantly, the Rule requires that every TRO issued by the court without notice must state, in the order “why the order was granted without notice.” The TRO issued by the court gave no reasons why the order was granted without notice, in violation of the requirement of the Rule. The judge is required by Rule to state the reasons why a TRO is issued without notice. That was not done here. As a result, the injunction went into effect before the Nelsons had an opportunity to address the court. By the time the Nelsons had an opportunity to be heard, the order was in effect and the court was committed to the order that it issued.
Judge Maley is also hearing the case regarding a disputed property line between the Nelsons and GMP. No ruling has been issued and no date has been set for issuing the ruling. This further lack of due process afforded the Nelsons has allowed GMP to cut, blast, and irrevocably alter the Nelson property.
- Are these examples of the type of flawed rulings that citizens of Vermont can expect from Judge Maley if this Committee confirms his nomination?
- Can we expect that Judge Maley will continue to be bullied by large corporations and money interests into denying Vermont citizens their right to due process?
- How will the Committee ensure that Judge Maley will follow the established rules of civil procedures and protect the rights of Vermont citizens under the law?