State lawyers say a request for a new trial by a former Newport UPS franchise owner should be denied.
The Vermont Attorney General’s Office took Andre “Mike” Desautels to court for flouting Gov. Phil Scott’s emergency Covid-19 order requiring business employees who interact with the public to wear face coverings.
Desautels had defied the mandate for months, and ultimately lost his UPS franchise contract.
Orleans County Judge Mary Miles Teachout ruled last month that Desautels would have to comply with the mask mandate to stay in business.
Desautels asked for a new trial April 8, complaining that his original lawyer, Deborah Bucknam, took actions he never authorized. He is now represented by Robert Kaplan.
In a filing this week, the state argued that Desautels’ request is without merit.
“Defendants cite no legal authority supporting the idea that a final hearing on the merits can be ‘set aside.’ The state is aware of none,” wrote Rachel Smith, a lawyer with the Vermont Attorney General’s Office, in court papers Monday.
The motion for a new trial relies on an incorrect application of a civil court rule, the state said. The rule gives a court “the opportunity to correct its own mistakes following a bench trial if those mistakes will result in a miscarriage of justice,” wrote Smith, the state lawyer. “It does not give a party a second bite at the apple.”
Desautels and Kaplan cited no factual findings or legal determinations they believed were mistaken, Smith wrote, calling the request illegitimate. It would be unprecedented if the defendants got their way, the lawyer wrote.
“Defendants offer no legal authority — and the state is aware of none — supporting their theory that (the rule) may be used to erase a final hearing on the merits, and a decision on the merits, and allow the parties to proceed as if it had never happened,” Smith wrote.
Desautels’ reasoning for his request — that Bucknam offered ineffective counsel — doesn’t apply to civil cases, she wrote, citing a ruling by the Vermont Supreme Court.
Even if the rationale did apply, Desautels made no case that the ruling would have been different if Bucknam acted otherwise, the state argued.
The Desautels case is Vermont’s first legal test of Gov. Phil Scott’s mask mandate.
From late 2015 to this February, Desautels ran a UPS franchise on Main Street in Newport. UPS corporate leaders cut ties with him after he refused to comply with Scott’s executive order requiring business employees who interact with the public to wear face coverings.
Bucknam, who last year represented a Rutland gym owner who similarly bucked pandemic-related rules, was hired by Desautels on Feb. 26. She took a multipronged approach in the case, expanding well beyond the question of Desautels’ compliance and weighing the effectiveness of masks themselves.
Kaplan, who became Desautels’ lawyer April 5, wants to focus instead on the question of executive power in emergencies.
At the center of Desautels’ request for a new trial was Bucknam’s decision to waive a trial on the merits of the case and instead proceed to a hearing on issuing a preliminary injunction to shut down the store. Desautels wrote in an affidavit that he was stunned by the move, which he had never authorized.
The next hearing in the case is April 29. Judge Teachout had been expected to decide whether Desautels would be penalized for violating the mandate. By law, the maximum penalty is a fine of $1,000 per violation, with each day of noncompliance counting as a own violation.
It’s unclear how Desautels’ request for a new trial will affect civil penalties.