Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 10

Ruminations: Fictions of Law

the fiction seems to defeat the claim. In
1974, two assistant judges challenged the
constitutional prohibition against judges
serving beyond the age of seventy, without success. In a per curiam decision, the
Supreme Court denied relief, explaining,
“The plaintiffs maintain that mandatory retirement for judicial officers provided in the
Constitution creates an irrebuttable presumption that every judge over seventy is
unfit to serve and that if he became incapacitated, he would refuse to resign. Since,
they argue, such is not necessarily or universally true in fact, this irrebuttable presumption is impermissible.” The state defended by claiming the age classification
should enjoy the presumption of constitutionality. That argument prevailed. It is unwise to challenge a section of the Constitution as unconstitutional. 34
A 2004 decision denied a taxpayer’s claim
he was denied due process, as he never had
notice that he could cure defects in his prebate filing if he provided the Department
of Taxes with his tax bill. The Court rejected
his argument that a statute
conclusively presumes that he pays
statewide property taxes in proportion
to his ownership interest, i.e., that he
pays only half of his homestead’s property taxes. Petitioner argues that this
unconstitutionally denies him the op-

10

portunity to present evidence to rebut the presumption of proportional payment. We disagree. Petitioner’s so-called ‘irrebuttable’ presumption is not irrebuttable. In his original
appeal to the commissioner, petitioner offered evidence on this question,
and the commissioner’s determination
found as fact, that petitioner pays all
of the property taxes associated with
his homestead. More importantly, what
petitioner characterizes as an evidentiary presumption is actually a legislative statement of social policy.35
The most recent irrebuttable presumption recognized by the high court came to
light in a social welfare decision. In Shedrick v. Department of Social Welfare (1992),
Chief Justice Frederic Allen wrote,
The amendments provided that parents and children, or siblings, who live
together shall be deemed to comprise
a single household for food stamp purposes, regardless of whether the parent-child or sibling household purchased food or prepared meals separately or together, unless one of the
parents or siblings was elderly or disabled. These amendments created an
irrebuttable presumption that parents
and children, or siblings, who live to-

THE VERMONT BAR JOURNAL • SPRING 2015

gether purchase food and prepare
meals together for home consumption.36
But other claims of irrebuttable presumptions arising from the social welfare rules,
whether by petitioners or the Department,
have not succeeded.37 Irrebuttable presumptions may be efficient, but they are
generally discouraged by the Court.
Rebuttable Presumptions
William Mawdesley Best explained that
presumptions, “when restrained in proper
limits,” have “a very salutary effect in the
administration of justice, by throwing obstacles in the way of vexatious litigation,
and repressing inquiries on subjects where
sound and unsuspected evidence is not
likely to be obtained.” As examples, he listed “the principle which upholds the a