Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 11

A rebuttable presumption is an additional burden to a party seeking relief from
the courts, requiring a greater degree of
proof to overcome the presumed fact. In a
child support case, Justice John Dooley explained that the presumption
serves the purpose of allowing more
summary support actions even in the
absence of a parentage adjudication,
which effectively eases child support
decisions. Because the statute creates
only a presumption, however, it does
not prevent proof of the fact in issue
through other means. Thus, if the presumption did not apply, the only effect
in this case would be that Janet would
have the burden of production to prove
parenthood, a burden she assumed in
presenting her case to the family court.
Where the presumption cannot apply,
it does not mean the individual is not
a parent; it simply means we must look
to see whether parentage exists without the use of the presumption—the
same way we would have determined
parentage before the adoption of [the
statute].40
Rebuttable presumptions make enforcement easier. A reading of over the minimum
legal alcohol level taken within two hours of
the operation of a vehicle creates a rebuttable presumption that the concentration was
over that amount at the time of the operation. The Court has noted how this aids in
summary resolution of DUIs in civil suspension hearings.41
The rebuttables are found in nearly every
area of law. The presumption of paternity
operates to determine parental responsibility in some cases. Justice John Dooley,
dissenting in Godin v. Godin (1998), argued that by “adopting a rebuttable presumption, the Legislature has refused to
make a man a father based on a legal fiction, rather than on his action.”42 Finding liquor in a house controlled by the respondent creates a rebuttable presumption that
he possessed the goods.43 A violation of a
safety statute or rule creates a prima facie
case of negligence, giving rise to a rebuttable presumption of negligence.44 Parking on the paved part of a highway that
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causes interference with traffic, a violation
of statute, creates a rebuttable presumption of negligence, which shifts the burden
of evidence.45 A child born in wedlock is
presumed to be legitimate.46 Mailing a letter raises a rebuttable presumption of receipt.47 Joint tenants are presumed to have
equal interests.48
Rebuttable presumptions can be created by rule. UVM’s rules on residency for
in-state tuition created a rebuttable presumption. Regulation 4 states, “[a]n applicant becoming a student within one year of
first moving to the state shall have created a rebuttable presumption that residency
in Vermont is for the purpose of attending
UVM and/or acquiring in-state status for tuition purposes.” Regulation 7 provides that
“[r]eceipt of financial support by a student
from his/her family shall create a rebuttable
presumption that the student’s domicile is
with his/her family, regardless of whether
the student has reached the age of 18.”49
Rule 19 of the Act 250 rules treats state permits as rebuttable presumptions that the
project meets the relevant criteria of the
law.50 In a 2013 decision, in a footnote, the
Supreme Court encouraged the Advisory
Committee on the Rules of Civil Procedure
to establish a rebuttable presumption “on
which parties could rely in proving the date
of receipt” of a court order.51
The statutes on highways create a rebuttable presumption that the width of a highway is three rods.52 In 2010, the Supreme
Court explained,

Ruminations: Fictions of Law

es of probable reasoning, the proof is
said to be presumptive, and the inference to which it gives rise [creates] a
presumption; which, therefore, taken
in its largest and most comprehensive
sense, may be defined to be, where, in
the absence of or until actual certainty
of the truth or falsehood of any proposition or fact can be obtained, an inference affirmative or disaffirmative of
that truth or falsehood is drawn by a
process of probable reasoning.39

rebuttable presumptions operate only
to assign the burden of production. See
V.R.E. 301(a). Once the party against
whom the presumption operates
bursts the bubble by presenting evidence that the fact is not as presumed,
the function of the presumption is over,
and the fact-finder must determine the
fact based on the evidence and not the
presumption. The presumption is rebutted by any evidence that the fact is
not as presumed.53
Ah, the bubble. How few seem to burst in
property assessment appeals.54
According to the practice of the Public
Service Board, every utility’s filing in ratemaking enjoys the benefit of a rebuttable
presumption that
expenditures claimed to support the
rates were reasonable and prudent ...
Unless a party brings forth evidence
challenging the reasonableness of a
particular cost item, these working presumptions operate to allow the inclusion of those costs in rates, without requiring the Board to resolve the issue
through an affirmative judgment on
the merits.55
THE VERMONT BAR JOURNAL • SPRING 2015

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