boards appeared to be incapable of explaining the basis of their decisions .
In 1986 , the Supreme Court overruled Bennett Estate v . Travelers Insurance Co . ( 1981 ), holding that when an assistant judge who participated in a decision failed to sign the finding , the party challenging the judgment cannot argue this signals a disagreement among the judges , but rather requires a remand to the trial court to determine why . 65
The 1987 decision of Jones v . Shea overruled State v . Hohman ( 1980 ) and several earlier decisions , concluding that “ so long as the challenge for cause is denied and all peremptory challenges are subsequently exhausted ” in jury selection , “ an appellant has met the first part of the test to show prejudice .” 66 In Vermont Structural Steel v . State Department of Taxes ( 1989 ), the Court overruled Neil v . Ward ( 1930 ) on the standard of review for findings , now insisting that the moving party show that a finding is clearly erroneous in order to justify its overturning on appeal . 67 The standard for granting new trials changed in 1989 , in State v . Briggs , which overruled State v . Potter , a decision from 1868 . Briggs recognized the right to a new trial when a key witness recants his testimony . 68
When the court decided American Museum of Fly Fishing , Inc . v . Town of Manchester in 1989 , it overruled Experiment in International Living , Inc . v . Town of Brattleboro ( 1968 ) by replacing the former essential governmental function test with a new public use formula for determining the tax exempt status of property owned by nonprofit entities . The new test required ( 1 ) the property to be dedicated unconditionally to public use , ( 2 ) the primary use of it to directly benefit an indefinite class of persons who are part of the public , conferring a benefit on society as a result of the persons directly served , and ( 3 ) the property to be owned and operated on a not-forprofit basis . 69 The Court invited the legislature to adopt its own test , and was criticized by some for enacting judicial legislation . To date , the legislature has not addressed the test .
In 1989 , Coty v . Ramsay Associates , Inc ., overruled Roberts v . Parker ( 1925 ), relaxing the formerly rigid application of the doctrine of joint and several liability as applied to punitive damages , allowing damages to be apportioned among defendants and against some but not others , abandoning “ the traditional rule .” 70
1990s
In State v . Towne ( 1992 ), the Vermont Supreme Court overruled State v . Brown ( 1989 ). Reversing the decision from three years earlier , the Court ruled that probable cause for the issuance of a search warrant did not require a showing that it was “ more likely than not ” that evidence would be found in the place to be searched . Justice James Morse , the author of Brown , admitted in a concurring opinion in Towne that “ Brown ’ s author could have made the standard clearer .” 71
In 1992 , a conflict between Vermont law and the federal Parental Kidnapping Prevention Act led the Court in Shute v . Shute to overrule Duval v . Duval ( 1988 ), concluding that the federal statute preempted the Vermont version of the Uniform Child Custody Jurisdiction Act and eliminated the trial court ’ s jurisdiction to modify or enforce an original decree . 72 In 1991 , the Supreme Court overruled American Trading Ass ’ n v . Conway ( 1986 ), in Williams v . State . The Court held that the legislature cannot adopt a statute to prevent refunds of fees collected under an unconstitutional statute , as a matter of federal preemption of state common law sovereign immunity . 73
In 1992 , the Court issued its decision in In re Estate of Johnson , and overruled In re Estate of Neil ( 1989 ), holding that the high court would only consider “ pure ” questions of law , the resolution of which do not depend on factual distinctions or require review on the record , in appeals from probate court . 74 The decision in In re J . G . ( 1993 ) overruled State v . Lafayette ( 1987 ) to the extent that Lafayette and earlier cases held that appeals of collateral orders are nondiscretionary and granted as a matter of right , finding Estate of Neil based on a misconstruing of a federal case . 75 In Estate of Girard v . Laird ( 1993 ), the Court overruled Martin v . Harrington ( 1901 ) and its lineage . Martin , the Court explained , overruled Whiteman v . Field ( 1881 ), which was now reinstated as precedent . Curiously , Martin does not say it overrules Whiteman . Instead , the Martin decision distinguishes Whiteman . 76 Whiteman ’ s rule , reinstated in Estate of Girard , is that the sole deed of a husband and father in voidable for the benefit of the wife and children in divorce . Here is another shift , another complete circle .
In 1995 , State v . Brooks overruled State v . Dion ( 1990 ), holding that a defendant does not waive his claim of insufficient evidence by failing to move for acquittal at the close of the evidence . In its wake , Brooks overruled State v . Norton ( 1981 ) as well . 77
In 1996 , the Court in State v . Austin overruled the 1989 decision of State v . Finch on the issue of whether the district court was required to make explicit findings of good cause for dispensing with a probationer ’ s rights and admitting hearsay into evidence . The rule announced in Finch , explained the Court , was not wholly inconsistent with the ruling in Austin , but to the extent that it left the question unanswered , Austin overruled Finch . 78 This shows the tendency to antic-
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