by Paul S . Gillies , Esq .
RUMINATIONS Never Mind What We Said Before : A Look at Overruling
The law is a complex engine , with an operating manual written by committee over the course of hundreds of years . No one understands precisely how it all works . What we know of it comes from reading and comparing cases . The published canon of Vermont jurisprudence is the Vermont Reports , all nearly two hundred volumes ( and eight earlier volumes ). That is the gospel of Vermont equity and the common law , thousands of pages of dicta , recitation of facts , and the heart of each case , consisting usually of a sentence or two of general statements or propositions , which are then applied to the facts and a judgment reversed , modified , or affirmed .
Those statements , first written and then cited and quoted in subsequent cases , are the law , as much as any statute or rule . They are precedent , and precedent is powerful . It drops down on you from the past and favors you if you followed it and punishes you if you didn ’ t . Precedent also makes the job of deciding cases much easier , because a judge doesn ’ t have to decide anything . It ’ s already been decided before , by another court looking at similar facts . All the judge needs to do is hold up the precedent to the light of the facts , and the decision is predetermined .
Law changes , as it must if our society is to move forward . Ideally , such changes come with some notice , through a legislative process , and apply prospectively to the affairs of people . 1 Statutes and rules are amended , and life goes on under a new regime . Occasionally , however , the law changes when a court overrules its prior decisions , and these changes sometimes come without notice , applying retrospectively to the case under appeal and prospectively for future cases , at least until the rule is changed again by a subsequent decision .
Unlike a dissent , where one or two justices express their disapprobation of the ruling of the majority , overrulings represent the entire court changing its mind . Most overrulings are unanimous .
Overruled cases reveal the evolution of legal ideas . Sometimes the legislature has amended the law , making an earlier precedent no longer valid , which is recognized by the court . 2 Sometimes the federal courts or Congress make a decision that preempts or redirects the Vermont Supreme Court to a new rule . But the most revealing cases are those where the highest court in Vermont , infallible because it is final , discovers the law isn ’ t what it once was believed to be , and reverses itself . Overview
Overrulings are landmarks of the law . They represent mid-course corrections , where the Court frees itself from the shackles of stare decisis ( standing by decided matters ) and heads in a new direction , putting the past behind it . The Supreme Court reverses lower courts all the time . When the Court looks back at what it has done in setting the course of the law on a particular subject and decides that way is a mistake , it defines itself , as it directs people in new ways of thinking .
There are at least seventy-two Vermont Supreme Court decisions explicitly acknowledging the overruling of earlier cases . 3 Twenty of these relate to the criminal law , but a majority ( forty-four ) alter the procedures of the common law , several on property law or the constitution or federal preemption . The most overrulings are found in the period of 1850-1870 , 1977- 1992 , 1989-1997 , and 2006 to the present . There were only nineteen expressed overruling cases before 1870 . The number of cases overruled by these decisions may exceed one hundred , as many cases announcing the overruling of one particular prior decision take out an entire line of other decisions that relied on the earlier precedent . If you type “ Supreme Court ” into the Westlaw search engine for the Vermont collection , you get an even 20,000 hits . This may be a poor way of measuring the total number of decisions issued by the Vermont Supreme Court and published in official or unofficial volumes , but by comparison sventy-two reversals is a very small percentage . The numbers are misleading . The Supreme Court does not always explain when it is overruling earlier cases , either unintentionally , as when the court is unaware that an earlier case states a different proposition ( a phenomenon less likely to occur in the era of modern search engines ), or intentionally . 4 In his dissent in State v . Wheeler ( 2011 ), Justice John Dooley wrote ,
The majority correctly acknowledges that the standard-of-review issue in this case conceals “ layers of complexity ” previously unexamined by this Court . Ante , ¶ 8 . I am pleased that we are finally acknowledging that in State v . Sprague , 2003 VT 20 , ¶
24 , 175 Vt . 123 , 824 A . 2d 539 , State v . Stevens , 2004 VT 23 , ¶ 10 , 176 Vt . 613 , 848 A . 2d 330 ( mem .), and State v . Sole , 2009 VT 24 , ¶ 23 , 185 Vt . 504 , 974 A . 2d 587 , we have overruled decades of standard-of-review jurisprudence with no recognition that we have done so and no analysis of the relative merit of our action . Unlike the majority , however , I would rule that our recent change of direction is wrong and misguided and return to the deferential standard of review that has served us well . 5
Why so few at first ? Perhaps earlier courts were too respectful of precedent , and allowed contrary rulings to stand , in the hope that Vermonters would see that the rule had changed , without the court having to go through the chore of voiding one of its own decisions , or perhaps it was because there were so few cases to look back on and rethink . When the law is new , you would expect there would be many corrections , but the Vermont Court , in the earliest overruling cases , showed great reluctance to overrule . Most overrulings happen this way . A party presents a case as precedent and claims victory . The Court balks , knowing the result reached in the precedent is wrong , or perhaps realizing that as the precedent as applied to the present case it just doesn ’ t make sense . The Court looks harder at the law and discovers the “ precedent ” is an anomaly , that some other case or cases in the canon state the true rule of law . The bad case is overruled and declared apochryphal — censored , sent out from the temple in disgrace , no longer precedent .
Refusing to overturn State v . Perrillo ( 1994 ), which held that when “ offensive touching occurred continuously without any intervening act over a short period of time the State could not charge defendant with multiple counts of lewd and lascivious conduct ,” Justice Denise Johnson in State v . Carrolton ( 2011 ) explained that in addressing longstanding precedents , it is “ not a slavish adherent to the principle of stare decisis , but we will not deviate from policies essential to certainty , stability , and predictability in the law absent plain justification supported by our community ’ s everevolving circumstances and experiences .” 6
Blackstone says an overruled case is not bad law , but not law at all . The law is the perfection of reason , and what is not reason is not law . 7 Courts overrule themselves
8 THE VERMONT BAR JOURNAL • SPRING 2016 www . vtbar . org