Date01 January 2021
Publication year2021
Vol. 46 No. 4 Pg. 16
Vermont Bar Journal
Winter, 2021

Nothing But Net: Matters of First Impression

By Paul S. Gillies, Esq.

“This is a matter of first impression in the court. We are not, therefore, bound by principles of stare decisis here.”[1]

You can spend an inordinate amount of time trying to find the central principle of the law, a key that sheds light on its darker corners, and ties the whole web together neatly. You are bound to fail, of course, but keep trying. One way to pry open the heart of the judicial mind is to see the fall-out—the dissents and concurring opinions, where justices speak for themselves rather than ex cathedra. Another way is to study the reversals of longstanding precedents, those fundamental doctrinal twitches that set the law on a different course. This time the focus is on matters of first impression.

Think of the law as an engine that grinds out decisions, reasoning from statute, common law, and precedent. In the majority of cases, once the facts are established, the outcome is all but predetermined. The statute has this meaning. A prior case or line of cases leads directly to the resolution of the present dispute. But then there is the occasional surprise—a question that hasn’t come up before now. Suddenly the court recognizes this as a case of first impression.

This would be a question that has never been addressed before in the tens of thousands of cases in the Vermont canon. At first, when the Vermont Supreme Court was formed, beginning in 1778, everything must have been a matter of first impression. Curiously, the words “first impression” appear for the first time in the reports in Sutton v. Tyrell (1838).[2] They appear in approximately 250 cases from that time to this year, and they are becoming very common of late.[3] Of the 250, only thirteen appear in the nineteenth century cases. The twentieth century includes another 98, and the twenty-first century contains the remainder, fully 149. In the last five years alone, there are 55 cases identified as matters of first impression—22% of the total. By numbers alone, the use of “first impression” warrants a closer look.

Why the recent trend? Why are first impressions increasing epidemically? West-law, Lexis, and Casemaker may be one reason, providing greater investigatory powers of a court and its clerks. At the same time the world is becoming more complex, and lawyers more creative. To the extent that a party can persuade the high court that what it asks is as yet unsettled, it might improve its position by diluting the impact of precedents. But to say that the decision to label something a first impression is something parties increasingly requestis too much. The choice belongs to the court, and is often, it seems, unexpected by the parties, who have their heads so tightly wrapped around their original positions.

When a court makes that declaration, its approach to resolving the case is no longer bounded by statute or precedent. It is free to make policy. The canvas is rarely a blank slate, a tabula rasa, of course. The court is not so liberated by the designation that it forgoes all connection to law, but there is a greater freedom to adopt maxims and address issues that might have lurked in the corners of decisions as dicta or as express refusals to answer questions in earlier cases that have not been properly raised in the pleadings.

Some matters of first impression are of great moment. Most are small questions that rock no one’s world. As in, to what extent does Vermont’s turn-signal statute apply to traffic in rotaries?[4] The statute isn’t clear. The issue hasn’t come up before now, perhaps because rotaries are new to us. It turns out the court didn’t decide it, remanding the matter to the trial court to hold a hearing on whether the motorist’s exit constituted a change of direction to justify a traffic stop that led to an arrest for DUI.

The first impression is a large stone thrown into the deliberations. Some have serious consequences for masses of people, well beyond the individual parties. The general corporation law, for example, doesn’t prevent members of the board of directors of a reinstated corporation to escape personal liability for actions taken while the corporation was terminated.[5] Others involve questions not only of first impressions, but of fundamental ideas. In what was formerly known as a bastardy or paternity action, the jury instructions should explain that the degree of proof on the issue of paternity is preponderance of the evidence. Although in its form criminal, the matter is in fact a civil remedy.[6] Justice Franklin S. Billings Jr.’s decision explained that the court couldn’t find any policy reason to disagree with the trial judge’s ruling. But this is a fundamental principle, that should have been decided long ago.

In other cases, while other jurisdictions’ interpretations of legal questions are regarded as not dispositive, they can reinforce the conclusions of the high court.[7]

Sometimes these cases announce dramatic changes in the way the high court applies the law. After years of deference, the Supreme Court announced in 2016 that is would interpret a regional plan without deference to the Environmental Court because it presents a legal issue.[8] In re Mahoney’s Estate (1966) first concluded that the estate of a slain husband should be distributed to his estate, but as the wife had been convicted of his death by manslaughter, the court can charge the wife with a constructive trust for the benefit of his parents.[9] Chittenden Town School District v. Department of Education (1999) recognized Article 3, prohibiting compelled taxpayer support of religious worship, renders unconstitutional a public school district’s tuition-payment policy to the extent that it authorizes reimbursement to sectarian schools without appropriate restrictions.[10]

The trigger for first impression designation can come in a variety of ways. A new statute gets its first reading by the court, as when the law requiring professionals to report cases of child abuse was before the court.[11] Some matters of first impression may have been identified long before a case is actually resolved and the question decided.[12] First impressions need to ferment before they are decided. Interlocutory appeal is not available, even when the case is one of first impression.[13]

The Early History of First Impressions

The first Vermont case to identify an issue as one of first impression was State v. Tyrrell (1838), addressing an audita querela writ to set aside an execution and recover damages. The Supreme Court rejected the complainants’ argument that it had power to revise a judgment using that writ, and stated, “This is a case of first impression, and not a single authority or analogous case is produced to sustain it.”[14]

The next was State v. Riggs (1850). Two men had broken into a church and rung the bell to report the death of Zachariah Parker, Jr., who had not died, with the intent to annoy, harass and vex Parker and his family and friends. They were indicted following a grand jury hearing for disturbing the peace. Judge Isaac Redfield’s decision concluded these acts didn’t constitute an offence against the statute, that they sounded in libel instead by attempting to bring Parker into contempt and ridicule and public scandal, and reversed the conviction. Redfield explained, Viewed as an unseemly jest, and an attempt to turn a very serious matter into heartless levity and unfeeling merriment, it would no doubt, by some, be regarded as a shocking profanity. For however the hour of one’s death, and the passing knell, and the solemn order of a funeral, may seem to us, in health and spirits, such matters certainly are fraught with the gravest, the most awful importance to all sober men. And in a Christian community any attempt to make one a mark for ridicule through such instrumentalities would ordinarily be regarded as an unwarrantable proceeding, a species of profanity. But the statute having made one kind of profanity punishable in a summary way, and defined blasphemy as a substantive offence, we are not aware, that it has ever been supposed, that other kinds of profanity, not defined in any statute, are punishable criminally.[15]

Redfield found another case of first impression in Henry v. Vermont Central Railroad Company (1858). Redfield wrote that the court was at a great disadvantage not having the issue before it—the damage caused by the erection of a railroad bridge which had changed the course of a stream—argued on the part of the plaintiff. The court ruled against the landowner. Redfield explained, “If we have failed to apprehend the true ground, or the best ground of the plaintiff’s claim, it will not be matter of surprise, when it is considered that the action is one of new impression, and that no brief or argument has been submitted on the part of the plaintiff, and that our time will not allow us to make any extensive research during term, so that the decision is merely that of first impression, from our general reading upon the subject.”[16]

To Hear or Not to Hear

The high court does not like to take up cases of first impression unless the trial court has considered the issue. Parties attempting to raise such issues for the first time on appeal are likely to be ignored or face remands for the building of a record. In State v. Mountford (2000), the court admonished the parties for failing to anticipate the Supreme Court’s need to settle the question of the meaning of the emergency exception to search warrant requirements.[17] The decision in In re A.G. (1989) remanded a case relating to the conditional discharge of a patient from a convalescent center after concluding the lack of records that could aid the court in its decision proved the interlocutory appeal was improvidently granted.[18]

As tempting as it may be, the court refuses to...

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