Vermont's Community Legal Information Center

Sources of the Law - Vermont Style

11/19/2024

Pamela Cartier

I cannot tell you the number of times that I have had a patron involved in a legal conflict, tell me, “I need case law.” I chalk this bias up to shows like L.A. Law, Boston Legal, and Perry Mason. (Of course, I am dating myself.) My response is always, “Well, maybe not. There are other sources of the law that may apply." And then I go into my spiel about constitutions, statutes, regulations, and case law. Why is this important? Because if a judge is going to decide your case they will, generally, apply a statute, if it applies, before case law. Laws come from multiple sources, and their is a hierarchy of authority.* So, let's take a look at that hierarchy, it will better prepare your patrons for their legal battles. Our focus is Vermont laws.

Constitution: The Constitution provides for your most basic rights in respect of the government and provides for the form of government (i.e., executive, legislative and judicial branches). In most cases these broad rules will not be involved in a patron's immediate legal conflict, especially if it is a civil matter. Constitutional laws are, however, often implicated in criminal cases. These are the broadest possible rules, but all subsequent laws created by the other branches must be in accord with the principles and rules set out by the Constitution. For example, Vt. Const., chp. 1, art. 1 states that “All persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety….” Does it get broader than that?

Statutes: In Vermont, the General Assembly enacts (makes into law through the legislative process) statutes. Statutes are also fairly broad rules that are designed to cover a range of situations, but are still more specific than constitutions. Statutes cover all manner of conduct including what is a crime, how to make a valid will, how to get divorced, and tenants' rights and obligations. We know that chapter 1, article 1 of the Vermont constitution guarantees our right to happiness and safety. In keeping with this provision, the legislature created a law that allows someone who has been physically or sexually abused or stalked to seek a protective order against their abuser/stalker. This provision can be found in Title 15 of Vermont Statutes Annotated (VSA) Section 1103. The general assembly then defined stalking in 12 VSA §5131(6) as a course of conduct by a person who purposefully engages in that conduct which is directed against a specific person and who knows or should know that their conduct would cause a reasonable person to fear for their safety or cause them substantial emotional distress. (paraphrased). But you can see that broad constitutional guarantee of safety has become a rule that enforces a person's right to safety. Of course, the statute leaves some things to be determined. For example, what is purposeful conduct? What is a course of conduct? What does it mean to cause a reasonable person to fear for their safety? These questions can be answered by more detailed rules (regulations) or court decisions.

Rules (Regulations): Rules are created by administrative agencies. Administrative agencies are created by the legislature and they are tasked to enforce or provide guidance on a certain area of the law. Rules flesh out statutes to explain more specifically how they are applied or provide guidance on if a given situation fits within the requirements of the statute. Federal agencies include the EPA, FDA, and the IRS. Examples of state agencies would be Dept. of Children & Families, Dept. of Taxes, or the Dept. of Economic Development. Let's look at an example of how a rule or regulation works. The Vermont General Assembly enacted a law, 15 VSA §1152, which provides that a person can apply to prevent the disclosure of their actual address when they or their child(ren) has been the victim of abuse. The statute is about half a page long. The statute also provides that this program is to be overseen by the Office of the Secretary of State. Thus, the Secretary of State's office issued Vt. Code R. 04-000-03 which provides information on how to apply for the “Safe at Home Confidentiality Program” for victims of domestic abuse, violence, stalking. This rule is nine pages long.

Case Law: Case law or judge-made law comes about when a judge reaches a decision about a specific controversy between two people or entities (civil law) or between a governmental entity and a person (criminal law). In reaching a decision, the judge interprets statutes and rules and applies them to the individual fact situations. Thus case law is the most specific because it applies the statute or rules, if they exist, to a particular situation. For example, in determining what constitutes stalking, 12 VSA §5131(1) states that a course of conduct means “two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property. This definition shall apply to acts conducted by the person directly or indirectly, and by any action, method, device, or means.” Query, Does a former best friend (BF) of alleged victim (AV) engage in a course of conduct of stalking by posting a half-naked picture of AV on TikTok, and a video threatening to hurt her, followed by two more videos suggesting that BF still has the photo and might send it to others? Held: A threat is an expression of intent to cause physical harm, and here there was only one such threat, which is not a course of conduct. Morton v. Young, 2023 VT 29 (2023). The judge has made a rule that a course of conduct for purposes of obtaining a protective order requires one or more acts that involve threats of physical harm, which did not occur under these facts.

Hopefully this has helped you to understand the primary sources of law in our country and Vermont and their order of authority. That being said, Vermont is a state without a lot of statutory law and statutory laws that are often ambiguous so the judiciary does play an important role in fleshing out statutes and explaining how they apply.

Until the next time,
CLIC

* Caveat - Keep in mind that laws are made at the federal level and the state level. Sometimes they will both apply, but which applies in the event of conflict is beyond the scope of this post.

No Subjects

By Month

January 2025

November 2024

October 2024

Recent Posts

Legal Citation

I realize that is one thing to talk about where you can find laws, but it also helps to understand how laws are cited because it also helps you to understand what you are looking for and where to find it. One of the best ways to start research is by looking at secondary sources. What are secondary sources? Well not primary, i.e., constitutions, statutes, regulations, or cases. Secondary sources are materials that explain or discuss those legal rules, for example, treatises and journal articles. Because they explain legal doctrines, secondary sources are a good way to start research and gain a basic understanding of an area of the law. In undertaking this explanation, secondary sources cite to primary sources effectively doing part of your research for you by explaining the principle of the law and then directing you where you could find the statute, case or regulation that established that rule or doctrine. More on secondary sources in another blogpost. ...

Sources of the Law - Vermont Style

I cannot tell you the number of times that I have had a patron involved in a legal conflict, tell me, “I need case law.” I chalk this bias up to shows like L.A. Law, Boston Legal, and Perry Mason. (Of course, I am dating myself.) My response is always, “Well, maybe not. There are other sources of the law that may apply." And then I go into my spiel about constitutions, statutes, regulations, and case law. Why is this important? Because if a judge is going to decide your case they will, generally, apply a statute, if it applies, before case law. Laws come from multiple sources, and their is a hierarchy of authority.* So, let's take a look at that hierarchy, it will better prepare your patrons for their legal battles. Our focus is Vermont laws. Constitution: The Constitution provides for your most basic rights in respect of the government and provides for the form of government (i.e., executive, legislative and judicial branches). In most cases these broad rules will not be involved in a patron's immediate legal conflict, especially if it is a civil matter. Constitutional laws are, however, often implicated in criminal cases. These are the broadest possible rules, but all subsequent laws created by the other branches must be in accord with the principles and rules set out by the Constitution. For example, Vt. Const., chp. 1, art. 1 states that “All persons are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety….” Does it get broader than that? Statutes: In Vermont, the General Assembly enacts (makes into law through the legislative process) statutes. Statutes are also fairly broad rules that are designed to cover a range of situations, but are still more specific than constitutions. Statutes cover all manner of conduct including what is a crime, how to make a valid will, how to get divorced, and tenants' rights and obligations. We know that chapter 1, article 1 of the Vermont constitution guarantees our right to happiness and safety. In keeping with this provision, the legislature created a law that allows someone who has been physically or sexually abused or stalked to seek a protective order against their abuser/stalker. This provision can be found in Title 15 of Vermont Statutes Annotated (VSA) Section 1103. The general assembly then defined stalking in 12 VSA §5131(6) as a course of conduct by a person who purposefully engages in that conduct which is directed against a specific person and who knows or should know that their conduct would cause a reasonable person to fear for their safety or cause them substantial emotional distress. (paraphrased). But you can see that broad constitutional guarantee of safety has become a rule that enforces a person's right to safety. Of course, the statute leaves some things to be determined. For example, what is purposeful conduct? What is a course of conduct? What does it mean to cause a reasonable person to fear for their safety? These questions can be answered by more detailed rules (regulations) or court decisions. Rules (Regulations): Rules are created by administrative agencies. Administrative agencies are created by the legislature and they are tasked to enforce or provide guidance on a certain area of the law. Rules flesh out statutes to explain more specifically how they are applied or provide guidance on if a given situation fits within the requirements of the statute. Federal agencies include the EPA, FDA, and the IRS. Examples of state agencies would be Dept. of Children & Families, Dept. of Taxes, or the Dept. of Economic Development. Let's look at an example of how a rule or regulation works. The Vermont General Assembly enacted a law, 15 VSA §1152, which provides that a person can apply to prevent the disclosure of their actual address when they or their child(ren) has been the victim of abuse. The statute is about half a page long. The statute also provides that this program is to be overseen by the Office of the Secretary of State. Thus, the Secretary of State's office issued Vt. Code R. 04-000-03 which provides information on how to apply for the “Safe at Home Confidentiality Program” for victims of domestic abuse, violence, stalking. This rule is nine pages long. Case Law: Case law or judge-made law comes about when a judge reaches a decision about a specific controversy between two people or entities (civil law) or between a governmental entity and a person (criminal law). In reaching a decision, the judge interprets statutes and rules and applies them to the individual fact situations. Thus case law is the most specific because it applies the statute or rules, if they exist, to a particular situation. For example, in determining what constitutes stalking, 12 VSA §5131(1) states that a course of conduct means “two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property. This definition shall apply to acts conducted by the person directly or indirectly, and by any action, method, device, or means.” Query, Does a former best friend (BF) of alleged victim (AV) engage in a course of conduct of stalking by posting a half-naked picture of AV on TikTok, and a video threatening to hurt her, followed by two more videos suggesting that BF still has the photo and might send it to others? Held: A threat is an expression of intent to cause physical harm, and here there was only one such threat, which is not a course of conduct. Morton v. Young, 2023 VT 29 (2023). The judge has made a rule that a course of conduct for purposes of obtaining a protective order requires one or more acts that involve threats of physical harm, which did not occur under these facts. Hopefully this has helped you to understand the primary sources of law in our country and Vermont and their order of authority. That being said, Vermont is a state without a lot of statutory law and statutory laws that are often ambiguous so the judiciary does play an important role in fleshing out statutes and explaining how they apply. Until the next time, CLIC * Caveat - Keep in mind that laws are made at the federal level and the state level. Sometimes they will both apply, but which applies in the event of conflict is beyond the scope of this post. ...

Community Legal Information Center - Westlaw Proflex Legal Research Database at 8 Public Libraries in Vermont

In some civil docket systems in Vermont, over 90 percent of the litigants represent themselves, for example, landlord/tenant or debt collection cases. To effectively represent themselves, people need to have access to legal resources and information. Vermonters can always come to CLIC in S. Royalton where they will have access to all manner of legal materials including legal databases. But, as we know, Vermont is not always an easy state to get around, and we often hear how a patron simply has no way to get to S. Royalton. How do we expect our citizens to represent themselves in legal matters when they have limited or no access to the laws that are impacting them. In these situations, we have provided resources that can be searched for free such as Google Scholar, Court Listener, and Vermont Statutes Online. These resources will provide individuals with cases, or statutes, but it is still up to the person to read and interpret these original source documents riddled as they are with legalese. Well, here at CLIC, we hope to help remedy that, at least a little bit, by providing access to Westlaw’s Proflex, legal research database. We believe that knowledge is power, and we hope that by offering Westlaw at 8 Vermont public libraries around the state, self-representing litigants will have access to more of the information they need to handle their legal conflicts whether that be at a hearing or writing a pleading or motion. The Community Legal Information Center has sponsored a year-long pilot program that makes Westlaw’s ProFlex legal research database available at 8 public libraries which in turn have agreed to make the database available to citizens from neighboring towns. Vermonters, throughout the state, now have access to West's legal research database and the benefits of the editorial gifts, as I like to call them, such as West's headnotes, annotations, and West's key system to help them do their legal research. It is here that Westlaw provides advantages because these editorial extras help cut down on the amount of work the patron must do and potentially the time spent doing it. What are these editorial gifts?Case synopsis – a summary of the facts of the case and the key legal issues. West’s headnotes – a summary of the legal principles/rules or significant fact issues that the editorial staff have pulled from the case. KeyCite – West’s citation system that tells you if a case is still good law and helps you find other cases (and resources) that discuss the same or similar legal principles as the in the case that the patron has found. West’s Key System – an index system that organizes the case headnotes (legal principles) according to subject matter or topic. Using the key number (topic), patrons can quickly access additional cases that discuss that topic from any jurisdiction. The 8 public libraries in Vermont that provide access to Westlaw are: Fletcher Free Library in BurlingtonCharlotte Library in CharlotteEnosburgh Public Library in Enosburg FallsManchester Community Library in Manchester CenterKellogg Hubbard Library in MontpelierRutland Free Library in RutlandSpringfield Town Library in SpringfieldWindsor Public Library in WindsorVermonters can, of course, access a more robust version of Westlaw and Lexis by using one of the CLIC computers here in the Cornell Library at Vermont Law & Graduate School in South Royalton. And the CLIC librarian is always happy to help patrons with their research and research questions during librarian hours (10:30 – 4:00pm, Monday through Friday). Contact the CLIC librarian at any time at clic@vermontlaw.edu or (802)831-1313. ...