Unanimus Court affirms denial of stalking complaint because defendant’s conduct did not fall within the statutory definition of stalking, as recently interpreted by a divided Court.

Morton v. Young, 2023 VT 29 

WAPLES, J. Plaintiff Ava Morton appeals the denial of her complaint for an order against stalking. We conclude that defendant’s conduct did not fall within our recent interpretation of the statutory definition of stalking, which encompasses “only threats of physical harm,” and therefore affirm the decision below.

In Hinkson v. Stevens, a majority of this Court concluded that the term “threatens, or makes threats about” in § 5131(1) encompasses “only threats of physical harm.” 2020 VT 69, ¶ 42. 

 As Hinkson plainly controls this case plaintiff urges us to reconsider Hinkson . She argues that a threat to disseminate nude photos, while not a “true threat” of physical harm, is also not a constitutionally protected activity and therefore can be restrained by the civil stalking statute. She contends that Hickson was wrongly decided and unsupported by the previous Vermont caselaw referred to in the decision.

We considered and rejected most of plaintiff’s arguments in Hinkson. See 2020 VT 69, ¶¶ 32-34, ¶¶ 44-46; id. ¶¶ 54-62, 71 (Reiber, C.J., dissenting)

“While not slavish adherents to stare decisis, we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.” State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.) (citation omitted). Plaintiff has offered no persuasive reason for us to overrule a case decided just three years ago. There is no evidence that this Court has moved away from our holding in Hinkson  since it was issued or that Hinkson was inconsistent with a trend in other jurisdictions. Cf. Coop. Fire Ins. Ass’n of Vt. v. White Caps, Inc., 166 Vt. 355, 356, 694 A.2d 34, 34 (1997) (reconsidering previous caselaw based in part on evolving trends in jurisprudence of other jurisdictions). Nor has the Legislature amended the statute since we decided Hinkson . See Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 490-91, 726 A.2d 20, 29 (1998) (noting that “we do not lightly overrule settled law especially where it involves construction of a statute which the legislature could change at any time.” (quotation omitted)). These considerations weigh against overturning Hinkson , “even assuming that current members of the Court would have reached a different decision.” O’Connor v. City of Rutland, 172 Vt. 570, 571, 772 A.2d 551, 553 (2001).

Affirmed.

How cited

SCOVT NOTE. State Decisis.  This case is in a  line of authority reciting the  proposition that “mere disagreement” is not grounds to overrule "recent" precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini,, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem)

On the other hand, the Court, will overrule a precedent interpreting a statute if the interpretation is is "simply wrong." In re SD, 2022 VT 44.

And the age of the precedent should  not matter. The Court has upheld 200 year-old  precedent, despite its age.  Ferry v. City of Montpelier, 2023 VT 4.  And it has overruled cases as little as one ,two or three years-old, despite their recent vintage.  See State v. Haynes, 2019 VT 44 (overruling State v. Lyford, 2016 VT 118 as inconsistent with a specific Court rule); Whippie v. O'Connor, 2011 VT 97 (mem.) (overruling Massey v. Hrostek, 2009 VT 70, as overlooking settled prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking a specific Court rule.)

A perhaps more important factor in Morton v. Young is that the precedent in question was decided over a dissenting voice. A dissent usually means the Court has already fully considered the arguments, has not overlooked anything, and is not "simply wrong." This is not a Court likely to reconsider just because the composition of the Court has changed. 

As Chief Justice Reiber did here, dissenting judges ordinarily join in the majority the next time around. For another example, see Justice Johnson’s opinion dissenting from the reversal of a punitive damage award in Brueckner v. Norwich University, 169 VT 118 (1999) and her opinion relying on  the  Brueckner  majority in support of the reversal of a punitive damage award. in Monahan v. GMAC Mortg. Corp,  2005 VT 110 ¶57.