Threatening “Advocacy” as Civil Stalking: True Threats, Minimal Course-of-Conduct Proof, and Broad Protective Conditions Under 12 V.S.A. ch. 178

Nonprecedential posture: The decision is an Entry Order issued by a three-justice panel, and the Opinion text expressly states that such decisions “are not to be considered as precedent before any tribunal.” The analysis below therefore treats the order as persuasive guidance on how the Vermont Supreme Court applied existing statutes and case law to the facts presented.

1. Introduction

Case: Violet Nichols v. Robert Lafayette (Vt. Sup. Ct., Mar. 14, 2025).
Parties: Plaintiff Violet Nichols, superintendent of the South Burlington school district; Defendant Robert Lafayette, a parent of two children in the district.
Background: Plaintiff sought an order against stalking after months of alleged harassing and threatening communications. The civil division issued a no-stalking order requiring defendant to stay 300 feet away from plaintiff and her children, with limited school-related exceptions. Defendant appealed.
Key issues on appeal:

  • Whether the evidence established a statutory “course of conduct” and stalking by a preponderance of the evidence.
  • Whether defendant’s communications were protected by the First Amendment as advocacy/criticism of a public official.
  • Whether defendant was denied due process for lack of prior notice that the communications were unwelcome and/or lack of notice of allegations.
  • Whether the trial judge was biased.
  • Whether the order’s conditions (including coverage of plaintiff’s children) were overly broad or retaliatory.

2. Summary of the Opinion

The Vermont Supreme Court affirmed the no-stalking order. It held that the trial court could reasonably find, by a preponderance of the evidence, that defendant engaged in a statutory “course of conduct” involving threats and persistent contacts that would cause a reasonable person to fear for safety or suffer substantial emotional distress. The Court rejected defendant’s First Amendment arguments because “true threats” are unprotected speech, and found no due-process violation because defendant received notice of the hearing and the complaint materials and had the opportunity to be heard. The Court also rejected bias claims (and noted lack of preservation) and upheld the protective scope and conditions, including restrictions relating to plaintiff’s children, especially given evidence that defendant named them in a threatening voicemail and the order included tailored exceptions for school logistics and events.

Note on the record: The Opinion recounts the school-board threat as occurring in February 2024 but later references “November 2024.” The Court did not treat this discrepancy as outcome-determinative; its analysis rests on multiple threats plus persistent contact.

3. Analysis

3.1 Precedents Cited

Haupt v. Langlois, 2024 VT 3

The Court used Haupt v. Langlois to restate the operative standard: a court must impose a no-stalking order if it finds stalking by a preponderance of the evidence under 12 V.S.A. § 5133(d). This frames the appeal as primarily about the sufficiency of evidence under a civil burden of proof, not proof beyond a reasonable doubt.

Hinkson v. Stevens, 2020 VT 69

Hinkson v. Stevens supplied the appellate posture: deference to trial-court factfinding and affirmance if supported by evidence. This deference is central in stalking-order appeals where the outcome often turns on credibility and contextual inferences (tone, persistence, escalation, and specific phrasing).

Mullin v. Phelps, 162 Vt. 250 (1994)

Mullin v. Phelps reinforced the limited role of the appellate court: it does not reweigh evidence or reassess credibility “de novo.” The Court relied on this principle to reject defendant’s attempt to recharacterize his communications as nonthreatening and to dispute plaintiff’s perception and reaction.

State v. Ellis, 2009 VT 74

Defendant invoked State v. Ellis (a criminal stalking case) to argue that following or public-area encounters without threats should not qualify as stalking. The Court distinguished Ellis because, in this case, the trial court found explicitly threatening statements (bus/car comment; voicemail referencing family suffering) and persistent conduct that caused reasonable fear. The comparison underscores a practical line: Ellis illustrates that nonthreatening presence or observation may be insufficient, while the present case involved threats plus persistence.

State v. Noll, 2018 VT 106

State v. Noll anchored the First Amendment analysis: “true threats” are not constitutionally protected. The Court also used Noll to emphasize contextual, objective interpretation—whether a reasonable person familiar with the circumstances would perceive a threat of injury. This allowed the Court to treat defendant’s claimed “advocacy” as legally irrelevant once the communications crossed into objectively threatening territory.

Rich v. Montpelier Supervisory Dist., 167 Vt. 415 (1998)

Rich provided the basic due-process framework: notice and an opportunity to be heard. Applying it, the Court found due process satisfied because defendant received notice of the hearing and the complaint/affidavit and fully participated in the contested hearing.

Ainsworth v. Chandler, 2014 VT 107

Ainsworth v. Chandler addressed judicial bias: adverse rulings and credibility determinations do not establish bias absent evidence of improper motivation. The Court used Ainsworth to reject defendant’s argument that the judge’s acceptance of plaintiff’s testimony was itself misconduct.

State v. Hinchliffe, 2009 VT 111

State v. Hinchliffe supported the preservation ruling: arguments not raised below generally are not reached on appeal. The Court invoked Hinchliffe to note that defendant did not properly preserve the bias claim.

State v. Tracy, 2015 VT 111

Defendant cited “fighting words” authority, but the Court responded that such doctrine was inapplicable to stalking-by-threat allegations. It cited State v. Tracy to define “fighting words” (words likely to provoke an affray) and to underscore that the legal category at issue was threatening behavior/true threats, not mere offensive outbursts.

Swett v. Gates, 2023 VT 26

Swett v. Gates supported the breadth of permissible protective conditions: a stalking order may prohibit otherwise legitimate conduct if necessary to protect plaintiffs. The Court relied on Swett to uphold restrictions that incidentally burden defendant’s preferred modes of advocacy or contact, so long as they are justified by protection needs and appropriately tailored (here, with school-related exceptions).

3.2 Legal Reasoning

(A) Statutory stalking: “course of conduct” and threats

The Court applied the civil stalking framework in 12 V.S.A. §§ 5131 and 5133. It emphasized:

  • Stalking definition: a course of conduct the defendant knows would cause a reasonable person to fear for safety or suffer substantial emotional distress. 12 V.S.A. § 5131(6).
  • Course of conduct: “two or more acts over a period of time, however short,” including following, monitoring, threatening, or making threats. 12 V.S.A. § 5131(1)(A).
  • Threatening need not be explicit: “Threatening does not require an express or overt threat.” 12 V.S.A. § 5131(1)(B).

Against defendant’s claim that there was only “one voicemail” and no repetition, the Court accepted the trial court’s finding of at least two threatening incidents (the school-board statement and the voicemail) plus persistent, animosity-laden contact (daily/multiple daily emails; frequent calls affecting staff). It held that this combination supported a finding of a qualifying “course of conduct” and a reasonable-fear/substantial-distress impact, particularly given plaintiff’s testimony that she changed routines, developed a safety plan, and routed communications through counsel.

(B) First Amendment: advocacy vs. “true threats”

The Court rejected defendant’s claim that his communications were protected criticism of a public official. Citing State v. Noll, it held there is no First Amendment protection for true threats. The reasoning is categorical: even if the underlying subject matter involves public concerns (school administration, parental advocacy), the Constitution does not immunize threats directed at the target and the target’s family. The Court treated the trial court’s contextual findings—threats plus persistence plus acquisition of an unlisted number and naming family members—as establishing conduct that objectively could be interpreted as a threat of injury.

(C) Due process: no requirement of “unwelcome notice”

Defendant framed due process as requiring prior notice that plaintiff found his communications unwelcome. The Court rejected that premise: a stalking order does not require proof that defendant was warned his behavior was unwelcome, particularly where the behavior is threatening. Applying Rich v. Montpelier Supervisory Dist., the Court focused instead on procedural adequacy in the litigation itself: defendant received notice of hearing and the complaint/affidavit and had a full opportunity to be heard at a contested hearing.

(D) Bias and preservation

The Court held that accepting plaintiff’s testimony is not evidence of bias (Ainsworth v. Chandler) and additionally declined to reach the claim because it was not raised below (State v. Hinchliffe). The combined approach signals two recurring appellate constraints: credibility calls are for the trial judge, and bias arguments must be timely preserved.

(E) Scope of relief: children included; “legitimate conduct” may be restricted

The Court read 12 V.S.A. § 5133(d) as authorizing stay-away provisions from both “the plaintiff or the plaintiff’s children” and any other order necessary to protect the plaintiff. Drawing from Swett v. Gates, it upheld conditions that may restrict otherwise lawful conduct when necessary for protection. Coverage of the children was justified by evidence that defendant named them in the voicemail threat; the order was further supported as not “overbroad” because it included functional carve-outs allowing school drop-off/pickup and attendance at athletic events.

3.3 Impact

  • Low numerical threshold for “course of conduct” in threat-based stalking: The decision illustrates that “two or more acts,” combined with persistent contact, can satisfy § 5131 even where only a few communications contain overtly threatening language—especially when contextual factors (escalation, family references, obtaining unlisted contact information) heighten the perceived danger.
  • Clear separation of advocacy from threats: For disputes involving schools and public officials, the order underscores that a litigant’s or parent’s political/advocacy framing does not shield objectively threatening communications.
  • Procedural focus for due process challenges: The Court’s approach narrows due-process arguments to whether the defendant received notice and a meaningful hearing, not whether the plaintiff previously demanded cessation.
  • Protective orders can extend to children when threats mention them: The analysis supports inclusion of a plaintiff’s children within protective conditions where evidence indicates they were referenced or implicated, and it endorses tailored exceptions to balance safety with practical parenting needs.
  • Appellate deference and preservation remain decisive: The decision highlights that sufficiency appeals often fail where the trial court credited testimony and the appellant seeks reweighing; it also reiterates that unpreserved bias claims are unlikely to be entertained.

4. Complex Concepts Simplified

  • “Preponderance of the evidence”: The civil standard meaning “more likely than not,” lower than “beyond a reasonable doubt.”
  • “Course of conduct” (12 V.S.A. § 5131(1)(A)): At least two acts over any time span (even short) that include threatening or making threats, among other behaviors.
  • “True threats”: Statements (considering context) that a reasonable person would interpret as a serious expression of intent to inflict harm; these are not protected by the First Amendment (as applied via State v. Noll).
  • Due process (civil protective-order context): The constitutionally required basics are notice of the proceeding and an opportunity to be heard (from Rich), not a prior interpersonal warning from the complainant.
  • Preservation: Generally, you must raise an issue in the trial court to argue it on appeal (reinforced by State v. Hinchliffe).
  • “Fighting words” vs. threats: “Fighting words” are provocations likely to trigger an immediate affray (State v. Tracy); stalking cases focusing on threats turn on fear/distress and threat context, not on whether an average listener would start a fight.
  • Overbreadth in protective conditions: Even lawful conduct may be restricted if necessary to protect the plaintiff (Swett v. Gates), especially when exceptions can tailor the order to real-world needs.

5. Conclusion

Nichols v. Lafayette affirms a civil no-stalking order where the trial court found (1) at least two threatening acts plus persistent contacts, (2) a reasonable resulting fear and lifestyle changes, and (3) contextual facts supporting an objective “true threat” interpretation. The Court rejected constitutional and procedural challenges by distinguishing protected advocacy from unprotected threats, focusing due process on notice and hearing rights rather than prior “unwelcome” warnings, and deferring to trial-court credibility determinations. It also endorsed protective breadth—including covering a plaintiff’s children—when supported by evidence and tempered by practical exceptions. While nonprecedential, the order provides a clear, fact-driven template for how Vermont courts may apply 12 V.S.A. ch. 178 to threat-laden communications in contentious public-school disputes.