A New First for Vermont

In its 220 year history the proud little state of Vermont has recorded a number of famous firsts.

Vermont's Col. Ethan Allen and his Green Mountain Boys were the first to strike an offensive blow against Great Britain when they captured the King's great fortress at Ticonderoga, a year before the Declaration of Independence.

Our 1777 Constitution was the first in America to outlaw slavery and to abolish property qualifications for voting. It also was the first written constitution in the world to require that "whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money." (This third "first" is rarely mentioned these days.)

The most recent Vermont first still needs some fact checking, but it is likely to stand up. Vermont now almost certainly has the first state Supreme Court in the nation made up entirely of government lawyers - that is, lawyers whose professional careers before becoming judges consisted largely or totally of employment by the government or by government funded programs.

Consider the backgrounds of the five justices who will now comprise Vermont's highest court.

• Chief Justice Jeffrey Amestoy: Assistant Attorney General 1977-78; Commissioner of Labor and Industry 1982-84; Attorney General 1985-97.

• Justice James Morse: Defender General 1976-81, before going to the Superior Court in 1981.

• Justice John Dooley: Legal Aid lawyer, then Secretary of Administration for Gov. Kunin 1985-88 before being appointed to the Supreme Court.

• Justice Denise Johnson: Assistant Attorney General 1980-88; chair of the Vermont Human Rights Commission 1988-90; then named to the Supreme Court despite never having tried a case .

• Justice-designate Marilyn Skoglund: employee of the Attorney General's office from 1973 to 1993, then three years service as a District Court judge.

The great majority of the nearly 2000 members of the Bar in the State of Vermont are in private practice. Thus the fact that the Supreme Court is made up entirely of men and women who worked as government lawyers before going to the bench is an amazing departure from normal odds.

Without casting any personal aspersions on the five individuals in question, it seems clear that their route to the bench, and ultimately to the state's highest court, was through their membership in the state's political class. That class is overwhelmingly comprised of people who subscribe to the liberal idea that the government is the leading force for desirable change, and the locus of responsibilty for restraining the self-interested acts of hundreds of thousands of Vermonters who would otherwise place their personal interests above that of the Greater Good.

Having served government most of their careers, government lawyers naturally have a predilection in favor of whatever their employer the government thinks the people should have to do or not do. Government lawyers have a natural career bias against the protests of those who resist the expansion of government spending, mandates, and regulation, and the curtailment of historic rights.

They are highly partial to the argument that the Constitution and laws need to be interpreted to allow government to pursue the liberal activist agenda. For instance, to use the landmark Brigham opinion as an example, a Court dominated by government lawyers will regularly affirm that "equal protection of the laws cannot be limited by eighteenth century standards".

What can Vermonters expect from a Supreme Court now completely oriented toward the presumed correctness of government action? The good news is that the Amestoy court ought to take a fairly tough line in cases where criminal defendants interfere with the public order the government is bound to protect (although even this trend may be limited by Legal Aid lawyer Dooley and Defender General Morse).

The bad news is that the Court is likely to march steadily further toward judicial reinterpretation of Vermont's Constitution, always with an eye to strengthening the hand of government.

In other words, we may confidently expect this Supreme Court to ignore and twist the Constitution to mandate equal outcomes for all, rule against disfavored businesses and landlords in consumer disputes, uphold every kind of supposed environmental regulation, deny every claim of government invasion of private property, and support every extension of government power.

There will be an occasional dissent, like Justice Johnson's in the case that held that your driveway is a public highway. But all in all, Vermont's new government- lawyer Court is not likely to be found standing in the way of progress - wherever progress is defined by the government and promoted by government action.

August 1997