The Brigham Justices: Should They be Denied New Terms?

(The following is adapted from the debate presentation by John McClaughry at the Ethan Allen Institute-sponsored debate on Judiciary Retention held in the House Chamber on January 21, 1999. These remarks were preceded by an opening statement by Frank yan. For the essence of his arguments, see "Who Controls the Supreme Court?" in the Institute newsletter of October 1998, also on the web site.)

Professor Bryan has explained why the Constitution belongs to the people, and is not the exclusive property of the Five Supreme Legislators. He has pointed out that it is the duty of the elected representatives of the people to resist judicial usurpation. He as shown that the idea of judicial integrity includes fidelity to one's oath of office, in which a Justice pledges not to do anything injurious to the Constitution.

My task now is to exhibit the Court's political, result-oriented performance in one vitally important case, Brigham v. State. I will show in some detail how the Dooley Court abandoned its constitutional duty for the purpose of amending our constitution to require the educational financing scheme long favored by political activist John Dooley.

I have referred to the Court of 1997 as the Dooley Court. Why? Justice Dooley was not its Chief Justice. But there can be little doubt that Justice Dooley had emerged as the intellectual and administrative leader of this Court.

I do not argue that Justice Dooley is a Rasputin with mysterious power over Justices Morse and Johnson, leading them down the slippery slope of judicial activism at his will. A review of twelve of the most controversial opinions of the Dooley Court shows that Justice Morse and especially Justice Johnson have frequently gone their own way, sometimes quite outspokenly so.

Although the Dooley Court has issued more than a few opinions that illustrate regrettable judicial activism, with one mighty exception we do not argue that they constitute grounds for dismissal. That is because, with the exception of Brigham, all of the other controversial cases involve statutory construction. The Court's mistakes can be corrected by the legislature and the Governor. Brigham is different. In Brigham, the Dooley Court simply invented a new constitutional right out of whole cloth, and ordered its recognition by the legislature, governor and people of this state. Let us then examine Brigham - the process, the argument, and the decision.

Brigham began in 1995 when the ACLU brought suit. Their goal was to get the Court to mandate equality of educational resources and (according to them) educational opportunity.

The Brigham case began in Lamoille Superior Court under Judge Meaker. The ACLU lawyers offered the argument that the wide disparity or property tax resources per pupil among the towns created a disparity in educational opportunities which denied some children's fundamental right to an education and therefore violated the Vermont constitution.

Now, where can this right to education be found? The only sentence in our Constitution that mentions education is Section 68, the operative part of which reads: "... a competent number of schools ought to be maintained in each town."

Well, now. That requirement was satisfied no later that 1870. Judge Meaker listened to the arguments, looked at that provision, decided, quite correctly, that there is no fundamental right to education contained in the Vermont Constitution, and issued summary judgment on this point to the state. On questions involving towns and taxpayers, he set the case for trial.

What happened next is curious. Over the objection of Judge Meaker, both the state and the ACLU appealed to the Supreme Court for an interlocutory opinion.

When the appeal arrived at the Dooley Court, it enthusiastically agreed to take the case out of Judge Meaker's hands and settle it without a trial. Justice Morse, to his credit, strongly opposed the Courtaccepting the appea without a trial record.

Now why was Dooley Court so keen about deciding Brigham then and there? Let's go back to 1987. John Dooley was Administration Secretary. Gov. Kunin, with a surplus building, was eager to reform educational finance. John Dooley was the man in charge, "the man in the chair", as he later put it. He was Mr. Kunin Education Finance Reform.

And what did he produce? The Kunin Foundation Plan. What was unique about the Kunin Foundation Plan? For the first time it would have "recaptured" the tax base of rich towns. This was the forerunner of Act 60.

John Dooley waged a good fight, but lost. The House rejected the key ingredient of his Foundation Plan - recapture - and passed the remainder. But John Dooley lived to fight another day, as a Justice of the Supreme Court.

Fast forward now to late 1996. The Court overruled Superior Judge Meaker, accepted the interlocutory appeal, and went to work at what for it was breakneck speed.

The Court scheduled oral argument, even before the reply briefs had been submitted. Fifty one days later it issued the most sweeping constitutional decision of the 20th century.

Of the scores of court cases on educational finance, only one has ever issued from a state supreme court with no trial whatsoever: Brigham v. State of Vermont. Even members of the bar who are favorable to the result in Brigham have been sharply critic of this startling departure from orderly judicial process to reach a politically important result in a mere 51 days. By contrast, the Town of Chittenden's case for paying tuition for some of its children to Mount St. Joseph Academy went to oral argument before this Court last March. After more than 300 days the Court has still had nothing to say about it.

To discover a fundamental right to education in Section 68, the Dooley Court offered a history of Vermont which is thoroughly bogus, and incorporates what a friend of the Brigham holding, Prof. Peter Teachout, has termed "intentional deception".

Consider this: every court is obliged to examine the plain words of a constitution, and the facts and circumstances surrounding its enactment, to derive the correct meaning. That is inherent in the Justices' oath to do nothing injurious to the constitution - as for instance, writing their own constitution to justify politically favored results. In Brigham, the court leaned heavily on one address to the legislature by Gov. Crafts in 1828, 42 years after adoption of the constitution. And Gov. Crafts did indeed expound on the virtues of education. But what did the legislature then do?

After being dazzled by the oratory of Gov. Crafts, the legislature received a report from the textbook commission finding it hopeless to try to standardize textbooks among the towns. They voted $100 to pay the salary of the Commissioner of Education.

They took all the remaining money from the education trust fund and used it to build a new state house. Then they went home. Five years later the legislature abolished the state board of education. In fact, it was not until 1864 that the great grandchildren of the authors of the 1786 Constitution finally decided to require universal free public education in this state.

But the Dooley Court would have us believe that in 1786 the framers fully intended to create an enforceable right to public education, a right that required substantially equal tax bases per pupil throughout the state. If you can believe that, you can believe in leprechauns, space aliens, and Nixon's innocence.

In addition to the bogus history, the Dooley Court engaged in intentional deception. It cited in support of its case the sentence in our first constitution of 1777 that reads in part "A school or schools shall be established in each town, by the legislature for the convenient instruction of youth..." The Court deliberately omitted the rest of the sentence: "...with such salaries to the masters, paid by each town, making proper use of school-lands in each town, thereby to enable them to instruct youth at low prices." Citing the rest of the sentence completely undercuts the Court's brusque dismissal of any rational basis argument for local control of public education. The Court knew that, and so the Court omitted the rest of the sentence. This is intentional deception.

Rush to judgment without trial. Bogus history. Intentional deception. How does all this square with fidelity to a Justice's oath to do nothing injurious to the constitution?

There's more.

As Judge Meaker convincingly wrote, there is simply no right to education in the Vermont Constitution. Enthusiasts for educational tax equalization well knew this. In fact, in 1996, with Brigham already in the courts, the Vermont House passed a resolution urging the Senate to approve a constitutional amendment to install an enforceable right to a thorough and efficient education in the Vermont constitution. The resolution was urged by the people who a year later were cheering Brigham and enacting Act 60.

So how did the Court extract this sweeping right to education, which even the future friends of Act 60 could not find in the constitution? Let's go back a decade to explore Justice Dooley's views on constitutional interpretation.

Back then, he said "If the development of state constitutional doctrine gets in the way of [constantly managing and keeping our society and our political institutions modern and responsive to a very difficult and changing world],... if we are not on the cutting edge of future needs ... then I think the people of our states should and will say 'well, that was a nice little exercise you were engaged in, but it is not relevant to this world', and through their ability to amend the constitution they will change it."

In the same talk Justice Dooley declared his willingness, in dealing with constitutional issues, "to wander into never never land and produce a good result that will stand the test of time." Now here is a Justice, only a year onto the Court, baldly announcing that the court cannot settle for merely interpreting out of date constitutions as they were intended by those who drafted and adopted them.

This sort of thing is not for Justice Dooley! He tells us that his Court must do what it has to do to meet modern demands and expectations. Justice Dooley's vision defines the Court of What's Happenin' Now. This is emphatically not the Court defined by ur Constitution.

Now look in Brigham again. How did the Dooley Court manufacture a right which simply isn't there? Attorney Gensburg explained how to do it - not that the Dooley Court needed much explanation. His brief argued that when the desired right can not be rea ly found in the constitution, the Court can find rights "implicitly recognized in the Constitution." If that doesn't get the Court to where it wants to go, then it can switch to extra-constitutional sources "deeply rooted in Vermont's traditions and conscience" or "implicit in the concept of ordered liberty."

In short, they were saying "please legislate a new constitution for us, because we really want to win this case."

And obligingly, in Brigham, the Dooley Court solemnly declared that "equal protection of the laws cannot be limited by eighteenth century standards." In other words, while none of the authors of the constitution could have imagined that it declared any right to "equal educational opportunities", those benighted framers were "limited by eighteenth century standards", and today's judges are free - indeed they are required - to interpret the constitution to declare whatever they think is "deeply rooted in Vermont's traditions and conscience", that is, whatever is thought by the Five Supreme Legislators to be best for the people.

Prof. Teachout, who does not support dismissing Justice Dooley, nonetheless calls this a "raw assertion of judicial power." This is the theory of judicial legislation pure and simple. It is judicial usurpation of the legislative function. It is judicial usurpation of the constitution- writing function of the whole people. It is injurious to the constitution and an affront to the rights of the people contained in that honored document. That it was done by the Court at breakneck speed, through an extraordinary process that denied a trial and a trial record for appeal, compounds the offense.

At the time today's Vermont constitution was being put into effect, George Washington was President. Like all of the framers of the national Constitution, President Washington was deeply concerned about judicial usurpation.

In his Farewell Address, President Washington said: "If in the opinion of the people, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Ladies and gentlemen, elected representatives of the people of Vermont: when you examine the Dooley Court's process, argument, and opinion in Brigham, you will find yourself staring full in the face of judicial usurpation.

We ask you to defend the people's constitution against those who have usurped it.

We ask you to use the constitutionally prescribed remedy to excuse from further service the three Justices who, from the bench of the highest court in our state, ignored their judical oath, violated the constitutional provision for separation of powers and wilfully discarded the principles of constitutional interpretation that have served the people of this state well for over 200 years.

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January 1999