Who Owns The Vermont Constitution?

Who owns the Vermont Constitution, the people or the lawyers? That question is at the heart of the current debate on whether the "Brigham Three" - Justices Dooley, Johnson and Morse - ought to be reelected by the General Assembly. Now that the controversy has reached the front pages of Vermont newspapers, it is possible to see clearly the views of the opposing sides. And such a comparison is highly instructive.

My side, which might be called the democratic or populist side, holds that the Constitution belongs to the people of this state; and that when unelected Justices, in a "raw exercise of judicial power", hand down a sweeping opinion that invents a new constitutional right manufactured out of whole cloth, in a mere 51 days, over the objections of the trial judge, without a trial record, making use of a thoroughly bogus history and deliberate misrepresentation, for blatantly political purposes, the representatives of the people ought to relieve those Justices from any further judicial responsibilities.

The other side, which might be called the aristocratic or elitist side, says this: that the need for "judicial independence" requires the substance of the opinions of the Supreme Court to be completely beyond public examination; that non-lawyer legislators lack the credentials to pass judgment on judicial opinions; that in voting to retain Justices, legislators may only consider such "neutral principles" as whether the Justices cheated or stole, or favored their relatives, or went bonkers in the court room, or failed to show up for work.

In the view of these partisans, the Constitution belongs to the lawyers and judges. The lawyers testifying on behalf of the Brigham Three at the February 16 retention hearing scarcely attempted to defend the Justices against documented charges that they shamelessly rewrote the Constitution and violated their oath of office. They simply declared, in so many words, that the legislators had no business inquiring into the content of opinions. What could anyone but a lawyer possibly know about such esoteric matters?.

The Brigham Three are piously refusing to enter into any discussion of their political ruling in Brigham. Justice Denise Johnson told the Retention Committee that the Judicial Conduct Code requires that "judges not engage in public debate about their decisions." Then in the next breath she went on to engage in just such a debate by attacking Brigham critics for making "arguments that are outrageous, unfounded, and factually incorrect." But the Code of Judicial Conduct, adopted by the Brigham Three in 1994, specifically says that Justices may "respond to attacks on the candidate's record." Justice Johnson can't even remember the rule she voted for. Much of the heavy lifting for the Brigham Three is being done by the media.

Leading the pack is AP Bureau Chief Chris Graff, whose column appears in most of the state's largest papers. (Oh? You thought AP merely reported the news?) His feeble argument for the Court: "Brigham...merely articulated an inequity most all acknowledged," as if the Supreme Court is in the business of "articulating inequities", instead of ruling on the plain language of the Constitution.

The lawyer's guild has plans to make sure Justices never again have to suffer the indignity of having their opinions questioned by the peasants. Justice Dooley himself has taken the lead on this. In a chapter in a book published this month he ruefully noted the two judicial retention "near misses" of 1996, and announced "the emergence of a broad consensus" - undoubtedly among his lawyer friends - "that the retention process is flawed and must be repaired." To those who share Justice Dooley's "none of your business" mentality, the retention process is "flawed" because people outside the legal fraternity still have a voice in deciding whether judges have been faithful to their oath of office.

It's too bad that Thomas Jefferson, who conceived Vermont's current retention process in 1821, is not around to give an answer to that one. "It is a misnomer to call a government a republic," he then wrote, "in which a branch of the supreme power is independent of the nation." Just so, and the people ought to remind their legislators of it.

# # #

(The Institute's full report on Judicial Retention is available on this web page under "Institute Policy Proposals and Fact Sheets".) Click here to view.

February 1999