Trump and Obama Justices Condemn Actions of Vermont State Employees

One Trump Supreme Court appointee joined two Obama Supreme Court appointees in condemning the actions of Vermont state employees, suggesting that the rule of law can overcome the partisan divide.

In November 2017, Vermont game wardens received a report that Clyde Bovat of Hinesburg had hunted deer illegally at night. "After arriving at Bovat’s property, they looked through the window of his garage and saw deer hair on his truck and other evidence of illegal hunting. The wardens then got a search warrant for the garage.”

Bovat tried to suppress the evidence on the grounds that it violated his Fourth Amendment rights (for a refresher, the Fourth Amendment reads, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”). Bovat was convicted in 2018, lost his hunting license for three years and was fined $607. In the fall of 2019, the Vermont Supreme Court upheld Bovat’s conviction, “ruling the wardens had the right to be in his driveway and the garage window was in plain view.”

But 3 Supreme Court Justices had strong words for the actions of these state officials. “The Fourth Amendment hardly tolerates the sort of meandering search that took place here,” said Neil Gorsuch, who was nominated by President Trump in 2017. “The wardens violated the Constitution, and the warrant they received premised on the fruits of their unlawful search was thus tainted.” Justices Sonia Sotomayor and Elena Kagan (both nominated by President Obama) joined Gorsuch in condemning the Vermont game wardens.

The Vermont Department of Fish and Wildlife said it would review “how its game wardens conduct searches.” But Department Commissioner Louis Porter didn’t sound chastened when he noted that the full 9-member Supreme Court declined to hear the case and the illegal hunting conviction stands.

That brush off should not diminish the condemnation of 3 justices. The Supreme Court only accepts 100-150 cases out the 7000 requests it receives each year (1-2%), and most of those 7000 never receive even a sentence of opinion.

The Fourth Amendment is not something Vermont state employees should trifle with, and they were ‘oh so close’ to receiving a legally binding scolding.

In a world of partisan bickering, it is refreshing to know that the representatives of the Judiciary branch of government can get together to issue such a statement, no matter how brief. Indeed, in the Supreme Court’s most recent term, which ran from October 2019 to June 2020, the court ruled 9-0, 8-1, or 7-2 66% of the time. Only 14 cases (23%) were decided 5-4. In today’s hyper partisan world, the Supreme Court has a rule of consensus, with disagreement being the exception. In the event that the presidential election could be decided by the Supreme Court, we can remain hopeful that the Court will rise above politics.

You can the read the full Bovat saga here.

David Flemming is a policy analyst at the Ethan Allen Institute.


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Enter Comment Here:

  • Gordon & Jan Payne
    commented 2020-10-24 06:25:04 -0400
    Interestingly, this same kind of search was conducted by the police in Lawrence v Texas (which has been misconstrued to uphold homosexuality as a right), but not addressed by SCOTUS, the facts supporting a different more basic holding than the ratio decidendi. The window was in plain view, not the contents. Before they got to the window, they were trespassing. Another demonstration of the breakdown of the barrier between private right and public action. State action is not the purpose of either the Federal or Vermont Constitutions, and the Vermont court did a disservice to its. The purpose is the protection of private right, which, properly exercised, obviates the need for any public intervention, apart from upholding it, which was violated here in the enforcement. Ends don’t justify means, though there are those who have reasoned so with a religious rigor. Due process is not some potted plant, and game wardens are not excused from it. A refusal of cert is not an affirmation.