Side judge

Origins

The position of side judge was part of Vermont's government during the mid to late 1700s period of the Vermont Republic, and was continued in the Vermont Constitution when Vermont was admitted to the Union as the fourteenth state in 1791.

The idea of side judges appears to have been borrowed from the colony of Pennsylvania, and they were also part of the judiciary in other states, including New Hampshire and Connecticut. In Vermont, they were created in part because early Vermont residents were distrustful of lawyers, many of whom had received their training in England before the American Revolution, making their loyalty suspect, or had supported New York during the dispute between New York's colonial government and Vermont's original white settlers over control of Vermont's first towns. The founders of Vermont had purchased their land grants from Benning Wentworth, the Governor of New Hampshire. When the British government supported New York's attempts to assert control, those with New Hampshire land grants refused to re-purchase them from New York. Adding lay judges to the courts was a means of ensuring that pro-British or pro-New York judges could not control the courts.

Development of the county courts

Vermont's county courts, the predecessors of the modern Superior Court, were established in 1781 with a chief judge and four assistant judges in each county, all elected by the freemen. In 1787 the number of assistant judges in each county was reduced to two, and the power to elect them was transferred to the General Assembly. In 1824 the office of chief judge was abolished, and each county court was thereafter held by a justice of the Vermont Supreme Court sitting with the two side judges. An 1850 constitutional amendment returned the election of side judges to the voters. From 1850 to 1857, four circuit judges appointed by the General Assembly presided over the county courts; Supreme Court justices then again rode circuit until 1906, when the office of superior judge was created.^{: 324–325}

Attorneys continued to serve as side judges into the 20th century. In Cady v. Lang (1921), the Vermont Supreme Court held that an assistant judge could not act as counsel while in office, and no attorney has served as a side judge since.^{: 321 n.2, 326}

Narrowing of judicial authority

Side judges' role in criminal cases was first challenged in State v. Dunkerley (1976), a first-degree murder prosecution. Because the two side judges formed a majority of the court, they could in principle make any legal ruling over the presiding judge's objection; the Supreme Court held that this possibility violated due process and barred side judges from deciding legal issues in criminal cases. Justice Franklin S. Billings Jr., concurring, would have applied the same rule to civil cases.^{: 340–341} The criminal rules were then amended to give the presiding judge alone the legal component of mixed questions of law and fact, while preserving the side judges' role in finding facts and in sentencing.^: 341 In State v. Hunt (1984), the two side judges in a widely publicized murder case overruled the presiding judge and rejected a plea agreement. The Supreme Court upheld their authority to do so, reasoning that the decision was an exercise of discretion rather than a question of law; Justice Louis P. Peck dissented, arguing that the majority had evaded Dunkerley.^{: 341–346} According to published reports, Jane Wheel and an attorney for the Association of Assistant Judges attempted to influence the outcome of the appeal while it was pending.^{: 330 n.51} In State v. Hamlin (1985), the court upheld side judges' participation in criminal sentencing, reasoning that they were at least as qualified for the task as jurors, whose participation in sentencing is constitutional.^: 348

When law and equity were merged in 1969, the powers of a chancellor were vested exclusively in the presiding judge, raising the question of whether side judges could sit in equity cases. The Vermont Supreme Court at first treated their participation as harmless "surplusage", but in Pockette v. LaDuke (1981) it held that a court including side judges lacked jurisdiction over an equitable claim, and in several later cases it found their participation reversible only where it had affected the result.^{: 330–333} In Soucy v. Soucy Motors, Inc. (1983), the court abandoned that harmless-error approach, holding that the mere presence of side judges in an equity case left the court improperly constituted and required reversal. Justices Ernest W. Gibson III and William C. Hill dissented.^{: 334–335}

The decision put earlier judgments in doubt; one local news report claimed that up to 25 percent of the state's court judgments could be reversed.^: 14 Legislation to further limit side judges' role followed in the 1984 session. The Association of Assistant Judges, led by its president, Chittenden County Assistant Judge Jane Wheel, lobbied against it, and the bill that passed was a compromise.^: 13–14 The act, approved on April 27, 1984, vested equity jurisdiction in the superior court as a whole rather than in the presiding judge alone, declared that the Legislature had never intended side judges' participation in equity cases to be reversible error, and barred judgments entered before Soucy from being set aside on that ground.^{: 322–323, 336–337} It also rewrote the statute on the court's composition: questions of law, including mixed questions of law and fact, were to be decided by the presiding judge alone, who would also decide how each question was classified; side judges present in the courthouse would decide for themselves whether they were available for a case; and a side judge who became unavailable during a trial could not return to it.^{: 322–323} Substantially the same provisions remain in current law. In Solomon v. Atlantis Development, Inc. (1984), the Supreme Court held that the act's provision protecting pre-Soucy judgments violated the separation of powers, but reached the same result by applying its own retroactivity analysis.^: 338 In 1985, a Vermont Law Review note argued for retaining assistant judges as elected county officials while ending their judicial functions.^{: 351–352}

In 1990 the Legislature created the Vermont Family Court, transferring jurisdiction over family matters from the superior, district, and probate courts. Side judges were given a role in it under rules largely modeled on the 1984 act, with two additions: the court must publish its schedule far enough in advance for side judges to choose the cases they will sit on, and a case retried after a mistrial must be heard by the presiding judge alone or with both side judges. The Supreme Court applied the division between law and fact to these cases. In Bolduc v. Courtemanche (1992), the two side judges in a custody case issued their own order awarding custody to the father, and the presiding judge later signed a different order awarding custody to the mother. The court held that the side judges lacked authority to award custody, so their order was a nullity; but because their factual findings had been made by a majority of the court, they were the court's findings, and the presiding judge was required to apply the law to them. In Woodbury v. Woodbury (1994), the court described a custody determination as a mixed question of law and fact, to be decided by the presiding judge on the basis of the court's findings, including those of the side judges.

Judicial conduct

Side judges are bound by the Vermont Code of Judicial Conduct and subject to discipline by the Judicial Conduct Board, which may reprimand a judge or suspend a judge for part or all of the judge's remaining term. The most serious misconduct case involving a side judge began in 1985 with a state investigation of Jane Wheel's pay vouchers. In January 1987 the Judicial Conduct Board charged three Supreme Court justices, Hill, Thomas L. Hayes, and Gibson, with showing favoritism toward her, and in 1988 Wheel was convicted of false swearing. In Velardo v. Ovitt (2007), the Supreme Court ordered a new trial in a custody case after learning that one of the side judges was the sister of the child's guardian ad litem, holding that side judges must disqualify themselves under the same rules as other judges. In In re Boardman (2009), the court suspended a Windsor County side judge from all of his duties for six months for a conflict of interest: acting for the county, he had sold county property on favorable terms to a nonprofit on whose board he sat. Rejecting an argument by the Vermont Association of County Judges, the court held that its disciplinary authority extends to side judges' administrative duties as well as their judicial ones. In 2017 the Judicial Conduct Board suspended Windham County Assistant Judge Paul Kane and permanently barred him from judicial office over his handling of an elderly woman's estate.

Reform and restructuring

Abolition of the office was recommended by a special committee studying the state's judicial system in 1937, by the Judicial Branch Study Committee in a 1966 report to the Legislative Council, and in a 1974 study of Vermont's courts by the National Center for State Courts, but none of these proposals was adopted.^{: 351 & n.198} After a 1974 constitutional amendment required judges to retire at age 70, 14 of the 28 sitting side judges were ineligible to run for re-election that year.^: 328

Though reorganization of the judiciary in other states eliminated the side judge position, it has continued in Vermont. A 2009 judicial restructuring plan left the office in place, and the restructuring law passed in 2010 merged the state's trial courts into a single Superior Court with civil, criminal, family, probate, and environmental divisions, with side judges retained in the Civil and Family Divisions. A 2013 efficiency study that favored eliminating the elected posts was likewise not adopted.