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A Judge LynchingIMMEDIATE RELEASE - May 10, 2009
Contact: William Boardman - 802-457-1782

By William Boardman

Woodstock, VT - The majority of Vermont's 28 Assistant Judges spent a day learning about judicial ethics and professionalism at the Windsor County Superior Court here recently. The course was offered by the Vermont Supreme Court, which does not usually train side judges.

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Chief Justice Paul Reiber welcomed eighteen side judges from eleven counties to the Supreme Court's first class in "Ethics and Professionalism For Assistant Judges. While acknowledging the "special tension that exists in the Vermont court system," Justice Reiber reminded the group that there job was to focus on "what is in the best interest of the business of the court."

The first half of the course was devoted to the Vermont Code of Judicial Conduct, under the tutelege of three trial Judges, Hon. Harold Eaton, Hon. David Howard, and Hon. Walter Morris. As judge Morris pointed out, most people are looking for clear limits, certainty, "bright lines" to guide their behavior, but "there's not a lot of certainty very often"

This is illustrated, he noted, in the preamble of the judicial code, where it says that the code comprises "rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions."

The office of assistant judge is particularly subject to uncertainty, not only because the judges have executive and legislative functions, in addition to judicial duties, but also because assistant judges and probate judges are the only Vermont judges who run for office in political campaigns. Some of the ambiguities of the election process are addressed in Canon 5 - "A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity."

Judge Howard pointed out that in a 1994 case, in a 3-2 decision, the Supreme Court publicly reprimanded a retired assistant judge for publicly supporting other candidates in the 1990 election, even though the assistant judge himself had announced his retirement. The dissenters in that case were Chief Justice Allen and Justice Gibson, the two senior judges on the court at the time.

Justice Allan wrote, "I believe that this Court lacks jurisdiction to discipline a judge who has left the bench.. I find no court that has gone so far as to hold that it can take jurisdiction over a complaint filed against a judge who has already left the bench.. The main purpose for judicial discipline is not to punish judges but to protect the public. Once the offending judge is gone from the bench, this purpose no longer exists." (In re Steady, 161 Vt. 636)

This was the first time the judicial conduct board had considered a complaint that was filed against a judge who had already left the bench. The board was sufficiently divided in its opinion that it was unable to make a recommendation when it forwarded its report to the Supreme Court. The court's three justice majority based its reprimand on three Florida cases and one from Ohio where sitting judges were sanctioned for similar campaign activities.

Judge Howard pointed out an unsettled anomaly in the judicial code. The section describing the application of the code requires assistant judges to comply with certain sections "except while a candidate for election or re-election as a judge." Some judges consider themselves candidates for re-election from their first day in office, as do many politicians who hold other offices, Judge Howard noted. He advised that, even though there's no clear answer to the question of when an assistant judge is a candidate, any judicial candidate has a duty to be sure his or her campaign statements are accurate.

Addressing questions of professionalism, Judge Eaton emphasized the need for "exceeding the standards of the code" in considering judicial behavior. He noted that excess care is needed because "the way that people see us is not controlled by us."

Referring to the need for judges to avoid even the "appearance of impropriety" (Canon 2), Judge Eaton used the example of a judge having a drink in public and how that innocent act could become an appearance of a drinking problem. "You do not control what happens to the information (that you were having a drink)," Judge Eaton cautioned.

During the consideration of the Supreme Court's employee code of conduct, which most assistant judges had never seen before, one judge questioned the code's making "failure or refusal to comply with an order to accept a reasonable assignment" grounds for immediate dismissal. She wondered if this didn't have something to do with the Supreme Court seeking to control county employees, which is a continuing source of tension in the court system.

Judge Howard advised that a county employee caught in a situation like this should first comply with the order, then file a complaint.

The day-long session concluded with a series of role-plays, one of which illustrated the uncertainty surrounding when one "should" report apparent code violations, and when one "must" report them.

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