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Vermont High Court Turns Blue

Justice’s Retirement Firms Democrat’s Hold

Montpelier — The retirement last month of Associate Justice Brian Burgess from the Vermont Supreme Court means that appointees of Democratic governors will soon have almost total control over the decisions coming from the state’s highest court.

Gov. Peter Shumlin is expected to announce his second appointment to the court as early as this week, making him and former Democratic Gov. Howard Dean responsible for selecting four of the court’s five justices.

But while Chief Justice Paul Reiber, appointed by Republican Gov. James Douglas in 2004, will be the lone holdover of the GOP’s gubernatorial legacy, legal experts say the conservative-liberal dichotomy often used to characterize the U.S. Supreme Court isn’t as useful in Vermont.

“I’m always leery about typecasting members of the Vermont Supreme Court, because they always surprise you,” said Daniel Richardson, a Montpelier lawyer and founder of the SCOV Law blog, which has published summaries and analyses of every Vermont Supreme Court decision since July 2010.

Which isn’t to say Burgess’ rulings don’t often reflect the judicial bent one might expect from the appointee of a Republican governor, according to Richardson, who called him “perhaps the most conservative member of the Supreme Court.”

“He comes out of the attorney general’s office, and he tends to favor in his decisions that view of the world — the prosecutorial view,” Richardson said. “He tends to shy away from the expanding of certain constitutional rights or distinctions.”

Burgess joined the court in 2005.

Cheryl Hanna, a professor of constitutional law at Vermont Law School and frequent commentator on rulings out of both the Vermont and U.S. supreme courts, said that coming from the trial courts, Burgess is “what you might call a judge’s judge.”

“He thinks a lot about how decisions in Supreme Court cases get translated down to the trial court,” Hanna said. “He has I think a particularly strong law-and-order perspective, and I think that was one of the things in particular that you could see reflected in his rulings.”

Hanna used to keep a record of votes in Vermont Supreme Court rulings, a database that she said underscored the infrequency with which the court issues split decisions. While judges may not disagree often, she said, when they did split, “often it was between Douglas appointees and appointees by Democratic governors.”

The departure of Burgess will leave the court with only one former trial court judge in Associate Justice Marilyn Skoglund, a Dean appointee.

Richardson said the conventional wisdom in the legal community, which he warns doesn’t necessarily “have anything to do with reality,” is that Shumlin will elevate his next appointee from the trial court, to retain bench experience.

Richardson said two names being talked about in lawyer circles are Helen Toor, who presides over courts in Addison County, and Geoffrey Crawford, who now presides in Chittenden County.

Whomever Shumlin names to the court, Hanna and Richardson said new justice will face some compelling and meaningful issues in the coming years.

Hanna said the court is still grappling with the use of new technology by law enforcement and the extent to which it interferes with Vermonters’ privacy rights.

The Vermont Constitution has long been interpreted as granting greater protections against search and seizure than the U.S. Constitution, and Hanna said future rulings could sharpen the contrast.

Richardson said the next justice may also be asked to weigh in on aspects of health care reform now making their way through the legislative process. From public financing under single payer and rate setting by the Green Mountain Care Board to mandates in the new health insurance exchange, Richardson said, many of the state’s reforms are likely headed for judicial review.

“The Green Mountain Care Board has been very much a get-along board so far,” Richardson said. “But in the future it may be you have some cases where there’s some contention, and so this justice may be reviewing it.”