1Wednesday, April 7, 1999
Journal of the
Joint Assembly
______
IN JOINT ASSEMBLY, April 7, 1999
9:00 A.M.
The Senate and House of Representatives met in the Hall of the House of Representatives pursuant to a Joint Resolution which was read by the Clerk and is as follows:
J.R.S. 34. Joint resolution providing for a Joint Assembly to vote on the retention of five Justices of the Supreme Court, three Judges of the Superior Court, and five Judges of the District Court.
Whereas, by virtue of the provisions of 4 V.S.A. 608 and of J.R.H. 51, the vote on the retention of incumbent Justices of the Supreme Court and incumbent Superior Court Judges and incumbent District Court Judges who have submitted declarations seeking retention has been deferred until a time frame between March 18, 1999 and April 8, 1999, now therefore be it
RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES:
That the two Houses meet in Joint Assembly on Wednesday, April 7, 1999, at nine o'clock in the forenoon to vote on the retention of a Chief Justice and four Associate Justices of the Supreme Court, three Superior Court Judges, and five District Court Judges. In case the vote to retain said Justices and Judges shall not be made on that day, the two Houses shall meet in Joint Assembly at nine o'clock in the forenoon, on each succeeding day, Saturdays and Sundays excepted, and proceed until the above is completed.
Presiding Officer
Honorable Douglas A. Racine, President of the Senate, in the Chair.
Clerk
Robert H. Gibson, Secretary of the Senate, Clerk.
Statement of Presiding Officer
Pursuant to our Constitution and statutes we are assembled here today in Joint Assembly to cast our votes on the retention of five (5) Justices of the Supreme Court, three (3) Superior Judges, and five (5) District Judges.
This year we are again operating under the Judicial Selection Act passed in 1966, and as amended in 1972 and 1976 and in 1980, 1981 and 1985, which means that the procedure for the retention of incumbent Justices of the Supreme Court, Superior Judges, and District Judges will be in accordance with this Act. The 1985 amendment changed the date of holding Joint Assemblies for the retention of judges from the seventh Thursday of the session to the eleventh Thursday of the session, in order to give the Joint Committee on Judicial Retention more time to consider the Judges who are up for review. And this year, pursuant to the statute which permits this, 4 V.S.A. 608, we have delayed this Joint Assembly from the eleventh Thursday of the session, (which was March 18th) to the present date, April 7th, in order to give the Judicial Retention Committee additional time to perform its duties.
For the vote on these Judges the procedure will be that the vote will be by written ballot on the specific question:
"Shall the following Judges be retained in office?"
There will be three separate written ballots: one containing the names of all of the candidates for the Supreme Court; one containing the names of all of the candidates for the Superior Court; and one containing the names of all of the candidates for the District Court.
Retention of Supreme Court Justices
We shall now proceed to the vote on the retention of the five (5) Justices of the Supreme Court. As stated previously, we are now operating under the Judicial Selection Act passed in 1966, which means that the procedure for the retention of Supreme Court Justices is in accordance with this Act. Nominations are not received from the floor; rather, each candidate who seeks retention files a declaration of intention to run for retention with the Secretary of State. By this means the name of each candidate is automatically placed in nomination pursuant to the terms of the Judicial Selection Act.
In addition, the Judicial Selection Act provides that when a candidate does so declare for retention, the question to be decided shall automatically be:
"Shall the following Justices of the Supreme Court be retained in office?"
The statute now provides that the vote on this question shall be by one written ballot containing the names of all of the candidates.
For the five (5) positions in question, we have received from the incumbents declarations of intention to run for retention to the office of Justice of the Supreme Court, as follows:
Jeffrey L. Amestoy, Chief Justice
John A. Dooley III, Associate Justice
Denise R. Johnson, Associate Justice
James L. Morse, Associate Justice
Marilyn S. Skoglund, Associate Justice
The question to be decided in each of these cases shall be as follows:
"Shall Chief Justice Jeffrey L. Amestoy be retained in office?"
Yes No .
"Shall Associate Justice John A. Dooley III be retained in office?"
Yes No .
"Shall Associate Justice Denise R. Johnson be retained in office?"
Yes No .
"Shall Associate Justice James L. Morse be retained in office?"
Yes No .
"Shall Associate Justice Marilyn S. Skoglund be retained in office?"
Yes No .
The ballot which you will receive will contain these questions in printed form on one single ballot. The terms of these Justices of the Supreme Court is for six (6) years, from and including the first day of April, 1999, and until his or her successor is elected and has qualified.
Accordingly, we will need Tellers, and the Chair will now make those appointments.
Tellers Appointed
The Chair appointed the following Tellers:
Senator Mark A. MacDonald, of Orange District, as Chief Teller
Senator Hull P. Maynard, Jr., of Rutland District
Senator Gerald P. Morrissey, of Bennington District
Representative Michael R. Kainen, of Hartford
Representative Bill Mackinnon, of Sharon
Representative Janice L. Peaslee, of Guildhall
Representative Barbara Postman, of Brownington
To facilitate the procedure for this morning, the Chair will rule, unless there is objection, to receive any debate on these five Justices separately and at the end of the debate for all of the Justices, any general debate on the entire question shall be in order.
Prior to any debate or voting, we will receive the report of the Joint Committee on Judicial Retention relating to these candidates for Justices of the Supreme Court who have filed for retention. The Chair now recognizes the Chair of this Committee, the Senator from Chittenden District, Senator Ankeney, for the purpose of receiving her report.
Senator Jean B. Ankeney then delivered a general report for the Joint Committee on Judicial Retention with respect to the candidacy of all of the Justices of the Supreme Court and of all of the Superior Court Judges and of all of the District Court Judges, as follows:
“Mr. President:
“I would like to review for a moment the charge which members of the Judicial Retention Committee understood when reviewing the candidacies of those justices and judges who indicated their desire to serve another six-year term. In our review we evaluated judicial performance, integrity, judicial temperament, impartiality, health, diligence, legal knowledge and ability, as well as administrative and communicative skills. And, we are further charged to report our findings to you, our legislative colleagues.
“We sought information from members of the Bar Association, attorneys, assistant judges, county clerks, court reporters, guardians ad litem, probation officers and victims’ advocates. They answered detailed questionnaires, and in addition, they sent to us both signed and unsigned comments.
“Although some members of our committee agreed or disagreed with some of the decisions which the court handed down, it was not our purpose to re-try individual cases, nor are we equipped to do so. To the best of our ability we sought to determine whether or not the process these justices and judges followed when deciding these cases was based on good jurisprudence, was firmly rooted in the Vermont Constitution, and in the Canons and Code upon which our laws are based.
“We recognize that an independent Judiciary is indispensable if we are to have justice in our society, and that the men and women whom we appoint and retain must interpret the law without bias and without fear of the political pressures. They must be scholars of the Constitution, and constant students of the law in this ever-changing society.
“I would like to close by quoting from the preamble of the Vermont Code of Judicial Conduct:
‘Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts or law for the resolution of disputes and is a highly visible symbol of government under the rule of law.’
“With this in mind, we, the members of the Judicial Retention Committee, present our reports to the members of this Legislature.”
The Chair then recognized Senator Richard W. Sears, Jr., of Bennington District, who delivered the report of the Joint Committee on Judicial Retention with respect to the candidacy of Chief Justice Jeffrey L. Amestoy, as follows:
“Mr. President:
“Jeffrey L. Amestoy has been Chief Justice of the Vermont Supreme Court since 1997 and is seeking retention for his first full six-year term. Prior to his appointment as Chief Justice most of us knew him as Vermont’s Attorney General -- a post he held from 1985 until 1997. Prior to that Chief Justice Amestoy served as Commissioner of Labor and Industry. He has also served as an Assistant Attorney General, as legal counsel to the Governor’s Commission on the Administration of Justice, and in the early ‘70s was an associate in the law firm of Mahady and Klevana.
“The Chief received his BA from Hobart College, a masters in Public Administration from Harvard University and a Juris Doctor from Hastings College of Law at the University of California.
“He is a native of Rutland, Vermont.
“In preparation for his retention, staff sent out surveys to 275 attorneys; roughly 30 percent responded and of those 97.3 percent recommended that Chief Justice Amestoy be retained.
“In his two meetings with the Committee, the Chief reported that the past two years had been challenging ones and that he had participated in deciding over 400 cases in 24 months. His number one goal remains to strengthen the faith of Vermonters in the Vermont system of justice. Toward that end he has formed a study group of Vermonters from all walks of life to look at the future of Vermont’s justice system. A report is expected in June.
“He is well prepared for the administrative duties as Vermont’s Chief Justice and describes it as being similar to chairing a legislative committee.
“Your Judicial Retention Committee strongly urges the retention of Jeffrey Amestoy. We were impressed with his sense of humor, his humility and his vast experience in the judicial and administrative fields. It is our belief that he deserves to be retained as our Chief Justice. Mr. President, I look forward to working with the Amestoy Court. The Committee vote was 8-0.
“Mr. President, I would like to close with a quote from the Chief when he appeared before the Senate Judiciary Committee for his confirmation hearing two years ago: ‘Two centuries ago, Alexander Hamilton said, ‘Ordinary administration of criminal and civil justice contributes more than any other circumstance to impressing upon the minds of the people affection, esteem and reverence toward government.’ I think that is still largely true, and if at the end of whatever term I may be fortunate enough to serve, I have not contributed to a greater faith of Vermonters in the Vermont judicial system, then I would have failed.”
The Chair then recognized Representative Thomas A. Little, of Shelburne, who delivered the report of the Joint Committee on Judicial Retention with respect to the candidacy of Associate Justice John A. Dooley III, as follows:
“Mr. President:
“I have had the privilege to meet and discuss with many of you, over the past few weeks, the performance of the judges and justices who are up for retention. I have written a detailed and probably tedious report on the retention of Justice John Dooley, and have discussed this with many members of the House and Senate. Over the last few days, I have come to the conclusion that most members of the General Assembly have formed a judgment and have decided how they intend to vote. Based upon my conversations and discussions, the decision-making process for you has been careful and time-consuming. You have taken to heart our Constitutional and statutory duties to consider carefully the last 6 years of each judge’s work, and are basing your decision and your vote on the cumulative total of the performance of each judge and justice.
“Therefore, I am not going to belabor the work of John Dooley over the last 6 years. I have distributed a 10-page report on Justice Dooley’s judicial performance, answering the criticisms levied against him. I believe these criticisms to be well-intended, for the most part, but I believe that they either stop short of a complete assessment, or misjudge the role of our Supreme Court in the balanced scheme of Vermont government. Some critics have taken cheap shots, taking sentences and decisions far out of the context in which they were written, or posing crazy scenarios outside the realm of likely possibility. I hope that my written report responds fully and fairly to those criticisms.
“I encourage you to question me about this report and my review of Justice Dooley’s work over the past 6 years.
“John Dooley has strong legal credentials. He plays a key role on our Supreme Court. He is very mindful of the power and authority he wields as a justice. He is sincere in his belief that the Constitution and our laws govern over all men and women in this state, himself included. Justice Dooley is committed to the rule of precedent, that is, that established Supreme Court cases form the basis of a stable body of law which should be extended to new factual situations carefully and cautiously. Most importantly, he does not shrink from taking difficult and unpopular legal positions when the law and the facts require it.
“I believe that the founders of our government, some 220 years ago, expected and hoped that our supreme court would have as a member someone as independent and occasionally even contrary as John Dooley can be. Our founders did NOT want a supreme court that agreed with everything the General Assembly did, or that agreed with the governor on every bill or regulation. They wanted a supreme court that was independent and free to make tough or unpopular decisions. I believe that John Dooley fits this description.
“Our state was founded on controversy and independence. I like to tell people that Vermont was founded over a title dispute - Vermonters disputing the title claimed by Yorkers over lands granted and settled under the New Hampshire grants of Governor Wentworth. Vermont became a republic, and then a state, when these independent souls stood up to the asserted lawful authority of New York. Our Constitution was written with this in mind, with the intent that the governing authority be chastened in its attempts to rule without limits, without checks and balances.
“When our Constitution was written, much attention was given to protecting the rights of individuals against the power and authority of the state - whether New York or Vermont. John Dooley has dedicated his career to the protection and care of the rights of individual citizens; he has learned to balance these rights against the proper needs and responsibilities of an ordered society committed to the rule of law in a democracy.
“Much criticism of our Supreme Court is based upon the erroneous assumption, the “a-ha” assumption, that there is an obvious, clearly discernible, well-established and broadly known and understood, common meaning of our state constitution; and, that some supreme court justices identify that meaning, figure out how that meaning applies to the case before the Court, but choose to set it aside, and to thwart and undermine the obvious meaning by subtly [blowing smoke at the litigants and their attorneys, and with subterfuge] declaring that the law means something else, in order to reach a particular result, however illogical or undemocratic result in the particular case. This criticism assumes that anyone can readily ascertain the true meaning of our Constitution when applied to complex fact situations.
“The primary fallacy of this criticism is that it is NOT always clear what the law is or should be in the context of a particular disputed case (where the law and/or the facts are hotly contested by the parties). In these cases, our Vermont Supreme Court justices often struggle to ascertain what our short and very much unamended state constitution means in the 1990's; just as our U. S. Supreme Court justices struggle, and disagree about, what our U. S. Constitution means today. In important or difficult cases, our Supreme Court may struggle to reach consensus, much as House or Senate Committees struggle to reach consensus on controversial bills. With our Vermont Constitution, there is often little to guide our Supreme Court, and they are called upon in those cases to read our Constitution and decipher its meaning and application to specific facts. Reasonable persons, and reasonable judges, can and do disagree about the outcome of these cases.