It’s a cold-case issue that could get a lot hotter in Vermont. It looks as if some Supreme Court Justices and other judges may not or have not been compliant with the State’s Constitutional requirements regarding their oath of office. As a result, they may not be legally serving on the bench. Ditto for Justices and judges past who weren’t compliant.

Could Vermont Supreme Court cases be overturned because the sitting Justices weren’t really empowered to sit on the court? How about other cases? Trying to sort that bird’s nest out would be chaotic at best.

Could it actually happen? If you read the Green Mountain state’s Constitution and its requirements for the oath of office, that’s exactly the potential outcome for the state, and it’s backed up by two old Supreme Court rulings by Justices who had been properly sworn in.

According to a commentary on the Ethan Allen Institute site, John Dooley, who handed down the first Civil Unions ruling and the infamous “Brigham” ruling may not have been legally a Justice when those rulings were handed down.

Brigham led to the state taking more property taxes from Vermont’s Gold Towns (i.e. Manchester, Dorset, Killington and Stowe and others) than from its poor towns to fund education, contrary to the US Constitution. That case motivated Killington to try to secede from Vermont.

I wrote the full story on Examiner.com, where you can read all the details of how Justices and judges may not be Justices and judges under the headline Vermont Supreme Court: “no compliance, no office.”

For Vermont, this could be a challenge that could shake the state’s Judiciary System to its core and put in doubt outcomes of cases past. The state is going to have to come up with a quick-fix Constitutional amendment grandfathered back to when the omissions began, but those take time to push through.

What’s the state’s next step?

James Hyde
Managing Editor
The New England Online Magazine
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