Side judge, or assistant judge, is an elected judicial office unique to the U.S. state of Vermont. Each of Vermont's 14 counties elects two side judges to four-year terms. Like lay judges, side judges are usually not legal professionals.
Side judges have two roles. In court, they sit alongside a legally trained presiding judge in most cases in the Civil and Family Divisions of the Vermont Superior Court, where they take part in deciding questions of fact but not questions of law. They also serve as county officials, preparing the county budget, caring for the courthouse and other county property, and appointing the county clerk and treasurer.
The office dates to the founding of Vermont's county courts in 1781. Since the 1970s, court decisions and legislation, notably a 1984 act, have narrowed side judges' judicial authority, and repeated proposals to abolish the office have not been adopted. In the 1980s, an investigation of Chittenden County Assistant Judge Jane Wheel led to ethics charges against three justices of the Vermont Supreme Court.
The office
Unlike the presiding judges of the Superior Court, who are appointed by the Governor with the consent of the Vermont Senate from a list of nominees prepared by a judicial nominating body, assistant judges are elected, as are probate judges. Side judges run at-large (not specifically for one of the two seats) and county-wide in November of even-numbered, non-presidential election years, and serve four-year terms. The terms begin on the following February 1.Vermont Superior Court, In re Assistant Judge Calvin Colby , December 14, 2009
In the event of a vacancy, the Governor is empowered to appoint a replacement.Domenic Poli, Brattleboro Reformer, Gov. Appoints Barnett as Windham County Side Judge , August 11, 2012
Vermont's Assistant Judges also have a professional association and lobbying group, the Vermont Association of County Judges.
Judicial role
Side judges sit with the presiding judge in most cases in the Civil and Family Divisions of the Superior Court, which since a 2010 restructuring has been Vermont's single statewide trial court, sitting in each of the state's 14 counties at the county's "shire town" or county seat. They do not sit in the Criminal, Probate, or Environmental Divisions, where a single judge presides, or in certain Family Division proceedings, such as juvenile and mental health cases.
There are normally two side judges on the bench, but the court may proceed with only one side judge or none. Side judges, who are generally not attorneys, take part only in deciding questions of fact. Questions of law are decided by the presiding judge alone; mixed questions of law and fact are treated as questions of law, and the presiding judge alone decides how each question is classified. On questions of fact, a side judge's vote carries the same weight as the presiding judge's, so two side judges can outvote the presiding judge.Brattleboro Reformer, Disorder in the Courts , April 9, 2010 If the court consists of the presiding judge and one side judge and they do not agree on a decision, a mistrial is declared. Once a side judge has decided to participate in a hearing or trial, the side judge may not withdraw except for cause, and a side judge who becomes unavailable during a trial may not return to participate in it. Side judges who undergo some training may also sit alone in small claims, uncontested divorces, traffic offenses, and violations of municipal ordinances.Cornelia Cesari, Randolph Herald, ‘Side Judges’ Wear Two Hats , December 6, 2007
County government role
Side judges have administrative duties in addition to court responsibilities. They prepare the county's proposed budget and present it at an annual county meeting, care for the courthouse and other county property, appoint the county clerk and county treasurer, and contract with a public accountant for a biennial audit of the county's accounts. As a result, side judges receive two types of compensation: a salary for their administrative duties, paid by the county, and a per diem for their judicial duties, paid by the state.
Once the county budget has been determined, municipalities in the county are assessed a portion, based on their grand list (total evaluation of property in the municipality).
History 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.Vermont Archives and records Administration, , retrieved January 16, 2014Vermont Archives and records Administration, , retrieved January 14, 2014
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.David W. Belisle, History of Independence Hall, 1859, page 172Franklin Ellis, Samuel Evans, History of Lancaster County, Pennsylvania, 1883, page 226National Society of the Colonial Dames of America in the State of Pennsylvania, Register of Pennsylvania Society, 1907, page 227 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.Vermont Bar Association, The Vermont Bar Journal & Law Digest, Volume 16, 1990, page 5Jerome Alan Cohen, The Criminal Process in the People's Republic of China, 1949-1963, Volume 2, 1968, page 434
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.
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.Cady v. Lang, 95 Vt. 287, 115 A. 140 (1921).
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.State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976). 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. 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.State v. Hunt, 145 Vt. 34, 485 A.2d 109 (1984). 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. 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.State v. Hamlin, No. 82-339 (Vt. July 5, 1985).
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",Villeneuve v. Bovat, 128 Vt. 345, 262 A.2d 925 (1970). 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.Pockette v. LaDuke, 139 Vt. 625, 432 A.2d 1191 (1981). 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.Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983).
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. 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. 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.1983 Vt. Acts & Resolves No. 201 (Adj. Sess.), approved April 27, 1984. 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. 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.Solomon v. Atlantis Development, Inc., 145 Vt. 70, 483 A.2d 253 (1984). In 1985, a Vermont Law Review note argued for retaining assistant judges as elected county officials while ending their judicial functions.